In Park v. Mitchell, 2020 BCSC 1147, Mr. Justice Robert Johnston dealt with probate issues reserved exclusively to the courts but, in doing so, recorded how parties can move from court litigation, to negotiated settlement, to mediation agreement, to repudiation and back again, attempting to resolve their disputes. His reasons illustrate how court-ordered cross-examination in litigation can lead to information disclosure and/or meetings which occasion negotiated settlements. Those settlements may require mediation which generate agreements but, once repudiated, require the parties to return to their earlier settlement and then to court to enforce that settlement. The dispute resolution sequence prompted Johnston J. to question whether a litigant could enforce a settlement in probate proceedings or be obliged to sue on the settlement in a separate action.
On January 1, 2015, RJP passed away, leaving three (3) children, two (2) of which, M and P, were appointed as co-executors and trustees by RJP’s will. The court granted probate on November 27, 2015 but, as Johnston J. observed, “[n]ot much has happened since to advance the administration of the estate, for which each of [M]l and [P] blame the other”. During the course of their administration of the estate, M and P disagreed over the sale of a property leading M to apply for an order or directions approving M’s purchase of the property (“Application”).
That Application was adjourned September 15, 2017 further to a court order that M and P could cross-examine each other. The Application did not proceed, despite adjournments, as M and P reached a written settlement signed by each and effective August 8, 2018 (“Settlement”).
At paras 12-14, Johnston J. reproduces the broad terms of the Settlement. The recitals and terms of the Settlement mention their various litigation matters as well as terms by which M and P would resolve key disagreements between them. Johnston J. observed that the Settlement agreement contained a mediation clause “in the event there were disagreements over its implementation”.
In light of ongoing disagreements on how to implement the Settlement, M and P agree to mediate. That mediation resulted in a November 2018 signed, handwritten memorandum (“Memorandum”). After signature, M argued that the Memorandum as incomplete and requested further terms and, later, asserted that she repudiated it. P accepted M’s repudiation of the Memorandum and M and P agreed that they terminated the Memorandum.
M and P returned to the Settlement and their ongoing differences. A June 26, 2019 order (“Order”) granted an application by P but issued in M’s absence. The reasons for her non-attendance are set out at para. 19.
Following the Order, M and P each applied to the court for orders. See para. 23 for M’s relief and para. 31 for P. Johnston J. noted that M did not seek to vary, set aside or appeal the Order and that her application did not raise a question of law excusing her from compliance with the Order.
Johnston J.’s reasons deal with M’s and P’s competing applications and, at para. 72, he dismisses the applications.
The complexity of the issues raised by both the nature of probate and the sequence of the parties’ efforts to resolve their disputes is reflected in the list of questions Johnston J. reproduced at para. 47 of his reasons, including no. 5:
“5. Can [M] to enforce a settlement agreement in this probate proceeding or is she obliged to sue on the settlement in the ordinary way?”
urbitral note – First, Johnston J.’s reasons illustrate the ability of the courts to order procedural steps such as cross-examination which, due to the exchange of information and/or the opportunity for the parties to meet, lead to negotiations and settlements. Such orders assist the parties to court litigation to negotiate terms to exit their litigation.
Despite the court’s assistance, the reasons also illustrate that some settlements can generate their own disputes and that those disputes can be resolved by further mediation. The difficulty though arises when the parties do not provide sufficient clarity to their resolutions or, despite the presence of clarity, agree to forget certain resolutions and return back to earlier resolutions.
Johnston J. at para. 15 records the parties’ willingness to concede ground on the Memorandum in order to advance on at least an earlier agreement, the Settlement, which resolve earlier litigation.
“ There were disagreements between [M] and [P] over the implementation of the settlement agreement and in November 2018 they attended a mediation as called for in the agreement. The mediation resulted in a handwritten memorandum setting out terms of settlement which was signed by each party and their counsel. [M] soon took the position that the mediated agreement was incomplete, and through her lawyer requested additional terms. [M]now says she repudiated this agreement within days, and [P] has accepted this repudiation. [P] now agrees that both he and [P] terminated the agreement between the parties”.
Second, the reasons highlight the necessity of being clear when settling disputes, failing which the parties may prolong their disputes. The reasons also show that parties can concede certain disagreements in order to advance towards resolution. P accepted M’s repudiation of the mediated agreement in order to return to the Settlement, thereby avoiding further disputes accessory to the core of their disagreements.
Third, in his reasons, Johnston J. underlines the formality of court proceedings and, in doing so, implicitly draws attention to certain disputes held beyond the reach of private commercial arbitration for resolution exclusively by the courts. His reasons comment in passing on the procedural titles used in the record and draw distinctions between administrative and adversarial forms of court proceedings involving estates and probate.
Though not express in his reasons, his distinctions also address matters which would not be subject to arbitration, including probate and the court’s oversight of the estate administration. Resolution of such disputes has impacts beyond the litigants and is reserved to the courts. The exclusive jurisdiction of the courts over probate is much like that reserved exclusively for Federal Court of Canada over the government-administered registers for patents, copyrights and trademarks.
“ Both applications are brought by Notice of Application in what is commonly called the probate action which was created when the executors applied for probate by way of Submission for Estate Grant as set out above.
 Unfortunately, to call a probate matter an “action” tends to mask the significant differences between a probate matter and an action, whether brought by Notice of Civil Claim or petition, in which one party pursues claims against another. A probate matter is a vehicle by which personal representatives assume and carry out their obligations to an estate under the supervision of the court. Matters brought by Notice of Civil Claim or petition, on the other hand, are vehicles by which disputes can be presented by way of pleadings, and adjudicated on the evidence relevant to those pleadings”.
“ It is apparent from reading this Rule in its context, which includes that it appears in Part 25 of the [Supreme Court Civil Rules, BC Reg 168/2009], that the matters on which applications are contemplated are administrative in nature; they have to do with the day-to-day administration of estates, and that they do not include what may be termed substantive claims, such as breach of fiduciary duty, or negligence such as claimed by [M]’s’s Notice of Application. Nor do they contemplate applications that could lead to a finding that an executor has acted in a “high-handed, vexatious manner” as claimed by [P] in his Notice of Application”.