The phrase “significantly unfair” is new to the law on domestic relations in British Columbia. Whatever “significantly unfair” might turn out to mean, the concept is of critical importance under the new Family Law Act [see Third Reading of Bill 16-2011 on the BC Legislative Assembly's website], as “significant unfairness” is the test that must be met before the court may:

1. divide family property or allocate family debt other than equally, under s. 95(1)

“The Supreme Court may order an unequal division of family property or family debt, or both, if it would be significantly unfair to equally divide family property or family debt, or both …”

2. divide excluded property, under s. 96(b);

“The Supreme Court must not order a division of excluded property unless… it would be significantly unfair not to divide excluded property …”

3. set aside agreements dealing with property and debt, under s. 93(5); and

“… [T]he Supreme Court may set aside or replace with an order made under this Part all or part of an agreement if satisfied that … the agreement is significantly unfair …”

4. set aside agreements dealing with spousal support, including agreements waiving spousal support, under s. 165(5).

“… [T]he court may set aside or replace with an order made under this Division all or part of an agreement if satisfied that … the agreement is significantly unfair …”

Fairness by Degrees

The Family Law Act is chock full of new language that will require the court’s interpretation. One of the first, I suspect, will be to determine what it is that “significant” adds to the meaning of “unfairness.”

“Unfair” without a modifying adverb is used at s. 65 of the Family Relations Act, RSBC 1996, c 128, where it marks the threshold that must be passed before the court reapportions property. “Grossly unfair” is deployed at s. 96 of the FRA with respect to the reduction of arrears of child support or spousal support, and we are all familiar with the case law dealing with “grossly” as a modifier of “unfairness” in this context; see Semancik v. Saunders, 2011 BCCA 264.

The plain language meaning of “significant” suggests that the threshold of “significantly unfair” is a higher standard more burdensome than mere “unfairness,” yet less burdensome than the zenith of “gross unfairness.”

• notable, weighty, important for what it indicates: The Century Dictionary and Cyclopedia, The Century Co., 1897, New York
• noteworthy, important, consequential: The Concise Oxford English Dictionary, Clarendon Press, 1995, Oxford
• important, momentous: The Imperial Dictionary, The Gresham Publishing Co., 1906, London
• sufficiently great or important to be worthy of attention, noteworthy: Dictionary 2.2.1, my MacBook

Few clues as to the legislature’s intent are found in the Family Law Act itself. The factors set out in ss. 93(5) and 165(5) are of course mutually consistent but have nothing in common with the factors set out at ss. 95(2) and 96(b), and of the two factors listed at s. 96(b), only one, the duration of the spousal relationship, makes an appearance in the nine specific factors described at s. 95(2) [roll mouse over here to see the nine factors]; see the excellent discussion of statutory construction by reference to related provisions in Sullivan on the Construction of Statutes [KL35.1.D75 2008]. As a result, it will likely be necessary to look beyond the new act for guidance.

“Significantly unfair” is used in only one other British Columbia statute, the surpassingly dull Strata Property Act, SBC 1998, c 43. In the context of owners’ suits against strata corporations, s. 164(1) provides as follows:

On application of an owner or tenant, the Supreme Court may make any interim or final order it considers necessary to prevent or remedy a significantly unfair
(a) action or threatened action by, or decision of, the strata corporation, including the council, in relation to the owner or tenant, or
(b) exercise of voting rights by a person who holds 50% or more of the votes, including proxies, at an annual or special general meeting.

Dollan v. Strata Plan BCS 1589, 2011 BCSC 570 helpfully summarizes the law on the interpretation of “significantly unfair”, at paragraph 24:

“The phrase ‘significantly unfair’ in s. 164 has been described in Reid v. Strata Plan LMS 2503, 2003 BCCA 126 as ‘burdensome, harsh, wrongful, lacking in probity or fair dealing, or has been done in bad faith’, ‘unjust or inequitable’, or unreasonable. Moreover, the word ‘significantly’ means that a court should only interfere if the actions or decision of a strata council results in ‘more than mere prejudice or trifling unfairness’ …”

In Gentis v. Strata Plan VR 368, 2003 BCSC 120, the court held that, at paragraph 28:

“… I understand the use of the word ‘significantly’ to modify unfair in the following manner. Strata Corporations must often utilize discretion in making decisions which affect various owners or tenants. At times, the Corporation’s duty to act in the best interests of all owners is in conflict with the interests of one particular owner or group of owners. Consequently, the modifying terms indicates that the court should only interfere with the use of this discretion if it is exercised oppressively, as defined above, or in a fashion than transcends beyond mere prejudice or trifling unfairness.

[29] I am supported in this interpretation by the common usage of the word significant, which is defined as ‘of great importance or consequence’: The Canadian Oxford Dictionary.”

In Strata Plan VR1767 v. Seven Estate Ltd., 2002 BCSC 381, the court emphasized the behavioural dimension of significant unfairness, at paragraph 47:

“The meaning of the words ‘significantly unfair’ would at the very least encompass oppressive conduct and unfairly prejudicial conduct or resolutions. Oppressive conduct has been interpreted to mean conduct that is burdensome, harsh, wrongful, lacking in probity or fair dealing, or has been done in bad faith. …”

Although some caution must be extended in recognition of the imbalance of power I expect to be characteristic of proceedings by owners against strata corporations, the general tenor of the case authority leans toward a definition of “significant unfairness” which sets the threshold somewhere beyond the “mere prejudice or trifling unfairness” mentioned in Reid v. Strata Plan LMS 2503, 2003 BCCA 126.

Whatever “significant unfairness” may ultimately be found to mean, the varying factors prescribed by ss. 93, 95, 96 and 164 to guide the court in its consideration of a case will likely result in the formulation of three different tests, each built up on a notion of unfairness that is more than merely unfair but less than grossly unfair.

In personal injury litigation, defenses to plaintiff injury claims are predictable – causation and failure to mitigate. Rarely does a personal injury trial occur without these two issues being in the forefront of the assessment of damages. In Cassells v. Ladolcetta 2012 BCCA 27 (CanLII) the Court of Appeal recently considered the proper test to be applied in claims of mitigation. In so doing it confirmed the test as established by the Supreme Court of Canada in Janiak v. Ippolito 1985 CanLII 62 (SCC), [1985] 1 S.C.R. 146 remains good law. In applying Janiak, the Court of Appeal confirmed that the test of failure to mitigate is an objective one.

In the case of Cassells, the Court considered the interesting issue of what is novel scientific evidence and also considered whether the trial judge had properly applied the Janiak test in assessing the plaintiff’s mitigation efforts. In Cassels the Plaintiff had delayed following advice to commence a form of drug therapy. The trial judge appears to have taken into consideration subjective factors in assessing the plaintiff’s decision to delay commencement of the drug therapy, holding in part as follows at paragraph 193 of his reasons in J.F.C. v. Ladolcetta, 2009 BCSC 1151:

…In the circumstances of this case, there is no question that based on a pure objective test, the plaintiff ought to have followed his doctors’ advice. Likewise, if that were all that needed to be considered, the correct result again is obvious because in Canada the law does not excuse objectively unreasonable choices, so long as the plaintiff has the requisite capacity to make them…

The trial judge, in analyzing whether the plaintiff had the requisite capacity to make the choice, stated in part as follows at paragraph 196:

However, the case becomes less obvious when accident-induced injuries take away the capacity to make the objectively rational decision. If the plaintiff’s capacity is reduced completely, that is a straightforward case – but less so when the accident-induced injuries have substantially inhibited, though not completely removed the plaintiff’s capacity to think through rationally the risks and benefits of the recommended treatment.

The appellants submitted that the trial judge erred in taking a “modified subjective” approach to determining whether and to what extent a plaintiff has failed to mitigate loss, contending that the failure to mitigate must be assessed on an objective basis.

Although declining to interfere with the award at trial, the Court of Appeal agreed with the appellant that the test for failure to mitigate is objective and is not subjective, modified or otherwise. In confirming that Janiak provides for an objective person test, Lowry J.A. writing for a unanimous bench said as follows:

[26] … I consider that if a plaintiff had the capacity to make the decision about treatment it is said ought to have been made, and the advice was sound, the mitigation question in each instance must be what would be expected of a reasonable person in the circumstances having regard for the plaintiff’s medical condition at the material time and the advice given concerning treatment. If, through no fault of his own, the plaintiff did not have the capacity to make the decision, or the advice was not sound, the question would not arise.

[27] It is not simply a matter of a plaintiff having to follow the advice given in order to mitigate the loss claimed, as the judge appears to suggest at the outset of his legal analysis; rather it is a matter of considering what a reasonable recipient of such advice would be expected do to in the circumstances having regard for the nature of the advice and any explanation of the risks and benefits given.

No new law is established by this recent decision, however it provides a very useful summary and explanation of Janiak and the proper way of applying the test of failure to mitigate. Given the clear and concise wording I expect it will become an oft quoted decision, relied on by counsel arguing both sides of a case.

Case Comment: The Public Trustee of the Province of British Columbia v. Dorothy Stewart Batiuk 1996 CanLII 2097 (BC SC)

Batiuk is a case that is as fascinating for its facts, and the attempts by both sides to prove those facts, as it is for its holding.

Dorothy Stewart Batiuk was an elderly woman who had suffered a stroke, and who lived with and was cared for by her husband until his death on May 6th, 1994, at which time she became the subject of a very heated committeeship application by the Public Trustee.

Shortly after Mr. Batiuk’s death, his sister and his niece arrived from Calgary to assist with funeral arrangements. They testified that they found Mrs. Batiuk living in appalling living conditions, and they immediately fired the housekeeper and discharged Mrs. Batiuk’s doctor of 14 years. The niece moved in and remained in Mrs. Batiuk’s home permanently.

The executor of Mr. Batiuk’s estate was Harry Rankin. He came to Mrs. Batiuk’s house on two separate occasions to interview her, and on two separate occasions he was denied access. The niece then informed Mr. Rankin that Mrs. Batiuk had executed a Power of Attorney in her favour, which caused Mr. Rankin to contact the Public Trustee, and the Public Trustee in turn contacted the niece, questioned her care and advised her that Mrs. Batiuk was mentally incompetent.

At this time, less than two months after the death of her husband, and before any judicial decisions had been rendered on the question of Mrs. Batiuk’s competence, the Public Trustee advised Royal Trust that Mrs. Batiuk’s Power of Attorney was invalid and caused her bank accounts to be frozen. The Public Trustee also placed a caveat on Mrs. Batiuk’s home preventing her from mortgaging or selling it.

In order to successfully argue that he should become Mrs. Batiuk’s committee, the Public Trustee is required to produce two medical affidavits (under the former provisions of s.2 in the old Patients Property Act, now contained within s. 3 of the Patients Property Act, RSBC 1996, c 349 “PPA”) setting out that, in the opinion of the affiant, the subject of the application (here, Mrs. Batiuk) is incapable of managing him or herself because of “mental infirmity arising from disease, age or otherwise” or the misuse of recreational drugs.

Battle of Medical Affidavit Evidence

As Madam Justice Allan put it in her decision, most committeeship applications are supported by medical affidavits that are “brief and desultory.” Not in this case: no fewer than seven medical experts became involved and numerous medical affidavits were filed with the court as evidence.

The descriptions of Mrs. Batiuk in those medical affidavits ranged from: “mental infirmity due to chronic paranoid schizophrenia” and “[Mrs. Batiuk has] cerebrovascular brain disease particularly evidenced by cognitive impairment including impaired orientation, attention, memory and language” all the way to “[Mrs. Batiuk] definitely knows what she wants, is mentally competent…is quite capable of mentally making the decision to appoint [the niece] to manage her financial affairs...” and “no indication of chronic paranoid schizophrenia…”

The judge addressed the question of the threshold of proof required to establish, as required by the PPA, that Mrs. Batiuk was incapable of managing her affairs. She commented as follows (at paragraph 58):

While the threshold appears to be a low one, in the sense that s.2(4) only requires the “opinion” of 2 medical practitioners…the Court must be “satisfied” [by those affidavits]…Drs. Horricks. James and Donnelly have expressed their “opinion” that Mrs. Batiuk lacks capacity [but] I am not “satisfied” with that conclusion. Each of their opinions is outdated, incomplete and flawed…”

In the result, Madam Justice Allan found Mrs. Batiuk to be capable of managing her own affairs. In the battle of the affidavits, she found that the affidavit evidence that supported Mrs. Batiuk’s competencies were more current, and were sworn by medical experts who had spent more time with her. She further suggested that some of the conclusions drawn by the medical experts in the affidavit evidence which she rejected were based on collateral evidence; in other words, those doctors had formed opinions based on information supplied to them by third parties rather than exclusively by direct examination and observation. The context of the medical interviews was also important. For example, it was established at trial that Mrs. Batiuk herself was aware, when being interviewed by doctors working with the Public Trustee, that she could be declared legally incapable if she “failed” the interview. It was accepted by the judge that this caused Mrs. Batiuk extreme stress and caused her performance to deteriorate.

Importance of Context-Sensitive Assessments

I think this case confirms that it is important, legally, to ensure that clients are given the opportunity to perform as well as they can during medical examinations, and that the context of a medical examination can very significantly alter the weight given to any affidavit evidence sworn as a result of the interview. This is what is meant by a “context-sensitive assessment”, a term used, but not really described, in my previous post, The Capability Continuum.