



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Semenoff Estate v. Semenoff,









2017 BCCA 17




Date: 20170109

Docket: CA43539

Between:

Robert Semenoff,
Executor of the Estate of Bill Semenoff, Deceased

Appellant

(Plaintiff)

And

Mike Semenoff and
Marion Demosky

Respondents

(Defendants)




Before:



The Honourable Chief Justice Bauman

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Dickson




On appeal from: An
order of the Supreme Court of British Columbia,
dated February 19, 2016 (
Semenoff Estate v. Semenoff
, 2016 BCSC 267,
Nelson Registry No. 18204).

Oral Reasons for Judgment




Appellant appearing in Person:



R. Semenoff





Counsel for the Respondents:



T. Pearkes





Place and Date of Hearing:



Vancouver, British
  Columbia

January 9, 2017





Place and Date of Judgment:



Vancouver, British
  Columbia

January 9, 2017








Summary:

Mr. Semenoff appeals from an
order dismissing his claim, awarding special costs to the defendants and
declaring him a vexatious litigant following a summary trial. His claim
concerned alleged wrongful conduct by one defendant in performing her duties as
power of attorney for his late father. The summary trial judge found no
evidence to support his claim. On appeal, he advances a broad range of
submissions concerning the duties of a power of attorney, procedural fairness
in the proceedings below, and a number of other errors of law, mixed fact and
law, and fact. Held: appeal dismissed. While the trial judge should have
engaged in a more rigorous examination of provisions of the Power of Attorney
Act, any error in failing to do so was immaterial to the outcome. The
litigation process was not unfair to Mr. Semenoff. The trial judge did not
err in exercising his discretion to issue a vexatious litigant order against
Mr. Semenoff.

[1]

BAUMAN C.J.B.C.
: Robert Semenoff appeals from the order of
Justice A. Saunders, pronounced 19 February 2016 at the conclusion of a summary
trial in Nelson, B.C. I refer to the parties, apart from the appellant, by
their first name for convenience and not out of disrespect. Mr. Semenoff 
in his capacity as executor of the estate of his late father, Bill Semenoff
(Bill)  alleged a range of wrongful conduct against the defendants in
connection with their caretaking of Bill. In particular, he alleged misconduct
by the defendants in accessing Bills assets to pay for his expenses. On
application by the defendants, the trial judge dismissed Mr. Semenoffs
claim, and declared him to be a vexatious litigant in both his personal
capacity and in his capacity as executor of Bills estate. The trial judge also
awarded the defendants special costs. On appeal, Mr. Semenoff seeks to
have this Court set aside the trial judges order, award judgment in his favour
and award him special costs.

Facts

[2]

Bill was the brother of the defendants, Mike Semenoff (Mike) and
Marion Demosky (Marion). Mike and Marion began to care for Bill after he was
involved in a motor vehicle accident in 1994. In or about 1995, Bill was
diagnosed with dementia and required home support. On the advice of counsel,
Bill executed a general power of attorney appointing Marion as his attorney on
18 January 1996. Bill died on 15 September 2006. Mr. Semenoff and his
brother, Howard, are executors of Bills estate.

[3]

Mr. Semenoff filed a notice of civil claim on 8 March 2012, which
he amended on 24 December 2012. He alleged that the defendants dishonestly took
advantage of Bill for their own personal benefit, enriched themselves at the
expense of Bills estate, and failed to provide an accounting of benefits they
received and property they took. He alleged that the defendants committed
criminal fraud. Mr. Semenoff sought a declaration that the defendants are
constructive trustees, disgorgement of profits, tracing and general and
punitive damages.

[4]

The defendants applied for dismissal of Mr. Semenoffs
action by way of summary trial, summary judgment or by reason of want of
prosecution. They also sought an order declaring Mr. Semenoff and the
estate vexatious litigants. The trial judge considered these applications by
way of a summary trial on 21 July 2015. At the time of the summary trial, the
defendants had examined Mr. Semenoff for discovery, but Mr. Semenoff
had not examined the defendants nor produced a list of documents.

Related
Litigation

[5]

The following actions have been commenced by Mr. Semenoff and are
relevant to the vexatious litigant application:

(1)        Mr. Semenoff and Howard, as
executors of Bills estate, sued the defendants and their brother, Steve, in
respect of ownership of the family acreage  that action was dismissed with
costs on the defendants application;

(2)
Mr. Semenoff
brought an action against Bills solicitor, Mr. Bridgeman, claiming
professional negligence in respect of registering Bill and his three siblings
as joint tenants of the family acreage (the Bridgeman action) that action
was dismissed after a no-evidence motion following a nine day trial, and Mr. Bridgeman
was awarded double costs; and

(3)
Mr. Semenoff brought a fraudulent conveyance action against Mr. Bridgeman
and his wife, which was dismissed and resulted in Justice McEwan making a
vexatious litigant order against Mr. Semenoff in respect of further
actions arising out of the facts alleged in the professional negligence or
fraudulent c
onveyance actions.

[6]

Mr. Semenoff appealed the dismissal in the Bridgeman action.
After failing to pursue the appeal in the required time, Mr. Semenoff
unsuccessfully sought to have the appeal removed from the inactive list in
chambers. The dismissal of his application was confirmed by a division of this
Court. Mr. Semenoffs application for leave to appeal this dismissal to
the Supreme Court of Canada was dismissed.

Decision under appeal

[7]

The trial judge began his reasons by citing the onus on Mr. Semenoff
to prove his claims in a summary trial from
Gichuru v. Pallai
, 2013 BCCA
60. He then found that Mr. Semenoff failed to adduce any evidence in
support of his grave allegations and that he founded his action on nothing
more than suspicion, conjecture and speculation. The lone argument Mr. Semenoff
advanced was that the truth is out there.

[8]

With respect to the vexatious litigant application, the trial judge
summarized the various actions Mr. Semenoff had commenced against the
defendants and Mr. Bridgeman. He quoted at length from the reasons of
Justice Mackinnon in the Bridgeman action concerning Mr. Semenoffs
unhelpful approach to the litigation and his preoccupation with conspiracy
theories concerning Marions conduct as attorney for Bill. He then agreed with
Justice Mackinnons characterization of Marion as genuinely caring and
someone who stepped up to the plate by sacrificing her own time and money over
many years, to ensure that Bill received the best of care.

[9]

On the merits of Mr. Semenoffs claim, the trial judge noted that Bill
was entirely dependent on his Canada Pension Plan and Old Age Security
benefits, and had no assets other than his joint tenancy in the family acreage.
He found that Marion accessed Bills accounts only for his personal care
expenses, and his residency and associated expenses. He also found that Marion
was exceedingly conservative in claiming expenses that she incurred personally
when acting under the power of attorney. She made some minor expenditures after
Bills death after failing to realize that her power of attorney expired upon
his death. However, the trial judge found that those expenditures were made in
good faith and without the defendants being enriched. The defendants also
provided a full accounting of the payments. Based on these findings, the trial
judge dismissed the action.

[10]

On the issue of special costs, the trial judge found that Mr. Semenoffs
conduct in making allegations of dishonest and criminal conduct without any
justification was reprehensible and deserved an award of special costs. As it
relates to the vexatious litigant application, the trial judge found that Mr. Semenoff
instituted and maintained vexatious legal proceedings habitually, persistently
and without reasonable grounds. Accordingly, he ordered that Mr. Semenoff,
in his personal capacity and in his capacity as executor of Bills estate, not
commence a legal proceeding in any court without leave.

Submissions

[11]

Mr. Semenoff alleges 30 errors in the
judgment in the court below relating to what he phrases as pleading of affirmative
defenses [
sic
], natural justice and the rights and obligations of agents
acting under [a] power of attorney. I have grouped the alleged errors into the
categories of errors of law, errors of mixed fact and law and errors of fact.

[12]

For their part, the defendants submit that appellate intervention
is not justified and none of the errors counter the trial judges finding that Mr. Semenoff
simply failed to discharge his onus to prove his case.

Errors
of Law

[13]

Mr. Semenoff alleges a number of errors of
law concerning: the onus of proof for facts raised in defence, the onus on the
defendants to prove a valid excuse for losing some receipts for expenditures
made on behalf of Bill, the failure to consider any of Mr. Semenoffs
evidence, the failure to decide the issue Mr. Semenoff pleaded, deciding
issues not pleaded by the defendants, the ability of the defendants to later
charge for services they originally rendered gratuitously and the necessity of
those services, interpretation of the exculpatory provisions of the
Power of
Attorney Act
, R.S.B.C. 1996, c. 370 and failure to give effect to s. 2(2)
of that
Act
, conflation of the breach of authority with breach of
fiduciary duties of candour, the failure to take judicial notice of the
equitable duty of candour, the failure to find that an attorney who has
exercised a power owes fiduciary obligations, the failure to find that fraud on
a power is a justiciable cause of action, an error in deciding that a
proprietary claim to estate administration documents is not justiciable, an
error in admitting expert or hearsay evidence and other conclusory evidence,
inappropriately expanding the scope of the vexatious litigant application
beyond that sought by the defendants, and the failure to give Mr. Semenoff
adequate opportunity to respond to allegations of vexatious conduct.

[14]

The defendants submit that Mr. Semenoff
misconstrues how the trial judge invoked the onus of proof. The onus of proof
was on Mr. Semenoff to prove his claims and he failed to discharge that
onus. The trial judge did not decide the case based on the defendants
pleadings or any defence, and nor did he decide issues not pleaded by the
defendants. The defendants note that Mr. Semenoff sought no relief for
loss of receipts such that there was no need for the judge to make findings to
excuse any such loss. Further, there is no foundation for the suggestion that
the trial judge failed to decide a cause of action pleaded by Mr. Semenoff.
Concerning the alleged charges for gratuitous services, the defendants say the
trial judge made a finding of fact that Marion was generous and did not charge
Bills estate when she was entitled to do so; he did not find that she charged
for services that were rendered gratuitously. On Mr. Semenoffs various submissions
concerning the duties of a power of attorney, the defendants rely on s. 3
of the
Power of Attorney

Act
and note that Mr. Semenoff
never pleaded or argued reliance on the
Law and Equity Act
, R.S.B.C.
1996, c. 253, or
Trustee Act
, R.S.B.C. 1996, c. 464. In any event, it is
clear that the judge appreciated that Marion owed fiduciary duties and found
any exercise of powers after Bills death was minor and did not constitute a
breach. Mr. Semenoff has not identified how this conclusion was
unreasonable. With respect to the justiciable cause of action arguments, the
defendants say the judge made no finding that fraud on a power is not
justiciable  he determined that Mr. Semenoff had failed to prove his
allegations. The defendants further say that Mr. Semenoff never advanced a
proprietary claim for estate documents. On the alleged evidentiary errors, the
defendants say they cannot respond because Mr. Semenoff has not
particularized the evidence he now objects to. Further, on the receipt of the expert
evidence point, the defendants say the accountants report was not opinion
evidence, but rather factual evidence. They note that he did not object to any
of the evidence led in the court below. Finally, with respect to the vexatious
litigant application, the defendants say the judge had the jurisdiction to make
the order that he did and provided Mr. Semenoff with the full opportunity
to be heard.

Errors
of Mixed Fact and Law

[15]

Mr. Semenoff alleges a number of errors of
mixed law and fact, including that the trial judge: failed to make the findings
necessary to excuse the defendants from losing the receipts; failed to construe
Justice Mackinnons reasons in their entire context; failed to recognize the
defendants formal admissions including affirmative defences; failed to
corroborate the defendants evidence; failed to take judicial notice of the
requirement for accounting as to the joint tenancy; failed to consider whether Mr. Semenoff
had enough time to assemble the case for summary disposition; failed to consider
whether the list of documents caused the defendants any prejudice; failed to
find the facts necessary for a formal admission; and failed to consider whether
the defendants list of documents, pleadings and lack of a case planning
conference caused unfairness to Mr. Semenoff.

[16]

The defendants again point out that Mr. Semenoff
never sought relief for lost receipts. With respect to the reference to Justice
Mackinnons reasons, they say the judge merely highlighted passages that were
apt in explaining that he had come to similar conclusions. Regarding
corroboration, the defendants argue that the summary trial judge was not
required to find corroboration in the absence of conflicting evidence from Mr. Semenoff
or some reason to make an adverse credibility assessment. On the issue of the
accounting as to the joint tenancy, the defendants say this was not framed by
the pleadings and Mr. Semenoff never made any such submission in the court
below. In light of the factual finding that the defendants accessed Bills
accounts only to pay his assorted expenses, there was no need for an
accounting. With respect to the alleged admissions, the defendants say there is
no basis to conclude that the trial judge failed to consider any judicial or
factual admissions  Mr. Semenoffs argument is pure speculation. On Mr. Semenoffs
procedural fairness arguments, the defendants acknowledge that they filed their
materials within the 28 days following their notice of intention to proceed,
which properly can be taken as a step contrary to the Rules. They note that the
hearing date was more than 28 days from the notice to proceed and that Mr. Semenoff
advised the court that the defendants had complied with the timelines and that
he did not object to their filing the application within the 28 day timeline.
Had the trial judge been asked to rule on this non-compliance with the Rules,
the defendants submit that there was a sound basis on which to exercise his
discretion to abridge the time. With respect to the need for more disclosure or
a case planning conference, the defendants note that Mr. Semenoff did not
bring applications concerning the quality of document disclosure, the adequacy
of pleadings or the lack of a case planning conference having resulted in a
case planning order. The parties held a case conference and the judge told Mr. Semenoff
to get on with his action.

Errors
of Fact

[17]

Mr. Semenoff also broadly submits that the trial judge found
facts not reasonably supported by the evidence.

[18]

The defendants submit that Mr. Semenoff has
failed to identify any palpable and overriding error in the factual findings.
They say there was direct and circumstantial evidence, which was corroborated
by the accounting prepared and submitted to the court, to dismiss Mr. Semenoffs
claim. There was a reasonable basis for the trial judges finding despite the
potential that some original receipts were missing.

[19]

Parenthetically, I note that defendants counsel
referred to the standard of review applicable to findings of fact as both
palpable and overriding error and reasonableness in other places. While it
does not bear on the merits of this case on appeal, counsel should note that
these two standards of review should not be conflated.

Analysis

[20]

I would dismiss the appeal.

[21]

In light of the breadth of Mr. Semenoffs
submissions, I have chosen to deal with only those issues that potentially
present a viable argument on appeal.

Duties
Owed by a Power of Attorney - Expenditures Made After Bills Death and Lost
Receipts

[22]

The key issue under this heading is the
significance of Marion having made certain expenditures after Bills death
after failing to realize that his death terminated her power of attorney. The
relevant provisions of the
Power of Attorney Act
, are as follows:

2



(2) For the purposes of this Act, if a
person has knowledge of the occurrence of an event that has the effect of
terminating the authority of an agent, that person is deemed to have knowledge
of the termination of the authority.

3
If an agent purports to act on behalf of a
principal at a time when the agent's authority to do so has been terminated and

(a) the act is within the scope of the
agent's former authority, and

(b) the agent has no knowledge of the
termination,

then, for the purpose of determining
the liability of the agent for the act, the agent is deemed to have had the
authority to so act.

[T]erminated when used with reference to
the status of an agents authority, means that the authority has been
terminated by revocation, or by operation of law or both (s. 1).

[23]

In my view, s. 2(2) has the effect of
deeming knowledge for purposes of s. 3(b) when the agent has knowledge of
the event triggering termination  it does not require that the agent know
the
effect
of the event. This places liability for the minor expenditures with
Marion.

[24]

The trial judge excused this liability on the
basis that the expenditures were made in good faith and without knowledge of
the effect of the termination (at para. 16). He cited no authority for the
ability to excuse liability created under the
Power of Attorney

Act
based on good faith. Nevertheless, any error made by the judge in this regard is
immaterial in light of his finding that the defendants fully accounted for the
expenditures (at para. 17). Accordingly, I would not give effect to this
ground of appeal.

[25]

Moreover, I agree with the defendants
submissions concerning the significance of any lost receipts. Any prejudice
caused by the failure to provide receipts is addressed by the accounting report
by Yule Anderson. Mr. Semenoff has not shown this report to be in error 
he has merely suggested, without evidentiary foundation, that the accountants
were bribed to prepare it and that it represents a fraudulent report. The
defendants provided copies of statements of accounts, receipts, journal
vouchers, deposit slips and other back up materials on which the report was
based in their list of documents.

Procedural
Fairness

[26]

Mr. Semenoff makes a number of submissions
concerning the process followed by the court below and says he lacked a
sufficient opportunity to respond to the defence. However, he neglects to
acknowledge the relevance of his own dilatory conduct in prosecuting the
proceedings. Bill passed away in September 2006. Mr. Semenoff filed his
original notice of civil claim on 8 March 2012 and his amended claim on 24 December
2012. The defendants proceeded promptly by filing their response to civil
claim, producing their list of documents and examining Mr. Semenoff for
discovery all by 14 August 2012. They provided the accounting on 13 March 2013.
The parties held a case planning conference on 26 May 2014 at which the judge
instructed Mr. Semenoff to move forward with his claim. He did not, which
led the defendants to issue the notice of intention to proceed on 15 June 2015.
This led to the summary trial hearing on 2 July 2015. The defendants rightly
concede that this was within the 28 days set out in Rule 22-4(4) of the
Supreme
Court Civil Rules
, B.C. Reg. 168/2009, however, I agree that this would
have been an appropriate case for the trial judge to have exercised his discretion
to abridge that time had the issue been raised before him.

[27]

Mr. Semenoff has not particularized the
nature of any prejudice he suffered by virtue of the litigation process. He
provided no details at the summary trial hearing concerning what documents he
required in addition to what the defendants had already listed on their list of
documents. He did not examine the defendants for discovery. He has also failed
to indicate precisely which orders should have been made in the case planning
conference. Finally, Mr. Semenoff does not indicate the nature of his
objection with the defendants pleadings. Boiled down to its essence, Mr. Semenoffs
claim was fairly simple  he alleged wrongful conduct by the defendants in
their fiduciary capacity. The defendants adequately responded to this claim and
were entitled to force Mr. Semenoff to move forward with his claim after
years of delay.

[28]

In the absence of any other prejudice to Mr. Semenoff,
I would decline to give effect to the procedural grounds of appeal.

Vexatious
Litigant Order

[29]

Contrary to Mr. Semenoffs submission, the
trial judge granted the vexatious litigant order on the exact terms asked for
by the defendants; he did not unduly expand the scope of the order.

[30]

The summary trial judge had the power to make
the vexatious litigant order pursuant to s. 18 of the
Supreme Court Act
,
R.S.B.C. 1996, c. 443, which provides:

If, on application by any person,
the court is satisfied that a person has habitually, persistently and without
reasonable grounds, instituted vexatious legal proceedings in the Supreme Court
or in the Provincial Court against the same or different persons, the court
may, after hearing that person or giving him or her an opportunity to be heard,
order that a legal proceeding must not, without leave of the court, be
instituted by that person in any court.

[31]

Section 18 confers a broad jurisdiction on the
court to control its own process. This Court described the purpose of the
provision as follows in
S.(M.) v. S.(P.I.)
(1998), 60 B.C.L.R. (3d) 232
(B.C.C.A.) at para. 13:

Section 18 of the
Supreme
Court Act
has been in the
Act
for a great many years.
The section gives the court the needed ability to control its own process. It
enables the court to put in place an order to prevent a citizen or citizens from
being subjected to an endless blizzard of litigation. ... It is obviously of
the utmost importance that there be unfettered access to the courts by citizens
but I should think that a corollary of that is that continuing abuse of this
most valuable and deeply enshrined democratic right should be dealt with
decisively to preserve the rights of all. There is a right to invoke the
jurisdiction of the Supreme Court but it is not a right that is without limit.
In my opinion, s. 18 of the
Supreme Court Act
affords to
judges of the Supreme Court the authority to order in proper cases that a
persistent litigant must seek leave before being able to launch court
proceedings. It is a necessary power to ensure the proper administration of
justice.

As illustrated by this quote, the right to
issue a vexatious litigant order is not without limits. This leads to the
question of whether the trial judge properly determined that Mr. Semenoff
has habitually, persistently and without reasonable grounds, instituted
vexatious legal proceedings.

[32]

In his reasons, the trial judge summarized the
two related actions in which Mr. Semenoff involved the defendants and then
outlined his reasons for the order as follows:

Robert Semenoff has demonstrated
a propensity to abuse the civil justice system through making grave allegations
without any foundation in reality. He might have drawn the appropriate lesson
from the judgment given by Mackinnon J., but he did not do so; instead he
persisted in maintaining the claim at bar, without any proof of wrongdoing on
the part of the defendants. He has instituted and maintained vexatious legal
proceedings, in the words of s.18 of the
Supreme Court Act
,
R.S.B.C. 1996 c. 443, habitually, persistently and without reasonable
grounds. I therefore order that Robert Semenoff must not, without leave of the
court, either in his own capacity or in his capacity as executor of the estate
of Bill Semenoff, institute a legal proceeding in any court. (at para 21)

[33]

The trial judge made the vexatious litigant
order based not only on the number of proceedings Mr. Semenoff had
initiated, but also on the litigation strategy he adopted in those proceedings
 in particular, making grave allegations without advancing any proof in
support of those allegations. Importantly, the order was made after the
defendants had explicitly sought such an order and Mr. Semenoff was given
the opportunity to make submissions on the issue. This distinguishes the
present case from that in
Semenoff v. Bridgeman
, 2016 BCCA 175, where
this Court overturned a s. 18 order on the basis that the order was made
without application and in the absence of Mr. Semenoff.

[34]

In his submissions, Mr. Semenoff opposed
the vexatious litigant order on the basis that there were insufficient actions to
satisfy the requirement of habitually bringing vexatious legal proceedings.
He said he had only commenced four legal actions in his adult life  two of
which he says he obtained leave to commence. However, the habitual
requirement does not refer only to the number of different actions a party
commences, but also to the nature of his or her conduct within a particular
action itself. Mr. Semenoff has now commenced a number of proceedings in
connection with the administration of his fathers estate that have taken up
significant judicial resources. In the present case, he made grave allegations
of criminal conduct on the part of the defendants and advanced no evidence
other than the vague assertion that the truth is out there. In light of his
persistence in making these types of allegations against the defendants and
other individuals connected to his father (i.e. Mr. Bridgeman and the
defendants late brother, Steve Semenoff), I can find no basis on which I would
interfere with the exercise of the summary trial judges discretion under
s. 18.

[35]

Mr. Semenoff also makes application before
us for leave to submit fresh or new evidence on the appeal. I would decline
to do so, although we heard it. The proposed evidence is not fresh or new and could
have been led in the exercise of due diligence in the proceedings below. In any
event, the so-called evidence consists of Mr. Semenoffs affidavit and it
largely contains arguments on issues of little relevance to the issues before
us.

Conclusion

[36]

I would dismiss the appeal. While the trial judge should have
engaged in a more rigorous examination of provisions of the
Power of
Attorney Act
, any error in failing to do so was immaterial to the outcome.
I would also decline to hold that the litigation process was unfair to Mr. Semenoff
or that he was prejudiced in presenting his case. In my view, there is no merit
to the numerous other grounds of appeal that he now advances, and I would
decline to intervene in the summary trial judges exercise of discretion to
issue a vexatious litigant order against Mr. Semenoff.

[37]

FRANKEL J.A.
: I agree.

[38]

DICKSON J.A.
: I agree.

[39]

BAUMAN C.J.B.C.
: The appeal is dismissed. The respondents
will have costs on Scale 1.

The Honourable Chief Justice Bauman


