Martin v. Dediu, 2024 BCCA 51

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Martin v. Dediu, 2024 BCCA 51 Date: 20240213 Docket: CA49154 Between: Sandra Ann Martin as Executor and Trustee of the Estate of Douglas Warren Martin also known as Douglas W. Martin, Douglas Martin and Doug Martin Appellant (Defendant) And Michael Dediu Respondent (Plaintiff) Before: The Honourable Justice Griffin The Honourable Madam Justice DeWitt-Van Oosten The Honourable Madam Justice Horsman On appeal from: An order of the Supreme Court of British Columbia, dated May 19, 2023 ( Dediu v. Martin Estate , 2023 BCSC 852 , Victoria Docket S180378).

Oral Reasons for Judgment Counsel for the Appellant: C. Dennis, K.C. R.L. Power Counsel for the Respondent: M.R. Mark Place and Date of Hearing: Vancouver, British Columbia February 13, 2024 Place and Date of Judgment: Vancouver, British Columbia February 13, 2024

Summary: Appeal adjourned on the basis that counsel overlooked an issue that should be addressed in their factums, as neither party considered whether the appellant executor is liable personally for the judgment, or whether the judgment can only be collected as against the estate. Amended factums are to be filed and the appeal rescheduled. [ 1 ] GRIFFIN J.A. : We have decided to adjourn the hearing of this appeal. The parties have not addressed who is liable for the judgment below: is it the estate, or is it the executor personally; and what is the proper legal framework to determine this issue.

The appellant and respondent both make assumptions in this regard but do not grapple with the issue in their factums and it is clear that they have not addressed their minds to the issue. It also does not appear to us to be expressly addressed in the reasons for judgment below. [ 2 ] In considering this issue, as a starting point, the parties may wish to review the text British Columbia Probate and Estate Administration Practice Manual , a publication by the Continuing Legal Education Society of British Columbia and available online, and in particular

Chapter 11 which addresses liabilities in estate administration. [ 3 ] In our view, the question of who is liable for the judgment below will likely need to be answered in order to determine whether or not the judge erred in imposing liability. We adjourn the matter and direct the parties to file amended factums to include argument on this issue, and to reschedule the hearing of the appeal accordingly. We are not seized. “The Honourable Justice Griffin” “The Honourable Madam Justice DeWitt-Van Oosten” “The Honourable Madam Justice Horsman”