Armstrong v.

Kotanko
British Columbia Motions

British Columbia Supreme Court

Filed: January 17, 2023
No. S1711291
Registry: Vancouver
2023 LNBCMO 2
Between Lloyd James Armstrong, Plaintiff, and Jerry Leonard Kotanko and Jerry Leonard Kotanko as Executor for
the Estate of Jean Irene Almgren Michael Corey Harnden, Defendants, and Lloyd James Armstrong, Defendant by
Way of Counterclaim

Title

Notice of Application
Rule(s) Cited

Supreme Court Civil Rules, Rule 9-5(1).

Counsel:

Eugene Fraser, lawyer for the applicant

NOTICE OF APPLICATION

Name of applicant: The Defendant, Jerry Leonard Kotanko and Jerry Leonard Kotanko as Executor for the Estate
of Jean Irene Almgren (“Jerry Kotanko”)

TO: the Plaintiff, and Defendant by Way of Counterclaim, Lloyd James Armstrong

AND TO: the Defendant, Michael Corey Harnden

TAKE NOTICE that an application will be made by the applicant, Jerry Kotanko, to the presiding judge at the
courthouse at 800 Smithe Street, Vancouver, BC on January 30, 2023 at 9:45 AM for the orders set out in Part 1
below.
Part 1: ORDER SOUGHT

1. An Order striking paragraphs 8.1, 8.2,8.3, 9, 11, 11.1, 15, 15.1, 16, 17 of Part 1 of the Fourth Amended Notice of
Civil Claim filed June 17, 2022 (the “Fourth Amended Notice of Civil Claim”);

2. An Order striking the words “equitable fraud” from paragraph 13 of Part 1 of the Fourth Amended Notice of Civil
Claim;

3. An Order striking paragraphs 3 and 4 of Part 2 of the Fourth Amended Notice of Civil Claim;

4. An Order striking the words “the Deceased nor” from the third line of paragraph 1 of Part 3 of the Fourth
Amended Notice of Civil Claim;

5. An Order striking paragraphs 3, 5 and 6 of Part 3 of the Fourth Amended Notice of Civil Claim;
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Armstrong v. Kotanko

6. Special Costs in favour of the Applicant; and

7. Such further and other relief as this Honourable Court deems just.
Part 2: FACTUAL BASIS

1. The action herein concerns the estate of Jean Irene Almgren (the “Deceased’), who died on February 5, 2017.

2. The Plaintiff and the Defendant Michael Harnden (“Mr. Harnden”) are the biological sons of the Deceased.

3. The Defendant Kotanko was the Deceased’s long-standing platonic friend.

4. The Deceased left a Last Will and Testament dated January 30, 2013 (the “2013 Will’), which revoked a
previous will dated January 23, 2012 (the “2012 Will”).

5. The 2013 Will appointed the Defendant Jerry Kotanko (the “Defendant”) as the executor and trustee in respect of
the Deceased’s estate (the “Estate”). The 2013 Will and the 2012 Will do not, among other things, name the Plaintiff
or Harnden as beneficiaries or executors, and make the Defendant Kotanko the sole residuary beneficiary.

6. On February 2, 2012 the Deceased transferred her townhouse located at #7 –20370 53rd Avenue, Langley, BC
(the “Townhouse”) into a joint tenancy with the Defendant Kotanko. The Townhouse was the Deceased’s only
significant financial asset.

7. Since around February 2017 the Plaintiff has occupied the Townhouse, despite the Defendant Kotanko’s
multiple attempts to evict him.

8. The Plaintiff filed a Notice of Civil Claim on December 6, 2017, seeking:

a. An Order that the Defendant wrongfully obtained a joint tenancy interest the Townhouse owned by the
Deceased;
b. An Order that the Defendant holds title to the Townhouse in a constructive trust for the Plaintiff;
c. An Order varying the 2013 Will; or
d. In the alternative, an Order that the 2013 Will is invalid.

9. The Defendant filed a Response to Civil Claim and a Counterclaim on January 26, 2018.

10. A Notice of Trial was filed on February 22, 2018 setting this matter down for a 5-day trial to commence April 29,
2019.

11. The Plaintiff filed a First Amended Notice of Civil Claim on October 26, 2018, adding Michael Harnden as a
Defendant, and in view of that development the April 29, 2019 trial was adjourned.

12. The Defendant Jerry Kotanko filed a Response to the Amended Civil Claim on November 16, 2018.

13. On April 24, 2019, a further Notice of Trial was filed setting this matter down for a 10-day trial to commence
September 8, 2020. This trial was adjourned after it was determined at a TMC that more than 10 days would be
required for trial.

14. The Plaintiff filed a Second Amended Notice of Civil Claim on October 30, 2019. The Defendant filed an
Amended Response to Second Amended Notice of Civil Claim on December 11, 2019.
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Armstrong v. Kotanko

15. A Notice of Trial was filed on November 30, 2020 for fifteen days of trial scheduled to commence on July 12,
2021.

16. On April 7, 2021, the Plaintiff applied to amend the Second Amended Notice of Civil Claim to add a claim in
resulting trust on behalf of the Estate pursuant to section 151 of WESA. That application was dismissed by Order of
Master Robertson, who nevertheless allowed the Plaintiff to file a Third Amended Notice of Civil claim to add
paragraphs related to the legal advice of the Deceased’s solicitor, Carol Holm, and the Defendant Kotanko was
granted leave to file an amended Counterclaim to claim for unjust enrichment against the Plaintiff.

17. On May 17, 2021, Mr. Justice Weatherill dismissed the Plaintiffs appeal of the April 7, 2021 decision of Master
Robertson, declining to grant leave to the Plaintiff under section 151 of WESA to add a claim of resulting trust.

18. Pursuant to the Order of Master Robertson dated April 9, 2021, the Plaintiff filed a Third Amended Civil Claim
on May 26, 2021.

19. The Plaintiff has never filed a claim that the Defendant Kotanko holds assets in trust on behalf of the Estate or
that any assets must in any way revert to the Estate.

20. By Order of Master Bilawich made June 25, 2021, the Defendant Jerry Kotanko was granted leave to file the
Further Amended Response to the Third amended Notice of Civil Claim.

21. The trial scheduled to commence on July 12, 2021 was bumped because a judge was not available to hear the
trial.

22. On July 12, 2021, Mr. Justice Ball made an order striking the word “equitable fraud” from paragraph 6 of Part 2
of the Third Amended Notice of Civil Claim, as well as the following paragraphs from Part 2:
a. An order that the defendant Kotanko wrongfully obtained a joint tenancy interest in the Real Property and
thereby full ownership of same upon the death of the Deceased;
b. An order pursuant to the Wills, Estates and Succession Act SBC 2009 c. 13, varying the will of the
Deceased dated January 30, 2013 or in the alternative declaring that will to be null and void; and
c. An order pursuant to the Wills, Estates and Succession Act SBC 2009 c. 13, varying the will of the
Deceased dated January 23, 2012 or in the alternative declaring that will to be null and void.

(the “Struck Paragraphs”)

23. On March 23, 2022, counsel for the Defendant Kotanko served the Plaintiff with an application for a summary
trial to dismiss the Plaintiffs entire claim (the “Summary Trial Application”).

24. At a hearing of the Summary Trial Application on June 24, 2022, Mr. Justice Verhoeven adjourned the
application because two hours was not sufficient for the Summary Trial Application.

25. The Summary Trial to dismiss the Plaintiffs entire claim was rescheduled for two days of hearing October 11
and 12, 2022, but was bumped because a judge was not available for the hearing.

26. On June 17, 2022, the Plaintiff filed the Fourth Amended Notice of Civil Claim, which removes the Struck
Paragraphs, but continues to allege facts unrelated to the relief sought, including allegations of fraud against the
Defendant Kotanko. In addition, Part 3 of the Fourth Amended Notice of Civil Claim continues to assert a legal basis
related to the Struck Paragraphs, all of which are rendered irrelevant by the order of Mr. Justice Ball.

27. The Defendant Harnden has never filed a Response to Civil Claim, despite being ordered to do so by Master
Scarth’s Order, pronounced on August 25, 2020.
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Armstrong v. Kotanko

Part 3: LEGAL BASIS

Rule 9-5

1. Rule 9-5(1) of the Supreme Court Civil Rules states:

At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition
or other document on the ground that
(a) it discloses no reasonable claim or defence, as the case may be,

(b) it is unnecessary, scandalous, frivolous or vexatious,

(c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or

(d) it is otherwise an abuse of the process of the court, and the court may pronounce judgment or order the
proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs.

2. Sahyoun v. Ho, 2015 BCSC 392, at paras. 57 – 63, summarized the subsections of Rule 9-5(1):

[57] The test on an application to strike an action under R. 9-5(1)(a), on the basis the pleadings do not disclose a cause of
action, is whether it is plain and obvious the claim cannot succeed. It requires a conclusion that, assuming that the facts as
stated are true, those facts disclose no cause of action and the pleadings disclose no arguable issue. If there is a chance
that the action may succeed, then the action should be allowed to proceed; Hunt v. Carey Canada Inc., 1990 CanLII 90
(SCC), [1990] 2 S.C.R. 959 at 980; Thompson v. Webber, 2010 BCCA 308 at para. 11; Canadian Bar Assn. v. British
Columbia, 2008 BCCA 92 at para. 37.

[58] The test for striking a pleading under R. 9-5(1)(b), on the basis that it is unnecessary, scandalous, frivolous or
vexatious, was recently summarized in Willow v. Chong, 2013 BCSC 1083, where Fisher J. said:

[20] Under Rule 9-5(1)(b), a pleading is unnecessary or vexatious if it does not go to establishing the plaintiff’s cause of
action, if it does not advance any claim known in law, where it is obvious that an action cannot succeed, or where it would
serve no useful purpose and would be a waste of the court’s time and public resources: Citizens for Foreign Aid Reform
Inc. v Canadian Jewish Congress, 1999 Can LII 5860 (BC SC), [1999] BCJ No. 2160 (SC); Skender v Farley, 2007 BCCA
629. If a pleading is so confusing that it is difficult to understand what is pleaded, it may also be unnecessary, frivolous or
vexatious

[59] An “embarrassing” pleading, as contemplated by R. 9-5(1)(c), is one that is so irrelevant that to allow it to stand would
involve useless expense and would also prejudice the trial of the action by involving the parties in a dispute apart from the
issues; Keddie v. Dumas Hotels Ltd. (1985), 1985 CanLII 417 (BC CA), 62 B.C.L.R. 145 at 147 (C.A.).

[60] The abuse of process standard under R. 9-5(1)(d) derives from a flexible doctrine. It allows the court to prevent a claim
from proceeding where to do so would violate principles of judicial economy, consistency, finality and the integrity of the
administration of justice; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at paras. 35-37.

[61] Though subsections (a)-(d) of R. 9-5(1) address different concerns and different wrongs, there is also some overlap
between these subsections. Thus, for example, a pleading that discloses no cause of action, contrary to R. 9-5(1)(a), can
also be unnecessary, frivolous or vexatious within the meaning of R. 9-5(1)(b); see e.g. Virk v. Brar, 2012 BCSC 1004 at
paras. 69-70.

[62] A pleading can be embarrassing if it does not state the real issue in an intelligible form. It can also be embarrassing if it
is prolix, includes irrelevant facts, argument or evidence. It can be prejudicial if it is designed to or has the effect of
confusing the defendant, making it difficult, if not impossible, to answer; Virk at para. 75.

[63] These same concerns can constitute an abuse of the court if a litigant has been expressly told that there are aspects of
its pleadings that are deficient or defective, and if that litigant persists, in its amended claim, to advance the same claims or
issues in the same way.
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Armstrong v. Kotanko

3. The Plaintiff has never filed pleadings seeking relief on behalf of the Estate against the Defendant Kotanko on
the basis of equitable fraud,. Moreover, the Plaintiff has not obtained leave pursuant to section 151 of WESA to
prosecute any cause of action or claim that could conceivably result in a damages award for the Estate or assets
being transferred to the Estate.

4. Consequently, even if the Plaintiff were successful in certain or all of his claims at trial, there would still be no
assets in the Estate (and the Plaintiff is not claiming that there are assets in the Estate) that could be subject to a
wills variation claim or could be distributed under any wills of the Deceased. Consequently, the wills variation and
will validity claims are completely irrelevant and provide no grounds for any relief for the Plaintiff, which is reason
that Mr. Justice Ball ordered that paragraphs related to these claims be struck from Part 2 of the Third Amended
Notice of Civil Claim.

5. The Plaintiff’s allegations of fact from the Fourth Amended Notice of Civil Claim related to the validity of the will,
variation of the will and equitable fraud are unnecessary, scandalous and vexatious because, as stated in Willow v.
Chong, supra, they do “not go to anything establishing the plaintiffs cause of action,” as it now exists after the Order
of Mr. Justice Ball.

6. Spending significant time at trial on matters that are entirely moot and irrelevant would prejudice, embarrass or
delay the fair trial or hearing of the proceeding, within the meaning of Rule 9-5(1)(b). Such a proceeding would be
embarrassing in the sense articulated by Keddie v. Dumas Hotels Ltd. (1985), 1985 CanLII 417 (BC CA), in that it is
one that is so irrelevant that to allow it to stand would involve useless expense and would also prejudice the trial of
the action by involving the parties in a dispute apart from the issues.
Special Costs

7. In Meyer v. Osborne Contracting Ltd., 2011 BCSC 914, the court described situations in which special costs
may be ordered at para. 11:
(a) Where a party pursues a meritless claim and is reckless with regard to the truth.
(b) Where a party makes improper allegations of fraud, conspiracy, fraudulent misrepresentation, or breach of
fiduciary duty;
(c) Where a party has displayed “reckless indifference” by not recognizing early on that its claim was
manifestly deficient;
(d) Where a party made the resolution of an issue far more difficult than it should have been;
(e) Where a party who is in a financially superior position to the other brings proceedings, not with the
reasonable expectation of a favourable outcome, but in the absence of merit in order to impose a financial
burden on the other party;
(f) Where a party presents a case so weak that it is bound to fail, and continues to pursue its meritless claim
after it is drawn to its attention that the claim is without merit;
(g) Where a party brings proceedings for an improper motive;
(h) Where a party maintains unfounded allegations of fraud or dishonesty; and
(i) Where a party pursues claims frivolously or without foundation.

8. The Plaintiffs continuing efforts to make allegations of fraud and undue influence against the Defendant Kotanko,
in the face of Mr. Justice Ball’s Order, is scandalous and outrageous. Following Meyer, such conduct warrants an
award of special costs against the Plaintiff.

9. Although Meyer was a construction law case, special costs are awarded against the plaintiff for making
allegations of fraud and undue influence against the defendant in the case of McLean v. Gonzalez-Calvo, 2007
BCSC 648 (CanLII).
Part 4: MATERIAL TO BE RELIED ON
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Armstrong v. Kotanko

1. Affidavit #11 of Candace Armstrong, dated January 16, 2023.

2. Pleadings and materials filed herein.

The applicant estimates that the application will take 60 minutes.

[] This matter is within the jurisdiction of a master.
[X] This matter is not within the jurisdiction of a master.

TO THE PERSONS RECEIVING THIS NOTICE OF APPLICATION: If you wish to respond to this notice of
application, you must, within 5 business days after service of this notice of application or, if this application is
brought under Rule 9-7, within 8 business days after service of this notice of application,
(a) file an application response in Form 33,
(b) file the original of every affidavit, and of every other document, that
(i) you intend to refer to at the hearing of this application, and
(ii) has not already been filed in the proceeding, and
(c) serve on the applicant 2 copies of the following, and on every other party of record one copy of the
following:
(i) a copy of the filed application response;
(ii) a copy of each of the filed affidavits and other documents that you intend to refer to at the hearing of
this application and that has not already been served on that person;
(iii) if this application is brought under Rule 9-7, any notice that you are required to give under Rule 9-7 (9).

Dated: January 16, 2023

Eugene Fraser
Signature of lawyer for the applicant

APPENDIX

THIS APPLICATION INVOLVES THE FOLLOWING:

[] discovery: comply with demand for documents
[] discovery: production of additional documents
[] other matters concerning document discovery
[] extend oral discovery
[] other matter concerning oral discovery
[] amend pleadings
[] add/change parties
[] summary judgment
[] summary trial
[] service
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Armstrong v. Kotanko

[] mediation
[] adjournments
[] proceedings at trial
[] case plan orders: amend
[] case plan orders: other
[] experts

End of Document