B.C. Case Comment: Transfer of Property to Child Set Aside on Basis of Undue Influence

I have previously discussed that gifts are irrevocable, and so a donor cannot change their mind and seek to take back property that they have gifted. However, the Court may set aside a gratuitous transfer if it was procured by undue influence, whether that be intentional influence or unintentional influence.

In Sandu v. Sandu 2023 BCSC 323, the Court considered the transfer of property in 2016 from a husband and wife to their youngest son. The property was the parents’ only substantial asset. The transfer was purportedly a gift, and no consideration was paid by the son. The parents later requested that their son transfer title to the property back into their names, and he refused to do so.

In this case, the Court ordered that the transfer be set aside, and title be restored to the parents.

At the time of the transfer, the father was 91 years old and the mother was 88 years old. Neither of them received any formal education, neither of them spoke or read English, and both of them were functionally illiterate in their mother tongue of Punjabi. They had always been completely dependent on family members for assistance with written transactions. In fact, their eldest son was appointed as their litigation guardian for the trial of the action.

Equity presumes bargains over gifts. Where property is transferred to another without consideration, the presumption of resulting trust applies. The onus is on the transferee to rebut the presumption by demonstrating that a gift was intended.

In B.C., section 23(2) of the Land Title Act provides for a statutory presumption of indefeasibility – the idea that registration of title is conclusive evidence at law and in equity that the person named on title is indefeasibly entitled to an estate in fee simple in the land. In other words, the registered owner is presumed to be the true beneficial owner of the property.

However, the presumption of indefeasibility can be rebutted, including by the existence of a resulting trust, and also if the registered owner took their interest by the exercise of undue influence. There can be no gift where the transfer was made under undue influence.

There are two branches of undue influence for inter vivos transfers:

  1. intentional or actual undue influence; and
  2. unintentional or presumed influence.

The first branch is characterized by the influencer’s conduct, and may include:

  • “overt and violent threats (give me the house or I’ll beat you…);
  • “subtle forms of persuasion (give me the house or I don’t know if I’ll be able to look after you anymore…)”;
  • persistent requests for the property ultimately disposed of; or
  • exploitation of the donor’s desire to keep the family peace.

The second branch recognizes unintentional undue influence, which is to be presumed if:

  • there is a “potential for domination” given the nature of the relationship between the parties (this includes solicitor/client, parent/child, and guardian/ward relationships);
  • the defendant unduly benefited or the plaintiff was unduly disadvantaged, but only if the transaction is commercial.
  • If the plaintiff establishes circumstances that trigger the presumption of undue influence, the defendant has the onus of rebutting it. To rebut the presumption, the defendant must show that the plaintiff entered into the transaction with full, free and informed thought.

The receipt of independent legal advice may be a critical factor.

In Sandu, the Court observed that in the context of intergenerational relationships involving care, undue influence is a particular concern.

The Court held that it did not need to determine whether their was actual undue influence (the first branch), as there was a presumption of undue influence (the second branch) which had not been rebutted. The Court considered whether the parents received independent legal advice, and determined that what limited advice they received did not constitute adequate legal advice. The mere presence of legal advice is insufficient.

Finally, the presence of undue influence meant that the limitation period to bring the claim had not expired. In cases of undue influence, the time does not begin to run to bring a claim until the donor can be said to have been freed from the sphere of undue influence. As a result, while more then two years had passed since the transfer, in effect the limitation period was extended while the parents remained under the influence of their son.

B.C. Case Comment: Obtaining a Committeeship Order When You Have an Adult Guardianship Order in Another Jurisdiction

A person may be appointed as committee to manage an incapable person and/or their affairs.

The usual process is to bring an application under the Patients Property Act [RSBC 1996] Chapter 349 for an order declaring the person incapable, and the appointment of a committee.

A person applying for a committeeship order must provide affidavits of two medical practitioners setting out their opinion that the person who is the subject of the application is, because of mental infirmity arising from disease, age or otherwise, or disorder or disability of mind arising from the use of drugs, incapable of managing their person or their affairs. Without the two affidavits, the court cannot make the order under the act.

Sometimes, the applicant is unable to obtain the two medical affidavits. The patient may be in denial or otherwise refuse to submit to a medical examination. There are cases which discuss the limited circumstances where a person can be ordered to submit to a medical examination for this purpose (which is in conflict with rights to personal autonomy). See for example Temoin v. Martin 2012 BCCA 250.

In the B.C. Supreme Court case of Re Binder (Patients Property Act) 2022 BCSC 990, the Court dealt with a different issue. The petitioner sought orders declaring his father incapable and appointing the petitioner as committee. The father lived in a care home in Switzerland. There was evidence that two Swiss medical professionals assessed the father, and concluded that he suffered from severe cognitive impairment, and increasing signs of dementia. They also noted that the father had a negative attitude about undergoing further examinations. One of the doctors concluded that the father had a “lack of capacity to judge the necessity of supportive measures”, and “capable of judgment” had a specific meaning under Swiss law. The petitioner had been appointed in Switzerland to manage his father’s assets.

The petitioner argued that there was a gap in the Patients Property Act for admitting evidence from foreign medical practitioners and recognizing foreign adult guardianship orders. Due to the circumstances, including the father being in Switzerland had the evidence of his resistance to undergoing further medical assessment, the petitioner had no meaningful way to obtain the two medical affidavits to meet the requirements of the Patients Property Act.

The Court agreed, and was satisfied that pursuant to its inherent parens patriae jurisdiction, it could make the declaration and appointment of the petitioner as committee.

This case is helpful authority for a person who has obtained an adult guardianship order in another jurisdiction, and seeks a committeeship order in British Columbia but is unable to obtain the two medical affidavits.

What I’m Reading: Interesting Estate Litigation Articles for April 2024

The following is a round-up of noteworthy articles published this month on estate litigation and related issues:

  1. Gabriella Banhara of WEL Partners (Ontario) discusses the issue of pets and estates, with reference to a recent Ontario decision: https://welpartners.com/blog/2024/04/pets-and-estates-the-recent-decision-of-carvalho-v-verma/
  2. Ian Hull and Chigozie Enwereuzo of Hull & Hull LLP (Ontario) consider the concept of where an estate trustee “resides”, and why that matters: https://hullandhull.com/Knowledge/2024/04/where-does-an-estate-trustee-actually-reside/
  3. Onyx Law Group discusses a number of questions about family and separation, and estate issues: https://onyxlaw.ca/separated-but-not-divorced-inheritance/
  4. Estate litigation in the news: there have been a number of articles relating to O.J. Simpson’s estate, in particular whether the Goldman and Brown families will be able to collect on their civil judgment: https://www.cbc.ca/news/world/oj-simpson-estate-victims-explainer-1.7171644
  5. Doreen So, also of Hull & Hull LLP, writes about estate issues in the Netflix series “The Gentlemen” in a pair of posts: https://hullandhull.com/Knowledge/2024/04/the-gentlemen-primogeniture-and-intestacies-in-ontario/ and https://hullandhull.com/Knowledge/2024/04/the-gentlemen-enforceability-of-pre-death-contracts/

Happy reading!

B.C. Case Comment: Applications to Remove Attorneys or Representatives

I have previously written about the issue of applications to remove co-trustees or co-executors. On occasion, applications are also made to remove attorneys named in a power of attorney or representatives named in a health care representation agreement.

In Stockall (Re) 2023 BCSC 437, the donor was 93 and suffered from a number of medical ailments including advanced dementia. He had six children, and he named two of his daughters as his attorneys under an enduring power of attorney, and health care representatives under a health care representation agreement. The two sisters sought to remove each other.

There was a great deal of conflict between the two sisters, and they were described as “bitterly divided.” There was disagreement on issues relating to the care that each of them provided for their father, whether their father’s home should be sold to finance his care and where he should live, accounting of spending of their father’s monies, and alleged alienation of their father.

The Court held that the present arrangement of both parties acting as attorneys and representative could not continue. The Court held that the circumstances were analogous to a hearing to appoint a committee (a person to manage the affairs and care of an incapable person). A committeeship application requires affidavits from two physicians confirming that the patient is incapable, which could not be obtained in this case (otherwise the daughters likely would have applied to be committee instead).

The considerations for the selection of an appropriate committee include the following non-exhaustive list:

  1. whether the appointment reflects the patient’s wishes, obviously when he or she was capable of forming such a wish;
  2. whether immediate family members are in agreement with the appointment;
  3. whether there is any conflict between family members or between the family and the patient, and whether the proposed committee would be likely to consult with immediate family members about the appropriate care of the patient;
  4. the level of previous involvement of the proposed committee with the patient, usually family members are preferred;
  5. the level of understanding of the proposed committee with the patient’s current situation, and will that person be able to cope with future changes of the patient;
  6. whether the proposed committee will provide love and support to the patient;
  7. whether the proposed committee is the best person to deal with the financial affairs and ensure the income and estate are used for the patient’s benefit;
  8. whether a proposed committee has breached a fiduciary duty owed to the patient, or engaged in activity which diminishes confidence in that person’s abilities to properly handle the patient’s affairs;
  9. who is best to advocate for the patient’s medical needs;
  10. whether the proposed committee has an appropriate plan of care and management for the patient and his or her affairs and is best able to carry it out; and
  11. whether a division of responsibilities such as between the patient’s estate and the patient’s person to different persons would serve the best interests of the patient, or would such a division be less than optimal for the patient.

The Court in Stockall considered all of the facts, including the allegations made by each sister, and the care provided by each of them so far. The Court observed that one of the sisters had more support from other family members, and it was likely that this sister would at least continue to consult and communicate with the siblings who supported her position (who form a majority).

While it was not possible to give effect to the father’s desire to have both daughters continue to act, he did express his preferred care arrangement when he entered into a private care agreement with one of his daughters. This was given considerable weight. The only way to give that agreement practical effect was to make the daughter with who he made the agreement the sole attorney and representative. The other daughter was removed.

The daughter that was removed had also failed to advise the court that her father had been hospitalized, which was an “obviously relevant circumstance.” This was described as showing extremely poor judgment, deceptive and akin to a breach of fiduciary duty.

Just like a decision to name more than one person to act together as an executor or a trustee, care must be taken when selecting attorneys and representatives who can work together.

Removal of Deadlocked Co-Executors

Often, a will-maker or the settlor of a trust will appoint more than one person to act as co-executors or co-trustees. Unfortunately, disagreements between co-executors and co-trustees frequently arise. Sometimes this results in deadlock, and the administration of the estate or trust cannot move forward. One available remedy is an application to removal or replace one or more of the executors/trustees.

In the recent B.C. Supreme Court decision of De Bonis (Re) 2023 BCSC 713, the applicant sought the removal of herself and her brother as co-executors and trustees of their parents’ estates. She sought the appointment of an independent trustee (a trust company) to administer the estates. In her view, she and her brother were unable to work together and they were in a deadlock on a number of issues relating to administration of the estates. She also argued that her brother was in a conflict of interest because of a right of first refusal in his favor with respect to one of the main assets of the estates.

The brother opposed the application, and took the position that if his sister wished to be removed, then she could be removed and he could remain as the sole executor. He also denied the existence of a conflict of interest.

The Court removed both siblings as executors, and replaced them with the independent trust company.

In doing so, the Court made the following observations about the law and the considerations of the court when hearing an application to remove executors:

  • A will-maker has the right to choose their executor, and their decision is entitled to deference and will only be interfered with if there is clear and cogent evidence to do so;
  • The executor’s acts or omissions must be of such a nature to endanger the administration of the estate;
  • The Court’s main consideration is the welfare of the beneficiaries (collectively, not just the interests of a particular beneficiary);
  • Four categories of conduct can warrant removal:
    • Endangerment of trust property;
    • Want of honesty;
    • Want of proper capacity to execute duties; and
    • Want of reasonable fidelity.
  • The existence of friction between the executor and one or more beneficiaries is generally, in and of itself, not sufficient to warrant the removal of the executor. However, animosity can be relevant to whether it hampers the proper administration of the estate. A finding of wrongdoing is not necessary;
  • Removal is not meant to punish past misconduct, but past misconduct that is likely to continue will often be sufficient to justify removal;
  • An executor’s conflict of interest may warrant removal. However, not all perceived or actual conflicts of interest will give rise to the removal of an executor. But f the executor is in a conflict of interest, actual or perceived, and it is to the detriment of the beneficiaries, the executor must be removed.

In De Bonis, the Court was not convinced that the siblings will ever be capable of cooperating effectively with one another in their roles as co-executors. Even if the applicant was removed, and her brother remained as sole executor, the Court was still concerned that the orderly administration of the estates would be delayed by new disagreements, miscommunications, or misunderstandings. It was in the best interests of the beneficiaries for both executors to be removed and replaced with an independent and neutral executor. The Court also found a conflict of interest justifying removal. The Court made clear that there was no wrongdoing by either co-executor. Rather, there was an impasse that could not be overcome while they remained as executors.

The Court in De Bonis observed that the relationship between the two siblings was dysfunctional long before their parents passed away. In light of this, it should not have been a surprise when this dysfunction continued after death when they were required to act together as co-executors. This case serves as a good reminder that you should give careful consideration to your selection of executor, and if you have decided to have more than one executor then the people that are appointed need to be able to work together.

Variation of Will by Adult Children Even When Will-Maker Had Valid and Rational Reasons

In B.C., a will-maker’s spouse or child (including an adult independent child) can bring an action to vary the will-maker’s will, if the will does not made adequate provision for them. There is no requirement that a will-maker treat their children equally in their will. However, unequal treatment is a frequent cause of wills variation litigation.

When considering wills variation claims by adult children, the Court must consider the will-maker’s moral duty owed to adult children, to be assessed using the objective standard of the objective will-maker, and keeping in mind that the moral duty may be negated where there is just cause. In other words, a will-maker may treat their children unequally (or even disinherit a child), when there are valid and rational reasons for doing so.

Some litigants sought to make the argument that if the will-maker provides reasons that are valid and rational, the Court should defer to the will-maker’s decision to treat children unequally. The argument was that if the reasons were valid and rational, then the Court cannot vary even if other factors weigh in favor of a variation.

The B.C. Court of Appeal was asked to consider this issue in Tom v. Tang 2023 BCCA 221. In Tom, the will-maker had five children. Seven days before her death, the will-maker changed her longstanding will which provided that each of her five children received an equal share of her estate. The new will provided that two of her children, who had lived with her and provided her primary care for three years, would received approximately 85% of the estate. The other three children would receive approximately 5% each. The estate was valued at approximately $2.3M. The will-maker had written a letter explaining why she intended to favor two of her children.

The three children receiving lesser amounts brought an action to vary the will. The trial judge varied the will to provide that the two children who provided primary care would each get a gift of $300,000, and then the remainder of the estate would be divided equally among the five children. This was viewed as a balance between the will-maker’s attempt to recognize the role of the two children in her care, but also meet her moral obligations to all of her children.

The issue on appeal was whether the will should have been upheld given that the will-maker had valid and rational reasons for leaving less to three of her children. Again, the argument was made that if there are valid and rational reasons, then the will cannot be varied.

The B.C. Court of Appeal made clear that this is not the law. Previous cases did not stand for the principle that a will-maker’s unequal treatment of adult children must be deferred to, without regard to the objective standard of the reasonable will-maker and current social norms, as long as the subjective reasons given for the unequal distribution are valid and rational.

A will-maker’s moral duty to adult children must be assessed from the viewpoint of a reasonable testator, and that the moral duty may be negated where there is just cause. So, the will-maker’s purported “valid and rational reasons” are only one factor, and the trial judge did not err in assessing using the objective standard.

The Court of Appeal agreed with the trial judge that the will did not make adequate provision for the three children, and agreed that the will ought to be varied. The Court of Appeal ordered that the two children who provided care would each get 30% of the estate, and the remaining three children should receive an equal share of the remaining 40% of the estate. This would provide the two care-providing children with slightly more than they would have received at trial.

While this case provides some guidance to wills variation claimants, it creates uncertainty for will-makers, as it shows that even though the will-maker may have had reasons to treat their children unequally, and these reasons are valid and rational, their will may still be varied by the court due to other factors.

B.C. Case Comment: Claiming Against Assets that Pass Outside of Estate

In B.C., a spouse or child (including an adult independent child) can bring an action to vary a will if they believe it does not make adequate provision for them. However, a wills variation claim can only seek a greater share of assets which form part of the estate. If assets pass outside of the estate, they are not available to claim against in a wills variation claim.

As a result, some will-makers take steps to deplete their estate so that there are no assets available for the purpose of a wills variation claim. This may include registering assets in joint ownership with right of survivorship, direct beneficiary designations, or inter vivos transfers (gifts during the will-maker’s lifetime).

Disappointed beneficiaries must first succeed in attacking these planning steps and “returning” the assets to the estate for the purpose of the wills variation claim. This may include claims that the assets are held in resulting trust for the estate, or claims attacking the validity of the transfers (lack of capacity, undue influence, etc…).

A recent example can be found in the B.C. Supreme Court decision in Franco v. Franco Estate 2023 BCSC 1015. In Franco, the deceased father took certain planning steps during his lifetime. He transferred property, proceeds of sale of property and monies from bank accounts to one of his children, and changed his will to leave the entirety of his estate to that child (and to name that child as executor). As a result, his other two children (the plaintiffs in the action) did not receive a share of the transferred assets, and were disinherited under the will. If the planning and transfers were upheld, it would mean that there would be very little in the estate available for a wills variation claim.

The defendant argued that her father validly gifted assets to her. There are two requirements for a legally binding gift:

1. the donor must have intended to make a gift and must have delivered the subject matter to the donee. The intention of the donor at the time of the transfer is the governing consideration.
2. The donor must have done everything necessary, according to the nature of the property, to transfer it to the donee and render the settlement legally binding on him or he

Where a parent makes a gratuitous transfer to an independent adult child (as was the case in Franco), the presumption of resulting trust applies. The transferee must prove on a balance of probabilities that the transferor intended the transfer as a gift.

The most compelling evidence is direct evidence of the transferor’s intention at the time of transfer. Post-transfer conduct may be relevant, but must be approached with caution as it may be self-serving (or show a change in intention).

The Court in Franco held that the fact that the deceased continued to deal with jointly-owned property unilaterally does not cause the gift to fail. Continuing control and use of the property by the transferor after the transfer is not necessarily inconsistent with a gift.

The Court held that documentary and affidavit evidence established an intention to gift. The evidence included transfer documents, a deed of gift document, bank account documents, and the affidavit evidence of the defendant, the deceased’s niece, and the deceased’s financial advisor.

The Court also found there was no undue influence.

As a result, the Court concluded that the gifts were valid, and the assets passed outside of the estate. The parties agreed that if the claim relating to the gifts failed, the wills variation claim would not be pursued (because there were insufficient assets in the estate to justify the action). Accordingly, the plaintiffs’ claims were dismissed.

 

What I’m Reading: Interesting Estate Litigation Articles for March 2024

The following is a round-up of noteworthy articles published this month on estate litigation and related issues:

  1. David Morgan Smith at Hull & Hull LLP (Ontario) writes about restricting testamentary autonomy on public policy grounds: https://hullandhull.com/Knowledge/2024/03/clipping-testamentary-freedom-to-protect-society/
  2. Brett Book at WEL Partners (Ontario) discusses the suspension of a lawyer for their conduct in delaying with a vulnerable older client: https://welpartners.com/blog/2024/03/lawyer-suspended-for-questionable-transaction-with-vulnerable-older-adult/
  3. Not from March, but the B.C. Law Society recently circulated a reminder that the British Columbia Law Institute has published Undue Influence Recognition and Prevention: A Guide for Legal Practitioners, which can be found here: https://www.bcli.org/publication/undue-influence-recognition-and-prevention-a-guide-for-legal-practitioners/
  4. Chigozie Enwereuzo, also at Hull & Hull LLP, discusses the doctrine of donatio mortis causa (“deathbed” gifting): https://hullandhull.com/Knowledge/2024/03/nanas-deathbed-gift-to-you-is-it-valid/
  5. Fabiana Araujo M.S. Kennedy, also at WEL Partners, writes about a B.C. case where Air Canada was held liable for negligent misrepresentation arising from a Chatbot’s statements about bereavement fares: https://welpartners.com/blog/2024/03/moffatt-v-air-canada-bereavement-fares-do-your-research/

Happy reading!

Executor Purchasing Estate Property

An executor or administrator of an estate or a trustee is in a fiduciary position, which means that they owe certain fiduciary duties to the beneficiaries, including a duty of loyalty. There is a general rule that a trustee cannot purchase trust property, which is referred to as the rule against self-dealing. This would put the trustee in an obvious conflict of interest, contrary to their duty of loyalty.

If all beneficiaries are of full capacity, they can give fully informed consent to the self-dealing. The Court also has the jurisdiction to approve self-dealing by a fiduciary.

The burden is on the trustee seeking permission to sell property to herself to establish that a sale is necessary and that no other purchaser has been forthcoming or seems likely to come forward within a reasonable time, and that his or her own offer in the circumstances is a favourable one. The cases suggest that approval by the court will only be given where it is truly in the interest of the beneficiaries.

The B.C. Supreme Court was recently asked to approve self-dealing in Dewberry Estate (Re) 2023 BCSC 1325. The applicant obtained a grant of administration of an intestate estate. She was the daughter of the deceased. The estate was to be divided equally between the applicant and her two sisters. The only remaining significant assets were a two-acre property and the manufactured home on it.

These assets were recently appraised at $284,000. The applicant sought to buy the property for $179,600.

One sister opposed the application, arguing there was no basis to reduce the purchase price below current market value. The third sister did not respond, but her position mirrored that of the sister opposing the application.

The applicant took the position that her sisters would be unjustly enriched if she was forced to pay market value for the property. However, the Court was not aware of any authority that would allow it to approve a sale of trust property to a trustee at below market value on the basis of contributions by the trustee to the preservation of the value of the property.

The Court held that it could not be said that a proposed sale at more than $100,000 below the recent estimate of market value was “clearly to the advantage of the beneficiaries.” In light of the appraisal, the applicant could not show that no other purchaser is likely to come forward.

However, the applicant was given ten days to decide whether she was interested in purchasing the property for $284,000, the appraised value, as her siblings were prepared to consent to a sale at that price.

Special Costs for Unsuccessfully Alleging Undue Influence

When a party wishes to allege undue influence, they must consider the cost consequences if this claim is unsuccessful.

A common question from parties to estate litigation (or any litigation) is whether the other side can be ordered to pay their costs. After a claim is determined on its merits, the court must decide upon the issue of costs.

The general rule is that costs follow the event, meaning that the successful party will receive costs payable by the unsuccessful party. However, in estate litigation the court may order that the costs of some or all parties be paid from the estate. The court will look at whether the litigation resulted from the conduct of the deceased (i.e. how they chose to set up their estate plan) or the conduct or motivations of a beneficiary.

In addition to who gets their costs, and who pays those costs, there is the issue of the scale of costs. In the ordinary course, costs are determined using a tariff system set out in the B.C. Supreme Court Civil Rules. However, the costs payable under this system are significantly less than a party’s actual legal fees, often a quarter or a third of the actual legal fees.

In some cases, a party can apply for “special costs”. Special costs are increased costs, which are intended to more closely resemble the reasonable fees actually charged by a lawyer to their client. Special cost awards are intended to address the conduct of a party. Special costs are awarded only in exceptional circumstances, where the conduct of the party is deserving of rebuke.

There are a number of cases in which special costs have been awarded in the face of unproven and unsubstantiated allegations of undue influence. This is because the allegation of undue influence is a serious one, impugning the character of another person. It has been compared to allegations of fraud, which also may attract an award of special costs if unfounded.

The B.C. Supreme Court recently considered this issue and the line of authority in Lambrecht v. Lambrecht Estate 2023 BCSC 1051. In Lambrecht, the Court observed that the primary considerations in previous cases were that allegations were pursued based on speculation, without foundation, and unduly prolonged the proceedings. In one case, costs were awarded where the allegations were only abandoned three days before trial.

In Lambrecht, the plaintiff advised before trial that he agreed to withdraw his claim of undue influence. Although the notice of civil claim was not amended to reflect this agreement, the court was advised of the concession at trial. The defendant argued that despite this agreement, the plaintiff continued to make assertions that the defendant acted improperly which were, in substance, allegations of undue influence, which the defendant was obliged to defend, and which the plaintiff knew had no chance of success.

The Court agreed with the plaintiff. Although the pleadings were not amended, the plaintiff advised that he would not pursue the claim of undue influence, and he maintained that position at trial. Even though the plaintiff was not successful in the claim that he did pursue (in resulting trust), that alone was not sufficient to warrant an order for special costs.

This case is an important reminder that if you are unable support allegations of undue influence which you make in your pleadings, you should carefully consider whether you want to pursue those allegations at trial. If you withdraw the allegations of undue influence far enough in advance, you can potentially avoid a special costs award that would otherwise be payable for making the unfounded allegations.

It should be noted, however, that the plaintiff was ordered to pay double costs because he failed to accept a formal offer to settle which was reasonable and ought to be accepted (triggering double costs under Rule 9-1 of the B.C. Supreme Court Civil Rules).