What evidence does the respondent need to provide to support a pleading of beneficial ownership at the time the land was transferred?
British Columbia, Canada
The following excerpt is from Wapple v. Wapple, 2000 BCSC 1094 (CanLII):
This is to say that despite the fact that the present pleadings do not assert a reservation of beneficial ownership at the time the land was transferred, the only evidence the respondent now offers that could support such a pleading - assuming an amendment - is a post-deed course of conduct from which he will suggest inferences ought to be drawn as to the state of affairs at the time of the making of the deed. Apart from offending the rule in Shephard v. Cartwright (cited above) these allegations run quite contrary to the logical implications of the sworn admissions he has made elsewhere in the material. As to those, counsel submits, as I indicated previously, that they were either misunderstood - despite legal advice - or intended in a narrower manner than what they clearly seem to state.
The test under Rule 18(6) is whether there is a bona fide triable issue (see: Serup v. School District 57, [1989] B.C.J. No. 353). Another way to put the test is by posing the question: is this claim bound to fail?
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