Date:  19980428
                                              Docket:  C956547
                                           Registry: Vancouver





          IN THE SUPREME COURT OF BRITISH COLUMBIA





BETWEEN:

       AIRLIE SUSAN OGILVIE AND HEATHER ALICE OGILVIE


                                                    PLAINTIFFS


AND:

   DAPHNE MARY OGILVIE, Executrix of the Will and Trustee
    of the Estate of Hugh Ogilvie, Deceased, ROYAL TRUST
      CORPORATION OF CANADA, Executor of the Will and
    Trustee of the Estate of Hugh Ogilvie, Deceased, and
         DAPHNE MARY OGILVIE, CHARLES CLAYTON GRAHAM
                  and AMELIA MILDRED GRAHAM

                                                    DEFENDANTS




                    REASONS FOR
JUDGMENT

                           OF THE

             HONOURABLE MADAM JUSTICE SATANOVE




Counsel for the Plaintiffs:                     Bruce E. McLeod


Counsel for the Defendants:                   Barbara J. Curran


Place and Date of Hearing:                      Vancouver, B.C.
                                      March 11 & April 6, 1998[1]  The plaintiffs applied for special, or alternatively,
increased costs of an accounting which took place as a result
of a finding by me at trial that the defendants had procured
certain inter vivos gifts from the late Hugh Ogilvie through
undue influence.

[2]  The trial took place from June
3 - 7, 1996.  Judgment was
rendered on July 5, 1996.  Master Bolton gave directions on
April 9, 1997 as to how the accounting should proceed.  Master
Donaldson made an order on September 16, 1997 that the
defendants refrain from
disposing of or dealing with certain
assets.

[3]  The parties appeared before Master Patterson on September
22, 1997 to commence the accounting.  The defendants failed to
produce a statement of accounts in a form satisfactory to the
Master.  Further, while testifying under oath in front of the
Master, Mrs. Graham disclosed the existence of a personal bank
account which she had cleared
out.  She said she was keeping
the funds in a safe at home.

[4]  For reasons such as unsatisfactory document disclosure,
failure to prepare a statement of account, the surprise
revelation of hidden assets, and issues of credibility, I
agreed that the accounting could be transferred from the
jurisdiction of the Master to myself to complete.  On January
16, 1998 I gave a judgment entitling the plaintiffs to various
relief and the costs of the accounting.

[5]  The plaintiffs submitted that they were entitled to
special costs of the accounting because of the defendants'
conduct in failing to disclose assets and failing to comply
with the rules, directions and orders of the court.

[6]  The defendants submitted that their conduct fell far short
of the reprehensible nature of misconduct required to support
an order for special costs.

[7]  Both parties agreed with the principle of law that the
impugned conduct must be examined in light of all the
circumstances.

[8]  The relevant circumstances here can be summarized as
follows:
    1.   At trial, Mrs. Graham volunteered evidence of her
         assets both before and after the relationship between
         the defendants and Mr. Ogilvie.  She never mentioned
         a "personal" bank account in her name alone, or
         certain GICs.
    2.   After the April order of Master Bolton the defendants
         produced affidavits, but no statement of account.  In
         August, the defendants produced supplementary
         affidavits with further disclosures.  None of these
         affidavits referred to GICs held by the Grahams or
         the so called "personal account" of Mrs. Graham.  The
         GICs
were discovered by counsel for the plaintiffs
         through reviewing the defendants' bank records.  He
         did not discover the "personal account" until Mrs.
         Graham testified at the September hearing.
    3.   After Master Donaldson made the
order preserving
         assets, the defendants cashed in GICs and attempted
         to spend the funds, but their bank refused
them
         access to the funds due to Master Donaldson's order.
         The defendants sought a clarification or variation of
         Master Donaldson's order, which was refused.
    4.   The hearing before Master Patterson was aborted
         because of the defendants' failure to
produce a
         proper accounting or disclose fully their assets.
         Further disclosure of documents, oral examinations
         for discovery of Mrs. Graham and transfer of the
         accounting to me all followed as a result.
    5.   To this day the defendants have never produced a
         complete or proper accounting. Counsel for the
         defendants complained
it was such a mess it could not
         properly be condensed into a neat statement of
         account.  She said there was no deliberate attempt to
         conceal or create confusion, simply that the
         transfers took place so long ago it was "virtually
         impossible" to collect and analyze all the records.
         I agree it may have been an unenviable, time
         consuming and costly task but I cannot agree it was
         impossible because counsel for the plaintiff ended up
         doing it himself!  In fact if it
had not been for his
         careful reconstruction and analysis of the records, a
         task made the more laborious by the lack of
         cooperation from
the defendants, I would not have
         been able to make any findings on the accounting with
         any confidence.

[9]  In summary, this accounting was
by its nature fairly
complex and difficult but it was made much more so by the
defendants' conduct.

[10] I cannot find that the defendants' conduct was inadvertent
or unintentional.  In dealing with Mrs. Graham's credibility on
the accounting I said this in my judgement of January 16, 1998:

    Mrs. Graham admitted that she
had not been
forthright with the court . . .

    Furthermore, she testified at trial that her
RRSP was only worth $26,000, her investment with
Dominion Securities was about $100,000 and there were
only a couple of thousand in her bank account.  In
fact, her RRSP was worth $87,000, the Dominion
Securities Inc. account held $120,000 and there was
$10,000 in her bank.

    The above contradictions in Mrs. Graham'
s
evidence at trial and on the accounting, combined
with her attitude that she did not feel required to
tell the court the whole truth despite the oath she
took, leads me to discount Mrs. Graham's evidence and
to give it little weight where it is uncorroborated
by the documents.

[11] I am disturbed by the attitude and conduct of the
defendants since trial, particularly that of Mrs. Graham.  It
smacks of game playing at its best and trickery at its worst.
Either way it is conduct that will not be condoned by the court
and is worthy of condemnation.  In addition it has added
greatly to the financial burden of the plaintiffs in trying to
recover a judgment which has been outstanding in their favour
for nearly two years.

[12] I do not think it serves any purpose to compare and
categorize the reprehensible nature of the defendants' conduct
on the accounting as more or less serious than the
circumstances in other cases.  In Garcia v. Crestbrook Forest
Industries Ltd. (1994), 119 D.L.R. (4th) 740 (B.C.C.A.), the
Court of Appeal held that the term "reprehensible" could
encompass scandalous or outrageous behaviour and milder forms
of conduct deserving of reproof and rebuke.

[13] I find that the conduct of the defendants in the
circumstances of this case warrants an award of special costs
to the plaintiffs and I so order.



                                  "D. Satanove, J."
                                       D. Satanove, J.
Filename:   J:/jdb-txt/sc/98/06\s98-0636.txt
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