Executive Summary: Key Legal and Evidentiary Issues

• Dispute over whether the former matrimonial home on 6th Avenue is held by defendant Margaret Ann Haffner on trust for the Estate of Carmen Pennington or was validly gifted to her as joint tenant and surviving owner.

• Competing claims regarding approximately $167,000 in a credit union account, safety deposit box contents and other chattels, including whether they were improperly removed or were valid inter vivos gifts intended for Jessica Kathleen Spence.

• Allegations of breach of fiduciary duty and misuse of an enduring power of attorney by Nancy Elizabeth Stewart and/or Jessica in dealing with Carmen Pennington’s financial affairs and property.

• Parallel estate-related actions involving overlapping parties, witnesses, documents and factual issues, raising risks of inconsistent findings and duplicated proceedings if tried separately.

• Procedural debate about consolidation versus joinder under Rule 22-5(8) of the Supreme Court Civil Rules, and whether Margaret requires prior leave under s. 151 of the Wills, Estates and Succession Act to advance steps on behalf of the estate.

• Costs consequences of the joinder application, with the court treating Margaret as the successful party on the procedural motion and awarding her costs of the application, amount to be determined.

Facts and background

William John Pennington and Carmen Pennington married in 1976 and lived in a home at 33679 6th Avenue in Mission, British Columbia. William had four children from a prior relationship: Margaret Ann Haffner, Nancy Elizabeth Stewart, Thomas William Pennington and Melissa Ruth Lynne Hyland. Nancy has an adult daughter, Jessica Kathleen Spence. William died on November 30, 2019 at age 95, and Carmen died on June 15, 2022 at age 86. In 2004, William and Carmen made reciprocal wills naming each other as executor and sole beneficiary and appointing Margaret as alternate executor. At the same time, they added Margaret to title to the 6th Avenue home as a joint tenant, allegedly without consideration. After William’s death, Carmen executed a new will naming Nancy as executor and Jessica as alternate executor. The residue of Carmen’s estate was to be divided equally among Margaret, Nancy, Thomas and Melissa. Carmen also granted an enduring power of attorney to Nancy and Jessica. At Carmen’s death, she held approximately $167,000 in a credit union account, which passed outside the estate to Jessica as joint account holder. In June 2022, Margaret transferred the 6th Avenue property into her own name as sole surviving joint tenant.

The trust action over the 6th Avenue property

On July 14, 2022, Nancy, acting as executor of Carmen’s estate, commenced an action (the “trust action”) against Margaret. The estate claims that Margaret holds the 6th Avenue property, and now the sale proceeds, in trust for the estate. With the estate’s consent, Margaret later sold the property and the net sale proceeds are held in trust. In response, Margaret pleads that she provided personal care to William for many years, contributed to maintenance, taxes and insurance on the property, and that William and Carmen intended in 2004 to gift to her both legal and beneficial ownership when they added her as joint tenant. She also alleges William and Carmen had previously made substantial financial gifts to Nancy and Melissa but not to her, and the transfer was to address that imbalance.

Margaret’s separate action about funds and chattels

On May 24, 2024, Margaret commenced a separate action, Haffner v. Stewart, naming Nancy (in her personal capacity and as executor) and Jessica as defendants. In that action, Margaret alleges that the credit union funds, safety deposit box contents and other chattels were improperly taken or redirected by Nancy and/or Jessica, sometimes using the enduring power of attorney. She claims these assets are held on trust for the estate. Nancy, as executor, denies wrongdoing and reiterates the estate’s trust claims about the 6th Avenue property. In their personal capacities, Nancy and Jessica deny any wrongful removal of chattels, say Carmen surrendered the safety deposit box well before death, and assert that Carmen freely intended the credit union funds to pass to Jessica as a gift and made her own investment changes without their influence. Margaret’s action also seeks leave under s. 151 of the Wills, Estates and Succession Act to proceed on behalf of the estate and asks that Nancy be removed as executor and replaced by Margaret.

Procedural steps leading to the joinder application

Limited procedural steps had been taken in both actions before this chambers ruling. Margaret was examined for discovery in the trust action in June 2023. Lists of documents have been exchanged in both actions, with significant overlap of materials. No other discoveries have occurred, and no conventional trial dates are set. In August 2024, counsel for the estate sought dates for a summary trial in the trust action, aiming for a hearing in November 2024. Margaret’s counsel suggested the two actions be tried together, but counsel for the estate opposed consolidation or joinder. In January 2025, Margaret scheduled an examination for discovery of Nancy as executor but later cancelled it to first pursue a consolidation or joinder order. Case planning materials filed by Margaret’s counsel supported having the actions tried together, while counsel for the estate and for Nancy and Jessica in their personal capacities opposed joinder and pressed for the trust action’s summary trial to proceed first.

Legal framework for consolidation and joinder

The court reviewed the legal tests under Rule 22-5(8) of the Supreme Court Civil Rules. Consolidation is most appropriate where the common issues and parties in multiple actions are such that deciding one action will necessarily dispose of the issues in the other. By contrast, to order that actions be heard together (joinder for trial), the court applies a two-step analysis: first, whether the proceedings involve common claims, disputes and relationships; and second, whether they are so interwoven that separate trials would be undesirable and costly. The court also considered a series of case management factors, including savings in pre-trial procedures and trial days, potential inconvenience to parties, expert witness fees, common issues of fact or law, risk of multiplicity of proceedings, the relative procedural stage of the actions, the risk of delay or prejudice, and the risk of inconsistent results. The overarching question is whether joinder makes sense and is in the interests of justice.

Analysis of common issues and standing

The court rejected full consolidation because the outcome of one action would not necessarily resolve the other. Success in the trust action against Margaret would not determine whether Nancy and Jessica misused the power of attorney or wrongfully removed assets from Carmen’s estate. However, the court found the actions met the first step for joinder: they involve interconnected relationships, overlapping parties and witnesses, and pleadings that mirror each other’s allegations. Many documents are common to both actions. On the second step, the court concluded that trying the actions together would likely save pre-trial effort, reduce trial days and permit both actions to be resolved at the same time, while avoiding conflicting credibility findings and inconsistent results. Both actions are still in relatively early stages, and no trial dates have been fixed, so prejudice from joinder was minimal. Nancy, as executor, argued that Margaret lacked standing to take further steps without first obtaining leave under s. 151 of WESA. The court interpreted the leave requirement as applying to steps taken on behalf of the estate itself, not to a procedural motion to join two actions for trial. Margaret’s joinder application was treated as a personal procedural step, with leave issues and good-faith requirements under WESA reserved for a later application.

Outcome and costs of the application

The court dismissed Margaret’s request to formally consolidate the trust action and Haffner v. Stewart into a single proceeding but granted her alternative relief by ordering that the two actions be tried at the same time. The court further ordered that all documents listed and produced, all discoveries, pleadings, transcripts, notices, admissions, demands, interrogatories and related litigation materials in either action be made available for use in the other, subject to the Supreme Court Civil Rules, the implied undertaking of confidentiality and directions of the trial judge. On this procedural motion, Margaret was treated as the successful party and was awarded costs of the application, with the precise amount not fixed in the reasons and left to be determined following brief written submissions if any party sought a different costs order. No damages or substantive monetary award were determined at this stage, and no exact amount of costs can yet be ascertained from the decision.