The doctrine of unconscionable procurement received its third treatment in less than a year from the BC Supreme Court in the case of Sandwell v Sayers, 2022 BCSC 605; yet uncertainty persists as to whether the doctrine remains good law in British Columbia. In Sandwell, a 91-year-old father sought to undo a transfer of property that he had gifted his daughter. The relationship between the father and daughter was prone to bouts of estrangement but the transfer occurred during a period of reconciliation, at which time a notary met with the father alone and reviewed the benefits and implications with him. The relationship again soured, and the father claimed the daughter held the property in trust for him on the basis of the doctrine of unconscionable procurement. The father argued the execution of the transfer documents was not fully informed and he did not understand the nature of the transaction.
The Judge undertook an in-depth analysis of the history of the doctrine of unconscionable procurement and summarized it as providing an equitable remedy for circumstances in which a suspicious transfer occurs in the absence of undue influence. To be successful in such a claim, a plaintiff must prove there was a transfer of a significant benefit that the recipient actively caused to occur, and that the transferor did not fully comprehend and understand the transaction.
The Judge found that the daughter’s involvement in the transaction was not of the degree or nature that calls for court intervention, and that the father’s understanding was not so insufficient as to invoke the doctrine of unconscionable procurement. He held that the father had not made out a successful claim, with the caveat that he was not proclaiming one way or the other whether the doctrine was good law.
A key takeaway from the Court’s decision is that if the doctrine of unconscionable procurement exists in British Columbia, there must be limits imposed on its scope. While Sandwell does not shut door on claims of unconscionable procurement, the extent of the doctrine’s future in British Columbia remains uncertain.
This commentary was prepared by Farris lawyers Isabel Romeral and Jake Harrigan. Isabel Romeral’s practice focuses on estate planning, estate administration and trust. Jake Harrigan is a litigator with a focus on estate litigation, as well as employment and labour disputes.