The case of Sandwell v. Sayer, 2022 BCSC 605[Sandwell] suggests that some modern courts may be pausing before accepting the doctrine of unconscionable procurement as part of the current law. The principle underlying the doctrine is that it would be unconscionable for someone to procure a gift from a donor who does not fully know and appreciate what they are doing.

In Sandwell, the plaintiff’s father had two children, a son and a daughter. The issue of unconscionable procurement was raised when the father transferred his interest in his home in Kelowna to his daughter as joint tenants.

The daughter found an executed transfer of the father’s home to his son for $1.00, which was never registered because of a note that read, “this transfer will not be used except with your consent or in the event that your health fails and there is no likelihood of your recovery.” The father claimed the daughter told him his son could take the property and leave the father with nothing.

The father and daughter attended the office of a notary after this concern was raised. It was not clear whether the daughter unduly influenced the father to attend the office of the notary, or if he went on his own accord. The notary had concerns about undue influence, which were recorded within his notes. To resolve his concerns, the notary met with the father alone to review the pros and cons of what was being contemplated. The father then called the notary and said he did not want to proceed with the transfer. A few days later, he called the notary back and changed his mind to say he did want to proceed with the transfer, and the daughter also emailed the notary to confirm this. The transfer was then registered.

The father subsequently argued this joint ownership should be set aside under the doctrine of unconscionable procurement. Justice Betton, however, disagreed. The court reasoned firstly that the defendant’s actions were not extreme enough for the court’s involvement. At most, the daughter only arranged the appointment with the notary and instilled fear that the son may take the father’s home. Secondly, the father didn’t present any evidence that indicated he misunderstood the impact of transferring the property into joint ownership.

In coming to this conclusion, Justice Betton stated, “I have real doubt about the place of the doctrine of unreasonable procurement in British Columbia law” [para 61].

In contrast to this decision, the doctrine has recently been applied in Ontario in the decision of Gefen v Gaertner 2019 ONSC 6015. We commented on this Ontario case in a previous blog you can find here: Unconscionable Procurement: An Old Doctrine Reawakened.

We will be following the application of the doctrine of unconscionable procurement in Canada as a result of these recent cases, which have presented opposing perspectives on its applicability.

Thank you for reading,

Ian Hull and Jillian Barlow