IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
Canfield v. Bronze Wines Ltd.,  
2022 BCSC 546  
Date: 20220405  
Docket: S18180  
Registry: Nelson  
Between:  
And  
Frances Jean Walbey Canfield  
Plaintiff  
Bronze Wines Ltd., Continental Appraisals Ltd., Air Touch Communications  
Ltd., Scot Stewart and Howard H. Engman  
Defendants  
Before: The Honourable Madam Justice Horsman  
Reasons for Judgment  
Counsel for the Plaintiff:  
T. Pearkes  
Counsel for the Defendant Continental  
Appraisals Ltd.:  
R. Sookorukoff  
The Defendants Bronze Wines Ltd. and  
Scot Stewart, Appearing in Person:  
S. Stewart  
Counsel for the Defendant Howard H.  
Engman:  
Q. Duong  
J. Foster  
Place and Date of Trial:  
Nelson, B.C.  
July 1923 and July 26, 2021  
December 68, 2021  
January 1314, 2022  
Place and Date of Judgment:  
Nelson, B.C.  
April 5, 2022  
Canfield v. Bronze Wines Ltd.  
Page 2  
Table of Contents  
INTRODUCTION ....................................................................................................... 4  
ISSUES...................................................................................................................... 6  
FACTUAL BACKGROUND....................................................................................... 6  
Mrs. Canfield’s history............................................................................................ 6  
The signing of the Agreement ................................................................................ 8  
The signing of the Form A freehold transfer ......................................................... 11  
The mortgaging of the Property............................................................................ 12  
The foreclosure proceedings................................................................................ 14  
ANALYSIS............................................................................................................... 16  
Evidentiary issues ................................................................................................ 16  
The plaintiff’s credibility..................................................................................... 16  
Mr. Bottoni’s role in the transaction................................................................... 17  
Issue 1: Is the Agreement unconscionable?......................................................... 21  
Legal Framework.............................................................................................. 21  
Factual findings regarding the contracting process........................................... 25  
Analysis: Is the Agreement unconscionable? ................................................... 27  
Issue 2: What are Mrs. Canfield’s remedies for the unconscionable Agreement?  
............................................................................................................................. 30  
Remedies for unconscionability ........................................................................ 30  
The appropriate remedies for unconscionability in this case............................. 32  
Issue 3: Is Scot Stewart personally liable to Mrs. Canfield? ................................. 33  
Issue 4: Has the limitation period expired for Continental to enforce its security  
interest in the Property? ....................................................................................... 35  
Legal Framework.............................................................................................. 35  
Analysis ............................................................................................................ 36  
a. Does Mrs. Canfield have to make an acknowledgement to stop the tolling  
of the limitation period? ................................................................................. 37  
b. Should the limitation period issue vis-à-vis Mrs. Canfield and Bronze  
Wines be decided in this action?................................................................... 38  
c. Has Continental’s limitation period expired to enforce its security?........ 40  
The post-dated cheques............................................................................ 42  
The standstill agreement ........................................................................... 46  
Summary of conclusion on the limitation period issue ...................................... 47  
Canfield v. Bronze Wines Ltd.  
Page 3  
Issue 5: Was Mr. Engman negligent in witnessing Mrs. Canfield’s signature on the  
Form A freehold transfer? .................................................................................... 47  
Legal Framework.............................................................................................. 47  
Duty of care................................................................................................... 48  
Standard of care............................................................................................ 50  
Causation...................................................................................................... 51  
Factual findings relevant to the claim against Mr. Engman............................... 51  
Mrs. Canfield’s evidence ............................................................................... 52  
Mr. Stewart’s evidence.................................................................................. 54  
Mr. Engman’s evidence................................................................................. 54  
Factual findings............................................................................................. 57  
Analysis of the negligence claim....................................................................... 61  
Did Mr. Engman owe a duty of care to Mrs. Canfield? .................................. 61  
Did Mr. Engman meet the standard of care?................................................. 63  
Determining the standard of care .............................................................. 63  
Discussion..................................................................................................... 67  
Did Mr. Engman’s breach of duty cause Mrs. Canfield’s injury? ................... 68  
Summary of findings on the negligence claim against Mr. Engman.............. 70  
Issue 6: Assessment of damages........................................................................ 71  
The liability of Mr. Engman and Bronze Wines ................................................. 71  
Quantification of damages ................................................................................ 72  
Should damages be reduced to account for payments by Bronze Wines?....... 74  
CONCLUSION/ORDERS ........................................................................................ 74  
Canfield v. Bronze Wines Ltd.  
Page 4  
INTRODUCTION  
[1]  
The plaintiff, Jean Canfield, is 84 years old. In January 2012, she signed an  
agreement of purchase and sale (the “Agreement”), agreeing to transfer ownership  
of her home in Grand Forks, British Columbia (the “Property”) to the defendant  
Bronze Wines Ltd. (“Bronze Wines”). At the time, Mrs. Canfield was residing in an  
assisted living facility in the Lower Mainland, and recovering from hip surgery. She  
had no previous knowledge of Bronze Wines. She had never met the defendant Scot  
Stewart, who was the CEO and sole director of Bronze Wines, before the meeting at  
which the Agreement was signed. The deal was brokered by Mrs. Canfield’s son-in-  
law Max Bottoni, a childhood friend of Mr. Stewart’s. Mr. Bottoni drove Mrs. Canfield  
to the office of the notary, the defendant Howard Engman, who witnessed her  
signature on the Form A freehold transfer.  
[2]  
The Agreement stated that the purchase price was $465,000. However, the  
terms of the Agreement did not provide for any immediate payment to Mrs. Canfield  
in return for the transfer of the Property. Instead, she was to receive a future stream  
of monthly income from a winery that Bronze Wine hoped to establish and operate  
on the Property. Pursuant to the Agreement, the monthly payments were deferred  
for two years. Depending on how one interprets the interest provision in the  
Agreement, the amortization period, which is not specified, was anywhere from 20  
years to 40 years.  
[3]  
It was a term of the Agreement that Mrs. Canfield had the right to foreclose  
and reclaim the Property if Bronze Wines missed three consecutive monthly  
payments. This security proved to be wholly ineffective. Bronze Wines had no  
assets. The company was incorporated by Mr. Stewart for the sole purpose of  
operating the winery. Mr. Stewart had limited income and assets. He had no  
experience in the wine-making business. Following the transfer of the Property to  
Bronze Wines, the company borrowed funds for the business from private lenders.  
The loans were secured by registered mortgages against the Property.  
 
Canfield v. Bronze Wines Ltd.  
Page 5  
[4]  
By 2013, there were two mortgages registered against the Property in favour  
of Alpine Credits Limited (“Alpine Credits”). The first mortgage, in the principal  
amount of $335,000, was later assigned to the defendant Continental Appraisals Ltd.  
(“Continental”). The second mortgage, in the principal amount of $69,440, was  
assigned to the defendant Air Touch Communications Ltd. (“Air Touch”). These  
mortgages are in default. Bronze Wines has not made payments on the mortgages  
since 2015.  
[5]  
Continental and Air Touch both initiated foreclosure proceedings. Air Touch  
reached a settlement with Mrs. Canfield, and did not participate in this trial. In 2019,  
the Property was sold. By consent, the net proceeds of salein the sum of  
$338,000have been paid into court pending resolution of this proceeding.  
[6]  
Bronze Wines did not make any monthly payments to Mrs. Canfield before  
defaulting on the mortgage loans. In effect, Mrs. Canfield transferred her Property to  
Bronze Wines without receiving anything in return. Mrs. Canfield has no other assets  
of significance. She now lives in subsidized housing in Nelson, BC.  
[7]  
In this action, Mrs. Canfield alleges that the Agreement is unconscionable. As  
against Bronze Wines, she seeks the equitable remedy of rescission of the  
Agreement, and damages to the extent she is not made whole by the remedy of  
rescission. If the contract is not rescinded on the ground of unconscionability, Mrs.  
Canfield seeks the remedies of an equitable mortgage and contract damages. The  
plaintiff also seeks damages against Mr. Stewart personally. As against Mr.  
Engman, Mrs. Canfield seeks damages for his alleged negligence in failing to meet  
the standards of a competent notary in witnessing her signature on the Form A  
freehold transfer. Mrs. Canfield says that Bronze Wines and Mr. Engman are jointly  
liable for her loss.  
[8]  
As against Continental, Mrs. Canfield’s original allegation was that  
Continental had actual or constructive knowledge of her interest on the date its  
mortgage was registered on title to the Property. Mrs. Canfield abandoned this claim  
in final argument. She concedes that the evidence does not support such a finding.  
Canfield v. Bronze Wines Ltd.  
Page 6  
The sole remaining issue as it relates to Continental is whether the limitation period  
for Continental to enforce its security under the mortgage has expired. If the  
limitation period has not expired, then Continental’s registered interest in the  
Property takes priority over any unregistered equitable interest that Mrs. Canfield  
may establish in this action. Continental would then have priority over Mrs. Canfield  
to the funds paid into court.  
ISSUES  
[9]  
The issues that arise for resolution are as follows:  
(1) Is the Agreement an unconscionable transaction?  
(2) If so, what are Mrs. Canfield’s remedies?  
(3) Is Scot Stewart personally liable to Mrs. Canfield?  
(4) Has the limitation period expired for Continental to enforce its security  
interest in the Property?  
(5) Was Mr. Engman negligent in witnessing Mrs. Canfield’s signature on the  
Form A freehold transfer?  
(6) If Mrs. Canfield is entitled to compensation for the loss of the Property,  
how should her damages be assessed?  
FACTUAL BACKGROUND  
[10] In order to establish a chronology, I will summarize the background facts that  
are uncontested. I will resolve contested issues of fact in the Analysis section of this  
judgment while addressing each of the issues that must determined.  
Mrs. Canfield’s history  
[11] Mrs. Canfield was born in Vancouver in 1938. She attained a grade 9 or 10  
level of education, and then enrolled in secretarial training. Upon her completion of  
the program, Mrs. Canfield went to work as a teller with the Royal Bank of Canada.  
     
Canfield v. Bronze Wines Ltd.  
Page 7  
[12] At the age of 17, Mrs. Canfield left her job to marry Ken Canfield. Mr. Canfield  
was, at the time, in the Royal Canadian Navy. After leaving the Navy, he worked for  
a time for BC Ferries in Victoria before moving to work at an inland ferry on  
Kootenay Lake. Mrs. Canfield and her husband had four children together: Lisa,  
Nora, Timothy, and Doris. Timothy has passed away.  
[13] In 1976, Mrs. Canfield and her husband moved to Nelson, BC. In 1990, they  
purchased the Property, a 19.4-acre parcel of land just outside of Grand Forks that  
is within the provincial Agricultural Land Reserve. At the time of the purchase, the  
only structures on the land were a barn and some sheds. Mr. Canfield built the  
house that he and the plaintiff lived in on the Property. They kept animals such as  
cows, pigs, ducks, and chickens.  
[14] Prior to moving to Grand Forks, Mrs. Canfield and her husband had  
purchased and lived in other properties in Nelson and on Vancouver Island. They  
also purchased several investment properties through municipal tax sales. They  
were equal partners in these purchases. Mrs. Canfield had experience in assessing  
the value of properties in order to settle on a bid price. She also had experience in  
attending the offices of lawyers and notaries for the purpose of completing the  
property sales.  
[15] Mrs. Canfield lived on the Property with her husband until Mr. Canfield’s  
death in 1997. After Mr. Canfield passed away, Mrs. Canfield had difficulty  
maintaining the Property on her own. She began to have issues with her hips that  
required an operation.  
[16] In 2009, Mrs. Canfield left Grand Forks and moved to the Lower Mainland,  
where there was a shorter wait list for hip replacement surgery. She moved in with  
her daughter Doris and son-in-law Mr. Bottoni, who lived in Langley. Mrs. Canfield’s  
other daughters, Lisa and Nora, lived in Nelson.  
[17] Following the surgery, Mrs. Canfield moved into an assisted living facility, the  
Langley Seniors Village. She paid the monthly cost of the facility herself, which she  
Canfield v. Bronze Wines Ltd.  
Page 8  
estimates to have been approximately $3,000. After the surgery, Mrs. Canfield had  
difficulty walking unassisted. She began to use a walker or a cane. Mrs. Canfield  
was injured in the course of post-surgery physiotherapy. She then used two canes or  
a walker.  
[18] While she was residing at Langley Seniors Village, Mrs. Canfield decided that  
she would list the Property for sale. She had known for some time that she would not  
be able to manage such a large property on her own. It was also expensive to  
maintain the insurance on the Property. While Mrs. Canfield was in the Lower  
Mainland, her daughter Lisa had arranged for a work colleague to stay at the  
Property. However, this was not a long-term solution.  
[19] At some point in 2010, Mrs. Canfield, with the assistance of her daughter  
Lisa, applied to the Agricultural Land Commission for permission to subdivide the  
Property. Mrs. Canfield believed that it might be easier to sell a smaller property.  
The application to subdivide was unsuccessful.  
[20] On October 4, 2010, Mrs. Canfield listed the Property with a real estate agent  
by the name of Ingrid Mathison. This listing expired at the end of December 2010.  
On January 10, 2011, the Property was re-listed with a different agent, Patricia  
Ballard. The initial list price was $548,000. On June 17, 2011, the price was reduced  
to $485,000. This listing expired on November 30, 2011. There were no offers to  
purchase the Property during these listing periods.  
The signing of the Agreement  
[21] At the same time that Mrs. Canfield was attempting to sell the Property, the  
defendant Mr. Stewart was exploring opportunities to start a wine-making business.  
To that end, he incorporated Bronze Wines. Mr. Stewart had previously worked at a  
variety of jobs, including in the service industry as a cook and in telephone sales.  
When Mr. Stewart was in his late 30s, he returned to work at his father’s business.  
The business was not successful. It was eventually sold to pay the bills. Mr. Stewart  
was then unemployed.  
 
Canfield v. Bronze Wines Ltd.  
Page 9  
[22] Mr. Stewart had an interest in making wines, but no training or experience in  
the field. Mr. Stewart discussed his plans to start a winery with Mr. Bottoni. The two  
had been friends since junior high school. The difficulty was that Mr. Stewart’s  
dream to start a wine-making business required money, and he did not have any  
income or assets. Mr. Bottoni suggested to Mr. Stewart that he consider buying the  
Property in Grand Forks for the purpose of establishing the wine business. Mr.  
Bottoni advised Mr. Stewart that Mrs. Canfield had been attempting to sell the  
Property without success, and that she might be open to an alternative arrangement.  
[23] In the late summer of 2011, Mr. Stewart and Mr. Bottoni travelled together to  
Grand Forks so that Mr. Stewart could see the Property. There is no evidence that  
Mrs. Canfield was aware of this visit, nor is there evidence that she was aware that  
Mr. Bottoni was engaged in discussion with Mr. Stewart about a possible purchase  
of the Property.  
[24] In his evidence at trial, Mr. Stewart described a period of “negotiation” with  
Mrs. Canfield over a number of months leading to the signing of the Agreement.  
However, he concedes that he had no direct communication with Mrs. Canfield prior  
to January 31, 2012, when they met to sign the Agreement. Instead, Mr. Bottoni  
acted as the go-between. It should be noted that Mr. Bottoni was not disinterested in  
the transaction between Bronze Wines and the plaintiff. As reviewed in the Analysis  
section of this judgment (at paras. 6271), Mr. Bottoni had a personal interest in the  
development of the winery, and he eventually became a representative of Bronze  
Wines.  
[25] Mr. Stewart understood from Mr. Bottoni that Mrs. Canfield was open to a  
sale of the Property with deferred payments. Mr. Stewart says that Mrs. Canfield’s  
“demands”, as conveyed to Mr. Stewart by Mr. Bottoni, included that there would be  
no realtor involved, any legal or notary fees would be covered by Bronze Wines,  
Bronze Wines would accept the Property “as is”, and Bronze Wines would provide  
storage containers for the plaintiff’s personal effects. Bronze Wines accepted these  
terms.  
Canfield v. Bronze Wines Ltd.  
Page 10  
[26] Mr. Stewart testified that in November 2011, he delivered a letter to Mrs.  
Canfield setting out the terms of the proposed purchase, as determined in his  
discussions with Mr. Bottoni. Mrs. Canfield does not recall receiving this letter. There  
is no evidence that she directly responded to it, either orally or in writing.  
[27] Mr. Stewart drafted the Agreement, using a precedent contained in a self-  
counsel business package that he had purchased. He sent the draft Agreement to  
Mr. Bottoni for review. At Mr. Bottoni’s suggestion, he also sent the draft to the  
plaintiff’s daughter Lisa. It appears from emails that are in evidence that Mr. Bottoni  
was concerned to ensure Lisa’s “buy in” to the arrangement because he believed  
she held the Power of Attorney over Mrs. Canfield’s affairs if anything should happen  
to Mrs. Canfield.  
[28] On the evening of January 31, 2012, Mrs. Canfield and Mr. Stewart met for  
the first time at Mrs. Canfield’s then-home at Langley Seniors Village. Mr. Bottoni  
was also present. Mr. Stewart brought the Agreement with him. It lists a purchase  
price of $465,000. The payment terms are set out in an Appendix “C” to the  
Agreement. The relevant payment terms include:  
(1) Interest on the balance of the principal amount is set at “the Bank of  
Canada Prime rate +1%”;  
(2) Although interest will begin to accrue at the time the Property is  
transferred, Bronze Wines is not required to make any payment of any  
kind to the plaintiff for 24 calendar months from the date of transfer of title;  
(3) Thereafter, Bronze Wines will make monthly payments of $2,500 until the  
principal and interest is fully paid;  
(4) Outstanding interest will be satisfied before payments can be applied to  
the principal;  
Canfield v. Bronze Wines Ltd.  
Page 11  
(5) Mrs. Canfield has “the right to foreclose and reclaim the [P]roperty and  
any permanent enhancements to structures, irrigation and new buildings”  
if Bronze Wines misses three consecutive payments;  
(6) Fees to draw up the agreement and have it notarized will be assumed by  
Bronze Wines;  
(7) There is no monetary penalty for early repayment of any portion of the  
principal amount, including in the event of a re-sale of the Property; and  
(8) Up until the time of receipt of the final payment, Mrs. Canfield has the right  
to convert any portion of the outstanding balance into common shares of  
Bronze Wines.  
[29] Appendix “B” to the Agreement addresses Mrs. Canfield’s personal effects.  
They were to be removed from the Property by June 30, 2012. Bronze Wines, at its  
expense, agreed to arrange for storage containers for the personal effects until they  
were removed.  
[30] Mrs. Canfield signed the Agreement without requesting changes. Mr. Stewart  
signed on behalf of Bronze Wines. They both also initialled each page.  
The signing of the Form A freehold transfer  
[31]  
After the Agreement was signed, Mr. Stewart understood that he needed to  
have Mrs. Canfield’s signature on a Form A freehold transfer witnessed by a lawyer  
or notary. Mr. Stewart booked an appointment with the defendant notary Mr.  
Engman on February 27, 2012 at Mr. Engman’s New Westminster office. Mrs.  
Canfield was, at this time, still living at Langley Seniors Village. On the day of the  
appointment, Mr. Bottoni picked Mrs. Canfield up and drove her to Mr. Engman’s  
office, where they met Mr. Stewart.  
[32] Mr. Stewart prepared the Form A freehold transfer prior to the parties’  
appointment with Mr. Engman. A copy of the Form A was not provided to Mrs.  
Canfield before she arrived at Mr. Engman’s office. The Form A listed the “market  
 
Canfield v. Bronze Wines Ltd.  
Page 12  
value” of the property as $200,317.60, and the “consideration” for the transfer as  
$465,000. Mr. Stewart came up with the market value figure. He says it was based  
on advice he was given by the BC Assessment Authority over the telephone as to  
how to determine bare land value.  
[33] The events at Mr. Engman’s office are controversial. I will canvass the  
evidence in greater detail when addressing Mrs. Canfield’s claim in negligence  
against Mr. Engman. The uncontested facts are that Mr. Engman witnessed her  
signature on the Form A freehold transfer on February 27, 2012. Mr. Bottoni and Mr.  
Stewart were both present in Mr. Engman’s office. Mr. Stewart, on behalf of Bronze  
Wines, paid a $50 fee to Mr. Engman for the service. Mr. Stewart left Mr. Engman’s  
office with the original copy of the Form A.  
[34] The Form A was altered before it was registered in the Land Title Office  
(“LTO”). Mr. Stewart had listed “Scot Stewart” as the applicant in the original version.  
After submitting the Form A for filing, Mr. Stewart received advice from the LTO that  
Mrs. Canfield (the transferor) should have been listed as the applicant. Mr. Stewart  
made handwritten revisions to the Form A to change the name of the applicant to  
Mrs. Canfield. He then resubmitted the Form A to the LTO, and it was accepted for  
registration in March 2012.  
[35] In 2013, Mrs. Canfield moved back to Nelson as she could not longer afford  
the monthly cost of the Langley Seniors Village. She initially stayed with her  
daughter Nora and her family. She then moved into Kiwanis Village, a subsidized  
housing facility in Nelson.  
The mortgaging of the Property  
[36] Once Bronze Wines took title to the Property, it required mortgage financing  
in order to carry out necessary repairs and renovations. A local credit union would  
not approve a mortgage, at least in part due to the fact that Mr. Stewart had no  
income. Bronze Wines then found a private lender, Jason Konken, who agreed to  
advance $150,000, secured by a registered mortgage against the Property (the  
 
Canfield v. Bronze Wines Ltd.  
Page 13  
“Konken mortgage”). Mr. Konken insisted that the mortgage be repaid within 18  
months or refinanced. Bronze Wines agreed to these terms.  
[37] Once Bronze Wines had the mortgage funds, it undertook renovations to the  
Property, including fencing, irrigation, planting, and renovation of the barn. Bronze  
Wines also undertook construction of a distillery and greenhouse.  
[38] In 2013, Bronze Wines sought to refinance the Konken mortgage by way of a  
new mortgage from Alpine Credits. An appraisal of the Property was carried out for  
the purpose of the Alpine Credits mortgage application. The appraisal valued the  
Property at $620,000 as of June 3, 2013. On June 10, 2013, Alpine Credits granted  
Bronze Wines a mortgage against the Property in the principal amount of $335,000,  
with an interest rate of 7%, compounded monthly. The mortgage term was 12  
months. The Alpine Credits mortgage was registered as a first mortgage against the  
Property, and the Konken mortgage was paid out and discharged.  
[39] On June 25, 2013, Alpine Credits contacted Victor Yates, the owner of  
Continental, to see if Continental would be interested in purchasing the Bronze  
Wines mortgage. Continental’s business includes mortgage investments.  
Continental had purchased many mortgages from Alpine Credits in the past. On this  
occasion, Alpine Credits provided relevant information to Mr. Yates for review,  
including an investment summary, appraisal, and credit report. Nothing appeared to  
Mr. Yates to be unusual. He was most interested in the loan to value ratio, which  
was within his risk tolerance.  
[40] Continental agreed to purchase the mortgage. Alpine Credits agreed to  
continue to administer the mortgage pursuant to the terms of a Mortgage  
Administration Agreement. The administration duties assumed by Alpine Credits  
included the collection of delinquent payments and the negotiation of mortgage  
renewals.  
[41] In July 2013, Alpine Credits registered the transfer of the mortgage to  
Continental. It is not in dispute that at the time of the registration, Continental had no  
Canfield v. Bronze Wines Ltd.  
Page 14  
knowledge of Mrs. Canfield or her potential interest in the Property. Bronze Wines  
was notified of the transfer by letter dated July 10, 2013. The Bronze Wines  
mortgage payments were thereafter paid to Continental by way of post-dated  
cheques.  
[42] Bronze Wines continued in its efforts to improve and develop the Property. In  
the fall of 2013, Bronze Wines applied to Alpine Credits for a second mortgage. A  
further appraisal carried out for the purpose of the application assessed the value of  
the Property as $685,000 as of November 21, 2013. Alpine Credits agreed to  
advance a further $69,440, secured by a second mortgage. The second mortgage  
was later sold to Air Touch.  
[43] In May 2014, Mrs. Canfield filed and served her notice of civil claim in this  
action, and registered a certificate of pending litigation against the Property.  
[44] Despite the service of the notice of civil claim, Continental and Bronze Wines  
agreed to a one-year renewal of the first mortgage in June 2014. Mr. Yates says he  
was not concerned with renewing the mortgage in these circumstances because  
Bronze Wines was not in arrears on its mortgage payments, and Continental’s  
interest in the Property was secure by virtue of Continental’s status as first  
mortgagee.  
The foreclosure proceedings  
[45] By 2015, Bronze Wines was in significant financial difficulty. Mr. Stewart  
maintains this was due, at least in part, to the impact of the commencement of this  
litigation. Other factors included a fire at the Property in 2015 that disrupted business  
operations for an extended period. For the purpose of this action, it is unnecessary  
for me to reach a conclusion as to the precise reasons why the wine business failed.  
[46] The Continental mortgage remained in good standing until February 2015.  
The post-dated cheques for February and March 2015 could not initially be cashed  
due to insufficient funds in the Bronze Wines account. Payments for those months  
were eventually made. Bronze Wines’ last mortgage payment was made on April 15,  
 
Canfield v. Bronze Wines Ltd.  
Page 15  
2015. As of May 2015, all of Bronze Winescheques were returned due to  
insufficient funds.  
[47] In June 2015, Mr. Yates contacted Alpine Credits. Alpine Credits told Mr.  
Yates that Air Touch, the second mortgagee, had initiated a foreclosure proceeding.  
Mr. Yates left it to Alpine Credits to deal with Bronze Wines and the Air Touch  
foreclosure proceeding. Mr. Yates did not take steps at this time to commence a  
separate foreclosure proceeding on behalf of Continental. He assumed that,  
because Continental held the first mortgage on the Property, Continental’s interest  
would be protected through the Air Touch foreclosure proceeding.  
[48] Mr. Yates had no further contact with anyone about the Air Touch foreclosure  
proceeding until September 2016. At that time, Alpine Credits contacted Mr. Yates to  
inquire as to whether Continental might be interested in reviewing a settlement  
proposal from Bronze Wines. Alpine Credits put Mr. Yates in touch with the law firm  
of Richards and Richards, who were retained to act for Air Touch on the foreclosure  
petition. The firm sent Mr. Yates a copy of a settlement agreement for review.  
[49]  
Continental, Air Touch, and Bronze Wines all subsequently signed the  
settlement agreement. Mr. Stewart signed on behalf of Bronze Wines on September  
20, 2016. It appears from the agreement that by this time, Bronze Wines had  
granted one or more land leases for farming garlic on the Property. It was hoped that  
the profits from these contracts would be sufficient to cover Bronze Wines’ mortgage  
debts. The agreement included the following Whereas clause:  
The parties have worked out a settlement of all issues in order to facilitate a  
standstill of Air Touch’s foreclosure of Bronze’s debt, a standstill of any  
enforcement action by Continental under its mortgage, contracting out the  
growing of garlic on a profit sharing basis, and Bronze focussing its business  
on spirits.  
[50] Pursuant to the settlement agreement, Air Touch agreed to take no further  
action in its foreclosure proceeding and Continental agreed it would not take steps to  
enforce its mortgage against the Property for a “standstill” period of one year,  
provided that Bronze Wines was making the payments required by the agreement.  
Canfield v. Bronze Wines Ltd.  
Page 16  
[51] Bronze Wines did not make the payments required under the settlement  
agreement. On April 4, 2018, Continental delivered to Bronze Wines a notice of  
intention to enforce security. On April 30, 2018, Continental commenced a  
foreclosure proceeding.  
ANALYSIS  
Evidentiary issues  
[52] Before turning to the specific issues that arise in this case, I will address two  
evidentiary issues that were a general focus of the parties’ arguments: Mrs.  
Canfield’s credibility, and Mr. Bottoni’s role in the negotiation and execution of the  
Agreement.  
The plaintiff’s credibility  
[53] The defendants say that Mrs. Canfield was not a credible or reliable witness.  
They say that she was evasive in answering questions directly, that her evidence  
lacked focus, and that questions often had to be repeated multiple times before she  
would provide a response. The defendants suggest that Mrs. Canfield deliberately  
evaded personal responsibility for signing the Agreement, stating that “I am quite  
sure that I was not myself agreeing to it, but my pen was”. They also say that she  
was an unreliable historian.  
[54] There is no question that Mrs. Canfield’s evidence at this trial was difficult to  
follow at times. Her answers to questions were often non-responsive. Counsel  
frequently had to repeat their questions because Mrs. Canfield’s answers were  
incomplete or illogical. I note that these difficulties were not simply present during  
Mrs. Canfield’s cross-examination, but also during her direct examination by her own  
counsel. Mrs. Canfield appeared to me to be genuinely confused at times, not simply  
by the questions that were being put to her by counsel, but by the very trial process  
itself.  
[55] Credibility, of course, has two componentshonesty and reliability. The  
evidence of an honest witness may be unreliable despite their genuine effort to tell  
     
Canfield v. Bronze Wines Ltd.  
Page 17  
the truth: Ahonen v. Thauli, 2013 BCSC 1607 at para. 34. In my view, none of the  
difficulties I have described reflect on Mrs. Canfield’s honesty. I accept that she did  
her best to give accurate evidence over the course of three days of questioning that  
must have been very challenging for her. Furthermore, she was being asked about  
events that occurred at least a decade ago, and, in some instances, many decades  
ago. For example, Mrs. Canfield was cross-examined at length about the details of  
properties she and her late husband purchased in the 1970s and 1980s. It is not  
surprising that Mrs. Canfield had difficulty recalling such details, nor that the effort of  
doing so left her appearing tired and confused at times.  
[56] Mrs. Canfield clearly has difficulty remembering the details of key events in  
this action. She cannot remember meeting Mr. Stewart on January 31, 2012 to sign  
the Agreement, although she acknowledges this must have happened. She has  
limited memory of her meeting with Mr. Engman. Mrs. Canfield appeared, at times,  
to be open to suggestion about how the relevant events likely transpired despite her  
lack of memory. Given the issues with the plaintiff’s reliability, as opposed to her  
honesty, I will approach her evidence with caution to the extent it is relied on by any  
of the parties to establish facts that are contentious.  
Mr. Bottoni’s role in the transaction  
[57] Mr. Bottoni is a key figure in the events surrounding the transfer of the  
Property. On the defendants’ theory, Mr. Bottoni, and, to a lesser extent, other family  
members, protected Mrs. Canfield’s interest in the contracting process. Mrs. Canfield  
says that Mr. Bottoni did not protect her interests, but rather was aligned with Bronze  
Wines in its plan to develop a winery.  
[58] Despite the central role that Mr. Bottoni played in the negotiation and  
execution of the Agreement, he was not called as a witness at trial. This was an  
unexpected development. Bronze Wines and Mr. Engman both listed Mr. Bottoni on  
their respective witness lists. Mr. Bottoni swore an affidavit in this proceeding on July  
9, 2021. It was anticipated that the affidavit would stand as Mr. Bottoni’s direct  
evidence, and that he would be called for the purpose of cross-examination in the  
 
Canfield v. Bronze Wines Ltd.  
Page 18  
course of the defendants’ case. The affidavit was marked as an exhibit for  
identification pending Mr. Bottoni’s anticipated evidence at trial.  
[59]  
The plaintiff’s case completed in the first week of trial, which was July 19–23,  
2021. The defendants’ evidence was scheduled to be heard the following week. Mr.  
Stewart indicated that he was not ready to proceed. I granted his request for an  
adjournment of the trial to the week of December 6, 2021. When the trial resumed in  
December, the defendants advised that they did not intend to call Mr. Bottoni as a  
witness.  
[60] The plaintiff says I ought to draw an adverse inference from the defendants’  
failure to call Mr. Bottonithat is, that I should infer that Mr. Bottoni’s evidence  
would not have assisted the defendants. An adverse inference may be drawn  
against a party if, without sufficient explanation, that party fails to call a witness who  
might be expected to provide important supporting evidence if their case was sound.  
The inference is not to be drawn if the witness was equally available to both parties:  
Thomasson v. Moeller, 2016 BCCA 14 at para. 35; Singh v. Reddy, 2019 BCCA 79  
at para. 27.  
[61] I decline to draw an adverse inference in this case for two reasons. First, Mr.  
Bottoni was equally available to both parties. The plaintiff could have called Mr.  
Bottoni as a witness if she considered his evidence to be important to her case. The  
plaintiff says that by the time she was advised by the defendants that they did not  
intend to call Mr. Bottoni, she had already closed her case. I do not agree that Mr.  
Bottoni was not a witness equally available to Mrs. Canfield due to this timing. Mrs.  
Canfield could have sought the defendants’ undertaking to call Mr. Bottoni before  
she closed her case. There is no indication she did so.  
[62] Second, and more importantly, it is unnecessary in this case to resort to an  
adverse inference to support the findings that Mrs. Canfield invites the Court to  
make about Mr. Bottoni’s role. There are numerous emails in evidence that are  
authored by Mr. Bottoni. Pursuant to the parties’ document agreement, the emails  
are authentic and admissible in the absence of evidence from Mr. Bottoni. The only  
Canfield v. Bronze Wines Ltd.  
Page 19  
logical inference that can be drawn from the emails is that, before and after the  
Agreement, Mr. Bottoni was actively supporting Mr. Stewart in the wine-making  
business, and viewed the business as a joint endeavour. I will provide illustrative  
examples.  
[63] In the “negotiation” period, there is no evidence of any communication  
between Bronze Wines and Mrs. Canfield, or even between Mr. Bottoni and Mrs.  
Canfield. Instead, there are a series of emails between Mr. Stewart and Mr. Bottoni  
in which the terms of the draft Agreement are discussed. In an email sent to Mr.  
Stewart on January 27, 2012, before the Agreement was signed, Mr. Bottoni listed a  
number of repairs that may be required on the Property, including to the main house.  
Mr. Bottoni states:  
I don’t have a lot – or really any faith in house inspectors but it may be  
prudent to have the place inspected. Other areas of potential issue: furnace,  
water heater, water system. Again these are getting to be 20 years old or at  
least 15 they never have experienced issues to the best of my knowledge  
but that’s how they get you. I would suspect that the furnace is fine but could  
use a servicing clean filters etc. The water heater? I’m not sure they can be  
serviced. But with well water, it will be harder than municipal water so there  
could be an additional build up of minerals. The water system this had a  
problem where a main pipe coming from the well was broken but it was fixed.  
. . .  
All this is really to say that once possession occurs, the issues will be ours.  
Best to go in with eyes wide open.  
[Emphasis added.]  
[64] Mr. Stewart and Mr. Bottoni also exchanged emails in February 2012 to co-  
ordinate a time to book with Mr. Engman to have the plaintiff’s signature on the Form  
A witnessed. The email exchange suggests that the scheduling of an appointment  
with the notary was of primary interest to Mr. Stewart and Mr. Bottoni, with the  
plaintiff as only an after-thought. Mr. Stewart inquired as to whether it was necessary  
to check the plaintiff’s availability before booking the appointment. Mr. Bottoni  
responded:  
not to be crude, but at present I suspect our schedules are a little more full  
than hers…  
but to be pleasant I will of course give her a heads up.  
Canfield v. Bronze Wines Ltd.  
Page 20  
[65] Mr. Stewart acknowledged in his evidence at trial that the appointment with  
Mr. Engman was booked before Mrs. Canfield’s availability was confirmed.  
[66] In January 2014, Mr. Stewart and Mr. Bottoni exchanged emails regarding a  
draft letter to Mrs. Canfield from Mr. Stewart, on behalf of Bronze Wines, which  
encouraged her to consider converting the outstanding balance under the  
Agreement to shares in the company. In the letter, Mr. Stewart suggested that in  
converting her interest to shares, Mrs. Canfield might avoid tax liabilities that would  
accrue from the receipt of payments under the Agreement that would count as  
income or capital gains. The letter was sent to Mrs. Canfield sometime in late  
January or early February of 2014. In March 2014, Mr. Bottoni emailed Lisa  
Canfield, from the email address [email protected], to explain the purpose of  
the letter. Mr. Bottoni states:  
We mailed a copy of the attached letter and a summary statement to Jean in  
late January early February. We have not heard back from Jean at this time. I  
thought it best that you also be kept abreast of the current state of the  
agreement between Bronze and Jean. I’m not sure if you have heard anything  
about this as of yet. One rumor has it that certain individuals seem to be feeling  
that this contract will never result [in] a return. This is not the intention of the  
notice. The notice is the result of our concern for Jean’s financial state and the  
repercussions resulting from the capital gains that she may need to pay as part  
of her 2014 taxes as a result of the [fact] that the first payment is scheduled  
later this year. It would greatly behoove Jean to look for some accountant  
advice in this matter. …  
[67] In 2015, Mr. Stewart and Mr. Bottoni exchanged emails concerning a letter  
they planned to send to the plaintiff on behalf of Bronze Wines proposing terms to  
settle her action. At this time, Mr. Bottoni continued to use the email address  
[email protected].” In response to a query from Mr. Stewart as to whether to  
acknowledge in the letter to the plaintiff that the fair market value of the Property was  
$465,000, Mr. Bottoni stated:  
Well, we agreed in the Agreement to pay her 465 which would suggest we  
were satisfied with it at the time we signed the agreement. And we are  
agreeing to pay to that original amount for the property and chattels.  
. . .  
Canfield v. Bronze Wines Ltd.  
Page 21  
I understand that based on our assessment of the property once we had  
possession and could compare to other farm properties in the area, the fair  
market value was less.  
[Emphasis added.]  
[68] Mr. Stewart acknowledged in his evidence at trial that Mr. Bottoni held himself  
out as a director of Bronze Wines in correspondence with the plaintiff that was sent  
around the same time.  
[69] The natural inference arising from the documentary evidence is that Mr.  
Bottoni had an active interest in Bronze Wines at all material times, including the  
time of the signing of the Agreement. Furthermore, he became a formal  
representative of Bronze Winesperhaps even a director of the companyafter the  
transaction had completed. It was open to the defendants to call Mr. Bottoni to  
provide some explanation for the documentary evidence that might have supported  
an alternative inference. They chose not to.  
[70] Mr. Stewart testified that he was told by Mr. Bottoni on several occasions  
during the contracting process that Mr. Bottoni was providing information to, and  
taking direction from, Mrs. Canfield. This evidence is hearsay. It is not admissible as  
proof of the assertion that Mr. Bottoni was actively assisting Mrs. Canfield. If the  
defendants had wished to establish the truth of this assertion, they were obliged to  
call Mr. Bottoni.  
[71] Accordingly, I find that the only rational inference arising from the evidence is  
that Mr. Bottoni was not acting as an agent of Mrs. Canfield in the contracting  
process, as the defendants maintain. Rather, he was aligned in interest with Bronze  
Wines.  
Issue 1: Is the Agreement unconscionable?  
Legal Framework  
[72] Unconscionability is an equitable doctrine that is used to set aside “unfair  
agreements [that] resulted from an inequality of bargaining power”: Uber  
Technologies Inc. v. Heller, 2020 SCC 16 at para. 54 [Uber], citing John D.  
   
Canfield v. Bronze Wines Ltd.  
Page 22  
McCamus, The Law of Contracts, 2nd ed (Toronto: Irwin Law, 2012) at 424. Through  
the doctrine of unconscionability, equity provides relief where the traditional  
presumptions underlying freedom of contract—the “freely negotiated bargain or  
exchange” between “autonomous and self-interested parties”—lose their justificatory  
authority due to the vulnerability of one party to the contracting process: Uber at  
paras. 56-60. Courts will not ignore serious flaws in the contracting process where  
those flaws challenge the traditional paradigms of the common law of contract. As  
explained by the Supreme Court of Canada in Uber:  
[58]  
…The elderly person with cognitive impairment who sells assets for a  
fraction of their value (Ayres v. Hazelgrove, Q.B. England, February 9, 1984);  
the ship captain stranded at sea who pays an extortionate price for rescue  
(The Mark Lane (1890), 15 P.D. 135); the vulnerable couple who signs an  
improvident mortgage with no understanding of its terms or financial  
implications (Commercial Bank of Australia Ltd. v. Amadio, [1983] HCA 14,  
151 C.L.R. 447) these and similar scenarios bear little resemblance to the  
operative assumptions on which the classic contract model is constructed.  
[73] The Court’s consideration of the issue of unconscionability in Uber occurred  
in the context of a challenge to the enforceability of a clause in the standard form  
employment contracts signed by Uber drivers that required disputes under the  
contract to be referred to a mediation and arbitration process. The place of the  
mandated mediation and arbitration was the Netherlands. Further, in order to access  
the dispute resolution process, a driver was required to pay up-front administration  
and filing fees in the amount of $14,500. In a proposed class action brought on  
behalf of Uber drivers, the plaintiff argued that the arbitration clause was  
unconscionable.  
[74] In its judgment in Uber, the Supreme Court of Canada re-stated the test for  
unconscionability. The Court reaffirmed that a finding of unconscionability requires  
two conditions: (1) inequality of bargaining power, and (2) a resulting improvident  
bargain: Uber at para. 65.  
Canfield v. Bronze Wines Ltd.  
Page 23  
[75] An inequality of bargaining power exists where one party cannot adequately  
protect their interests in the contracting process. As explained in Uber:  
[67]  
There are no “rigid limitations” on the types of inequality that fit this  
description (McCamus, at p. 429). Differences in wealth, knowledge, or  
experience may be relevant, but inequality encompasses more than just  
those attributes (McInnes, at p. 524-25). Professor McInnes describes the  
diversity of possible disadvantages as follows:  
Equity is prepared to act on a wide variety of transactional  
weaknesses. Those weaknesses may be personal (i.e.,  
characteristics of the claimant generally) or circumstantial (i.e.,  
vulnerabilities peculiar to certain situations). The relevant disability  
may stem from the claimant’s “purely cognitive, deliberative or  
informational capabilities and opportunities”, so as to preclude “a  
worthwhile judgment as to what is in his best interest”. Alternatively,  
the disability may consist of the fact that, in the circumstances, the  
claimant was “a seriously volitionally impaired or desperately needy  
person”, and therefore was specially disadvantaged because of “the  
contingencies of the moment”. [Emphasis in original; footnotes  
omitted; p. 525.]  
(See also Chen-Wishart (2018), at p. 363.)  
These disadvantages need not be so serious as to negate the capacity to  
enter a technically valid contract (Chen-Wishart (2018), at p. 340; see also  
McInnes, at pp. 525-26).  
[76] One common example of inequality of bargaining power arises from what the  
Court in Uber characterizes as the “necessity” cases. In such cases, the weaker  
party is so dependent on the stronger that serious consequences would flow from  
not agreeing to the contract: Uber at para. 6970. The second common example is  
where only one party could understand and appreciate the full import of the  
contractual terms, thus creating “cognitive asymmetry”:  
[71]  
… This may occur because of personal vulnerability or because of  
disadvantages specific to the contracting process, such as the presence of  
dense or difficult to understand terms in the parties’ agreement. In these  
cases, the law’s assumption about self-interested bargaining loses much of  
its force. Unequal bargaining power can be established in these scenarios  
even if the legal requirements of contract formation have otherwise been met  
(see Sébastien Grammond, “The Regulation of Abusive or Unconscionable  
Clauses from a Comparative Law Perspective” (2010), 49 Can. Bus. L.J. 345,  
at pp. 353-54).  
[77] The Court in Uber cited these examples of inequality of bargaining power in  
order to assist in “organizing and understanding” prior cases of unconscionability.  
Canfield v. Bronze Wines Ltd.  
Page 24  
However, regardless of the type of impairment involved, what matters is whether the  
evidence discloses a bargaining context: “…where the law’s normal assumptions  
about free bargaining either no longer substantially hold true or are incapable of  
being fairly applied”: Uber at para. 72.  
[78] The second requirement of unconscionability, an improvident bargain,  
consists of a bargain that unduly advantages the stronger party or unduly  
disadvantages the weaker party. Improvidence is to be measured contextually at the  
time the bargain was formed. The question is whether the potential for undue  
advantage or disadvantage as a result of the inequality of bargaining power has  
been realized. Proof of a manifestly unfair bargain may support an inference that  
one party was unable to adequately protect their interests: Uber at paras. 7479.  
[79] As explained in Uber, a bargain may be improvident where the weaker has  
been unduly disadvantaged by terms that they did not fully understand:  
[77]  
Where the weaker party did not understand or appreciate the meaning  
and significance of important contractual terms, the focus is on whether they have  
been unduly disadvantaged by the terms they did not understand or appreciate.  
These terms are unfair when, given the context, they flout the “reasonable  
expectation” of the weaker party (see Swan Adamski and Na, at pp. 993-94) or  
cause an “unfair surprise” (American Law Institute and National Conference of  
Commissioners on Uniform State Laws, Proposed Amendments to Uniform  
Commercial Code Article 2 Sales: With Prefatory Note and Proposed  
Comments (2002), at p. 40). This is an objective standard, albeit one that has  
regard to the context.  
[80] The Court in Uber expressly rejected a more stringent four-part test for  
unconscionability that had been adopted in previous cases. The four-part test  
requires proof that the transaction was “grossly unfair”, that there was no  
independent advice, that the imbalance in bargaining power was “overwhelming”,  
and that the stronger party intended to take advantage of the vulnerable party. The  
Court held that the four-part test raises the traditional threshold for unconscionability  
and unduly narrows the doctrine: Uber at paras. 8082.  
[81] Under the two-part test for unconscionability articulated in Uber,  
unconscionability can be established without proof that the stronger party knowingly  
Canfield v. Bronze Wines Ltd.  
Page 25  
took advantage of the weaker: Uber at para. 84. Requiring proof that the stronger  
party knowingly took advantage would improperly focus the inquiry on the state of  
mind of the stronger party, rather than the protection of the more vulnerable: “…a  
weaker party, after all, is as disadvantaged by inadvertent exploitation as by  
deliberate exploitation”: Uber at para. 85.  
[82] On the facts of Uber, the Court held that the arbitration agreement was  
unconscionable, and therefore invalid. There was clearly inequality of bargaining  
power between Uber and the plaintiff. The arbitration agreement was part of a  
standard form contract, and the plaintiff was powerless to negotiate any terms. The  
agreement itself contained no information about the cost of mediation and  
arbitration, and thus the plaintiff could not be expected to appreciate the financial  
and legal implications of the agreement to arbitrate: Uber at para. 93.  
[83] The improvidence of the bargain in issue in Uber was clearly established. The  
up-front administrative fees to access the dispute resolution process was close to  
the sum of the plaintiff’s annual income. After paying such fees, the plaintiff would  
then have to travel to the Netherlands to participate in the mediation and arbitration,  
which would be governed by the law of the Netherlands. Effectively, the arbitration  
clause rendered the plaintiff’s substantive rights under the contract unenforceable:  
Uber at paras. 9495.  
Factual findings regarding the contracting process  
[84] I will begin by resolving the factual contests between the parties as to what  
occurred during the contracting process in this case. My findings are as follows.  
[85] There is no evidence that Mrs. Canfield was involved in any negotiation of  
terms with Bronze Wines before the Agreement was signed. There is no evidence  
that a draft of the Agreement was ever sent directly to Mrs. Canfield. Mr. Stewart’s  
evidence as to what he was told by Mr. Bottoni about Mrs. Canfield’s involvement  
during the period leading up to the signing of the contract is, as I have noted,  
inadmissible hearsay. I find that the first time that Mrs. Canfield was shown a  
 
Canfield v. Bronze Wines Ltd.  
Page 26  
proposed form of the Agreement was on January 31, 2012, when Mr. Bottoni and  
Mr. Stewart met with her at Langley Seniors Village.  
[86] At the time of this meeting, Mrs. Canfield was 73 years old and residing in an  
assisted living facility in Langley. She was recovering from hip surgery that left her  
with mobility issues. Mrs. Canfield was concerned about her ability to continue to  
pay her accommodation costs. She could not return to live at the Property due to her  
age and health. Mrs. Canfield still had her personal effects at the Property, and she  
was concerned about recovering them. I find, accordingly, that even though Mrs.  
Canfield had the capacity to sign the Agreement, she was in a position of situational  
vulnerability as a result of her age and health, and the pressure she was under to  
sell the Property.  
[87] Mrs. Canfield has no memory of the meeting on January 31, 2012. Mr.  
Stewart testified that the meeting lasted somewhere between 20 minutes and 60  
minutes, including a cigarette break. He says that Mrs. Canfield did not have any  
questions about the terms of the Agreement. I conclude, accordingly, that the  
meeting on January 31, 2012 was relatively brief and lasted no more than one hour.  
I accept Mr. Stewart’s evidence that Mrs. Canfield did not propose any changes to  
the Agreement, as drafted by Mr. Stewart, and did not ask any questions.  
[88] Mrs. Canfield agreed in cross-examination that she trusted Mr. Bottoni, and  
that she valued his opinion on financial matters. She believed that he had her best  
interests at heart. I infer that during the course of the meeting on January 31, 2012,  
Mrs. Canfield trusted Mr. Bottoni to protect her financial interests in this transaction.  
Mrs. Canfield was unaware of Mr. Bottoni’s personal interest in Bronze Wines, which  
was in clear conflict with her interests in the contracting process.  
[89] Mr. Stewart testified that during the course of the meeting, Mr. Bottoni read  
out every clause of the Agreement to Mrs. Canfield and asked her to confirm her  
understanding. Counsel for Mrs. Canfield says I should reject this evidence as  
implausible and self-serving. I am doubtful that Mr. Bottoni took the steps described  
by Mr. Stewart to ensure Mrs. Canfield’s understanding of the terms of the  
Canfield v. Bronze Wines Ltd.  
Page 27  
Agreement. As counsel for Mrs. Canfield points out, some of the terms of the  
Agreement, including the interest provision, are nonsensical. There is no such thing  
as a “Bank of Canada Prime rate”, so that term could not have been understood  
without further questions. However, regardless, for the reasons I have already  
explained, I find that Mrs. Canfield would have deferred to Mr. Bottoni during the  
contracting process in any event. Even if the clauses had been read out to her, I  
conclude that she could not have immediately grasped their full implication. She  
relied on Mr. Bottoni for this process.  
[90] Mrs. Canfield was not provided with the information she needed to assess the  
risks inherent in the Agreement. She was not given information about Mr. Stewart’s  
lack of income, assets, or experience in the wine-making business. She was not  
encouraged to seek legal or accounting advice. Mr. Stewart agreed in cross-  
examination that Bronze Wines always intended to seek mortgage financing after  
the Property was transferred. However, he did not advise Mrs. Canfield of this  
intention. There was no way for her to know that her contractual right to foreclose  
and reclaim the Property in the event of default would be wholly ineffective to protect  
her interests. I find, accordingly, that Mrs. Canfield did not have access to  
information that she would have required in order to make a meaningful choice to  
sign the Agreement.  
Analysis: Is the Agreement unconscionable?  
[91] In my view, the two conditions for a finding of unconscionability are present  
on the facts of this case.  
[92] There was an inequality of bargaining power as a result of Mrs. Canfield’s  
inability to adequately protect her own interests. I accept the defendants’ submission  
that there is no basis in the evidence for a finding that Mrs. Canfield lacked capacity  
to contract. However, as Uber makes clear, the doctrine of unconscionability is not  
restricted to cases where a party lacks capacity. In this case, Mrs. Canfield had  
situational vulnerability as a result of the circumstances she found herself in at the  
time of the Agreement. She was an elderly widow with health problems who felt  
 
Canfield v. Bronze Wines Ltd.  
Page 28  
pressure to sell a Property she could no longer manage. She was deprived of  
information that was critical to her exercise of autonomous decision-making in the  
contracting process. She did not know that Mr. Bottoni had aligned himself with  
Bronze Wines, and thus could not be relied on to protect her interests. She had no  
information about Mr. Stewart’s limited income and assets, nor was she told of his  
lack of experience in the wine-making business. She did not know of Mr. Stewart’s  
plan to mortgage the Property as soon as it was transferred to Bronze Wines. She  
was not provided with full information about the nature of the risks inherent in the  
Agreement that Mr. Bottoni and Mr. Stewart wished her to sign.  
[93] This contracting process did not take place on a level playing field. As a  
practical matter, only Mr. Stewart and Mr. Bottoni could understand and appreciate  
the full import of the contractual terms, as well as the extent to which the bargain  
imperilled Mrs. Canfield’s interests. Unbeknownst to her, she was agreeing to  
transfer her only asset of any significant value to Bronze Wines in return for an  
unsecured stream of future income that was dependent on the financial success of a  
wine-making business operated by someone with no income, assets, or wine-  
making experience.  
[94] A persistent theme of the defendants’ argument is that Mrs. Canfield was an  
experienced real estate investor who was entirely capable of looking after her own  
interests in the bargaining process. I reject this characterization. The fact that Mrs.  
Canfield and her husband may have purchased properties in municipal tax sales  
many decades ago does not counter the vulnerable position she was in during this  
contracting process.  
[95] The defendants’ arguments rely heavily on the assertion that Mrs. Canfield  
managed to negotiate a contract to sell the Property at twice its market value, and  
for this reason accepted the risk of the unorthodox repayment method. However, I  
reject the defendants’ contention that $200,317 was the true market value of the  
Property as of the time the Agreement was executed. As noted, Mr. Stewart alone  
decided on the market value figure to insert into the Form A freehold transfer. His  
Canfield v. Bronze Wines Ltd.  
Page 29  
evidence that, in valuing the Property, he relied on advice from BC Assessment is  
not admissible for the truth of any such advice. In fact, the BC Assessment records  
that are in evidence indicate that the Property had an assessed value of $536,000  
as of July 1, 2011. Mr. Stewart has no expertise in real estate appraisal. No weight  
can be placed on Mr. Stewart’s determination of market value for the purpose of  
preparing the Form A.  
[96] For the reasons set out in the section of this judgment addressing the  
quantification of damages (at paras. 236241), I have concluded that the market  
value of the Property at the time of its transfer to Bronze Wines was $485,000. It is  
not the case, accordingly, that Mrs. Canfield’s agreement to the improvident terms of  
the Agreement can be explained as a deliberate assumption of risk in exchange for  
a favourable purchase price.  
[97] Mr. Stewart also argues that there is no evidence that he or Bronze Wines  
deliberately took advantage of Mrs. Canfield. I accept that this is so. Mr. Stewart was  
trying to pursue a dream, rather than deliberately exploiting Mrs. Canfield. Mr.  
Stewart testified that Mrs. Canfield’s apparent willingness to sell the Property without  
any upfront payment was a “godsend” because Bronze Wines had no other options  
for securing the property it needed. In the circumstances, it may be that Mr. Stewart  
was not inclined to make too many inquiries into the assurances he received from  
Mr. Bottoni, but this is not the same thing as deliberately taking advantage of a  
weaker contracting party. However, as Uber clarifies, Mr. Stewart’s state of mind is  
not the relevant focus of the unconscionability analysis. For the reasons stated, I find  
that Mrs. Canfield was disadvantaged in the contracting process. The Agreement  
was not the result of free bargaining between two self-interested parties.  
[98]  
Turning to the second requirement for a finding of unconscionability, I have  
no difficulty in concluding that this was an improvident transaction. A substantively  
improvident bargain was struck as a result of Mrs. Canfield’s inequality of bargaining  
power. The terms of the Agreement, which are more favourable to Bronze Wines  
than to Mrs. Canfield, offered Bronze Wines, a corporation with no assets, a  
Canfield v. Bronze Wines Ltd.  
Page 30  
generous two-year payment holiday as well as a 20 to 40-year amortization period to  
repay the purchase price without providing any real security or an agreed interest  
rate. In the context of Mrs. Canfield’s situational vulnerability and the informational  
asymmetry that characterized this contracting process, she could not have  
understood or appreciated the meaning or significance of the contractual terms, as  
well as how they unduly disadvantaged her position.  
[99] In effect, Mrs. Canfield agreed to transfer the only asset she owned of any  
significant value, with no assurance of receiving anything in return. The potential for  
undue disadvantage as a result of the inequality of bargaining power was thus  
realized in this case. The Agreement was an improvident bargain that was the  
product of an unfair bargaining process for Mrs. Canfield.  
[100] Accordingly, I conclude that the Agreement was unconscionable.  
Issue 2: What are Mrs. Canfield’s remedies for the unconscionable  
Agreement?  
[101] Mrs. Canfield seeks the remedies of rescission of the Agreement, and  
damages from Bronze Wines to the extent necessary to compensate her for the loss  
of the Property. However, Mrs. Canfield’s argument is under-developed on the  
question of the appropriate remedy for unconscionability in the circumstances of this  
case. It is not clear what practical effect the remedy of rescission may have. Further,  
Mrs. Canfield cites no case law in support of her claimed remedies. It is necessary to  
review the relevant legal principles before consideration can be given to the question  
of appropriate remedy.  
Remedies for unconscionability  
[102] Rescission is the traditional remedy when a contract is found to be  
unconscionable, and therefore unenforceable: Rick v. Brandsema, 2009 SCC 295 at  
para. 66 [Brandsema]. The remedy of rescission in such circumstances extinguishes  
the agreement as from the beginningab initioso that it is as if it never existed.  
The objective of the remedy is to restore the parties to their original positions as far  
as possible: Dominic O’Sullivan, Steven Elliott and Rafal Zakrzewski, The Law of  
   
Canfield v. Bronze Wines Ltd.  
Page 31  
Rescission, 2nd ed. (Oxford: University Press, 2014) [The Law of Rescission], at  
paras. 13.0113.02.  
[103] The situation may become more complex where the property has  
subsequently either been transferred to a third party or a mortgage interest has been  
granted, and the third party who acquired the property interest did so without notice  
of the unconscionability. In S.M. Waddams, The Law of Contracts, 7th ed. (Toronto:  
Thomson Reuters Canada Limited, 2017) at para. 557, the author states:  
A further bar [to rescission] would be the intervention of third party rights. It  
would not generally be equitable to set aside a transaction involving property,  
if the property had been acquired by an innocent third party for value without  
notice of the unconscionability, but in such a case an award of damages  
against the stronger party would be appropriate.  
[104] The cases cited by Waddams in the footnote to this paragraph reflect two  
distinct concerns: prejudice to third parties and the impossibility of impracticality of  
restoring the claimant’s pre-contract position through the remedy of rescission. The  
two concerns may be interrelated, and either may pose a bar to the granting of the  
remedy of rescission: The Law of Rescission at paras. 20.0220.03.  
[105] An order for rescission may be appropriate, despite intervening third party  
property rights, if rescission can have some practical effect in restoring the parties’  
pre-contract positions, without prejudicing innocent third parties. It may be, for  
example, that a wrongdoer has retained a traceable exchange product, and the  
claimant is entitled to a proprietary remedy in respect of that product: The Law of  
Rescission at para. 20.24. In other cases, a wrongdoer may have transferred a  
portion of the asset while retaining ownership of the remainder. In these  
circumstances, the court may order rescission of the contract, combined with an  
award of compensation to the extent that title to some or all of the property cannot  
be re-vested due to the intervening transfer: McCarthy v. Kenny, [1939] 3 D.L.R. 556  
(Ont. S.C.) at 563. While equity will protect the property rights of innocent third-party  
purchasers, in many cases this can be achieved without barring the remedy of  
rescission: The Law of Rescission at para. 20.24.  
Canfield v. Bronze Wines Ltd.  
Page 32  
[106] In Canada, equitable compensation may be awarded as a remedy for  
unconscionable dealing as an alternative to, or in conjunction with, an order for  
rescission. The objective of an award of equitable compensation is to avoid the  
inequity that would result if the defendant was permitted to retain the benefits of the  
unconscionable bargain: Brandsema at paras. 6667. The defendant may be  
required not only to return the property to the claimant, or pay its market value, but  
also account for the benefits the defendant received through possession of the  
property: The Law of Rescission at paras. 17.0117.09; GHL Fridman, The Law of  
Contract in Canada, 6th ed (Toronto: Thomson Reuters Canada Limited, 2011) at  
762.  
The appropriate remedies for unconscionability in this case  
[107] The ordinary remedy in the circumstances of this case would be rescission of  
the Agreement ab initio. Mrs. Canfield is entitled to be restored to the position she  
was in immediately prior to the transfer of the Property to Bronze Wines. However,  
the question of remedy in this case is complicated by the fact that the Property was  
subsequently encumbered by registered mortgages, including in favour of  
Continental, and then sold to a third party in the foreclosure proceeding. Mrs.  
Canfield does not argue that title to the Property should be re-vested in her at this  
stage. The contest between Mrs. Canfield and Continental is over priority to the  
proceeds of sale that have been paid into Court. That contest turns on the limitation  
issue. If the limitation period for Continental to enforce its security had not expired by  
the time the foreclosure proceeding commenced, then Mrs. Canfield acknowledges  
that Continental has priority to the funds.  
[108] For the reasons set out later in this judgment (at paras. 116154), I have  
concluded that the limitation period did not expire for Continental to enforce its  
security interest in the Property prior to the commencement of foreclosure  
proceedings. Pursuant to s. 28 of the Land Title Act, R.S.B.C. 1996, c. 250 [Land  
Title Act], Continental’s mortgage on the Property had priority from the time of its  
registration. Given that Mrs. Canfield no longer alleges that Continental had actual  
knowledge of her unregistered interest, it is unnecessary to consider the implications  
 
Canfield v. Bronze Wines Ltd.  
Page 33  
of prior knowledge under s. 29 of the Land Title Act. Accordingly, Continental has  
priority to the funds that have been paid into court.  
[109] However, this is not to say that the remedy of rescission can have no practical  
effect as between Mrs. Canfield and Bronze Wines. It may be that excess funds from  
the proceeds of sale will remain in court after the registered mortgages are paid out.  
Whether there will be excess funds is not clear on the record in this proceeding. Mr.  
Stewart seeks an order that any funds remaining in court be returned to Bronze  
Wines. However, if the Agreement is rescinded, it is Mrs. Canfield, not Bronze  
Wines, who would have a proprietary interest in any remaining funds.  
[110] In my view, it is appropriate in these circumstances to order rescission of the  
Agreement, combined with an order that Bronze Wines pay equitable compensation  
to the extent necessary to restore Mrs. Canfield’s pre-contract position. To be clear,  
the order for rescission of the Agreement has no effect on Continental’s claim of  
priority to the funds in court. Continental is, as it has pleaded, a bona fide purchaser  
of its interest in the Property for value without notice. Continental’s registered  
mortgage interest takes priority over Mrs. Canfield’s unregistered equitable interest.  
However, an order for rescission of the Agreement will mean that Mrs. Canfield has  
priority to any remaining funds in court vis-à-vis Bronze Wines.  
[111] Bronze Wines is liable to pay Mrs. Canfield equitable compensation for the  
shortfall; that is, the difference between any funds Mrs. Canfield receives from the  
proceeds of sale and the value of the Property at the time of the Agreement. The  
assessment of the value of the Property as of the time of the Agreement is  
addressed later in this judgment.  
Issue 3: Is Scot Stewart personally liable to Mrs. Canfield?  
[112] Mrs. Canfield has named Scot Stewart as a personal defendant to this action,  
in addition to naming Bronze Wines. The basis for Mr. Stewart’s alleged personal  
liability is unclear on the pleadings. In her notice of civil claim, Mrs. Canfield pleads  
that Mr. Stewart and Bronze Wines are both liable to her for damages in the event  
that the mortgage holders are found to rank in priority to Mrs. Canfield’s interest.  
 
Canfield v. Bronze Wines Ltd.  
Page 34  
However, she does not plead any basis for Mr. Stewart’s alleged personal liability  
under an Agreement that was between Mrs. Canfield and Bronze Wines. There are  
no material facts pleaded that would bring this case within the exceptional  
circumstances in which a director or officer may be personally liable in relation to a  
corporate transaction: Edgington v. Mulek Estate, 2008 BCCA 505 at paras. 2126;  
Gichuru v. Smith, 2010 BCCA 352 at para. 11.  
[113] In the course of oral argument at the end of trial, counsel for Mrs. Canfield  
raised, for the first time, the prospect that Mr. Stewart might be liable in negligence.  
It is unnecessary for me to explore the question of when, if ever, a corporate director  
may personally owe a duty of care to another party in the negotiation and execution  
of a contract with the corporation. The fact is that Mrs. Canfield has not pleaded a  
claim in negligence against Mr. Stewart.  
[114] Counsel for Mrs. Canfield further suggested that, as a practical matter, it was  
necessary to name Mr. Stewart personally in order to ensure that Bronze Wines  
actively defended the action, and participated in pre-trial discovery processes. It is  
not apparent to me that naming Mr. Stewart as a defendant was necessary to permit  
a full adjudication of issues in this case. Mr. Stewart surely could have been  
compelled to provide pre-trial oral and documentary discovery on behalf of Bronze  
Wines without being named as a personal defendant. In any event, the wisdom of  
Mrs. Canfield’s strategic decision to name Mr. Stewart personally is of primary  
relevance to the issue of costs. The parties have asked for an opportunity to make  
further submissions on costs after judgment is rendered in this action. I will,  
therefore, defer any further consideration of the wisdom of naming Mr. Stewart as a  
personal defendant.  
[115] Mrs. Canfield’s action against Mr. Stewart is dismissed.  
Canfield v. Bronze Wines Ltd.  
Page 35  
Issue 4: Has the limitation period expired for Continental to enforce its  
security interest in the Property?  
Legal Framework  
[116] The parties agree that the applicable limitation rules in this case are the two-  
year limitation period set out in s. 6 of the Limitation Act, S.B.C. 2012, c. 13  
[Limitation Act], and the special discovery rule for the enforcement of security in s.  
15. These provisions read as follows:  
Basic limitation period  
6 (1) Subject to this Act, a court proceeding in respect of a claim must not be  
commenced more than 2 years after the day on which the claim is  
discovered.  
. . .  
Discovery rule for claims to realize or redeem security  
15 A claim to realize or redeem security is discovered on the first day that  
the right to enforce the security arises.  
[117] A limitation period may be extended if liability is “acknowledged” within the  
meaning of s. 24 of the Limitation Act. Where there is such an acknowledgement,  
the act or omission on which the claim is based is deemed to have taken place on  
the day the acknowledgement is made. An acknowledgement, therefore, re-sets the  
limitation period.  
[118] In Leatherman v. 0969708 B.C. Ltd., 2018 BCCA 33 [Leatherman], the Court  
of Appeal explained the dual nature of a mortgage, in that there is both a debt and a  
security obligation. The different obligations under the mortgage may give rise to  
different limitation periods: Leatherman at paras. 4548. The right to enforce security  
is subject to the discoverability rule in s. 15 of the Limitation Actthat is, a claim to  
realize or redeem security is discovered on the first day that the right to enforce  
security arises. The right to enforce repayment of the debt is subject to the  
discoverability rule in s. 14 of the Limitation Act for demand obligations: the claim is  
discovered on the first day there is a failure to perform the obligation after a demand  
for performance has been made. The date of a demand for repayment may differ  
   
Canfield v. Bronze Wines Ltd.  
Page 36  
from the date of default, giving rise to different limitation periods for the enforcement  
of security and enforcement of the debt.  
Analysis  
[119] The only limitation period in issue in the present case is the limitation period  
for Continental to enforce its security. Mrs. Canfield and Continental agree that the  
service of the notice of civil claim on Continental on May 23, 2014 constituted a  
default under the mortgage, which triggered the tolling of the limitation period.  
Continental initiated its foreclosure proceeding on April 30, 2018. Continental says  
that Bronze Wines made acknowledgements after May 2014 that had the effect of  
re-setting the limitation period, as provided for in s. 24 of the Limitation Act.  
[120] In the course of final argument, Mrs. Canfield argued, for the first time in this  
proceeding, that any acknowledgements by Bronze Wines cannot affect the  
limitation period for Continental to enforce its claim to priority over Mrs. Canfield’s  
claimed interest in the Property. If this argument does not succeed, then Mrs.  
Canfield says that the issue of whether the limitation period for Continental to  
enforce its security against Bronze Wines should not be decided in this action, but  
rather should be left for the foreclosure proceeding. Accordingly, three issues must  
be determined:  
(a)  
Does Mrs. Canfield have to make an acknowledgement in order  
to stop the tolling of the limitation period?  
(b)  
Should the question of whether Continental’s limitation period for  
realizing on its security as against Bronze Wines be decided in  
this action?  
(c)  
If so, has the limitation period for Continental to enforce its  
security interest under the mortgage expired?  
 
Canfield v. Bronze Wines Ltd.  
Page 37  
a.  
Does Mrs. Canfield have to make an acknowledgement to stop  
the tolling of the limitation period?  
[121] Mrs. Canfield’s arguments on this issue are both novel and difficult to follow.  
Mrs. Canfield says that Continental had two years from service of the notice of civil  
claim to enforce its security interest against Mrs. Canfield, and that it had failed to do  
so. Mrs. Canfield says she cannot be bound by any acknowledgements by Bronze  
Wines, because Bronze Wines is not her agent. In other words, Mrs. Canfield says  
that absent some acknowledgement by Mrs. Canfield of Continental’s right to  
enforce its security against her within two years of the service of the notice of civil  
claim, the limitation period for Continental to assert its security interest in the  
Property in this action has expired.  
[122] Mrs. Canfield’s argument, as I understand it, rests on the premise that her  
claim of equitable ownership of the Property, once asserted, effectively gave her  
standing as a de facto party to the mortgage agreement. Since Mrs. Canfield sought  
to recover ownership of the Property, as least in equity, Continental should not be  
permitted to continue to deal with Bronze Wines as if Mrs. Canfield was a non-party  
to the mortgage agreement. If the claim for rescission succeeded, as it has, then  
Mrs. Canfield should not be bound by acknowledgements given by a party who  
never should have owned the Property at all.  
[123] It is not apparent to me in these circumstances why Continental would be  
obliged to secure an acknowledgement from Mrs. Canfield to stop the tolling of the  
limitation period. First, as of May 2014, her asserted claim in the Property had not  
been determined, and Continental remained a party to a mortgage agreement with  
Bronze Wines. Second, the remedy of rescission, which could only be obtained at  
the end of a trial of the action, was only available, in any event, if there was no  
resulting prejudice to third party rights. Continental was not a party to the  
unconscionable transaction. It was entitled to continue to assert its contractual rights  
against the other party to the mortgage agreement; rights that were acquired for  
good and substantial consideration without notice of Mrs. Canfield’s claim. It was  
 
Canfield v. Bronze Wines Ltd.  
Page 38  
entitled to enter into a standstill agreement with Bronze Wines if Continental decided  
it was beneficial to do so, without sacrificing its right to enforce its security.  
[124] Mrs. Canfield cites no authority for the proposition that a mortgagee must  
secure acknowledgements from both the mortgagor and a party claiming an  
equitable interest in the property in order to stop the tolling of the limitation period.  
Such an argument is inconsistent with the principles underlying rescission as an  
equitable remedy for an unconscionable transaction, including that rescission must  
not prejudice the rights of innocent third parties. Having registered its mortgage  
without notice of Mrs. Canfield’s interest, Continental was entitled to exercise the  
usual rights of a mortgagee under the mortgage agreement, including the right to  
realize on security, or to defer realizing on security during the period of a standstill  
agreement with the mortgagor.  
[125] For these reasons, in my view the only relevant question is whether there  
were acknowledgements by Bronze Wines that re-set the limitation period.  
b.  
Should the limitation period issue vis-à-vis Mrs. Canfield and  
Bronze Wines be decided in this action?  
[126] In the course of final argument, Mrs. Canfield advanced the position that if the  
Court decided the first issue against her, then the question of whether Continental  
can enforce its security interest in the Property against Bronze Wines should be left  
to the foreclosure proceeding. Mrs. Canfield argues that she is prima facie entitled to  
raise the limitation period issue in the foreclosure proceeding as a means of  
contesting Continental’s priority to the proceeds of sale of the Property. She raises  
the prospect of inconsistent judicial findings if the same issue is adjudicated in two  
separate proceedings.  
[127] Mrs. Canfield’s arguments require some context. The original notice of claim  
in this action did not include a claim based on the alleged expiry of the limitation  
period for Continental to enforce its security interest under the mortgage. This is  
because the limitation period only became an issue when Continental did not  
commence foreclosure proceedings within two years of the service of the notice of  
 
Canfield v. Bronze Wines Ltd.  
Page 39  
civil claim. The limitation period was relevant to the action due to the competing  
claims asserted by Mrs. Canfield and Continental to an interest in the Property: Mrs.  
Canfield’s claim of an unregistered equitable interest, and Continental’s claim to  
enforce its security interest in the Property under to a registered mortgage.  
[128] At a trial management conference (TMC) before Master Keim on October  
22, 2020, the parties discussed the overlap between the action and the foreclosure  
petition in relation to the limitation period issue. I have listened to the recording of  
this TMC. In the course of the TMC, counsel for Mrs. Canfield submitted that the  
question of whether the limitation period for Continental to enforce its security under  
the mortgage had expired had become a live issue in the action since the filing of the  
notice of civil claim, and further that an adjudication of the issue would have  
implications for the foreclosure proceeding. Mrs. Canfield’s counsel sought to have  
the foreclosure petition referred to the trial list, and heard at the same time as the  
action. Master Keim suggested that the concern with overlap could be addressed,  
instead, by an order granting leave to Mrs. Canfield to amend her pleadings to  
squarely raise the limitation issue in the action. Counsel for Mrs. Canfield agreed  
that such an amendment satisfied his concern. Continental did not oppose such an  
order. On this basis, Master Keim ordered:  
The plaintiff has leave to amend [her] pleadings to incorporate and raise the  
issue of the limitation period as between Bronze Wines Ltd. and the mortgage  
granted to Continental Appraisals Ltd.  
[Emphasis added.]  
[129] Mrs. Canfield subsequently filed an amended notice of civil claim pleading  
that the limitation period for Continental to enforce its security interest against the  
Property had tolled, and therefore the mortgage did not take priority over Mrs.  
Canfield’s interest in the Property. Continental filed an amended response to civil  
claim, which pleads s. 24 of the Limitation Act.  
[130] As is evident from this history, it is at Mrs. Canfield’s insistence that the  
limitation issue arises for determination in this action. Furthermore, Mrs. Canfield’s  
submissions to Master Keim at the TMC expressly acknowledged the prospect that a  
Canfield v. Bronze Wines Ltd.  
Page 40  
determination of the limitation period issue in the action could impact the foreclosure  
proceeding. The terms of Master Keim’s order track the submissions she received  
from the parties: Mrs. Canfield was granted leave to amend to raise the issue of the  
limitation period between Bronze Wines and Continental.  
[131] In light of this history, it is not open to Mrs. Canfield at this late stage in the  
proceeding to take the position that the trial judge in this action should not decide the  
very limitation issue that she has, until now, insisted the trial judge must decide.  
Continental has fully defended Mrs. Canfield’s allegation that the limitation period for  
enforcing its security has expired, including leading evidence about the  
acknowledgements by Bronze Wines that Continental relies on to re-set the  
limitation period. There is a full evidentiary record before the Court on which to  
decide the issue. The limitation issue is relevant to the matters at issue in this action  
because it affects the remedies sought by Mrs. Canfield, including her claim to a  
priority interest in the Property.  
[132] I express no view as to whether, in these circumstances, Mrs. Canfield should  
be permitted to revisit the same limitation period issue in the foreclosure proceeding.  
It is for the court hearing the foreclosure proceeding to decide whether to allow a re-  
litigation of the limitation period in these circumstances.  
c.  
Has Continental’s limitation period expired to enforce its  
security?  
[133] The question of whether the limitation period for Continental to realize on the  
security expired before Continental commenced foreclosure proceedings turns on  
the question of whether there was an “acknowledgement” by Bronze Wines within  
the meaning of s. 24 of the Limitation Act. Section 24(1) of the Limitation Act  
provides:  
24 (1) If, before the expiry of either of the limitation periods that, under this  
Act, apply to a claim, a person acknowledges liability in respect of the claim,  
(a) the claim must not be considered to have been discovered on  
any day earlier than the day on which the acknowledgement is made,  
and  
 
Canfield v. Bronze Wines Ltd.  
Page 41  
(b) the act or omission on which the claim is based is deemed to  
have taken place on the day on which the acknowledgement is made.  
[Emphasis added.]  
[134] Section 24(6) of the Limitation Act establishes certain conditions for the  
application of s. 24(1), including that the acknowledgement must be in writing, and  
made to the person with the claim or that person’s agent, receiver, or trustee. The  
conditions in s. 24(6) do not apply to acknowledgements referred to in s. 24(7), (8) or  
(9). Of relevance to the present case is s. 24(8), which provides:  
(8)  
A debtor's performance of an obligation under or in respect of a  
security agreement is an acknowledgement by the debtor of liability in respect  
of a claim by the creditor for realization on the collateral under the security  
agreement.  
[135] Where the conditions in s. 24(6) do apply and an acknowledgement must be  
in writing, the document will extend the limitation period if a reasonable person  
would construe its terms as an acknowledgement of “some liability”: Forjay  
Management Ltd. v. 0981478 B.C. Ltd., 2020 BCSC 637 at para. 34 [Forjay] citing  
Trombley v. Pannu, 2016 BCCA 324.  
[136] Continental relies on two primary categories of acknowledgements to bridge  
the gap between the service of the notice of civil claim on May 23, 2014, and the  
commencement of foreclosure proceedings on April 30, 2018:  
i. Bronze Winesmortgage payments, the last of which was made on  
April 15, 2015;  
ii. The standstill agreement which was signed by Mr. Stewart on behalf of  
Bronze Wines on September 20, 2016.  
[137] There is a third category of communication that Continental says gives rise to  
an acknowledgement: emails exchanged between Mr. Stewart and counsel for Air  
Touch between September 514, 2016, immediately prior to the signing of the  
standstill agreement. Mr. Stewart disputes that these emails relate to the Continental  
mortgage debt. His evidence is that he believed he was communicating with counsel  
only in relation to the Air Touch mortgage. For the reasons that follow, I find that the  
Canfield v. Bronze Wines Ltd.  
Page 42  
mortgage payments and the standstill agreement constitute acknowledgements, and  
that Continental’s limitation period for enforcing its security interest had not expired  
at the time of its commencement of foreclosure proceedings. As such, I find it  
unnecessary to resolve the dispute over whether the emails also constitute an  
acknowledgement.  
The post-dated cheques  
[138] There is no dispute that the post-dated cheques from Bronze Wines  
constitute “performance of an obligation” by Bronze Wines under a security  
agreement within the meaning of s. 24(8) of the Limitation Act. The issue of  
contention is whether the cheques are an acknowledgement on the date that the  
funds were paid to Continental, as Continental maintains, or only on the date the  
post-dated cheques were delivered to Continental, as Bronze Wines maintains.  
Although it is not entirely clear on the evidence, I assume that the post-dated  
cheques in issue were delivered by Bronze Wines to Continental at the time of the  
one-year mortgage renewal in June 2014. If Bronze Wines is correct in its position  
that it is only the delivery of the cheques that constitutes an acknowledgement, then  
Continental’s limitation period for realizing on its security tolled in June 2016.  
[139] There is only one British Columbia case the parties were able to locate that  
has considered the issue of whether a post-dated cheque postpones a limitation  
period as of the time of delivery of the cheque or as of the time of payment: Hansen  
v. Randa, [1996] B.C.J. No. 1654 (S.C.) [Hansen]. In Hansen, Boyle J. followed a  
1925 decision from OntarioBank of Montreal v. Reinhorn (1925), 28 O.W.N. 476  
(Ont. H.C.) [Reinhorn]holding that post-dated cheques are only an  
acknowledgement at the time of delivery. Although the trial judgment in Reinhorn  
was overturned by the Ontario Court of Appeal, Boyle J. nevertheless considered  
the judgment to be authoritative on this point:  
[35]  
Reinhorn was appealed to the Ontario Court of Appeal, a new trial  
was ordered. The ground of appeal or reasons for allowing the appeal are not  
given in the brief note recording the event in (1925) 29 OW.N. 125. There is  
no subsequent record. There was more than one issue at trial, one of an  
evidentiary nature. The Canadian Encyclopedia Digest 21 C.E.D. (West 3rd)  
continues to cite the trial judgement as authority.  
 
Canfield v. Bronze Wines Ltd.  
Page 43  
[36]  
This Court is not bound by that authority but, because it stands alone,  
not challenged in 30 years amidst millions of transactions, it has weight. In  
any event, it is logically right to conclude on the foundation raised by the  
learned authors that the date of confirmation of payment is the date the  
Plaintiffs received the cheques which, allowing a month for delivery, leaves  
the Plaintiffs regrettably out of time.  
[140] Citing a line of contrary authority from Ontario, Continental argues that  
Hansen should not be followed. Continental says that this case falls within the  
exceptions to the general rule of judicial comity that are identified in Re Hansard  
Spruce Mills Ltd., [1954] 4 D.L.R. 590 (B.C.S.C.) at 592. While a trial judge should  
generally follow the judgment of another judge of the same court, a departure from  
this rule may be justified where, among other things, subsequent decisions have  
affected the validity of the impugned judgment, or it is demonstrated that some  
binding authority in case law or relevant statute was not considered.  
[141] Continental places particular reliance on the decision of the Ontario Superior  
Court of Justice in Markham School for Human Development v. Ghods, (2002), 216  
D.L.R. (4th) 202 (Ont. S.C.J.) [Markham School]. Justice Epstein, as she then was,  
held that, having been overturned on appeal, the reasoning in Reinhorn cannot be  
relied on, and Hansen was wrongly decided. Justice Epstein reasoned that the flaw  
in the analysis in the judgments of Reinhorn and Hansen lay in their failure to  
recognize the significance of each of two datesthe date when a post-dated cheque  
is delivered and the date when the funds are withdrawn from the debtor’s account—  
in representing an acknowledgement of the debt. Justice Epstein concluded that a  
post-dated cheque acknowledges the existence of a debt on the date of delivery, but  
an acknowledgement also occurs when funds are actually withdrawn from the  
debtor’s account. In highlighting the significance of the two dates, Epstein J. relied  
on the judgment of the Supreme Court of Canada in Keyes v. The Royal Bank of  
Canada, [1947] S.C.R. 377 [Keyes], a case that is not cited in Hansen.  
[142] Keyes addresses the legal effect of a post-dated cheque. The appellant had  
made out a cheque for $2,000 on January 8, and post-dated it for January 9. The  
respondent bank failed to notice that the cheque was post-dated, and it permitted  
the recipient to withdraw the funds on January 8. The appellant had wished to stop  
Canfield v. Bronze Wines Ltd.  
Page 44  
payment on the cheque, but his instructions arrived too late. The issue that arose  
was whether the appellant could recover the $2,000 from the bank due to its error in  
allowing the cheque to be cashed prior the date on the cheque.  
[143] In finding in favour of the appellant’s right to recover from the bank, the  
Supreme Court of Canada noted that a post-dated cheque is a bill of exchange  
within the meaning of the Bills of Exchange Act, R.S.C. 1927, c. 16 [now cited as  
R.S.C. 1985, c. B-4]. Pursuant to s. 27 of the Act [now s. 26], a bill of exchange is  
not invalid by reason only that it is antedated or postdated. Section 29 of the Act  
[now s. 28] provides:  
29.  
Where a bill or an acceptance, or any endorsement on a bill, is dated,  
the date shall, unless the contrary is proved, be deemed to be the true date of  
the drawing, acceptance or endorsement, as the case may be.  
[144] On the facts of Keyes, the Court held that the “true date” of payment was  
January 9th, and that the bank was obligated to not permit the cheque to be cashed  
before the date indicated for payment. Prior to the date for payment, the appellant  
had the right to countermand the cheque by directing the bank to stop payment on it.  
The right to countermand could not be defeated by the bank’s error in certifying the  
cheque prior to its date for payment.  
[145] In Markham School, Epstein J. cited Keyes in support of the significance she  
placed on the date of payment of a post-dated cheque, as distinct from the date the  
cheque is delivered to the creditor. Continental points out that Markham School has  
been consistently followed in Ontario: see, for example, Emmott v. Edmonds, 2010  
ONSC 4185 at paras. 4850, and Cross Bridges Inc. v. Z-Teca Foods Inc., 2015  
ONSC 2632 at paras. 6064. As noted, Hansen was not followed in Markham  
School. Hansen has not been cited in any subsequent decision of the British  
Columbia courts.  
[146] The Supreme Court of Canada’s judgment in Keyes was the subject of  
comment by the British Columbia Court of Appeal, although not in the context of a  
limitation defence, in Sereda v. Ni, 2014 BCCA 248 [Sereda]. This was an appeal of  
the dismissal of a tenant’s judicial review of a decision of the Residential Tenancy  
Canfield v. Bronze Wines Ltd.  
Page 45  
Board. Among the issues raised on appeal was whether the appellant had paid  
December rent on December 19, when a post-dated cheque was delivered, or on  
December 20, the date of the cheque. Consistent with the wording of s. 28 [formerly  
s. 29] of the Bills of Exchange Act and the decision in Keyes, the Court of Appeal  
held that the true date of payment was December 20. The analysis in Sereda is  
consistent with the significance attributed to the payment date of a post-dated  
cheque in Markham School for limitation period purposes.  
[147] In light of these authorities, I decline to follow Hansen. The validity of the  
analysis in Hansen has been undermined by subsequent authorities, specifically  
Markham School. Furthermore, Hansen does not consider binding authority (the  
judgment of the Supreme Court of Canada in Keyes) and the provisions of a relevant  
statute (the Bills of Exchange Act). These authorities make it clear that an  
acknowledgement of a debt occurs not only when post-dated cheques are delivered,  
but also when the funds are withdrawn from the debtor’s account and payment is  
made. To put it in the language of s. 24(8) of British Columbia’s Limitation Act, the  
actual payment of funds pursuant to a post-dated cheque is “performance of an  
obligation” which constitutes the debtor’s acknowledgement of the creditor’s claim to  
realize on security.  
[148] Bronze Wines’ primary argument in support of the reasoning and conclusion  
in Hansen is that Bronze Wines lost control over the cheques once they were  
delivered to Continental, and therefore Continental’s unilateral act of cashing the  
cheque cannot be an acknowledgement by Bronze Wines. For the reasons stated,  
this is not an accurate characterization of the legal effect of a post-dated cheque.  
Until such time as the funds were withdrawn from Bronze Wines’ account on the  
date indicated for payment, Bronze Wines could have instructed its bank to stop  
payment on the cheque. Bronze Wines did not do so.  
[149] Accordingly, I find that the mortgage payment that Bronze Wines made to  
Continental on April 15, 2015 constituted an acknowledgement pursuant to s. 24(8)  
of the Limitation Act of Continental’s right to realize on its security. As provided for in  
Canfield v. Bronze Wines Ltd.  
Page 46  
s. 24(1), the two-year limitation period for Continental to enforce its security was re-  
set as of the date of this acknowledgement, so that the limitation period extended to  
April 15, 2017.  
The standstill agreement  
[150] Mr. Stewart signed the standstill agreement on behalf of Bronze Wines on  
September 20, 2016. The agreement specifically references the Air Touch and  
Bronze Wines mortgages. The terms of the agreement reflect the parties’  
renegotiation of the time for payment of both mortgages. The agreement includes  
the following relevant terms:  
1. Air Touch will instruct its counsel to take no further action in the foreclosure  
commenced in B.C. Supreme Court Action No. S18596 Nelson Registry.  
Continental will take no steps to enforce its mortgage registered against the  
Property. Each of Air Touch and Continental will standstill for a period of 1 year  
ending December 31, 2017, and then standstill for an additional 1 year period  
ending December 31, 2018, should Bronze be making payments as required by  
this Agreement;  
. . . .  
3. Bronze will execute an assignment or pledge of its share of the profit from a  
land lease/farming agreement, a copy of said agreement being attached and  
marked Appendix A hereto (the “Garlic Contract”) and any second such  
agreement (the “Second Garlic Contract”). Upon payment of the Amount Air  
Touch and/or Continental shall instruct counsel to terminate the said  
assignment(s) or pledge(s) and to remove their registration under the PPSA and  
mortgage under the Land Title Act.  
4. Bronze will pay the mortgages presently registered on the Bronze Property in  
favour of Continental and Air Touch including principal, interest and assessable  
legal costs, (the “Amount”), on the following terms:  
[repayment terms omitted]  
5. Bronze shall have the right to repay any balance of the Amount at any time on  
the terms of the Mortgages. Continental will give a release of mortgage upon  
payment in full. Air Touch will give a release of mortgage upon payment in full  
and a release of all claims arising from the action.  
. . . .  
9. Upon default in its obligations under this agreement this settlement shall be null  
and void and Continental and Air Touch will be free to enforce their respective  
mortgages.  
 
Canfield v. Bronze Wines Ltd.  
Page 47  
[151] Through the standstill agreement, Bronze Wines sought to address the  
consequences of its liability under the mortgages by agreeing to new repayment  
terms. This avoided foreclosure proceedings, at least during the currency of the  
agreement. The terms of the agreement clearly acknowledge Continental’s right to  
enforce its security against the Property under the mortgage agreement. That is, the  
agreement acknowledges Bronze Wines’ liability on both the debt and the security  
aspect of the mortgage: Forjay at paras. 6371.  
[152] The standstill agreement otherwise meets the requirements of s. 24(6) of the  
Limitation Act. The acknowledgement is in writing, signed by an authorized signatory  
of Bronze Wines, and it is made to the person with the claim (Continental). As such,  
the standstill agreement had the effect of re-starting the limitation period as of  
September 20, 2016, extending it to September 20, 2018.  
Summary of conclusion on the limitation period issue  
[153] The limitation period had not expired for Continental to realize on its security  
against the Property at the time it commenced the foreclosure proceeding on April  
30, 2018. The limitation period was extended by two acknowledgements of liability  
by Bronze Wines: the mortgage payments made up to April 15, 2015, and the  
signing of the standstill agreement on September 20, 2016.  
[154] The relevance of this conclusion for the purpose of the present action is that  
Continental’s right to realize on its security has not tolled. Continental’s registered  
mortgage interest in the Property therefore takes priority over Mrs. Canfield’s  
unregistered equitable interest.  
Issue 5: Was Mr. Engman negligent in witnessing Mrs. Canfield’s  
signature on the Form A freehold transfer?  
Legal Framework  
[155] To succeed in a negligence action, a plaintiff must show that: (1) the  
defendant owed the plaintiff a duty of care; (2) the defendant’s behaviour breached  
the standard of care; (3) the plaintiff sustained damage; and (4) the damage was  
     
Canfield v. Bronze Wines Ltd.  
Page 48  
caused, in fact and law, by the defendant’s breach: Deloitte & Touche v. Livent Inc.  
(Receiver of), 2017 SCC 63 at para. 77 [Livent]. The parties’ submissions focussed  
on the elements of duty of care, standard of care, and causation.  
Duty of care  
[156] In Canadian law, the existence of a duty of care is determined in accordance  
with the two-stage Anns/Cooper test. The test originated with the decision of the  
House of Lords in Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.),  
and was revised by the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC  
79 [Cooper]. The Anns/Cooper test involves the following two analytical steps:  
i. Is the harm suffered by the plaintiff a foreseeable consequence of the  
defendant’s acts or omissions, and is there a sufficient relationship of proximity  
between the parties that it is just and fair to impose a duty of care?  
ii. If so, are there residual policy considerations outside of the relationship  
between the parties that may negate the imposition of a duty of care?  
[157] In Livent, the Supreme Court of Canada observed that in cases involving  
negligent misrepresentation or performance of a service, proximity will more usefully  
be considered before foreseeability at the first stage of the Anns/Cooper test. This is  
because the characteristics of the relationship between the parties, specifically the  
purpose of the defendant’s undertaking, will inform the analysis of the foreseeability  
of injury: Livent at para. 24.  
[158] A relationship is sufficiently proximate if it falls within a previously established  
category, or a sufficiently analogous one. The relevant “category” for the purpose of  
supporting a duty of care is that of proximity of relationship: 1688782 Ontario Inc. v.  
Maple Leaf Foods Inc., 2020 SCC 35 at para. 23 [Maple Leaf]. Where an  
established, or analogous, category of proximate relationship cannot be found, the  
court must undertake a full proximity analysis in order to determine whether the  
necessary close and direct relationship exists between the parties. This involves  
examining all relevant factors arising from the relationship between the plaintiff and  
 
Canfield v. Bronze Wines Ltd.  
Page 49  
the defendant, including “expectations, representations, reliance, and the property or  
other interests involved”: Livent at paras. 2629; Cooper at paras. 34.  
[159] In a case where a plaintiff seeks to recover pure economic loss alleged to  
have been caused by the negligent performance of a service, two factors are  
determinative in the proximity analysis: the defendant’s undertaking and the  
plaintiff’s reliance. Where the defendant undertakes to provide a service in  
circumstances that invites the plaintiff’s reasonable reliance, the defendant is  
obligated to take reasonable care and the plaintiff has a right to rely on the  
defendant’s undertaking to do so: Livent at para. 30; Maple Leaf at para. 32.  
[160] Any reliance on the part of the plaintiff which falls outside the scope of the  
defendant’s undertaking of responsibility necessarily falls outside the scope of the  
proximate relationship and, therefore, of the defendant’s duty of care: Livent at para.  
31. As explained by the Supreme Court of Canada in Maple Leaf:  
[35]  
Livent makes clear, then, that considerations of undertaking and  
reliance furnish not only a principled basis for drawing the line in cases of  
negligent misrepresentation or performance of a service between duty and no-  
duty, but also for delineating the scope of the duty in particular cases, based upon  
the purpose for which the defendant undertakes responsibility. Reliance that  
exceeds the purpose of the defendant’s undertaking is not reasonable, and  
therefore not foreseeable (para. 35).  
[161] If a prima facie duty of care is established at the first stage of  
the Anns/Cooper test, then the analysis shifts to the second stage of the inquiry,  
which looks at whether residual policy considerations negate the duty of care. The  
policy considerations at the second stage of the test are concerned with the effect of  
recognizing a duty of care on other legal obligations, the legal system, and society  
more generally: Cooper at para. 37; Livent at para. 40. Second stage policy  
considerations are external to the relationship between the parties. They include  
such factors as whether the law already provides a remedy, and whether the  
recognition of the duty of care creates “the spectre of unlimited liability to an  
unlimited class”: Livent at para. 40.  
Canfield v. Bronze Wines Ltd.  
Standard of care  
Page 50  
[162] A notary public is subject to the same standard of care that would govern a  
lawyer doing the same work: Normak Investments Ltd. v. Belciug, 2015 BCSC 700  
at para. 69 [Normak Investments]. As explained by Fitch J., as he then was, in  
Normak Investments:  
[88]  
The basis of a solicitor’s, or notary public’s, liability in tort for  
negligence, and the right of a plaintiff to recover for purely financial loss, is an  
application of the general principle of tortious liability for negligence based on  
the breach of the duty of care arising from a relationship of sufficient  
proximity. As noted in Central Trust at para. 61, “[t]hat principle is not  
confined to professional advice but applies to any act or omission in the  
performance of the services for which a solicitor is retained”.  
[163] In Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147 at 208, the Supreme  
Court of Canada described a solicitor’s standard of care in the following terms:  
A solicitor is required to bring reasonable care, skill and knowledge to the  
performance of the professional service which he has undertaken. See Hett  
v. Pun Pong (1890), 18 S.C.R. 290, at p. 292. The requisite standard of care  
has been variously referred to as that of the reasonably competent solicitor,  
the ordinary competent solicitor and the ordinary prudent solicitor. …  
[164] The same standard of care applies to a notary. The question to be answered  
in a negligence claim against a notary is what a reasonably competent notary or  
lawyer would have been expected to do in the defendant’s circumstances: Esser v.  
Luoma, 2004 BCCA 359 at para. 41 [Esser].  
[165] While expert evidence is generally required in a solicitor’s negligence case to  
establish the standard of care, there are at least two exceptions to this general rule.  
First, it may be possible for the court to reliably determine the standard of care  
because the court is faced with “non-technical matters or those of which an ordinary  
person may be expected to have knowledge”. Second, the impugned actions of the  
defendant may constitute such a marked departure from any standard of reasonable  
conduct that it is unnecessary for the court to determine the precise parameters of  
that standard: Odobas v. Yates, 2021 BCSC 2320 at paras. 3040; Zink v. Adrian,  
2005 BCCA 93 at paras. 4445.  
 
Canfield v. Bronze Wines Ltd.  
Page 51  
[166] The rules of professional conduct that govern a particular profession may also  
provide guidance to the court in determining the applicable standard of care,  
although they are not binding on the court: Galambos v. Perez, 2009 SCC 48 at  
para. 29. In some cases, a publication or checklist that is widely circulated in the  
profession indicating a standard sanctioned by common usage may be more useful  
and persuasive in establishing the standard of care than expert evidence in the  
guise of a particular practitioner’s opinion of what they might have done if  
hypothetically placed in the defendant’s circumstances: Esser at para. 41.  
Causation  
[167] In order to succeed in a negligence claim, a plaintiff must also establish that  
the defendant’s breach of the standard of care was a factual and legal cause of the  
plaintiff’s injury. Factual causation is generally determined in accordance with the  
“but for” test; that is, the plaintiff must prove on a balance of probabilities that the  
harm would not have occurred but for the defendant’s negligent act: Nelson (City) v.  
Marchi, 2021 SCC 41 at para. 96 [Marchi]. It is not necessary for a plaintiff to prove  
that a defendant’s negligence was the sole cause of her injury, only that it  
was a cause: Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 1719.  
[168] The question of legal causation concerns whether the plaintiff’s loss is too  
remote from the defendant’s wrongful conduct to be recoverable. The remoteness  
inquiry asks whether the specific injury suffered by the plaintiff was a reasonably  
foreseeable consequence of the defendant’s breach: Marchi at paras. 9799.  
Factual findings relevant to the claim against Mr. Engman  
[169] There is conflicting evidence as to what occurred during Mrs. Canfield’s  
attendance at Mr. Engman’s office on February 27, 2012. I will address those  
conflicts and make the necessary factual findings before turning to an analysis of  
Mrs. Canfield’s claim in negligence against Mr. Engman.  
   
Canfield v. Bronze Wines Ltd.  
Page 52  
Mrs. Canfield’s evidence  
[170] Mrs. Canfield testified that Mr. Bottoni drove her from her residence in  
Langley to Mr. Engman’s office in New Westminster. Mrs. Canfield understood that  
the visit to the notary had something to do with the Property, but no one explained to  
her exactly what was going to happen that day. She had never met Mr. Engman  
before this visit. Mrs. Canfield says she had not received legal advice in relation to  
the Agreement or transfer of the Property at the time she met with Mr. Engman.  
[171] Mr. Stewart was outside Mr. Engman’s office when Mrs. Canfield and Mr.  
Bottoni arrived. The three of them went into Mr. Engman’s office together. Mrs.  
Canfield was directed to sit down in a chair.  
[172] Mrs. Canfield recalls Mr. Engman approaching her with a piece of paper in his  
hand. He spoke “very quietly”. Mrs. Canfield could not understand what Mr. Engman  
was saying to her. Mrs. Canfield does not recall signing the Form A freehold  
transfer, although she agrees it is her signature on the Form A. Mrs. Canfield says  
she did not understand the purpose of the Form A, and its purpose was not  
explained to her by Mr. Engman.  
[173] Mrs. Canfield asked Mr. Bottoni on the way home what had been  
accomplished by the visit to Mr. Engman’s office, but he just said words to the effect  
of “he wanted the papers”. Mrs. Canfield says that when she arrived home that  
evening, she did not understand that as a consequence of her visit to Mr. Engman’s  
office, she had transferred the Property to Bronze Wines.  
[174] Mrs. Canfield’s evidence in cross-examination and re-examination is  
illustrative of the point I have already made about Mrs. Canfield’s receptiveness to  
suggestion as a method of filling her memory gaps. In cross-examination by Mr.  
Engman’s counsel, she gave the following evidence:  
Q. You’ll agree with me that you didn’t ask Mr. Engman for any advice.  
A. He spoke very softly and it was hard for me to follow what he was saying.  
Q. All right. But – but I’m asking you whether you agree with me that you  
didn’t ask him –  
 
Canfield v. Bronze Wines Ltd.  
Page 53  
A. No, because –  
Q. for any advice.  
A. No, because I I felt at that time that I was having a difficulty in hearing  
him and what he was saying, so, yeah.  
Q. And so and so what?  
A. And so I didn’t ask him anything and he didn’t wait around to be asked.  
Q. Isn’t it true that you told Mr. Engman that you didn’t need legal advice?  
A. If it I probably did say that because I was – why ask when I didn’t expect  
to be able to hear what he was saying?  
Q. Isn’t it true, Mrs. Canfield, that you told Mr. Engman that you had all the  
advice you needed?  
A. I could have done.  
Q. And Mr. Engman didn’t give you or anyone you were aware of any advice  
at the meeting?  
A. Right.  
Q. And he specifically told you that he was not providing you with any advice.  
A. Right, yeah, that must have been it.  
[175] In re-examination, Mrs. Canfield testified as follows:  
Q. … So you answered a lot of questions about what happened in that  
meeting, in response to Mr. Duong, and I want to ask you in answering those  
questions did you have a present recollection today of those things or were  
you speculating?  
A. It was quite an experience in that building and so there are things that are  
very clear and other things that are not as clear, but you know, kind of clear.  
Q. All right. So let me give you a specific example.  
A. Yes.  
Q. My learned friend asked you if Mr. Engman specifically told you that he  
was not giving advice, and your answer according to my note is, “Right, must  
have been.” So in answering that question, did you have a present  
recollection of Mr. Engman stating that or are you speculating?  
A. I think it is more speculating.  
[176] It is not in dispute that Mrs. Canfield had not seen a copy of the Form A  
freehold transfer in advance of the appointment with Mr. Engman on February 27,  
2012, and that she did not retain a copy after the Form A was signed. Mr. Stewart  
had possession of the original Form A on leaving Mr. Engman’s office. Mr. Stewart  
paid the $50 fee that Mr. Engman charged for the service he provided.  
Canfield v. Bronze Wines Ltd.  
Page 54  
Mr. Stewart’s evidence  
[177] Mr. Stewart says that he was the one who telephoned Mr. Engman’s office to  
book the appointment to have the Form A signed by Mrs. Canfield. He cannot  
specifically recall if he booked the appointment under the name “Mrs. Canfield”, but  
agrees it makes sense that he would have done so. Mr. Stewart considered that  
both he and Mrs. Canfield were clients for the purposes of the services Mr. Engman  
was providing. Mr. Stewart filled out the Form A, and brought it with him to Mr.  
Engman’s office. He agrees that Mrs. Canfield could not have seen the Form A prior  
to arriving at Mr. Engman’s office. Mr. Stewart says he handed the Form A to Mrs.  
Canfield in Mr. Engman’s presence.  
[178] Mr. Stewart recalls that Mrs. Canfield used a collapsible walker at the time of  
the appointment with Mr. Engman. She was given a seat at a desk or table during  
her discussions with Mr. Engman. Mr. Stewart was not sitting with them. He cannot  
remember the words spoken by Mr. Engman, and may not have heard everything  
that was said in any event. He does not recall hearing Mr. Engman ask Mrs. Canfield  
if she had received legal advice.  
[179] Mr. Stewart paid Mr. Engman’s fee. He says that Mr. Engman then handed  
Mr. Stewart the executed Form A, and Mr. Stewart left with it.  
Mr. Engman’s evidence  
[180] Mr. Engman worked as a notary public in New Westminster from 1990 until  
his retirement in July 2020. In 2012, Mr. Engman’s practice was divided between  
conveyancing (7080% of his total practice), wills and powers of attorney (15%), and  
signatures and attestations (515%). Mr. Engman is now 77 years old.  
[181] Mr. Engman has no independent memory of his meeting with Mrs. Canfield  
on February 27, 2012. He says he had a standard practice that he invariably  
followed in attesting to a signature on a Form A freehold transfer. Mr. Engman says  
he would have followed this standard practice in his dealings with Mrs. Canfield.  
   
Canfield v. Bronze Wines Ltd.  
Page 55  
[182] Mr. Engman’s evidence was not consistent as to the content of his standard  
practice.  
[183] In his examination for discovery evidence, portions of which were read in at  
trial as part of Mrs. Canfield’s case, Mr. Engman testified that his obligations in  
witnessing the execution a Form A are limited to checking the transferor’s  
identification and attesting the document. Mr. Engman also testified that it was his  
standard practice to confirm that the signatory had received independent legal  
advice. Mr. Engman maintained that, in accordance with his standard practice, he  
would have performed these obligations during Mrs. Canfield’s visit. Mr. Engman  
stated that he would not have witnessed Mrs. Canfield’s signature on the Form A  
absent a confirmation from Mrs. Canfield that she had received independent legal  
advice. Mr. Engman testified that his standard practice did not require him to  
determine the signatory’s voluntariness, capacity, or potential for undue influence, or  
to read the document that he was attesting. By way of illustration, Mr. Engman gave  
the following evidence on discovery:  
222  
Q. All right. What did you consider your obligations were in taking Mrs.  
Canfield’s signature?  
A. Proper and adequate identification, taking the signature in my  
presence and attesting the document.  
223  
224  
Q. And nothing else?  
A. Nothing else.  
Q. All right. And where do you draw that view of your obligations from?  
A. As a commissioner for taking oaths that is all I am required to do.  
. . . .  
259  
Q. … Now, can you tell me what your normal practice was in 2012 for  
ascertaining that a transferor understands the significance of a Form A  
transfer form and what they are doing by signing it?  
A. First of all, I’m not giving legal advice, so I wouldn’t have gone into  
those details.  
260  
261  
Q. At all?  
A. No.  
Q. And that’s consistent with what you said to me, that you didn’t look at  
the content of this form; is that fair?  
Canfield v. Bronze Wines Ltd.  
Page 56  
A. That is fair.  
262  
263  
Q. All right. So, is it fair to say that you had no basis to conclude that  
Mrs. Canfield understood what this form was doing; is that fair?  
A. Other than the fact that she advised me she had received  
independent legal advice.  
Q. Well, you believe she did because your practice is that you wouldn’t  
have signed the form without her having said that; is that fair?  
A. Correct.  
[184] Mr. Engman gave markedly different evidence regarding his standard practice  
in his direct examination at trial. In his direct evidence, Mr. Engman testified that in  
attesting a Form A, he is obliged to take steps to ascertain that the signatory  
understands the document, has the capacity to sign it, and is signing it voluntarily.  
He maintains he took these steps in witnessing Mrs. Canfield’s signature, although  
he has no independent recollection of the meeting with her.  
[185] In cross-examination, Mr. Engman was questioned about the inconsistency  
between his evidence at trial and on discovery. Counsel for Mrs. Canfield specifically  
put Mr. Engman’s answers to discovery questions 222–224 (quoted above) to him.  
The following exchange ensued:  
Q. Were you asked those questions and did you give those answers?  
A. Yes, sir.  
Q. And were they true?  
A. Based upon additional information today, no. Because I am required to  
ensure that she is mentally competent and not being coerced.  
Q. And why do you say you’re required to do that?  
A. I believe it’s in the notary society’s rules and regulations.  
Q. All right. Can you direct me to any of the rules specifically that you have  
concluded impose that obligation on you?  
A. Not offhand, no sir.  
Q. Did you look at any of them in preparing to give your evidence today?  
A. Uh, we have looked at some of those, but I can’t tell you what they are  
offhand.  
[186] Mr. Engman estimates that his meeting with Mrs. Canfield on February 27,  
2012 lasted 1015 minutes. He did not make any notes of their discussion. Mr.  
Engman’s usual practice on witnessing a signature is to maintain a file containing  
Canfield v. Bronze Wines Ltd.  
Page 57  
copies of the identification that is provided to him as well as the document that is  
signed. He cannot locate a copy of Mrs. Canfield’s file. Mr. Engman believes that the  
file may have been destroyed in 2013 in the course of a general clean-up of  
thousands of old files that had been stored at a warehouse. Mr. Engman cannot  
confirm that this is how Mrs. Canfield’s file went missing, but he has no alternative  
explanation. Given his lack of independent recollection of the meeting with Mrs.  
Canfield, and in the absence of any documentary record of the meeting, Mr.  
Engman’s evidence relies entirely on his standard practice.  
[187] Mr. Engman’s usual practice was to receive a copy of the document to be  
witnessed directly from the signatory. He believes he would have followed that  
practice with Mrs. Canfield. If, in fact, it was Mr. Stewart who produced the Form A to  
Mrs. Canfield, Mr. Engman says he would have inquired into who Mr. Stewart was  
and what he had to do with the Form A. Mr. Engman agrees that he should ensure  
that he is not dealing with more than one party when multiple people arrive in his  
office.  
[188] Mr. Engman was not aware that his fee for witnessing Mrs. Canfield’s  
signature was paid by Bronze Wines, as the fee was collected by Mr. Engman’s  
staff. Mr. Engman’s evidence was not consistent as to who he considered his client  
to be in this particular instance. At one point in his direct evidence, Mr. Engman  
testified that his client “would have been Mrs. Canfield”. At the end of his direct  
evidence, Mr. Engman stated that he had no client because he was merely  
witnessing a signature. In cross-examination, Mr. Engman reverted to referring to his  
“client” in describing his standard practice for witnessing signatures.  
Factual findings  
[189] It is challenging to reach conclusions about what occurred in Mr. Engman’s  
office given the absence of a contemporaneous documentary record or  
corroborating evidence from an independent witness.  
[190] Mr. Stewart is the only witness at trial, aside from Mr. Engman and Mrs.  
Canfield, who was present at Mr. Engman’s office on February 27, 2012. I generally  
 
Canfield v. Bronze Wines Ltd.  
Page 58  
accept Mr. Stewart’s description of that meeting. His recollection was much clearer  
than that of Mr. Engman and Mrs. Canfield, and his description of events was  
plausible. I find that Mrs. Canfield arrived at Mr. Engman’s office in the presence of  
Mr. Stewart and Mr. Bottoni. She was using a walker. Mr. Stewart had the Form A in  
his possession when he arrived. Mr. Engman did not make inquiries as to the  
relationship between the plaintiff and the two men who accompanied her. He did not,  
accordingly, discover that one or more representatives of the corporate transferee  
were present at the meeting. Mr. Engman allowed Mr. Stewart to leave his office  
with the original copy of the Form A.  
[191] Mr. Stewart’s evidence does not assist on the critical question of what was  
discussed between Mr. Engman and Mrs. Canfield at their meeting on February 27,  
2012. Mr. Stewart was not a party to the discussion. The meeting between Mrs.  
Canfield and Mr. Engman lasted no more than 1015 minutes. There are  
inconsistencies in the evidence of Mr. Engman and Mrs. Canfield as to the nature of  
their discussions.  
[192] I have already stated my reasons for finding that Mrs. Canfield is not a  
reliable witness. She has very little memory of what occurred at her appointment  
with Mr. Engman. Mrs. Canfield agreed in cross-examination, that various things  
could have happened, including that she could have told Mr. Engman that she had  
received legal advice on the transaction. However, in my view it is not safe to reach  
factual findings on the basis of Mrs. Canfield’s speculation about how events might  
have occurred that she cannot actually remember. Mrs. Canfield’s confusion, poor  
memory, and tendency to agree with the often-conflicting propositions that were put  
to her over the course of three days of evidence combine to render her an unreliable  
historian.  
[193] I also find Mr. Engman to be an unreliable witness. Mr. Engman has no  
independent recollection of his meeting with Mrs. Canfield, and therefore must rely  
on his standard practice. However, his evidence of his standard practice changed  
over time. Mr. Engman provided a much narrower vision of his standard practice in  
Canfield v. Bronze Wines Ltd.  
Page 59  
his examination for discovery in 2019 than he did at trial in 2021. Mr. Engman’s  
evidence at trial that it was his practice to ensure voluntariness, capacity, and  
understanding on the part of the signatory, stands in direct contrast to his discovery  
evidence that he owed none of those obligations, and that he did not perform them  
in his meeting with Mrs. Canfield. I infer from his evidence in cross-examination that  
Mr. Engman’s views changed as a result of his post-examination for discovery  
review of the rules and regulations that govern notaries, which revealed that his  
understanding of his obligations was too narrow. It is impossible to place reliance on  
Mr. Engman’s evidence that he followed a standard practice in his meeting with the  
plaintiff in 2012, when the content of that standard practice was only discovered by  
Mr. Engman after 2019.  
[194] I conclude, accordingly, that Mr. Engman did not take steps to ensure that  
Mrs. Canfield understood the document she was signing, had capacity to sign it, and  
was not under undue influence in signing it.  
[195] The final, and perhaps most critical, area of factual dispute is the question of  
whether Mr. Engman confirmed that Mrs. Canfield had received independent legal  
advice. As noted, Mr. Engman testified on discovery and at trial that he would not  
have witnessed Mrs. Canfield’s signature on the Form A absent a confirmation by  
her that she had received independent legal advice. In light of Mrs. Canfield’s  
evidence that she could not understand what Mr. Engman was saying during their  
meeting, the issue is not simply whether the evidence establishes that Mr. Engman  
asked Mrs. Canfield if she had received independent legal advice, but also whether  
she provided a responsive answer. Mr. Engman made no contemporaneous notes to  
confirm what he said to Mrs. Canfield, or what she said to him. There is only Mr.  
Engman’s evidence of his standard practice. In light of the fact that Mr. Engman’s  
evidence of his standard practice shifted over time, it is not, in itself, a reliable basis  
for determining what was said in regard to the issue of Mrs. Canfield’s legal advice.  
It is necessary to consider other evidence of the surrounding circumstances.  
Canfield v. Bronze Wines Ltd.  
Page 60  
[196] As a starting point, it is important to resolve the question of whether Mrs.  
Canfield had, in fact, received legal advice on either the Agreement or the Form A by  
the time of her meeting with Mr. Engman. The defendants say that there is some  
evidence that Mrs. Canfield had received legal advice, and, in fact, she volunteered  
evidence to this effect in her re-examination. Mrs. Canfield’s evidence in re-  
examination was confusing on this point. She had difficulty distinguishing between  
legal advice she may have accessed in the process around the application for  
subdivision of the Property, which occurred in 2010, and in the execution of the  
Agreement in 2012. She stated that the events are all “jumbled together”. Her  
evidence in re-examination is not a reliable basis on which to conclude that Mrs.  
Canfield sought legal advice, and, if so, when and in relation to what topic.  
[197] The only other evidence about possible legal advice came from Mrs.  
Canfield’s daughter, Lisa Canfield. Lisa’s evidence is that during the course of a  
Skype call in early March 2012 with Mr. Bottoni, he recommended to Lisa that Mrs.  
Canfield consult with a real estate lawyer. Lisa says she later passed this  
recommendation on to Mrs. Canfield, along with a referral name and number.  
However, Lisa’s evidence is that all of this occurred after Mrs. Canfield’s visit to Mr.  
Engman’s office. Furthermore, there is no evidence that Mrs. Canfield followed up  
on the information that Lisa provided to her, or that she consulted a lawyer at any  
time up until she retained counsel in the present action. Mrs. Canfield would have  
required the assistance of at least one of her children, or her son-in-law, in order to  
arrange a visit to a lawyer’s office in light of her circumstances at the time. There is  
no evidence that such a visit was arranged. I infer, therefore, that there was no visit  
to a lawyer’s office other than in relation to this action.  
[198] I find, accordingly, that Mrs. Canfield had not received legal advice in regard  
to the Agreement or the Form A freehold transfer at the time of her meeting with Mr.  
Engman. There is no reason that I can discern for Mrs. Canfield to be untruthful with  
Mr. Engman in responding to his question as to whether she had received legal  
advice. I find it implausible that Mrs. Canfield would have confirmed to Mr. Engman  
that she had received legal advice when she had not. I find, accordingly, that  
Canfield v. Bronze Wines Ltd.  
Page 61  
whether or not Mr. Engman actually asked Mrs. Canfield if she had received  
independent legal advice during their meeting, which is a question that may well  
have been posed by Mr. Engman but not heard or understood by Mrs. Canfield, she  
did not confirm to him that she had, in fact, received independent legal advice.  
Analysis of the negligence claim  
Did Mr. Engman owe a duty of care to Mrs. Canfield?  
[199] Mr. Engman argues that he did not owe a “general duty of care” to Mrs.  
Canfield, and that the duty of care, if owed, must be limited to his actions in  
witnessing Mrs. Canfield’s signature on the Form A. Mr. Engman emphasizes that in  
cases where a plaintiff seeks to recover pure economic loss in relation to the  
provision of services, the scope of the duty is limited by the defendant’s undertaking.  
In this case, Mr. Engman says that Mrs. Canfield could not reasonably have relied  
on him for any purpose other than the witnessing of her signature on the Form A.  
[200] It does not appear to me that there is a significant dispute between the parties  
in relation to the scope of the duty of care owed by Mr. Engman. Mrs. Canfield does  
not argue that Mr. Engman generally undertook to protect her interests, nor does  
she say that she relied on Mr. Engman to provide her with legal advice in relation to  
the Agreement. Mrs. Canfield’s case is that Mr. Engman failed to perform the steps  
that would have been undertaken by a reasonably prudent notary in witnessing her  
signature on the Form A freehold transfer. The real contest between the parties is in  
relation to the steps required of Mr. Engman in witnessing Mrs. Canfield’s signature,  
whether he performed those steps, and whether any deficiencies in performance  
caused injury to Mrs. Canfield. None of these issues go to the existence of a duty of  
care.  
[201] In any event, and in light of the fact that Mr. Engman does not appear to fully  
concede the point, I will set out my reasons for concluding that Mr. Engman owed a  
duty of care to Mrs. Canfield in witnessing her signature on the Form A. In doing so,  
he was acting as an “officer” under s. 42 of the Land Title Act. The Property could  
not be transferred unless the execution of the Form A was witnessed and certified by  
   
Canfield v. Bronze Wines Ltd.  
Page 62  
an officer; that is, a person authorized by the Evidence Act, R.S.B.C. 1996, c. 124, to  
take affidavits for use in British Columbia. The certification of an officer operates to  
verify the signature and identity of the transferor. The witnessing requirement  
protects the integrity of British Columbia’s land registration system: R.A.D. v.  
Campbell, 2015 BCCA 494 at para. 10.  
[202] Mr. Engman undertook to provide a service to Mrs. Canfield in witnessing her  
signature on the Form A. Mr. Engman emphasizes that Mrs. Canfield did not pay for  
the service. To my mind, this is irrelevant to the existence of the duty of care alleged  
by Mrs. Canfield. The fact that, unbeknownst to Mr. Engman, Bronze Wines had  
agreed with Mrs. Canfield to pay Mr. Engman’s fee does not exempt Mr. Engman  
from a duty of care to Mrs. Canfield. It was her Property that was being transferred.  
Mr. Engman knew from the use of the Form A that Mrs. Canfield was transferring a  
fee simple interest. Her interests, as the property owner, were directly impacted by  
the service that Mr. Engman provided.  
[203] Mr. Engman places considerable reliance on the decision of the Court of  
Appeal in Esser. However, that case is distinguishable. In Esser, the client of the  
defendant notary used her services to defraud the plaintiff. The notary had never  
met the plaintiff and, the Court found, she reasonably believed that the plaintiff was  
represented by counsel. In these circumstances, the Court held that there was no  
relationship of proximity between the parties.  
[204] In the present case, Mr. Engman did meet Mrs. Canfield in person. He  
provided services for her benefit. It was her Property that would be transferred  
through the instrument that Mr. Engman was witnessing her signature on. Mr.  
Engman’s undertaking to provide his services as a notary in witnessing Mrs.  
Canfield’s signature invited Mrs. Canfield’s reasonable reliance within the scope of  
that undertaking. There was a relationship of proximity between the parties. It was  
foreseeable that Mrs. Canfield could suffer an injury if Mr. Engman was negligent in  
the performance of his undertaking.  
Canfield v. Bronze Wines Ltd.  
Page 63  
[205] Mr. Engman’s argument on the second stage of the Anns/Cooper test was  
limited to the assertion that the imposition of a “broad duty of care” on those who  
perform the limited function of attesting documents would have negative economic  
and business impacts. This argument assumes that the Court is invited to impose an  
all-encompassing duty of care on Mr. Engman that extends beyond his limited  
undertaking to witness Mrs. Canfield’s signature on the Form A. As I have explained,  
I do not understand that Mrs. Canfield is inviting the Court to impose an all-  
encompassing duty of care. Her position is that the Mr. Engman owed a duty to take  
reasonable care in witnessing her execution of the Form A transfer. There are no  
residual policy considerations that would negate the existence of a duty on the part  
of Mr. Engman to exercise reasonable care in performing the service he undertook  
to provide.  
[206] I conclude, therefore, that Mr. Engman owed a duty to Mrs. Canfield to act  
with reasonable care in carrying out his undertaking to witness her signature on the  
Form A freehold transfer.  
Did Mr. Engman meet the standard of care?  
Determining the standard of care  
[207] Mr. Engman argues that this is a case in which expert evidence is necessary  
to determine the standard of care. Mrs. Canfield has not tendered expert evidence  
on the standard of care, and, therefore, Mr. Engman says the negligence claim  
against him must be dismissed.  
[208] I do not agree that this is a case in which expert evidence is required to  
determine the standard of care. The standard of care required of a notary in  
witnessing a document is a non-technical matter that is determinable without the  
assistance of an expert. Mrs. Canfield relies on the standards set out in the Society  
of Notaries Public of British Columbia Principles for Ethical & Professional Conduct  
Guideline [Notaries Guideline]a document that sets out the ethical and  
professional standards that govern notaries in BCthat were in effect as of  
February 2012. There is no question that the Notaries Guideline is widely circulated  
   
Canfield v. Bronze Wines Ltd.  
Page 64  
in the profession and that it indicates a standard sanctioned by common usage:  
Esser at para. 41. Mr. Engman agreed in his evidence that the standards set out in  
the Notaries Guideline governed him in the exercise of his professional duties.  
[209] The Notaries Guideline is based on 18 principles that reflect general  
standards of ethical and professional behaviour. The principles are illustrated by one  
or more guidelines, which provide concrete examples of the type of conduct covered  
by the principle. As of February 2012, the principles included:  
2-P2 Members should take reasonable steps to protect against fraud,  
misrepresentation or unethical practices.  
3-P1 Members should employ great care in the preparation of documents  
and should be meticulous and conscientious in the swearing of them.  
4-P1 Every member should competently perform the services that the  
Member undertake on a clients’ behalf.  
[210] The guidelines included:  
2-G6 Unrepresented Persons A Member should not advise an  
unrepresented person in a transaction, but should urge such a person to  
obtain independent advice and, if the unrepresented person does not do so,