Author: 76admin

06 Apr

Hull on Estates #610 – Inherent Jurisdiction and Standing in Trust Litigation

76admin Estate & Trust, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Litigation, Podcasts Tags: , , 0 Comments

 This week on Hull on Estates, Natalia Angelini and Garrett Horrocks discuss the recent Ontario Court of Appeal decision in Carroll v Toronto Dominion Bank, 2021 ONCA 38, pertaining to the issue of standing in trust litigation.

 

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Natalia Angelini

Click here for more information on Garrett Horrocks

23 Mar

Hull on Estates #609 – Will Validation Law Proposed for Ontario

76admin Estate Planning, Hull on Estate and Succession Planning, Hull on Estates, Podcasts Tags: , , , 0 Comments

 This week on Hull on Estates, Doreen So and Nick Esterbauer discuss Bill 245’s proposed addition of Section 21.1 to the Succession Law Reform Act and contemplate the differences between strict compliance, substantial compliance, and will validation provisions.

 For more information on this and other changes proposed under the Accelerating Access to Justice Act, please see last week’s discussion featuring Jonathon Kappy and Rebecca Rauws here.

 

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Doreen So

Click here for more information on Nick Esterbauer

09 Mar

Hull on Estates #608 – Bill 245: Upcoming Changes to the Succession Law Reform Act

76admin Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Hull on Estates, Uncategorized Tags: , , 0 Comments

This week on Hull on Estates, Jonathon Kappy and Rebecca Rauws discuss Bill 245, and the upcoming changes to the law if the Bill is passed. Bill 245 includes, among other things, changes to the Succession Law Reform Act, the Substitute Decisions Act, 1992, and the Children’s Law Reform Act.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Jonathon Kappy

Click here for more information on Rebecca Rauws

23 Feb

Hull on Estates #607 – Capacity to Instruct Counsel and the Appointment of a Litigation Guardian

76admin Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Litigation Tags: , , 0 Comments

This week on Hull on Estates, Paul Trudelle and Arielle Di Iulio discuss the test for capacity to instruct counsel and the appointment of litigation guardians in the recent decision of Susan Eng v. Elizabeth Eng2021 ONSC 464.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Paul Trudelle

Click here for more information on Arielle Di Iulio

09 Feb

Hull on Estates #606 – The Unorthodox Expansion of Pecore

76admin Estate & Trust, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Podcasts Tags: , 0 Comments

This week on Hull on Estates, Stuart Clark and Jennifer Philpott discuss the unorthodox use of Pecore v. Pecore, 2007 SCC 17, in the recent decisions PGT v. Cherneyko, 2021 ONSC 107, and Calmusky v. Calmusky, 2020 ONSC 1506.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Stuart Clark

Click here for more information on Jennifer Philpott

26 Jan

Hull on Estates #605 – Obligations of Attorneys

76admin Estate & Trust, Estate Planning, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Podcasts Tags: , , , 0 Comments

This week on Hull on Estates, Natalia Angelini and Sanaya Mistry discuss the fiduciary duty and obligations of attorneys for property and the recent decision in Public Guardian and Trustee v. Cherneyko et al.2021 ONSC 107.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Natalia Angelini

Click here for more information on Sanaya Mistry

22 Dec

Hull on Estates #604 – Use of Reproductive Material After Death: Written Consent Required

76admin Estate & Trust, Hull on Estate and Succession Planning, Hull on Estates, Hull on Estates, Podcasts, Wills Tags: , 0 Comments

This week on Hull on Estates, Jonathon Kappy and Sydney Osmar discuss a recent decision arising out of the British Columbia Court of Appeal which provides a definitive answer on when reproductive material may be used posthumously for the purposes of creating an embryo.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Jonathon Kappy

Click here for more information on Sydney Osmar

10 Dec

Fare Thee Well, Fax Machine! An Overview of Changes to the Rules of Civil Procedure

76admin Litigation Tags: , , 0 Comments

Like many institutions, Ontario’s justice system was directly impacted by the COVID-19 pandemic. Although the courts did not close, they were required to accommodate the public health measures taken to combat the pandemic. Beginning in March 2020, the Ministry of the Attorney General (the “Ministry”) and the Superior Court of Justice (the “Court”) moved diligently to adopt and normalize the use of technology including video and teleconferencing for hearings, electronic signatures, and online platforms for document sharing.

On November 30, 2020, the Attorney General for Ontario announced amendments to the Rules of Civil Procedure (the Rules) to solidify these changes effective January 1, 2021. This significant step toward modernization has been met with great enthusiasm from many legal professionals and advisory bodies who view the changes as long-overdue. The amendments to the Rules will ensure continued access to the courts, and enable legal professionals to serve their clients with greater efficiency and cost-effectiveness.

I have summarized several noteworthy changes to the Rules below:

Virtual Hearings are Here to Stay…

Given that between March and September 2020, the Court had heard over 50,000 hearings virtually, it should come as no surprise that the Ministry has opted to make virtual hearings a permanent option for litigants.

Rules 1.08 and 1.08.1 are revoked and replaced with Rule 1.08, which requires a party seeking a hearing or step to specify the method of attendance: in person; by telephone conference; or by video conference. This rule does not apply to proceedings at the Ontario Court of Appeal, or in respect of case conferences (which are to be held by teleconference unless the Court specifies an alternative method). The new Rule 1.08 also applies to the rules for mandatory mediations and for oral examinations, with necessary modifications.

If a party objects to the proposed method of attendance, they must do so before the earlier of 10 days or seven days before the hearing. The objection will be dealt with via case conference. When hearing an objection, the Court must consider various factors such as :

  • the availability of telephone conference or video conference facilities;
  • the general principle that evidence and argument should be presented orally in open court;
  • the effect of telephone or video conferencing on the Court’s ability to establish the credibility and observe the demeanor of witnesses; and
  • the balance of convenience between parties for and opposed to a remote attendance.

Rule 57.01(1) of the Rules is amended to allow the Court to consider whether a party unreasonably objected to proceeding by telephone or video conference under Rule 1.08 in determining costs.

Furthermore, the Rules no longer assume that hearings will be heard in the county where the proceeding was commenced (Rules 37.15(1), 38.11(2)(b), 60.17(b), and 62.01(6)) or that parties will participate in person (Rules 37.03, 38.03(1.1), 50.05(1), 50.13(2), 54.05(2), and 76.05(2)).

… As is the Virtual Commissioning of Affidavits

Effective August 1, 2020, section 9 of the Commissioners for Taking Affidavits Act was amended to permit virtual and remote commissioning of affidavits. What was initially enacted as a temporary measure has now become permanent, and Rule 4.06(1)(e) is amended to permit virtual commissioning.

Fare Thee Well, Fax Machine – Service by Email is the New Normal

References to the service and delivery of documents by fax have been struck from Rules 16, 37, and 38. Rule 51.01(c) is also amended to strike the reference to service by telegram – yes, you read that correctly. Rule 16.01(4)(b)(iv) and Rule 16.05(1)(f) are amended to permit the service of documents by email without the consent of the other party/parties or obtaining a court order. Rule 16.09(6), which required a certificate of service to prove service by email, is revoked.

Use of Electronic Signatures

A new rule, Rule 4.01.1, provides that documents that may or must be signed by the court, a registrar, a judge, or an officer under the Rules may be signed with an electronic signature.

Official Guidelines for Using CaseLines

We previously blogged about the Ministry ’s adoption of CaseLines, a cloud-based document sharing and storage e-hearing platform for remote and in person court proceedings.

The new Rule 4.05.3 outlines the requirements for using CaseLines, the deadlines for filing documents through CaseLines, and formatting requirements for documents submitted through CaseLines. Any part who submits a document through CaseLines is required to retain the original document until the 30th day after the expiry of the period for an appeal in the proceeding. On request of the court, registrar, or another party, the party must make the original document available for inspection within five days of such a request.

Inconsistencies between the information provided in a document in the court file and the information provided in a document through CaseLines will be resolved in favour of the information in the court file.  Furthermore, submitting a document through CaseLines does not amount to filing or service of that document.

Rule 4.01 is revoked and substituted with a new Rule 4.01 that specifies document standards for filing in both paper and electronic formats.

Rule 4.05.3(7) requires that documents submitted to CaseLines be in PDF format and include bookmarks and section headings where appropriate.  References to authorities must be hyperlinked to websites they can be viewed free of charge (i.e. CanLII, e-Laws, etc.). If the authority is not publicly available, the relevant excerpt from the cited authority must be included in the document.

Learn More

A discussion of the forthcoming amendments can be heard on this week’s episode of the Hull on Estates podcast. The full text of amendments to the Rules can be read at O. Reg 689/20.

Thank you for reading.

Jennifer Philpott

08 Dec

Hull on Estates #603 – Updates to the Rules of Civil Procedure

76admin Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Hull on Estates, Podcasts Tags: , , 0 Comments

This week on Hull on Estates, Paul Trudelle and Nick Esterbauer review upcoming changes to the Rules of Civil Procedure as set out in O. Reg. 689/20, effective January 1, 2021.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Paul Trudelle

Click here for more information on Nick Esterbauer

08 Dec

Initial Recommendations from Ontario’s Long-Term Care COVID-19 Commission

76admin Elder Law, Health / Medical Tags: , , 0 Comments

Ontario’s Long-Term Care COVID-19 Commission (the “Commission”) was formed in July 2020. The Commission’s mandate is “to investigate how and why COVID-19 spread in long-term care homes, what was done to prevent the spread, and the impact of key elements of the existing system on the spread.”

The Commission’s work is unique as it is conducting inquiries and providing recommendations to the Government of Ontario on an ongoing basis. Led by The Honourable Justice Frank N. Marrocco and Commission Counsel, John E. Callaghan and Kate McGrann,  the Commission has met with over 200 individuals including experts, associations, unions, long-term care home operators, residents, families, and government officials. The Commission’s final report is due in April 2021.

The Commission’s First Interim Letter was released on October 23, 2020 and provided the following recommendations for the Ministry of Long-Term Care (the “Ministry”) to consider:

(1) Increase Staffing

Prior to the COVID-19 Pandemic, staffing challenges in long-term care facilities were well documented (for instance, in The Honourable Justice Eileen Gillese’s 2019 report of the Public Inquiry into the Safety and Security of Residents in the Long-Term Care System). The Commission recommends that the Ministry ensure that recruitment of long-term care staff focuses on diverse hiring practices to meet it’s residents’ acuity and complex care needs.

Further, the Commission recommends that more full-time care positions are created to increase stability amongst and retention of staff, which would further the continuity of care for residents. The Commission suggests that the Ministry implement the findings of its Long-Term Care Staffing Study, which was released in July 2020. These findings include providing at least four hours of direct care per resident per day and increasing funding to hire more nurses and PSWs to increase the staff to resident ration in long-term care facilities.

The Commission acknowledged that family members and caregivers play an essential role and provide “not just physical care needs but the psycho-social well-being of residents.” In that regard, the Commission recommends that long-term care facilities provide family members and caregivers “ongoing, safe and managed access to long-term care residents.”

(2) Strengthen Healthcare Sector Relationships and Collaboration

From its inquiries, the Commission uncovered that communities where long-term care facilities had pre-existing relationships with hospitals and public health units were better equipped to prevent or control COVID-19 outbreaks. On this basis, the Commission recommends that long-term care facilities likely to encounter difficulties (i.e. high infection rates in the community; past outbreaks; etc.) should implement a “collaboration model” between the facility, local hospital(s), and public health unit(s). The Commission’s letter urges the Ministry and the Ministry of Health to take a proactive approach and facilitate the collaboration model through defined supports and surge capacity for each long-term care home.

(3) Improve Infection Prevention and Control (“IPAC”) Measures

The Commission’s investigation revealed that adherence to IPAC measures is key in order to prevent community spread of COVID-19 into long-term care facilities and between staff and residents. The Commission recommends that long-term care facilities designate an IPAC lead. The IPAC lead would be responsible for monitoring, evaluating, and ensuring compliance with protocols. The IPAC lead would provide training to staff and access the local IPAC centre of expertise as necessary. The Commission strongly recommends that in the short term, inspectors from the Ministry, local public health unit(s), and others who can be trained should be sent into long-term care homes to ensure that proper IPAC protocols are being followed.

Residents of long-term care facilities are at a greater risk of contracting severe illness and death from COVID-19 than other populations. Consequently, the Commission suggests that residents and staff receive priority access to testing and faster results. If residents test positive for COVID-19, the Commission recommends that long-term care homes, hospitals, and public health units formulate plans to allow residents to transfer to an alternative setting in order to isolate from others and recover from the virus.

Hull & Hull LLP commends the efforts of the Commission for its proactive efforts towards protecting the most vulnerable citizens of our province. A follow-up blog will be released in the coming weeks summarizing the Commission’s recommendations from its Second Interim Letter.

Thank you for reading.

Jennifer Philpott

SUBSCRIBE TO OUR BLOG

Enter your email address to subscribe to this blog and receive notifications of new posts by email.
 

CONNECT WITH US

TRY HULL E-STATE PLANNER SOFTWARE

Hull e-State Planner is a comprehensive estate planning software designed to make the estate planning process simple, efficient and client friendly.

Try it here!

CATEGORIES

ARCHIVES

TWITTER WIDGET