Author: Doreen So

16 Sep

Congratulations Britney!

Doreen So Capacity, Common Law Spouses, Estate Planning, Ethical Issues, Executors and Trustees, General Interest, Guardianship, In the News, News & Events, Online presence, Recently, Uncategorized Tags: , , , , , , 0 Comments

 

Our blog has been following Britney Spears’ conservatorship proceeding closely in the recent months.  So far, the #FreeBritney movement has seen significant progress through the appointment of a new lawyer for Britney, and very recently through Jamie Spears’ petition to end the conservatorship.  Even though Britney is still under a conservatorship of property and of person, the iconic popstar surprised the world with her engagement to long-time boyfriend, Sam Asghari.

This fantastic news follows Britney’s stunning court testimony back in June that she wanted to be able to get married and have a baby but that she was told that she could not do so because of the conservatorship.

To celebrate Britney’s engagement, I wanted to share Justice Benotto’s words in Calvert (Litigation Guardian of) v. Calvert, 1997 CanLii 12096, as affirmed by the Court of Appeal in 1998 CanLii 3001, with leave to the Supreme Court of Canada dismissed:

“A person’s right of self-determination is an important philosophical and legal principle. A person can be capable of making a basic decision and not capable of making a complex decision. Dr. Molloy, the director of the Geriatric Research Group and Memory Centre and associate professor of geriatrics at McMaster University, said:

Different aspects of daily living and decision-making are now viewed separately. The ability to manage finances, consent to treatment, stand trial, manage personal care, make personal care or health decisions, all require separate decision- making capabilities and assessments.

[…]

The contract of marriage has been described as the essence of simplicity, not requiring a high degree of intelligence to comprehend: Park, supra, at p. 1427.”

While the foregoing passage may not sound particularly romantic, the notion that marriage is the essence of simplicity seems rather befitting to the intimate decision that was made between Britney and Sam.

Britney is not yet a “freed” woman, but as her song goes,

”All I need is time (is all I need)

A moment that is mine

While I’m in between”.

Thanks for sharing your engagement moment with us Britney! Click here for the video of “I’m Not a Girl, Not Yet a Woman”.

Doreen So

14 Sep

The “Appropriate Means” factor under section 5 of the Limitations Act, 2002

Doreen So Continuing Legal Education, Estate Litigation, Litigation, Uncategorized Tags: , , 0 Comments

The Court of Appeal in Dass v. Kay, 2021 ONCA 565, was recently asked to reconsider the dismissal of a claim that was found to be statute barred pursuant to the Limitations Act, 2002.  The appellant in this case is the principal of two corporations, and the respondent was the principal of a mortgage brokerage.

In 2015, the mortgage brokerage was asked by the appellant’s brother to secure financing to purchase a commercial property on Drew Road in Toronto.  The Drew Road mortgage application listed the appellant as a guarantor and provided that one of his companies would be the tenant.  The Drew Road mortgage application ultimately was denied by Roynat, an affiliate of Scotiabank, although the real issue was that the appellant was never advised of the Drew Road mortgage application, and that the appellant had never agreed to be a guarantor or tenant.  The appellant only discovered the Drew Road mortgage application when he was trying to secure financing from Roynat for his own purposes.  The Drew Road mortgage application was brought to the applicant’s attention by Roynat on July 24, 2015, and he denied any knowledge or involvement with the application to Roynat then.  The appellant’s mortgage application was also ultimately denied by Roynat and he was advised by Roynat that the denial had nothing to do with the appellant’s association with the Drew Road mortgage.  On August 21, 2015, the appellant sought advice from his lawyer on the basis that he believed that his mortgage application was rejected because of the improper Drew Road mortgage application, and that the mortgage broker and his brother have harmed his reputation with Roynat.  His lawyer’s advice in 2015 was that the appellant had no evidence to prove that the mortgage broker’s actions resulted in the denial of the appellant’s mortgage, and it was the lawyer’s view that an action against the mortgage broker was inadvisable because it was unlikely to succeed.  Meanwhile, the appellant was also attempting to borrow from Scotiabank, and he was denied by Scotiabank as well.  The appellant was eventually able to secure financing but at much higher interest rates than those offered by Roynat and Scotiabank.

In 2018, when the appellant’s financing was due for renewal, the appellant approached Roynat and Scotiabank again.  This time, the appellant was told that he had been “blacklisted” due to Drew Road mortgage application.  Thereafter, the appellant issued a statement of claim on April 27, 2018 which sought damages for the reputational and commercial harm suffered by the appellant as a result of the mortgage broker’s submission of the Drew Road mortgage application.

The motions judge found that the appellant knew on July 24, 2015 of the unauthorized application, that he knew on July 27, 2015 of the mortgage broker’s involvement, and that he knew by August 21, 2015 that he suffered financial loss as a result of the unauthorized application because of the appellant’s email to his lawyer.  Of note, the Court of Appeal’s analysis of section 5(1)(a)(iv) of the Limitation Act, 2002 is found at paras. 22-28 of the decision.

First, the determination of whether a proceeding is an appropriate means to remedy an injury, loss, or damage depends on the factual and statutory context.

Second, the Court has recognized two non-exclusive factors that can operate to delay matters: (i) when the plaintiff relied on the defendant’s superior knowledge and expertise, particularly where the defendant has taken steps to ameliorate the plaintiff’s loss, and (ii) where there is an alternative dispute resolution process for an adequate remedy that has not yet been completed.

Third, the “appropriate means” factor has nothing to do with the viability of a claim, or any other practical and tactical reasons for waiting.

While the appellant contented that he was not advised of being “blacklisted” until 2018, this does not fall under the two non-exclusive factors set out above.  The limitation period does not commence only when one is able to assess whether litigation would be an attractive option (para. 46).  Moreover, the appellant’s reliance on the legal advice that he received in 2015 is irrelevant to the limitations analysis (para. 54).

Thanks for reading.

Doreen So

13 Sep

The lasting cognitive impact on 9/11’s Ground Zero first responders

Doreen So Ethical Issues, General Interest, Health / Medical, Uncategorized Tags: , , , 0 Comments

The twentieth anniversary of 9/11 took place this past weekend.  It was a day of reflection, heavy with the sentiment that we must “never forget” what transpired.  There were endless stories on the heroism of first responders in Ground Zero but the story that gave me the most pause was this Washington Post article on “The Mystery of 9/11 and Dementia”.

The article by Patrick Hruby starts with Ron Kirchner.  Ron was a firefighter in Queens.  He was in his thirties on September 11, 2001.  By 2009, Ron was retired on disability.  He had asthma and lung disease that were both linked to Ground Zero exposure.  By 2015, Ron was diagnosed with dementia.  He was only 52 years old at the time.  Ron’s neurologist thought that his brain scan resembled the brain scan of an 85-year old.  Ron now requires full-time care as he has trouble speaking, eating, and bathing.

In one study, 9/11 first responders were found to report instances of cognitive impairment three times the rate of people in their 70’s.

In another study, first responders with PTSD and cognitive impairments were found to have both blood and brain protein abnormalities as those with Alzheimer’s.

The article notes that cognitive ailments are not currently covered under the 9/11 Health and Compensation Act, a federal statute that provides health care and compensation to responders, survivors, and victims.  In order to add cognitive ailments to the Act, more research is needed to show that the condition is substantially likely caused by 9/11 exposures.

Hopefully, with the media attention on 9/11 first responders and their needs, funding for all necessary research will be made available to effectively help this tremendous group of individuals.

Thanks for reading.

Doreen So

08 Jul

OPGT as Temporary Guardian: The Public Guardian and Trustee v. Willis

Doreen So General Interest, In the News, Litigation Tags: , , , , , 0 Comments

I blogged on the Ontario Public Guardian and Trustee’s Guardianship Investigations Unit, and the OPGT power to bring an application for a temporary guardianship under certain circumstances earlier this week.  In The Public Guardian and Trustee v. Willis et al, 2020 ONSC 3660, the OPGT brought an application for Andrew Willis to pass his accounts with respect to his management of his mother’s Ruth Irene Willis’ property, and for an order that the OPGT be appointed as Mrs. Willis’ temporary guardian of property which would replace Andrew Willis as Mrs. Willis’ POA.

Mrs. Willis suffers from moderate to severe dementia and she lives in MacKenzie Place Nursing Home.  Mrs. Willis is a widow and Andrew is her only living child.  Mrs. Willis’ only asset is her home in Richmond Hill.  There are four mortgages registered against the home, which total $3.35M.  However, according to the last appraisal, the home was only estimated to be worth $2.8M after various renovations are complete.  The extent of the mortgages and Andrew’s role in arranging them, and as a personal guarantor in the event of Mrs. Willis’ default, was the basis for the OPGT’s accounting request.

What led to the OPGT to seek to replace Andrew as Mrs. Willis’ substitute decision maker was serious enough to convince the Court:

  • Andrew was found to be consumed by the home renovations when Mrs. Willis’ basic living expenses at the nursing home were left unpaid. The Court was particularly concerned that,

“Andrew does not do what he says he will do. He made many promises to MacKenzie Place to pay his mother’s arrears but did not. There are still arrears owing of $15,000. Andrew has not made his mother’s needs a priority. As a result, his mother is living in a ward with other residents in a facility which has experienced COVID-19 cases and with minimal services. Mrs. Willis’ quality of life must be improved.”

  • Willis also owes unpaid taxes to the Canada Revenue Agency. Her only bank account was found to have been used for Andrew’s personal expenses, such as his Granite Club fees, groceries, gas, alcohol, hockey equipment and his child support payments before the account was frozen by RBC.
  • Despite Andrew’s efforts in listing the property for sale, the only offer that Andrew had received was less than the total mortgages.
  • Andrew had also failed to make an application for survivor’s pension to increase Mrs. Willis’ monthly income.

The Court ultimately gave Andrew another 1.5 months to sell the house as Mrs. Willis’ attorney for property before the OPGT takes over regardless of whether the home has sold.  If you are interested in learning more about Willis, click here for Rebecca Rauws’ blog on the accounting aspects of this case.

Thanks for reading!

Doreen So

06 Jul

Investigating Britney’s Allegations in Ontario: the OPGT Investigations Unit

Doreen So General Interest, In the News, Litigation, Uncategorized Tags: , , , , , 0 Comments

Britney Spears’ recent statement to the Court on the abuses of her conservatorship has stunned the world.  Spears spoke of being abused and traumatized by her conservators.  Spears gave examples of being forced to do a concert tour against her wishes and under threat of breach of contract; and of being prevented from marrying and having more children of her own.

Spears’ father, who is at the center of this controversy as one of Spears’ conservators for the last 13 years, has filed his own petition for the Court to investigate the allegations in Spears’ statement.  Spears’ father has also expressed criticism over Spears’ conservator of person care, Jodi Montgomery, to which Ms. Montgomery has made the following statement according to Variety,

“…conservatorships in California are subject to the strictest laws in the nation to protect against any potential abuses, including a licensing requirement for all professional fiduciaries. Ms. Montgomery is a licensed private professional fiduciary who, unlike family members who serve as conservators, is required to follow a Code of Ethics…Private professional fiduciaries often serve in cases as a neutral decision-maker when there are complex family dynamics, as in this case…

Because Ms. Montgomery does not have any power or authority over the conservatorship of the estate, every expenditure made by Ms. Montgomery for Britney has had to be first approved by Jamie Spears as the conservator of the estate…Practically speaking, since everything costs money, no expenditures can happen without going through Mr. Spears and Mr. Spears approving them.”

There is similar provision in Ontario for how guardians of property are required to work with the guardians of person.  Section 32(1.2) of the Ontario Substitute Decisions Act, 1992 provides that, “A guardian shall manage a person’s property in a manner consistent with decisions concerning the person’s personal care that are made by the person who has authority to make those decisions.”

File Stack and Magnifying Glass

The Ontario Substitute Decisions Act, 1992 also imposes a positive duty on the Public Guardian and Trustee (“OPGT“) to investigate “any allegation that a person is incapable of managing property or personal care and that serious adverse effects are occurring or may occur as a result” (see sections 27 and 62 of the Act).  According to the OPGT,

“With respect to finances, “serious adverse effects” includes “loss of a significant part of one’s property or failure to provide the necessities of life for oneself or dependents”. Incapacity may, for example, lead a person to give large sums of money away to strangers or to face loss of their home for failure to pay taxes. An incapable person may face starvation or eviction if they cannot look after paying rent or buying food.

With respect to personal welfare, “serious adverse effects” includes “serious illness or injury, or deprivation of liberty and personal security”. Incapacity may, for example, result in a person being unable to remove themselves from a very dangerous situation or to take steps to stop physical or sexual abuse.

[…]

Throughout the investigation, the investigator tries to facilitate solutions that will serve to protect the person without the need for a formal court process. Respect for the dignity of the person and objectivity about the circumstances are paramount considerations in every investigation.”

If a formal court process is found to be necessary, the OPGT will make an application to the Court for a temporary guardianship, and the OPGT can also apply to make the temporary guardianship permanent.  The OPGT is a branch of the Ontario Ministry of Attorney General, and they are meant to provide Ontarians with protective safeguards.  While this specific investigative process is not technically meant to terminate an existing guardianship, it can temporarily or even permanently place the OPGT in charge as guardian of property and person.

Thanks for reading!

Doreen So

05 Jul

Terminating Guardianships: Zheng v. Zheng, 2012 ONSC 3045

Doreen So General Interest, In the News, Litigation Tags: , , , , , 0 Comments

Britney Spears has been the subject of worldwide discussion for most of her life.  The attention on Spears is once again at its height after Spears gave evidence in Court to contest and lay bare the abuses that she has suffered in the course of her 13-year conservatorship. You can read a slightly edited transcript of Spears’ 24-minute statement here.

Spears has been under a conservatorship ordered by the Los Angeles Superior Court since 2008.  The order was made following a number of publicly scandalous events such as the time when Spears was photographed driving with her baby on her lap, and the time when she was photographed shaving her own head.  Spears’ father, Jamie Spears, and a lawyer were named as her conservators which gave them the authority to make decisions about Spears’ property and health.  Spears’ conservatorship was routinely back before the Court and extensions of the arrangement were granted throughout its 13-year history.  A full timeline can be found here.

Recently, in 2019, Jamie Spears sought to extend the conservatorship across multiple states so that he would be similarly authorized to deal with Spears and her property in Louisiana, Hawaii, and Florida.  That same year, Jamie Spears stepped down as the primary conservator after criticisms from Spears’ 14-year old son.  In 2020, Spears sought to remove Jamie Spears as one of her conservators all together.  Fast forward to now, Spears tells Los Angeles probate Judge Brenda Penny that she didn’t know she could petition to end the conservatorship, and that she wanted it to end without being evaluatedDays later, on June 30th, an old application to remove Jamie Spears was dismissed and a wealth management company, Bessemer Trust, was appointed to act as a co-conservator with Jamie Spears, although Spears is not precluded from bringing new applications in the future.

Here in Ontario, our version of a conservatorship is known as a guardianship under the Substitute Decisions Act, 1992.  A petition to terminate a guardianship can be brought by motion under section 28 of the Act.  This was done in one instance by Y. Zheng in Zheng v. ZhengZheng v. Zheng, 2012 ONSC 3045, is a Division Court decision by Justice Wilton-Siegel which granted Zheng leave to appeal an order that she be assessed as a part of her motion to terminate her guardianship.

In Zheng, Zheng was found to be incapable of managing property and personal care in 2007 and Zheng’s brother became appointed as her guardian.  When Zheng applied to terminate the guardianship in 2012, Zheng submitted four current assessments, all of which found Zheng to be capable.  The assessments were done by a qualified assessor under the Act, a staff psychiatrist at CAMH, and an in-home occupational therapist.  The psychiatrist, in particular, had found that Zheng is currently capable with respect to treatment of her psychiatric condition, which was diagnosed as a psychotic disorder due to a head injury.

Zheng’s brother opposed the termination.  Zheng’s brother had the assessments reviewed by the same neuro-psychologist who assessed Zheng in his 2007 guardianship application and concerns were raised about the sufficiency of these new assessments.  Thereafter, Zheng retained her own neuro-psychologist to do conduct the same review, and Zheng’s neuro-psychologist came to the opposite conclusion in Zheng’s support.  Given the conflicting review, Zheng’s brother brought a motion for Zheng to undergo a further assessment by an assessor of his choice. This was ordered by Justice B. O’Marra, and leave to appeal this order was granted by Justice Wilton-Siegel.  Unfortunately for us, there does not appear to be any further reported decisions in this matter and I do not know if the assessment appeal or the broader motion to terminate was pursued further.

At the end of the day, I hope Spears’ conservatorship will be resolved to Spears’ satisfaction.  It may very well be that an evaluation of some sort will be required on Spears’ part but, like Zheng, perhaps Spears’ evaluations can be done on her own terms.

Thanks for reading!

Doreen So

08 Apr

Incapacity to Sue under section 7 of the Limitations Act, 2002

Doreen So Capacity, Continuing Legal Education, Estate & Trust, Estate Litigation, Ethical Issues, Uncategorized Tags: , , , , 0 Comments

The basic limitation period under section 4 of the Limitations Act, 2002 provides that a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.  However, pursuant to section 7(1) of the Act,  the “clock” does not run when the person with the claim,

(a)  is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and

(b)  is not represented by a litigation guardian in relation to the claim.

A person is also presumed to be capable of commencing a proceeding in respect of a claim at all time unless the contrary is proved (section 7(2)), although minors are dealt with separately under section 6 of the Act.

The issue of the plaintiff’s capacity to commence a proceeding in respect of his claim was considered at length by the Court of Appeal in Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447Carmichael is a tragic case involving the murder of the plaintiff’s 11 year old son.  The plaintiff strangled his son to death in 2004 when he was suffering from mental illness and psychotic delusions.  During this time, the plaintiff was also taking an anti-depressant that was manufactured by the defendant drug company.  The plaintiff was charged with murder and he was found to be not criminally responsible as a result of his mental disorder.  He later received an absolute discharge from the Ontario Review Board on December 2, 2009.  Nearly two years after that, the plaintiff commenced his claims against the drug company on October 5, 2011.

The defendant drug company brought a motion for summary judgment to dismiss the plaintiff’s claim as statute barred.  The motions judge dismissed the motion because he found that the plaintiff was incapable of commencing a proceeding because of his psychological condition until the day of his absolute discharge from the Ontario Review Board.  The Court of Appeal disagreed.

The Court of Appeal affirmed the use of the Huang/Hengeveld indicators as a list of non-exhaustive, objectively verifiable indicators of incapacity under section 7(1)(a) of the Act (see paras. 94-96):

  • a person’s ability to know or understand the minimum choices or decisions required to make them;
  • an appreciation of the consequences and effects of his or her choices or decisions;
  • an appreciation of the nature of the proceedings;
  • a person’s ability to choose and keep counsel;
  • a person’s ability to represent him or herself;
  • a person’s ability to distinguish between the relevant and irrelevant issues; and,
  • a person’s mistaken beliefs regarding the law or court procedures.

Moreover, the plaintiff’s physical, mental, or psychological condition must be the cause for the incapacity in order to meet section 7(1)(a).  The incapacity cannot arise from other sources, such as lack of sophistication, education, or cultural differences (para. 101).

The Court of Appeal ultimately found that the plaintiff had the capacity to sue the defendant drug company prior to his absolute discharge from the Ontario Review Board.  The Court disagreed with the motions judge’s view of the plaintiff’s expert evidence.  The plaintiff’s expert witness was criticized for never having prepared a capacity assessment before and for making conclusions that were unsupported by the evidence.  Rather,

“The evidence shows that Mr. Carmichael had several reasons for not suing GSK before December 2, 2009: he did not believe he had the necessary expert evidence until he received the genetic test from Dr. Lucire in October 2009; he was worried about repercussions if the Hospital decided that he was not taking responsibility for his actions; and he was concerned for his own and his family’s well-being. These are understandable reasons for not commencing a lawsuit. But in my view, none of these reasons, alone or together, prove that Mr. Carmichael was incapable of suing GSK until December 2, 2009 because of his psychological condition.” (para. 163)

Leave to appeal to the Supreme Court of Canada was denied last week.

Thanks for reading!

Doreen So

06 Apr

How to Deal with the Two-Year Limitation Period under Section 38(3) of the Trustee Act

Doreen So Estate Litigation, Executors and Trustees, Litigation, Uncategorized Tags: , , 0 Comments

Section 38 of the Trustee Act, except in cases of libel and slander, permits estate trustees to commence actions, on the deceased’s behalf, for all torts or injuries to the person or to the property of the deceased, and vice versa for those seeking to commence actions with respect to a wrong committed by a deceased person, so long as those claims are brought within two years of the deceased’s death.

The discoverability principles under the Limitations Act, 2002 are not applicable to toll the two-year limitation period under section 38(3) of the Trustee Act.  The application of this strict two-year limitation period is only mitigated by common law principles such as the doctrine of fraudulent concealment: Giroux Estate v. Trillium Health Centre, 2005 CanLII 1488 (ONCA), Bikur Cholim Jewish Volunteer Services v. Penna Estate, 2009 ONCA 196, and  Levesque v. Crampton Estate, 2017 ONCA 455.

Turning off an alarm clock

Recently, the Court of Appeal has considered limitations defences in three of its estates decisions so far in 2021.  One of them was the case of Zachariadis Estate v. Giannopoulos, 2021 ONCA 158, which I blogged about the other day.  The other two cases were Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57, and Hayward v. Hayward, 2021 ONCA 175.

The Beaudoin Estate is a medical malpractice claim by the Beaudoin Estate and the deceased’s wife, daughter, grandchildren as claimants under the Family Law Act.  The claimants alleged that the deceased was negligently diagnosed and treated when he was brought to the hospital’s emergency department which led to a delay in surgery that could have saved his life.  Mr. Beaudoin died on January 9, 2015 and the action as commenced on April 27, 2017 by way of a statement of claim.  The defendants asserted amongst other things in their statement of defence that the plaintiffs were statue barred pursuant to section 38(3) of the Trustee Act.  The plaintiffs then alleged that the hospital had fraudulently concealed their cause of action by failing to provide them with the deceased’s complete medical records when they were requested from the hospital, particularly certain CT imaging that was not provided to them until May, 2017.

The hospital then brought a rule 21.01(1)(a) motion to determine an issue of law raised by the pleadings so as to dispose of the action without trial.  It is important to note that, unlike a motion for summary judgment under Rule 20, no evidence is admissible on a motion under r. 21.01(1)(a), except with leave of a judge or on consent of the parties: r. 21.01(2)(a).

The Court of Appeal found that the motion judge erred in deciding the question of fraudulent concealment as a question of law under r. 21.01(2)(a).  Motions under r. 21.01(1)(a) are not the proper procedural vehicle for weighing evidence or making findings of fact (para. 30).  Similar to limitations issues under the Limitations Act, 2002 and the factual dispute surrounding the discovery of a claim, factual disputes surrounding the fraudulent concealment of a cause of action are more properly determined under a motion for summary judgment under Rule 20.  To do so would be unfair to a plaintiff when no evidence is admissible on such a motion except with leave of the court or on consent (para. 34).

In Hayward v. Hayward, the appellants raised as a ground of appeal that the trial judge erred by failing to find that the applicants were statute bared.  The Court of Appeal dismissed this ground of appeal on the basis that the defence was not raised by counsel regardless of the fact that the application did not have full pleadings like an action would.  The trial judge cannot be criticized for failing to respond to a defence that was not raised by counsel (para. 7).

Thanks for reading!

Doreen So

05 Apr

A Tale of Substantial Indemnity: Zachariadis Estate v. Giannopoulos

Doreen So Continuing Legal Education, Estate & Trust, Estate Litigation, Executors and Trustees, Litigation, Uncategorized Tags: , , 0 Comments

Dr. Zachariadis was divorced and estranged from his two daughters.  After his divorce, he began a romantic relationship with Ms. Giannopoulos.  They were together for almost twenty years as common law spouses until Dr. Zachariadis’ passing.  A year before his death, Dr. Zachariadis moved in with Ms. Giannopoulos and they had plans to marry.  Dr. Zachariadis transferred his medical practice to Ms. Giannopoulos’ son Aris, and he gave Ms. Giannopoulos a bank draft for $700,000.00 which she deposited into her own bank account.  He died within six months of that bank draft.

Dr. Zachariadis did not have a relationship with his daughters from his first marriage.  He was not invited to their weddings and he has never met his grandchildren.  Dr. Zachariadis died without a Will and his daughters became the estate trustees and beneficiaries of this Estate.  More than two years after Dr. Zachariadis’ passing, the daughters commenced an action against Ms. Giannopoulos to recover the payment of $700,000.00 to her on the basis of breach of trust, fraud at equity, conversion and unjust enrichment.  The action was dismissed on a motion of summary judgment by Justice Koehnen.  The appeal of Justice Koehnen’s decision, 2019 ONSC 6505, and his Honour’s costs order, 2020 ONSC 588, were also dismissed by the Court of Appeal, 2021 ONCA 158.

 

On the motion for summary judgment, Justice Koehnen found that the daughters were statute barred by section 38(3) of the Trustee Act in failing to commence their claims within two years of Dr. Zachariadis’ death.  The daughters failed to make out any fraudulent concealment on Ms. Giannopoulos’ part that would toll the operation of section 38(3).  Rather, Justice Koehnen found that there was no positive obligation on Ms. Giannopoulos’ part to tell the daughters about the payment, and he found that the payment was a gift in any event.  All of which were upheld by the Court of Appeal.

The Court of Appeal also found that there was no basis to interfere with Justice Koehnen’s costs order.  The Estate and the daughters, in their personal capacities, were ordered to pay Giannopoulos costs of $199,602.46 on a substantial indemnity scale.   The allegations of fraud in the underlying claim were unsupported and pursued to the end.  Justice Koehnen noted that the daughters could have pursued their claims on the basis of constructive trust and resulting trust without going so far as alleging fraud.  The daughters were also found to have taken unnecessarily aggressive steps and to have lengthened the proceeding due to their lack of cooperation with Ms. Giannopoulos’ counsel while Ms. Giannopoulos’ offers to settle were weighed against them.  Issue was also taken with the length of the daughters’ materials which were noted to be in violation of the page limits and other formatting requirements for facta.    Lastly, Justice Koehnen rejected the daughters’ argument that they were only pursuing the claim to ensure the due administration of the Estate and out of their concern that the Estate would have sufficient funds to pay its CRA liability. Interestingly enough, Justice Koehnen commented that, if that were the case, the daughters could have simply turned over the claim for CRA to pursue.

Thanks for reading!

Doreen So 

21 Jan

Nova Scotia: North America’s First “Opt-Out” Organ Donation Program

Doreen So Elder Law, Ethical Issues, General Interest, Health / Medical, In the News, News & Events, Uncategorized Tags: , , , 0 Comments

 

 

 

 

Who is ready for some good news?  Our firm has been interested in the issue of organ donation for some time now.  In 2012, we blogged about whether P.E.I. may be the first province in Canada to automatically enroll all of its people as organ donors until you chose to actively “opt-out”.  In 2014 and 2019, we blogged about Nova Scotia’s efforts in this regard.

Today, we are happy to report that this is now the new reality in Nova Scotia as of January 18, 2021.

The Human Organ Tissue and Donation Act was passed in April, 2019.  The Act, when it came into effect this Monday, meant that everyone in Nova Scotia are now considered to a potential organ donor until they “opt-out”.  This new “opt-out” system is the first of its kind in North America according to the Huffington Post. Ontario, like everywhere else, has an “opt-in” program where you have to actively sign up in order to be considered as a potential organ donor whereas the “opt-out” system is the opposite of that.  Nova Scotia is hoping that this will dramatically increase the rate of organ donation in the province like the 35% increase that has been noted in certain European countries.

In order to balance and respect the wishes of each individual, the director of the organ donation program has indicated that the known wishes of an individual will be respected even if he/she has not formally opted out.

This is an issue that is personally meaningful to me because of the statistics surrounding organ donors and organ recipients of colour.  People of colour tend to be underrepresented within “opt-in” systems of organ donation.  According to the Gift of Life, while race and ethnicity is not determinative of a match, a match is more likely to be found within one’s own ethnic community because of compatible blood types and tissue markers.  60% of patients waiting for a transplant are from communities of colour.  I, myself, am registered with the Gift of Life and I can attest to how easy and painless it was to sign up.

Thanks for reading!

Doreen So

 

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