Author: Doreen So

23 Jan

Summary Judgment and Limitation Periods in Will Challenges

Doreen So Estate & Trust, Estate Litigation, Litigation, Uncategorized Tags: , , 0 Comments

Earlier this week, I wrote two blogs on the limitations issue in Piekut v. Romoli, 2019 ONSC 1190, 2020 ONCA 26.  The facts in that case were briefly summarized here.

The testators died in 2008.  The family realized there was a disagreement about the validity of their parents’ codicils that year but everything seemed to be on hold until Helen brought an application in 2015 to determine the validity of the codicil.  In response, Krystyna brought a motion for summary judgment to dismiss Helen’s application on the basis it is statute barred pursuant to the Limitations Act, 2002.  This motion was brought by Krystyna because she was interested in maintaining the force and effect of the codicils that gave her certain properties.  Thereafter, Helen cross-motioned for summary judgment on her application.

Rule 20.04 of the Rules of Civil Procedure sets out the basis for summary judgment.  Summary judgment shall be granted if: (a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or (b) if the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.  The Supreme Court of Canada in Hryniak v. Maudlin, 2014 SCC 7, determined that “a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.”

With that in mind, Justice Dietrich found that Krystyna’s motion for summary judgment was appropriate for the following reasons (see para. 35):

  • There were no material facts in dispute;
  • No additional facts would emerge at trial;
  • The application of an absolute limitation period was generally a fairly straightforward factual analysis;
  • That based on the evidence before her, this matter can be resolved without a trial and that a trial of this narrow issue would be a more expensive and lengthy means of achieving a just result.

The Ontario Court of Appeal agreed with Justice Dietrich’s finding on this point.  The panel emphasized how both parties brought summary judgment motions and filed affidavits with exhibits of their own.

In contrast, a similar summary judgment motion was unsuccessful in Birtzu v. McCron, 2017 ONSC 1420, 2019 ONCA 777 (on the issue of costs, only).  The Court in Birtzu found that summary judgment was not appropriate and ordered costs against the defendant in any event of the cause (with reasons that were unreported).  That said, the defendant was ultimately successful in proving that the plaintiffs were statute barred after a full trial on all issues.

Thanks for reading!

Doreen So and Celine Dookie

21 Jan

Pleadings Matter for Limitation Periods

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

Today’s blog is a continuation of yesterday’s discussion regarding the limitations analysis in Piekiut v. Romoli, 2019 ONSC 11902020 ONCA 26.  No limitation period was found to apply where an estate trustee was simply seeking a determination and declaration as to whether certain codicils were valid or not valid.

The testators in this case died in 2008.  They had 3 children, Helen, Victor, and Krystyna.  A meeting took place in 2008 between all 3 children and a lawyer to discuss the administration of the Estate.  During this meeting, Krystyna revealed, for the first time, the existence of codicils and declarations of gift that provide her with an interest in certain properties.  Helen refused to acknowledge the validity of these new documents.

In 2015, Helen brings a court application.  Her application was later amended, on the consent of parties, in 2018 to reflect that Helen was only seeking a declaration in respect of the validity of the codicils.  Thus in 2019, Justice Dietrich’s decision was made in the context of Krystyna’s motion for summary judgment to dismiss Helen’s application on the basis that it was statute barred and Helen’s cross-motion for summary judgment on her application.  Justice Dietrich found that, since Helen did not ask the court to determine the ultimate beneficiaries of the properties that were subject to the Codicil or to vest such properties in any particular beneficiary or beneficiaries, her application was not barred by the Limitations Act, 2002.

The Court of Appeal agreed with Justice Dietrich.  The panel was also of the view that this case is distinguishable from Leibel v. Leibel2014 ONSC 4516 and Birtzu v. McCron, 2017 ONSC 1420 because of the consequential relief that was pleaded in those cases.  Since the Court of Appeal decision did not go into the details of the relief sought in Birtzu (unlike its description of Leibel), it is helpful to understand the breadth of the Statement of Claim in Birtzu, which sought the following:

  • an Order setting aside the Will;
  • an Order setting aside the Deceased’s Powers of Attorney;
  • an accounting of the entire Estate, as well as all financial transactions undertaken by the Deceased, or on his behalf, or on behalf of his Estate, from the date that the Deceased’s matrimonial home was sold in 2003 to the date of trial;
  • Orders for the production and release of financial and medical information;
  • an Order reversing all transactions undertaken by the Defendant, either directly or indirectly, without authority or in breach of her authority, or in breach of her fiduciary duties to the Deceased and to his beneficiaries, including the Plaintiffs;
  • an Order tracing the property of the Deceased into the property owned by the Defendant, including her home;
  • Orders for injunctive relief, including the issuance of a certificate of pending litigation;
  • a Declaration that all property held in the name of the Defendant, or part thereof, is held by her for the benefit of the Plaintiffs;
  • damages against the Defendant in the amount of at least $400,000.00, for conversion of property, breach of statutory duty, and/or breach of fiduciary duty;
  • pre- and post- judgment interest; and
  • costs fixed on a substantial indemnity basis, plus H.S.T.

Thanks for reading!

Doreen So

20 Jan

No Consequential Relief; No Limits to Will Challenges

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

Last week the Court of Appeal dismissed an appeal of Justice Dietrich’s decision in Piekiut v. Romoli, 2019 ONSC 1190, 2020 ONCA 26.

The main issue on appeal was whether Justice Dietrich was right in finding that the applicant could still ask the court to determine whether certain codicils were valid (or invalid) seven years after death.  Justice Dietrich based her limitations analysis on whether this proceeding would fall under section 16(1)(a) of the Limitations Act, 2002 where there is no limitation period in respect of “a proceeding for a declaration if no consequential relief is sought”.

In her reasons, Justice Dietrich distinguished the case before her from the other limitations cases that have applied the two-year, basic limitation period to will challenges: Leibel v. Leibel2014 ONSC 4516, Birtzu v. McCron, 2017 ONSC 1420, and Shannon v. Hrabovsky, 2018 ONSC 6593.  The case before her was different from Liebel, Birtzu, and Shannon because nothing had been done by the respondent beneficiary to propound the codicils that she had an interest in.  If the proceeding was started differently in 2015, by the very beneficiary who has an interest in the codicils, then the estate trustee would have a limitations defence against the beneficiary.  Since the beneficiary had done nothing, it remained opened to the estate trustee to commence an application for declaratory relief.  Such declaratory relief is  “a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs.’ It is restricted to a pronunciation on the parties’ rights” (see para. 46, 2019 ONSC 1190).

The Court of Appeal agreed that there was no limitation period in this case because the applicant did not seek consequential relief in addition to a determination of the validity or invalidity of the codicils.   The Will had not been probated and nothing had been done for seven years to resolve the issue.

“In these circumstances, Helen was entitled to seek declaratory relief, simply to establish the validity, or lack of validity, of the codicils – to define the rights of the parties in order to avoid future disputes.”, Strathy C.J.O., MacPherson J.A., and Jamal J.A.

Thanks for reading and more on these limitation cases to follow later this week!

Doreen So

 

21 Nov

Hurray for Telomerase!

Doreen So General Interest, Health / Medical, In the News, Uncategorized Tags: , , , , , , 0 Comments

According to this CNN article, a scientific breakthrough has occurred thanks to research from the Arizona State University and Texas A&M University.  These scientists have, for the very first time, identified the structure of telomerase in plants.

Telomerase is an enzyme that creates the DNA of telomeres.

>>Telomeres protects our cells from aging as our cells multiply.

>>>If our cells are protected from aging, then so will our bodies…

This breakthrough will allow scientists to study how telomerase in plants compare to the ones in animals, including humans!  For example, there is a pine tree, named Methuselah, that is 4,845 years old in California.  It is so inimitable that the location of this particular pine tree is kept secret for protection.

On the flip side, certain cells that have too much telomerase can be deleterious to our health, like cancer cells.  The ability to stop a cancer cell from multiplying by shortening its telomeres could be revolutionary!

Fun fact: these components of life are so important that the 2009 Nobel Prize in Physiology or Medicine was awarded to Elizabeth H. Blackburn, Carol W. Greider, and Jack W. Szostak for their research on how chromosomes are protected by telomeres and telomerase.

Thanks for Reading!

Doreen So

19 Nov

The Tradition Lives On: Costs Payable from the Estate where the Deceased was at Fault

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

Competing applications about the ownership of a home were before the Court in Marley v. Salga, 2019 ONSC 3527.  On the death, the home was jointly owned between the deceased (Salga) and his wife (Marley).  Notwithstanding the registered, legal ownership of the property, Salga’s Will gave Marley a lifetime right to occupy and use Salga’s one-half interest in the property and thereafter directed that the house be sold for the benefit of the residuary beneficiaries.

This led the residuary beneficiaries to commence an Application for a declaration that the Estate is entitled to an undivided one-half interest in the home and for an order requiring the Estate Trustee (Klassen) to sell the home right away (the “Salga Application“).  Thereafter, Marley commenced her own Application for a declaration that she was the sole legal and beneficial owner of the property, or, alternatively, that her interest in the property is greater than 50% (the “Marley Application“).

Ultimately, Justice Reid found that ownership of the property was severed by the deceased in the course of his dealings but denied the Salga Applicants’ request that the property be sold before the termination of Marley’s interest under the Will.  The Marley Application was also denied.  Our blog on this decision can be found here.

The parties were unable to agree to the issue of costs.  Justice Reid, 2019 ONSC 6050, followed the traditional approach to costs in estate matters and the costs of both applications, on a partial indemnity scale, were ordered from the Estate.  In reaching this conclusion, Justice Reid considered and found the following:

  1. The Marley Application was in essence a response to the Salga Application and the costs of both proceedings were treated as one;

 

  1. Both parties were found to be partially successful: the Salga Applicants were successful in obtaining a declaration that 50% of the home belongs to the Estate and the Marley Applicant was successful in preventing an immediate sale of the home;

 

  1. Consideration was given to the fact that an award of costs from the Estate meant that the Salga Applicants (as the residuary beneficiaries) would be effectively bearing their own costs as well as Marley’s costs. However, that was not enough to outweigh the deceased’s responsibility to act unambiguously by severing his interest on title during his lifetime.

 

  1. Costs against the Estate in this case “places the responsibility for the litigation squarely on [the deceased] where it belongs“.

This costs decision is also an informative read for the costs of an estate trustee as a respondent in both proceedings and how costs should be paid from an estate where there is no liquidity.

Thanks for reading!

Doreen So

18 Nov

What happens when you are out of time to serve a claim?

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

A recent master motions in the Estate of Robert William Drury Sr., 2019 ONSC 6071, considered the issue of an extension of time to serve a statement of claim.

Robert Sr. owned a property where the defendant Shirley lived with her spouse Hugh Drury.  When Hugh Drury died, Robert Sr. sought vacant possession of his home.  Robert Sr. died on September 8, 2016.  Days later there was a fire on the property on September 24th and Shirley was criminally charged with arson.

Almost two years later, the estate trustee for Robert Sr.’s Estate issued a statement of claim for malicious and intentional arson damage, or gross negligence causing loss of enjoyment of life, or damages for loss of property.   That claim was issued on September 19, 2018 while Shirley’s criminal proceedings were underway.  Pursuant to Rule 14.08(1), Robert Jr. had 6 months to serve the civil claim on Shirley which expired on March 19, 2019.  Shirley was not served until June 14, 2019 when Robert Jr. brought a motion for an extension of time.

In applying the test that was set out by the Court of Appeal in Chiarelli v Wiens, 2000 CanLii 3904, the extension of time was ultimately allowed by Master Sugunasiri.

The delay was only three months and the prejudice to Shirley was minor.  Robert Jr. explained that he acted on the advice of counsel when the decision was made to serve Shirley after the conclusion of the criminal proceeding.  This decision was not personal or contemptuous.  As for Shirley, while memories fade over time, the criminal proceeding was found to be an ameliorating factor that preserved her evidence for the civil proceeding.

In reaching this decision, Master Sugunasiri also considered an instance where an extension of time was denied because the delay was caused by the Plaintiff’s decision not to serve the claim until he had enough money to fund the proceeding.  In that case, the Court found that the Plaintiff ought to bear the consequences of the risk that he took under the Rules.

Thanks for reading!

Doreen So

Turning off an alarm clock
22 Aug

Never Really Lost but Recently Discovered

Doreen So Estate & Trust, General Interest, In the News, Wills Tags: , , , 0 Comments

Thanks to the New York Times, I found out about where most of Bob Ross’s paintings have been kept all these years.  Bob Ross was the iconic host of the television show, The Joy of Painting.  The PBS show ran from 1983 to 1994 and these old episodes continue to be watched on television, YouTube, and Netflix today.

In each episode, Bob taught his audience how to paint landscapes from his own imagination and memories.  According to this NYT video, Bob would paint three versions of the same painting for each episode.  Given the amount of episodes, Bob is estimated to have painted over a thousand paintings for the show alone.

Bob’s paintings are owned by a company known as Bob Ross, Inc.  Bob Ross, Inc. was originally owned by Bob, his wife, Jane, and Annette and Walt Kowalski.  The Kowalskis are credited with discovering Bob and financing his early career.  When Bob died in 1995, predeceased by his wife Jane, the Ross’s shares of the company were left to the Kowalskis.

To date, Bob Ross, Inc. does not sell Bob’s paintings.  It is a company that sells painting supplies, books and dvds, and other fun items like t-shirts and coffee mugs.

As a privately held corporation, Bob Ross Inc. can continue to hold onto Bob’s paintings for the foreseeable future.  Only time will tell if the shareholders of Bob Ross Inc. might change their minds about Bob’s paintings.  For now, the company has donated a collection of Bob’s paintings to the Smithsonian and the rest of us will just have to paint our own paintings by learning from Bob.

Just for fun, and to finish off my theme for the week, here is a video for happy little Bob Ross waffles.

Doreen So

Golden Fall Foliage Autumn Yellow Maple Tree Season

20 Aug

Parties to Bear Their Own Costs of a Contested Guardianship

Doreen So Capacity, Continuing Legal Education, Elder Law, General Interest, Guardianship, In the News Tags: , , , , 0 Comments

There was a recent decision of the Ontario Superior Court of Justice on the issue of costs in a contested guardianship proceeding.  Rather unusually, the endorsement in Howard Johnson v. Howard, 2019 ONSC 4643, dealt with the issue of costs after the parties have resolved the main dispute on consent.

In this case, there were two competing guardianship applications over Elizabeth.  The applicants on the one hand were Elizabeth’s daughter and son, Marjorie and Griffin, and on the other hand, Elizabeth’s other son, Jon.  All three of Elizabeth’s children were of the view that their mother was in need of a substitute decision maker for both the management of her property and for personal care.

While the endorsement does not specify who the competing applicants were seeking to appoint as Elizabeth’s guardian, the parties eventually settled on the appointment of CIBC Trust Corporation as Elizabeth’s guardian of property and all three children as Elizabeth’s guardians of personal care.  On the issue of costs, Marjorie and Griffin sought full indemnity costs from Jon while Jon sought substantial indemnity costs from Majorie and Griffin or, in any event, that he be indemnified by Elizabeth for any amounts not recovered from his siblings.

Pursuant to section 3 of the Substitute Decisions Act, 1992, Elizabeth was represented by counsel throughout the proceeding and on the issue of costs.  Submissions were made on Elizabeth’s behalf that she should not have to pay costs of the other parties or the outstanding balance of an invoice that was purportedly incurred by Elizabeth in a joint retainer with Jon.

The Court in this instance considered the modern approach to costs in estate litigation as set out in McDougald Estate v. Gooderham,  2005 CanLII 21091 (ON CA), with respect to Jon’s claim that Elizabeth ought to be responsible, at least in part, for his costs.  The court relied on D.M. Brown J.’s (as he was then) comments that the discipline imposed by the “loser-pays” approach to estate litigation applies with equal force to matters involving incapable persons citing Fiacco v. Lombardi, 2009 CanLII 46170 (ON SC).  Only costs incurred for the best interests of the incapable person could be justified as costs payable from the incapable’s assets.

In this case, the competing applications of the siblings were found to contain a number of ancillary issues beyond that of the appointment of a substitute decision maker for Elizabeth.  The Court was ultimately unable to see how Elizabeth would have derived any benefit from her children’s disputes.  Therefore, the children were all ordered to bear their own costs.  There was also no clear benefit to Elizabeth from the invoice that was issued to her prior to the appointment of section 3 counsel and Jon was ultimately left to pay that balance.

At the end of the day, the only costs borne by Elizabeth, as the incapable person subject to two competing guardianship applications, were the costs of section 3 counsel pursuant to the section 3(2) of the SDA.

Here is a Bon Appetit recipe for a frozen margarita pie that we could all benefit from.

Doreen So

19 Aug

The Death of a Limited Partner

Doreen So Continuing Legal Education, Estate Planning, Executors and Trustees, General Interest, Litigation Tags: , , , , 0 Comments

Earlier this year, the Ontario Court of Appeal considered the issue of an estate’s entitlement to the residual assets of a partnership upon the death of its sole limited partner.

Canadian Home Publishers Inc. v. Parker, 2019 ONCA 314, is a lawsuit between the general partner and the Estate Trustees of the deceased limited partner, David.  Canadian Home Publishers Inc. was incorporated when Lynda and David decided to purchase Canadian House and Home magazine in 1985.  Lynda and David were married at the time.  The corporation was owned by Lynda as the sole general partner and by David as the sole limited partner.  It was their intention that Lynda would run the company as her own business and David would make use of its tax losses.

The couple later divorced in 1991.  Litigation ensued and there was a previous decision about the nature of the parties’ oral partnership agreement in the ’90s.  David dies in 2012.  By the time of his death, David had received over $26 million from his interest as the limited partner.  The magazine itself was valued at over $50 million.  Lynda, as the general partner, sought a declaration that 1) the limited partnership was dissolved upon David’s death, and 2) that David’s Estate was only entitled to a share of the profits to the date of his death and a repayment of his remaining capital contribution (i.e. that the Estate was not entitled to share in the residual value of Canadian Home Publishers).

The lower court found that 1) the limited partnership was indeed dissolved upon David’s death and 2) that David’s Estate was entitled to an equal share of the residual value of Canadian Home Publishers with Lynda.  While the Court of Appeal upheld the finding that the limited partnership was dissolved on death, the second finding was overturned and the Estate was limited from any additional benefit over above its share in profits as of the date of death and a return of capital.

The Court’s analysis provides a helpful description of the differences between limited partnerships and ordinary partnerships.  A limited partner is meant to be a passive investor whose exposure to liability is limited to the extent of his or her capital contribution unless otherwise provided in the Limited Partnerships Act (see paras. 20-21).  A limited partner has no broader right to participate in the upside of the limited partnership, just as the limited partner has no broader obligation to suffer or contribute in the downside (para. 25).

Since we are talking about House & Home, here is a recipe from their website for pineapple honey ribs 🙂

Thanks for reading and until next time!

Doreen So

23 May

What can you do with damaged cash in Canada?

Doreen So Estate & Trust, Executors and Trustees, General Interest, Uncategorized Tags: , , , , , 0 Comments

I noticed a rip in a twenty dollar bank note in my wallet the other day. I was struck by the rip because Canadian bank notes are now made with a polymer that is meant to last longer than paper bank notes.  The idea that money can be accidentally damaged is a potential issue for estate trustees who are charged with the responsibility of gathering and preserving the assets of an estate until it’s distributed to the beneficiaries.

Luckily enough, The Bank of Canada has a policy on contaminated or mutilated bank notes.  Under certain circumstances, The Bank of Canada will redeem bank notes that have become contaminated or mutilated beyond normal wear and tear and issue the claimant with replacement bank notes.  The Bank of Canada will carefully scrutinize each note and the circumstances of each claim in order to determine whether the claim is legitimate.

 

 

According to The Bank of Canada, a claim will be rejected if it is their opinion that:

  • the identity of the claimant cannot be substantiated;
  • the notes are counterfeit or there are reasons to believe that the notes were acquired or are connected to money laundering or other criminal acts;
  • there has been an attempt to defraud the Bank or there exists contradictory or improbable explanations about significant aspects of the claim, such as how the notes were damaged or how they came into possession of the claimant;
  • any of the security features of the notes have been removed or altered or where the notes have otherwise been altered or damaged deliberately or in a systematic fashion, including dyed or chemically washed or treated, by a process that could be reasonably expected to have the effect of altering them.

While this particular problem might seem unlikely to occur, our blog has covered past instances where cash was found to have been destroyed.  There is also a very thorough wikiHow on how to replace damaged currency in the U.S. with some practical tips for worldwide application, such as tips on how to package and deliver the damaged currency to the appropriate authorities.

Thanks for reading!

Doreen So

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