Author: Hull & Hull LLP
As my colleague Paul Trudelle wrote in July, “Under the Reopening Ontario (A Flexible Response to COVID-19) Act (“the Reopening Ontario Act”), Orders made under the Emergency Management and Civil Protection Act that have not been previously revoked are extended and continued under the Reopening Ontario Act.”
At that point, several orders, including virtual will signings, were extended for a period of thirty days.
As my colleague Arielle Di Iulio discussed here, the remote execution of wills and powers of attorney using video conferencing and counterpart were extended to September 22.
This past week, the Ontario Government released another list of extensions including the virtual signing of Wills under O. Reg 129/20
The full list of orders subject to this extension can be found here.
These orders are extended until October 22, 2020 or until such time as they are extended once more.
Thanks for reading!
Ian M. Hull and Daniel Enright
Over the past few weeks, the #FreeBritney movement has been gaining traction on social media. My colleague, Doreen So, previously blogged on the movement, and discussed some of the similarities between conservatorship (in California) and guardianship in Ontario.
Recent headlines confirm that #FreeBritney is no longer merely a social media movement spearheaded by fans, but Britney herself no longer wishes for her father, Jamie Spears, to continue as her sole conservator.
According to a New York Times’ article, Britney’s father stepped down as her conservator last year, citing health problems, with a temporary conservator appointed in his place. Britney has now filed seeking to have her lawyer and a bank or financial institution permanently replace her father as conservator. Britney’s current conservatorship has been extended to at least February 2021, after which a hearing will be scheduled.
With #FreeBritney trending and ongoing media coverage, the ACLU has spoken up on the matter, recently tweeting that “People with disabilities have a right to lead self-directed lives and retain their civil rights, if Britney Spears wants to regain her civil liberties and get out of her conservatorship, we are here to help her.” The ACLU also released an article breaking down what conservatorship is, and its potential threats to civil liberties. As explained by the ACLU, Britney is subject to a court-imposed conservatorship, which means the court has determined she is unable to provide properly for her food, clothing or shelter. The court has granted the legal right to make such decisions, including financial decisions on Britney’s behalf, to her conservators.
In Ontario, the guardianship regime is governed by the Substitute Decisions Act, which sets out that a guardian of property can be either court appointed, or appointed by statute. Section 15 of the SDA sets out that if a certificate is issued under the Mental Health Act, certifying that a person who is a patient of a psychiatric facility is incapable of managing property, the Public Guardian and Trustee is the person’s statutory guardian of property. Section 16 further sets out that a person may request an assessor to perform an assessment of another person’s capacity (or of their own) to determine whether or not the PGT should become the statutory guardian of property.
Sections 22-30 of the SDA sets out the framework wherein a person or corporate guardian can apply to the court to be appointed as guardian of property. For more information on when a court will appoint a guardian, please see here.
From the current news cycle, it appears that Britney is not seeking to terminate her conservatorship, but amend it. In Ontario, a motion under section 26 of the SDA can be brought seeking to vary a guardianship order, including the substitution of another person as guardian. If one is seeking to terminate the guardianship order, a motion may be brought under section 28. If the court agrees, and the guardianship is terminated, the individual on whose behalf the guardian was appointed, would regain control over their financial affairs and decision making.
Thanks for reading!
My father used to have a saying: “Whatever drags gets dirty.” He would trot it out whenever one of us waited too long to do something and as a result, doing that thing became messy, complicated or impossible. For example: I was supposed to mail a letter. I didn’t mail the letter. Now I can’t find the letter. “Whatever drags gets dirty!”. Thanks, Dad.
Growing up, I thought that this was a widespread adage. Apparently, it isn’t. I searched it up on the internet and most of the results referred to Rupaul’s “Drag Race”.
The adage may fittingly sum up the lesson contained in the decision of the Nova Scotia Court of Probate in Kelly Estate, 2019 NSPB 1 (CanLII).
There, the deceased’s daughter and estate trustee, Carrie, brought an application for the possession of an urn containing the cremated remains of the deceased. The deceased died 13½ years before the application. Probate was granted 8 years before the application.
In the deceased’s will, cremation was requested, and Carrie was expressly given “the powers to decide what will happen with the said ashes.” This was consistent with the court’s observation that “Disposition of the deceased is one of the most fundamental tasks an executor/rix can undertake on behalf of the deceased.”
However, after the deceased’s death, the ashes were taken by Carrie’s sister, Cheryl. They remained at Cheryl’s home, apparently with the acquiescence of Carrie. The court noted that there was no evidence to suggest that there were prior attempts by Carrie to regain custody and control of the ashes over the 13½ years since death.
The court cited the BC decision of Re Popp Estate, 2001 BCSC 183 (CanLII) where the deceased’s husband, as estate trustee, was said to be entitled to control the disposition of the deceased’s remains, provided he did not act capriciously. As the husband was acting capriciously, he lost the right to deal with his spouse’s remains.
The court went on to find that by allowing the urn to remain in Cheryl’s possession for 13½ years, Carrie as estate trustee had in fact determined the disposition and final resting place of the urn: with Cheryl. A change of Carrie’s decision this late in the game “seems capricious at best or malicious at worst”, and the court was not prepared to order a transfer of the urn from Cheryl to Carrie.
When administering an estate, as in life in general, don’t let things drag.
Thanks for reading.
The monetary jurisdiction of Ontario’s Small Claims Court is set to increase on January 1, 2020. The jurisdiction of the Court will increase from $25,000 to $35,000.
The current limit of $25,000 was in place since 2010. Prior to that, the limit was $10,000.
In a press release from the Ministry of the Attorney General, the change is said to “make it faster, easier and more affordable for people and businesses to resolve their disputes in front of a judge.”
Claims over $35,000 would need to be brought in the Superior Court of Justice. As noted by the Ministry of the Attorney General, claims in the Superior Court of Justice can take years to resolve, and can involve expensive legal representation. Claims in the Small Claims court, however, can be resolved in less than a year, and litigants are not required to hire lawyers or other legal help.
The Ministry also stated that the change should have the effect of reducing wait times in the Superior Court of Justice, as many claims that would otherwise have been brought in the Superior Court of Justice could now be brought in the Small Claims Court.
Another change is that the minimum amount of a claim that may be appealed to the Divisional Court is increased from $2,500 to $3,500.
As to transition, litigants who started a claim in the Superior Court of Justice for an amount between $25,000 and $35,000 can move to have their claim transferred to the Small Claims Court.
There are costs consequences if a proceeding is brought in the wrong court. Under Rule 57.05 of the Rules of Civil Procedure, if a plaintiff recovers an amount within the jurisdiction of the Small Claims Court, the court may order that the Plaintiff shall not recover any costs. If a Plaintiff recovers default judgment that is within the monetary jurisdiction of the Small Claims Court, costs shall be assessed in accordance with the Small Claims Court’s tariff.
Costs in the Small Claims Court are limited under its rules, and are subject to a limit under the Courts of Justice Act, s. 29, to 15% of the amount of claimed or the property sought to be recovered, subject to the court’s right to award higher costs to penalize a party or the party’s representative for unreasonable behavior.
Thanks for reading.
Judges are sworn to decipher, apply, and uphold the law, an exercise that takes great care and sense considering the ambiguity of statute, the discordant doctrines of interpretation, and the prevalence of emotional tinderboxes in litigation. Perhaps more challenging, however, is the judge’s task of navigating through brambles of facts.
In the Newfoundland and Labrador Supreme Court decision of O’Dea Estate (Re),  N.L.S.C. 178, Orsborn J. was imposed with the burden of sorting out a conflict between Michael and Shannon, who were named co-executors and whose acrimonious sibling relations are reminiscent of a previous blog. Contrary to the testator father’s wishes, in the two-and-a-half years since his death, neither sibling was appointed executor; instead, litigation between the two raged, with each accusing the other of fraudulent behaviour. In competing applications, Michael sought the appointment of the Public Trustee, whereas Shannon applied to have herself appointed sole executrix.
Justice Orsborn decided as follows: “By asking to have the Public Trustee appointed, Michael has effectively renounced his appointment pursuant to the will.”
A mere proposed solution was construed as a renunciation. Michael’s position was undermined by his willingness to see the estate depleted (by hiring the Public Trustee, a pricy endeavour) combined with his disinclination to assume the role of co-executor.
Other factors were present in this decision. Orsborn J. was reluctant to accede to Michael’s request for financial reasons, for the estate was not large and the Public Trustee could be expected to take a significant chunk out of what remained. It also mattered to him that the testator’s intention to have Michael and Shannon administer the estate be at least half-honoured. Additionally, the judge ascribed significance to the fact that the other estate beneficiaries, who were also children of the deceased testator, preferred Shannon’s claim.
O’Dea Estate is another case in which the court has emphasized its commitment to limiting costs with small estates, but more importantly, it suggests the court will draw an adverse inference when litigants seek to hand off their responsibilities to third parties.
Thanks for reading!
David Morgan Smith and Devin McMurtry
Often, matters are settled with a term requiring that the terms of the settlement be kept strictly confidential. What happens if such a term is breached?
The decision of an arbitrator in Acadia University v. Acadia University Faculty Association, 2019 CanLII 47957 (ON LA) provides an answer. There, Dr. Rick Mehta, a tenured professor, was terminated for alleged cause. The matter was settled at a voluntary mediation. Faculty counsel were present, along with Dr. Mehta’s personal counsel.
A term of the settlement provided that the settlement was “without any admission of liability or culpability by any of the parties”. Further, the parties agreed “to keep the terms of these Minutes strictly confidential except as required by law or to receive legal or financial advice.” “If asked, the parties will indicate that the matters in dispute proceeded to mediation and were resolved, and they will confine their remarks to this statement. Stated somewhat differently, it is an absolute condition of these Minutes that no term of these Minutes will be publicly disclosed.”
Under the settlement, Dr. Mehta was to receive a specific payment, said by the arbitrator to be a “relatively modest amount”.
Unfortunately for Dr. Mehta, he tweeted that he had been “vindicated”. In response to a comment from a follower stating that the follower hoped that Dr. Mehta received a “nice sum monz”, Dr. Mehta replied saying “all I will say is that I left with a big grin on my face.” He later tweeted that “I got the vindication that I was seeking. … I have left the university on my term, as opposed to the administration’s or union’s terms.”
Dr. Mehta was ordered by the arbitrator to remove the tweets. Dr. Metha responded with more tweets referring to his “severance pay”. He threatened to release the Minutes to the media unless certain conditions were met.
The arbitrator found that there was a clear breach of the Minutes. The arbitrator went on to find that by reason of the breach, the University was not required to honour the payment provision under the Minutes.
A similar result was reached in the decision of Jan Wong v. The Globe and Mail Inc., 2014 ONSC 6372. There, reporter Jan Wong reached a settlement after the termination of her employment by The Globe and Mail. The settlement contained a term that Ms. Wong would not, until August 1, 2009, “disparage The Globe and Mail or any of its current or former employees relating to any issues surrounding her employment and termination… .” The settlement further provided that the terms of the settlement were not to be disclosed. The settlement also contained a provision that if there was a breach, Ms. Wong would have an obligation to pay back the settlement funds.
Subsequently, Ms. Wong wrote a book about her relationship with The Globe and Mail. It was to be published by Doubleday. The Globe and Mail objected to the publication of the book, and Doubleday terminated its publication contract with Ms. Wong. Ms. Wong then self-published her book.
In her book, Ms. Wong did not say what she was paid as severance. However, she made various references to the payment, including:
- “I’d just been paid a pile of money to go away …”;
- “Two weeks later a big fat check landed in my account”; and
- “Even with a vastly swollen bank account …”.
The Globe and Mail argued that these references were in breach of the Minutes of Settlement. The arbitrator agreed. Ms. Wong’s application for judicial review was dismissed. Ms. Wong was ordered to repay the $209,912 in severance that was paid to her.
Bottom line: If your Minutes of Settlement contain a confidentiality clause, keep the settlement confidential!
Thank you for reading.
Communications between a client and their lawyer are protected by solicitor-client privilege. Except in limited circumstances, only the client can waive the privilege.
Upon death, the right to waive privilege passes to the estate trustee named in the will, or appointed by the court if there is no will.
Is the right to waive privilege absolute, applying to all solicitor-client communications? According to a decision of the Supreme Court of Nova Scotia, the answer is No.
In Dumke v. Conrad, 2019 NSSC 310 (CanLII), the deceased died without a will. Her son applied for and was appointed as administrator of the deceased’s estate. He was the sole beneficiary.
Prior to the deceased’s death, the son was attorney for property for the deceased. The deceased regained capacity and brought a proceeding to declare the power of attorney in favour of the son invalid, and to compel the son to pass his accounts. That litigation was resolved.
Following the death of his mother, the son sought to obtain the lawyer’s file relating to the power of attorney litigation. The lawyer then brought an application for directions, with the question being whether the son was entitled to the litigation file.
The court held that the right to waive privilege is not absolute. The files sought must be relevant to an issue being decided or to the ability of the personal representative to administer the estate. Confidentiality “should not be interfered with except to the extent necessary and the right of the respondent to waive privilege must be interpreted restrictively.”
A deceased person could have criminal files, child protection files, divorce files, etc. If a person seeking advice from a lawyer knew that, after their death, their children would have access to those files, the free, confident, candid communication necessary between a lawyer and client would not occur. The basis of solicitor/client privilege would be eroded. As stated above in Descôteaux, the right to counsel would be imperfect if the privilege is eroded or frittered away.
The court could not find any reason why the files being sought would be relevant to the administration of the estate. Rather, it found that the files being sought were for “personal reasons not relevant to the administration of the estate”.
The court ordered that the file in relation to the power of attorney litigation not be disclosed.
Thank you for reading.
There have been a number of recent decisions discussing the threshold to be met before a court will allow a will challenge to proceed. These decisions flow from the Ontario Court of Appeal decision of Neuberger Estate v. York, 2016 ONCA 191 (CanLII). We have discussed this case in a number of our blogs. See here, for example.
Today, Rebecca Rauws and I recorded a podcast on the decision of Naismith v. Clarke, 2019 ONSC 5280. In that decision, the court held that the threshold for challenging a will on the basis of testamentary capacity was not met, while it was with respect to the issue of undue influence. The podcast should be posted soon.
More recently, the decision of Maloney v. Maloney, 2019 ONSC 5632 (CanLII) was released. There, the estate trustees brought a motion to remove a Notice of Objection filed by a child of the deceased.
The court ordered the removal of the Notice of Objection. The court noted that there was no basis for setting aside the will. An affidavit from the lawyer who prepared the will set out the circumstances under which the will was prepared. The lawyer had no concerns about the deceased’s capacity. Although the challenger suggested that there were suspicious circumstances surrounding the creation of the will, there was no evidence to support the suspicions. Further, there was no evidence of undue influence. The challenger “has not provided any evidentiary basis to support a further investigation into the validity off this will.” At best, the challenger’s position was that her father would not have drafted his will in such a way. This was not enough to support a challenge.
Of note is the fact that the court had the evidence of the drafting solicitor. In many will challenges, the challenger or the propounder is not able to put this evidence before the court at this early stage due to issues of privilege. Often, the first step in a will challenge proceeding is to obtain an order to allow the evidence of the drafting solicitor to be obtained, along with medical notes and records.
Another important factor noted by the judge was the effect of the will challenge. The challenge stalled the administration of the estate. The court noted that even if the will challenge was successful, it would have no real effect on the distribution of the estate. The will provided that the estate was to be distributed to the three children of the deceased. On an intestacy, the distribution scheme would be the same, except for the specific disposition of an oak china cabinet.
In such cases, the court’s gatekeeping role is a tough one. The court must ensure that frivolous challenges do not proceed, while ensuring that it is able to ascertain and pronounce what documents constitute the testator’s valid will. The threshold should not be too high. As stated succinctly by Justice Myers in Seepa v. Seepa, 2017 ONSC 5368 (CanLII), “At this preliminary stage, the issue is not whether the applicant has proven his or her case but whether he or she ought to be given the tools, such as documentary discovery, that are ordinarily available to a litigant before he or she is subjected to a requirement to put a best foot forward on the merits.”
Have a great weekend.
Previously, Hull and Hull LLP blogged on the decision of Tarantino v. Galvano, 2017 ONSC 3535 (CanLII). After a ten day trial, the court set aside a transaction whereby the deceased’s daughter, acting as attorney under a Power of Attorney, transferred the deceased’s interest in her home to the daughter. The court also allowed a claim by the daughter for services provided to the deceased. The court disallowed a claim for occupation rent against the daughter.
We also blogged on the costs decision, reported at Tarantino v. Galvano, 2017 ONSC 6635 (CanLII). The collective legal fees of the parties on a substantial indemnity basis (ie., the actual legal fees were higher) were $621,660. The main asset of the estate was 80% of a house valued at $680,000 in 2012. Neither party was awarded costs, other than a reimbursement for the cost of an expert report.
The matter was before the courts once again. On September 6, 2019, the Ontario Court of Appeal dismissed the appeal brought by the grandchildren of the deceased (the daughter’s nieces): Tarantino v. Galvano, 2019 ONCA 699 (CanLII).
The Court of Appeal held that with respect to the dismissal of the claim for occupation rent, the trial judge did not err. The daughter remained in the house (of which she owned 20%) after death. However, the granddaughters had sought and obtained an undertaking from the daughter not to sell the house while the litigation was pending. Of note is the fact that the daughter, under the deceased’s will, had a first option to purchase the house. As the daughter was prevented from selling the house by reason of the undertaking sought by the granddaughters, it would be “unfair” to charge the daughter rent when she was unable to deal with the house.
With respect to a second ground of appeal, the Court agreed with the trial judge that the costs of maintaining the home during the deceased’s lifetime, and while she was in poor health, should fall on the deceased. As the trial judge concluded, “Having accepted that [the deceased’s] wish was to be looked after at home, and having accepted that in her capacity as attorney for personal care it was appropriate for [the daughter] to make arrangements for [the deceased] to be looked after in the home, those expenses are properly attributable to the care of [the deceased].”
The appeal was dismissed, with costs of $15,000 payable by the granddaughters to the daughter.
I expect that this is the last chapter in this unfortunate, expensive saga.
Thank you for reading.
In September 2016, Elizabeth Wettlaufer quit her nursing job and checked herself into the Centre for Addiction and Mental health in Toronto where she subsequently confessed to harming and killing a number of people during the last nine years of her nursing practice. Wettlaufer’s choice method of harm was injecting her victims with insulin overdoses. The majority of these incidents took place in licenced, regulated long-term care homes in southwestern Ontario. Wettlaufer is, by all accounts, a healthcare serial killer.
In June 2017, Wettlaufer was convicted of eight counts of first-degree murder, four counts of attempted murder, and two counts of aggravated assault. She was sentenced to life in prison with no chance of parole for 25 years.
But the story did not end there. Wettlaufer’s crimes spurred public outrage and debate over the quality of Ontario’s long-term care system and the safety of those who rely on it. One of the many troubling questions that arose was: how could a registered nurse commit such serious crimes in regulated healthcare facilities for years without getting caught? To find answers and figure out how to prevent similar tragedies from occurring in the future, the Long-Term Care Homes Public Inquiry was launched (the “Public Inquiry”).
The Public Inquiry concluded on July 31, 2019 when the Honourable Eileen E. Gillese, Commissioner of the Public Inquiry, released her four-volume final Report of the Public Inquiry into the Safety and Security of Residents in the Long-Term Care Homes System (the “Report”).
The Report makes three chief findings. First, the harmful acts committed by Elizabeth Wettlaufer would not have been discovered if not for her confession. Second, systemic vulnerabilities in the long-term care system are to blame for the harms that took place, rather than any individual or organization operating within the system. Third, the long-term care system is strained but has the robust regulatory regime and workforce needed to address existing systemic issues that have been exposed by the Public Inquiry.
Though I write at the risk of fear-mongering, that is by no means my intent. Indeed, I firmly believe that the large majority of healthcare providers uphold the ideals of patient or resident-centred care. The Report, in my view, is noteworthy for the bright light it shines on the potential for a nurse or other healthcare professional to intentionally harm those under their care. As astutely stated in the Report, “We can prevent, deter, and detect only matters of which we are aware” (volume 1, page 18).
It is prudent for residents or their substitute decision-makers to be on high alert for signs of abuse by staff in long-term care homes and issue complaints where appropriate. The Long-Term Care Homes Act , the statute which governs Ontario’s long-term care homes, contains several provisions concerning residents’ rights and the complaints process that can be of assistance. The takeaway is that anyone can be a potential advocate for a vulnerable resident of a long-term care home.
Thanks for reading,
Arielle Di Iulio