Author: Kira Domratchev

28 May

Is it an Emergency? Justice Myers Expresses His Concerns

Kira Domratchev Litigation Tags: , , 0 Comments

As many are aware, COVID-19 has not had a positive impact on the justice system. In accordance with the Notice to the Profession dated March 15, 2020, regular operations of the Superior Court of Justice were suspended, given the pandemic and only certain urgent and emergency matters were to be heard by the Superior Court of Justice.

Although since then a further update was provided wherein it was made clear that additional matters will be scheduled for a remote hearing by telephone or video conference or heard in writing, to the extent that your particular matter does not fall within the narrow exceptions currently in effect, the Court will consider whether it is urgent before scheduling a hearing.

Justice Myers commented on the question of whether a matter is urgent in a recent Endorsement and expressed his concern about the ability of the Court to offer services during this unprecedented time.

In the particular case at hand, the Applicant, sent application materials to the Court raising concerns about the upcoming closing of a pending real estate transaction and the possibility of a residential eviction. Justice Myers noted that this was done, knowing of the Chief Justice’s Order dated March 19, 2020, suspending residential evictions in Ontario.

Nevertheless, Justice Myers, via a handwritten Endorsement dated April 2, 2020, scheduled this proposed matter for a case conference, by finding that the urgency standard in the Notice to the Profession dated March 15, 2020 was met. Following the delivery of the Endorsement to counsel for the parties, the Court received a letter from the Respondent, containing submissions as to why the matter was not urgent and should not be scheduled for a hearing.

Justice Myers noted that the Court is now routinely receiving submissions on the issue of “urgency” both before and after the Court scheduled a matter for a hearing. Justice Myers further re-iterated the following:

  • The Notice to the Profession is a not a statute passed by the Legislature of Ontario;
  • Litigants and lawyers alike are asked “to recognize the exceptional times and to try and cooperate to avoid the need for Court proceedings where possible”;
  • Guidelines are provided for those who need to access the Court while they are not in full operation; and
  • Importantly, none of this affects the Court’s jurisdiction or the applicable rules of law such that scheduling is an administrative function of the Court.

In light of the above, Justice Myers made it clear that the scheduling of an “urgent” matter is not a legal determination and therefore there is no need or call for detailed submissions. His Honour further re-iterated that not only is it not required, but that it is not helpful and that it must stop.

In analyzing Justice Myers’ Endorsement, and given the circumstances surrounding COVID-19, it is important that counsel cooperate with one another and the Court in effectively moving matters forward with minimized impact on the parties and the justice system. We are all, after all, in this together.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

Court Filings: Do Not Attend Court Houses Except on Urgent Matters

How Important is it to Provide Evidence of Urgency During COVID-19?

Filing probate applications during the COVID-19 pandemic

26 May

ONCA Orders Appeal to be Heard in Writing

Kira Domratchev Litigation Tags: , , , 0 Comments

The Ontario Court of Appeal recently addressed an appeal that was scheduled to be heard on April 16, 2020 which had to be adjourned sine die due to COVID-19. The full decision of 4352238 Canada Inc v SNC-Lavalin Group Inc, 2020 ONCA 303 can be found here.

During a case management conference before Justice L.B. Roberts, which was scheduled to determine how this matter was to proceed, the Appellant objected to the appeal proceeding in writing, as suggested by the Respondents. The argument that the Appellant relied on was that the Court would not have jurisdiction to hear an appeal in writing over a party’s objection. The Court disagreed.

In making such a decision, the Court confirmed as follows:

  1. The Court Has Jurisdiction to Order a Civil Appeal Heard in Writing
  • The Appellant’s argument that the Court has limited supervisory jurisdiction over its own process, restricted to governing administrative details was rejected. The Court held that it is well settled that its implicit or ancillary jurisdiction to manage its own process is broad. Case law was cited to support the Court’s position that it has “the jurisdiction to make any procedural order to prevent an abuse of process or to ensure the just and efficient administration of justice”.
  • The Court’s implicit powers include those that are “reasonably necessary” to accomplish the Court’s mandate and perform its intended function which arise by necessary implication even where there is no express statutory or common law authority to that effect.
  • The Courts of Justice Act and the Rules of Civil Procedure do not mandate the absolute right to an oral hearing of an appeal.
  • COVID-19 has created extraordinary circumstances to which all must adapt as best as possible.
  1. This Appeal Should Proceed in Writing
  • This matter arises as a result of the dismissal of an application for narrow declaratory relief which proceeded on a paper record. It concerns the interpretation of a clause in a contract within the context of relatively straightforward facts.
  • Further submissions are not foreclosed in that, if necessary, the panel has the option to seek further oral and written submissions.
  • There is no prejudice or unfairness to the Appellant by proceeding in writing but the potential prejudice to the Respondents by any further delay and the unnecessary strain on the Court system is evident.

It has been some time now that the judicial system highlighted the importance of written advocacy. Certainly, advocates today are aware of how important it is to their client’s case, regardless of whether an oral hearing takes place, at the end of the day.

What this recent decision suggests now is that the importance of written advocacy is further elevated because during these difficult times and given the limitations imposed by COVID-19, your client’s written position may very well be their “day in Court”.

Thanks for reading!

Kira Domratchev

Find this blog interest? Please consider these other related posts:

Ontario Court of Appeal on Tarantino v. Galvano

Court of Appeal Reiterates the Test for Undue Influence

Court of Appeal Upholds Tolling of a Limitation Period due to Fraudulent Concealment

25 May

Latest Notice to the Profession – Highlights

Kira Domratchev Estate & Trust, Estate Litigation, In the News Tags: , , , , , , 0 Comments

As many are aware, the Superior Court of Justice has essentially shut down operations, subject to certain narrow exceptions, in light of COVID-19.

On May 13, 2020, a Consolidated Notice to the Profession, Litigants, Accused Persons, Public and Media was published regarding “Expanded Operations of Ontario Superior Court of Justice, effective May 19, 2020”. The Notice can be read in its entirety here. Below, I discuss some of the highlights relevant to the estates list.

  • The Notice specifically denotes that the Superior Court of Justice has not closed and that it continues to expand its operations virtually – in writing, or by telephone or video conference hearings. It is further highlighted, that during the suspension of regular in-court operations, lawyers and parties are expected to actively move cases forward.
  • Although the requirement to gown for a Superior Court of Justice appearance is suspended, parties participating in video conferences are expected to dress in appropriate business attire and should have an appropriate technical set-up and observe etiquette appropriate to the nature of remote hearings. In fact, some guidance from the Superior Court of Justice on the issue of technical set-up can be found here.
  • On the issue of filings, the Notice indicates that factums should be hyperlinked to relevant cases (instead of filing a Brief of Authorities) and there is a very specific format of the email that is to be sent to the Court to request dates or file materials. Importantly, the size of emails has been expanded to 35MB, however, it is also noted to limit filed materials to only those necessary for the hearing (in addition to the restrictions related to the length of material, already in place).
  • Although materials are being filed electronically, given the pandemic and the need to isolate, the Superior Court of Justice expects that all materials filed electronically be later filed in hard copy with the Court and the requisite filing fee be paid. That means, that it is important to keep track of all materials filed electronically, as there is a positive obligation to deliver hard copies and payment for the filing, at a later time.
  • Service via email is permitted such that it is not necessary to obtain consent or a court order to serve a document by email where email service is permitted.
  • Whereas, urgent matters continue being heard (subject to the Superior Court of Justice’s discretion to decline to schedule for immediate hearing any particular matter listed in the Notice), the following Toronto Commercial and Estate List matters are being heard (the Notice to Profession – Toronto, can be found here):
    1. Select motions;
    2. Select applications;
    3. Case management conferences;
    4. Pre-trial conferences; and
    5. Judicial settlement conferences.

Reviewing this Notice shows that court services are expanding. Certainly, one positive effect of the pandemic has been the overall embrace of various technologies by the Superior Court of Justice, that had not been in place before.

Here is to hoping that the restrictions associated with COVID-19 are soon lifted and the pandemic blows over. At the same time, I am certainly excited to see whether we will see a significant change in court operations moving forward, as a result of this involuntary technological leap forward.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

TALK 2 NICE: Support for the Elderly During COVID-19

A Further Update on the Estate Arbitration and Litigation Management (EALM) Initiative 

The Pandemic, Law, Technology, and Change

27 Feb

“Jointly or the Survivor of Them” – What Does That Mean?

Kira Domratchev Estate Litigation, Wills Tags: , , , , 0 Comments

In a recent Ontario Superior Court of Justice decision, the Court considered certain extrinsic circumstances surrounding the making of the Will, as well as the reading of the Will as a whole, in reaching a decision regarding its interpretation.

In Love v Wheeler 2019 ONSC 4427, a spouse of a deceased beneficiary sought a declaration that a beneficiary’s estate was entitled under a testator’s Will to an undivided half-interest in property and that the other beneficiary wrongfully appropriated it.

Some Facts

Frances Irene Wheeler died in 2012. She bequeathed a parcel of land to her two sons, Harold William Wheeler and Martin Douglas Wheeler. Her Will stated that this property was to go to Harold and Martin “jointly or the survivor of them”.

The Court grappled with the question of whether Frances meant to leave the property to Harold and Martin as joint tenants or as tenants in common. Certainly, in a joint tenancy, there would be a significant benefit to the survivor of the two brothers, as the other half interest would pass on a right of survivorship, rather than form a part of the deceased brother’s estate.

This is exactly what happened in this case. Martin died in 2015 and in April, 2017, Harold had the title to the property transferred into his own name, on the argument that it was owned by him and Martin, as joint tenants.

Deborah Love, Martin’s common-law spouse of 16 years, commenced an application before the Court, as against Harold. One of the grounds for Deborah’s position was that the extrinsic evidence surrounding the making of the Will, including a prior Will of February, 2009, supports a finding that Frances intended her sons to inherit the property as tenants in common.

The Court’s Decision

In reaching its decision, the Court emphasized its role in giving effect to the testamentary intention of the testator, as expressed in a Will. Justice Chozik gave consideration to the “armchair” rule, which requires a judge to place him or herself in the position of the testator at the time when the last Will was made, and to consider and weigh the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of her property.

Justice Chozik found that Frances intended to leave the property in question to her sons, as tenants in common. This intention was held to be clear from the Will when it is read as a whole, taking into account some of the extrinsic circumstances surrounding the making of the Will.

This decision certainly emphasizes how important it is that the Will clearly stipulates the terms of each bequest, particularly when it comes to large assets, such as real property.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

The Risks of Joint Tenancy

Joint Tenancy Trap

Severance of Joint Tenancy by Course of Dealing

 

25 Feb

Beneficiary Designations, Testamentary or Not?

Kira Domratchev Beneficiary Designations Tags: , , , , 0 Comments

I recently had a chance to attend a very interesting continuing legal education program organized by the Ontario Bar Association called: “Rights and Limitations on an Attorney under a Power of Attorney”.

The program was chaired by Natalia Angelini of our office and Kimberly A. Whaley of WEL Partners. Professor Albert Oosterhoff, Professor David Freedman, Thomas Grozinger and John Poyser presented their views on various questions surrounding beneficiary designations.

An interesting debate took place at the end of the program on the question of whether beneficiary designations are testamentary instruments.

Professor Oosterhoff presented his view that, beneficiary designations are not in fact testamentary acts and should therefore be considered inter vivos acts. One of the reasons cited by Professor Oosterhoff in this regard that I found compelling is the fact that a beneficiary designation does not have to comply with the formalities required of a Will. The fact is that a beneficiary designation is often executed in passing and the same considerations do not apply to such a decision as typically would apply to the making of a Will.

Then again, a testator can make a handwritten Will in passing which will be just as valid as if made in accordance with the formal requirements. However, the fact that it is made quickly and in passing does not necessarily mean that it is not a valid Will.

Another reason cited by Professor Oosterhoff in support of his position was that, in his opinion, beneficiary designations take effect when they are signed. By way of a further explanation, Professor Oosterhoff clarified that a beneficiary designation is not dependent upon the designator’s death for its “vigour and effect”, despite the fact that performance does not actually take place until the designator’s death.

This opinion was not universally shared by the panel and some of the attendees of the program. One significant issue that was raised was that if beneficiary designations are indeed not testamentary acts, there could be potential tax consequences necessitating legislative reform.

It will certainly be interesting to see whether a new case or legislative reform will shed some light on this question. I can certainly see the appeal and the logic behind Professor Oosterhoff’s view.

Thanks for reading.

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

Conflicts between Beneficiary Designations

Rehel v Methot: Life Income Funds and Testamentary Beneficiary Designations

Beneficiary Designations Left Unchanged Are not Changed

24 Feb

Dementia in the News

Kira Domratchev In the News Tags: , , 1 Comment

Eighty percent of people with Parkinson’s develop dementia within 20 years of their diagnosis. In a recent article in Science Daily, I learned that researchers discovered that the genetic variant APOE4 spurs the spread of harmful clumps of Parkinson’s proteins through the brain. Findings suggest that therapies that target APOE might reduce the risk of dementia for people diagnosed with Parkinson’s disease.

 

In making the above-noted finding, scientists at Washington University School of Medicine in St. Louis, analyzed publicly available data from three separate sets of people with Parkinson’s. It was found that cognitive skills declined faster in people with APOE4 than those with APOE3. People with APOE2, showed no cognitive decline over the period of the study.

Although APOE does not affect the overall risk of developing Parkinson’s or how quickly movement symptoms worsen, an APOE-targeted therapy might stave off dementia, the researchers suggest.

We often blog on the issue of dementia as it affects many aspects of our practice as estate litigators. It is always encouraging to read about a positive study or breakthrough in the area of this debilitating disease.

To learn more about this study, please consider visiting here.

Thanks for reading.

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

In the News: Medical Assistance in Dying for Persons with Dementia

Six Proven Ways to Prevent Dementia

Introduction to National Dementia Strategy

 

 

11 Nov

Can there be unexpected financial consequences of retroactive proof of death?

Kira Domratchev Estate Litigation Tags: , 0 Comments

In Threlfall v. Carleton University, the Supreme Court of Canada held that a deceased’s estate must repay pension payments received post-death. Although paying back a windfall seems like a common-sense outcome that would not require the analysis of the highest court in Canada, the 50-page 6/3 split-decision tells us it is not as simple as one would think.

In this case, Mr. George Roseme (“R”), a retired Carleton University professor who was suffering from Alzheimer’s disease, disappeared from his home in Quebec in 2007 after going for a walk. R’s remains were not found until almost six years later. During that passage of time, pension payments he had been receiving from the University at the time of his disappearance continued to be paid. Notably, the University did attempt to cease payments within a year or two after R disappeared, but R’s surviving spouse objected, since under the Quebec Civil Code one is presumed to be alive for seven years unless proof of death is obtained. The University reluctantly continued the payments.

After discovery of R’s death in 2013, and a determination that he died just one day after his disappearance in 2007, the University sought to recover the overpayment from R’s estate and surviving spouse. It was successful throughout. The Supreme Court of Canada decision, although lengthy and multifaceted, seemed to largely turn on the following findings:

  • On the plain language of the pension plan, benefits were to end upon R’s actual death, not the date that it was discovered or officially recognized;
  • The rebuttal of the presumption of life must be assessed retroactively, meaning that payments should only continue during lifetime. Given R’s date of death, this extinguished the entitlement to the pension payments made while R was an absentee. A prospective approach to the rebuttal of the presumption of life would generate a windfall not intended by the absence regime; and
  • The payments were treated, with a retrospective view, as having been made in error, which obliges the recipient to make restitution.

The impact of the decision is weighty, with R’s surviving spouse being required to reimburse the University almost $500,000 in pension payments.

Considering this from the Ontario perspective, I look to the Declarations of Death Act. In this statute, once the seven-year absentee period expires, an application seeking a declaration of death can be brought. I note, though, that the Act contains provisions permitting the court to amend or revoke the order, as well as to make orders regarding the preservation or return of property.  So if you find yourself in the unique circumstance of receiving assets post-absenteeism, perhaps setting them aside would be a good idea, because when things seem too good to be true, they usually are.

Thanks for reading,

Natalia Angelini

P.S. A good summary article can be found here. Our blogs below also touch on some intriguing declaration of death cases:

https://hullandhull.com/2017/10/doppelgangers-declarations-death-act/

https://hullandhull.com/2014/03/premature-declarations-of-death/

https://hullandhull.com/2007/12/interest-not-payable-on-insurance-proceeds-until-declaration-of-death/

31 Oct

In the News: Medical Assistance in Dying for Persons with Dementia

Kira Domratchev In the News Tags: , , 0 Comments

As many of us know, the federal government’s legislation on medical assistance in dying (“MAID”) – Bill C-14 – was passed on June 17, 2016.

Only physicians and nurse practitioners (in certain provinces) are permitted to provide MAID in two ways:

1) directly administer the substance that causes death (e.g. an injection of a drug); or

2) provide or prescribe a drug that is self-administered to cause death.

In order to be eligible for MAID, one must meet all of the following criteria:

  • be eligible for publicly-funded health services in Canada;
  • be at least 18 years of age and capable of making their own health care decisions [emphasis added];
  • have a grievous or irremediable medical condition;
  • make a voluntary request for MAID; and
  • give consent to receive MAID after being provided with all of the information necessary to make the decision.

For more information on MAID, please see the Government of Canada’s webpage on “Medical Assistance in Dying”.

Dr. Stefanie Green, in a recent British Columbia case, said that a person with dementia who meets the criteria, should be eligible for MAID, despite the previously widespread assumption that persons with dementia could not meet the eligibility requirements.

Mr. Gayle Garlock became one of the first Canadians with a dementia diagnosis publicly reported to have received MAID. The key issue in deciding whether a person is eligible for MAID, particularly in the case of a person with dementia, is asking whether they have the mental capacity for informed consent, intolerable suffering and a foreseeable death.

In Mr. Garlock’s case, he was diagnosed with Lewy body dementia in 2014, when he was 70 years old. According to Mr. Garlock’s wife, one of the losses that he would define as “intolerable suffering” was being unable to read.

By the spring of 2019, Mr. Garlock’s condition had deteriorated such that his mental processing had slowed and he struggled in conversation. Dr. Green, determined that he still knew what was going on around him and with him and that he understood that he had dementia and that it had progressed. His MAID application was approved on May 9, 2019. Mr. Garlock passed away peacefully with his wife and sons at his bedside.

According to Dr. Green, “This is not an expansion of our law…This is a maturing of the understanding of what we’re doing”.

This is important news to those persons suffering with dementia but is also a reminder to the medical community of the importance of approaching each case individually and carefully, particularly where a patient’s capacity may be in question.

To learn more about Mr. Garlock’s story, please see CBC’s recent article here.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

Achieving Medically Assisted Death

Assisted dying – follow the rules and you’ll be fine

An Update on Medical Assistance in Dying

29 Oct

The Works: Res Judicata, Collateral Attack and Abuse of Process – Reasons for Dismissal

Kira Domratchev Litigation Tags: , , 0 Comments

The Ontario Court of Appeal recently upheld a motion judge’s decision striking a Statement of Claim and dismissing an action on the basis that it was (i) res judicata, (ii) a collateral attack on a previous order of the Court and (iii) an abuse of process.

The Appellant in the matter of Wright v Urbanek, 2019 ONCA 823, sought to challenge the validity of a family trust that was established in connection with an estate freeze involving a company that the Appellant and his late wife instituted in 2007.

The action was commenced by the Appellant four days after losing his daughter’s oppression application which resulted in his removal as trustee of the family trust and as director and officer of the company.

The motions judge found that having lost the oppression application, the Appellant sought to advance “a new and inconsistent theory” which could have been sought as part of the application itself.

The Court of Appeal agreed with the motions judge such that the cause of action challenging the validity of the family trust was known to the appellant and could have been pursued in the oppression application. In fact, the Appellant seemed to be questioning the validity of the family trust in his factum and did not ultimately pursue this theory in the application.

The Court of Appeal held that a challenge to the validity of the family trust would now interfere with the implementation of the Order in respect of the application which was upheld on appeal. It was further held that raising this issue would essentially involve re-litigating the application and would be a “misuse of the court’s procedures in a way that would bring the administration of justice into disrepute”.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

The Doctrine of Abuse of Process

Cost Award for Successful Motion for Summary Judgment

Peering behind the Curtain: Costs against Non-Parties

28 Oct

A Limited Grant….What’s That All About?

Kira Domratchev Estate & Trust, Executors and Trustees, Trustees Tags: , , 0 Comments

We all know how long an Estate Trustee typically has to wait for a Certificate of Appointment of Estate Trustee With or Without a Will, if filed in Toronto. Sometimes a Certificate of Appointment is not granted for six to eight months from the filing date.

The Court recently expressed its frustration with the frequency of motions being commenced by Estate Trustees seeking to expedite the granting of the Certificate of Appointment. The option of obtaining the Certificate of Appointment on a more urgent basis appears to no longer be available as a result. Apparently, it was not unusual for Estate Trustees to seek to expedite the process when real property of an Estate needed to be sold. The Court does not always agree that the sale of real property cannot wait until the Certificate of Appointment is granted.

Despite the Court’s stance on expediting the granting of Certificates of Appointment, there are special circumstances that would arguably warrant the Court’s intervention. What if an Estate Trustee’s authority is required to manage a certain asset of an Estate such that, if it is not obtained within a reasonable amount of time, the Estate could suffer significant expense?

An option that is available which should be carefully considered (particularly given the Court’s position on expediting the process overall) is seeking a limited grant from the Court for a particular purpose. Historically, this was known as a grant ad colligenda bona, and was limited to particular purposes as well as limited until such time as a general grant could be made (see Charles H. Widdifield, Surrogate Court Practice and Procedure, 2nd ed. (Toronto: Carswell, 1930) at 190).

Today, where the conditions for an appointment of an Estate Trustee During Litigation are not met, and there is a delay in the appointment of an Estate Trustee, a limited grant for the purpose of gathering in and protecting the assets may be sought by way of a motion or application for directions under Rule 75.06 of the Rules of Civil Procedure (see Ian M. Hull & Suzana Popovic-Montag, Macdonell, Sheard and Hull on Probate Practice, 5th ed. (Toronto: Carswell, 2016) at 384).

This option should be carefully considered where the circumstances are truly special such that the Court’s intervention is required on an urgent basis and the Estate Trustee cannot wait until the Certificate of Appointment is granted.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

Limited Grants: Jurisdiction

Limited Grants Continued and Alterations in Grants

Limited Grants: Multiple Wills? Yes. One Will? No.

SUBSCRIBE TO OUR BLOG

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

CONNECT WITH US

CATEGORIES

ARCHIVES

TWITTER WIDGET