Author: Kira Domratchev

05 Nov

When Will a Rule 49 Settlement Be Enforced?

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

According to Rule 49.09 of the Rules of Civil Procedure, a party may bring a motion for judgment in accordance with the terms of an accepted offer and the judge may grant judgment with respect to same or continue the proceeding as if there had been no accepted offer to settle.

In a recent Court of Appeal decision (Hashemi-Sabet Estate v Oak Ridges Pharmasave Inc. 2018 ONCA 839) the Court had to determine whether the motion judge erred in giving judgment in accordance with a Rule 49 offer to settle because said offer was revoked before it was accepted.

Background

The Respondent (the Estate), sued the Appellant for damages for breach of contract, oppression and various other causes of action relating to the opening and operation of a pharmacy.

On June 8, 2015, the Appellant served the Respondent with a written Rule 49 offer to settle the action. In accordance with Rule 49, the offer provided that it would be open until the trial of the action.

In April, 2016, the Appellant retained new counsel, and a Notice of Change of Lawyer was served in accordance with the Rules of Civil Procedure.

On September 20, 2016, the parties attended a pre-trial conference. The Appellant maintains that the June 8, 2015 offer to settle was rescinded orally at the pre-trial conference and that the offer to settle served on September 19, 2016 revoked the June 8, 2015 offer, in any event.

The Respondent on the other hand, maintained that when counsel returned to their office following the pre-trial conference, a written acceptance of the June 8, 2015 offer to settle was sent by fax at 1:27 p.m. on the same day. According to further evidence tendered by the Respondent, opposing counsel’s office called and requested a copy of the June 8, 2015 offer to settle following the pre-trial conference on September 20, 2016 and that a copy was sent to opposing counsel via email at 2:34 p.m. that day (arguably after acceptance of same was sent via fax).

The Respondent acknowledged receipt of the second offer to settle but maintained that it was not served until 5:23 p.m. on September 20, 2016 (hours after the June 8, 2015 offer was accepted).

The Respondent brought a motion for judgment in accordance with the June 8, 2015 offer to settle and the motion judge granted same. The Appellant appealed the decision to the Court of Appeal.

Court of Appeal Decision

The Court agreed with the motion judge. The Court found that the revocation of the June 8, 2015 offer to settle did not comply with Rule 49.02(1) which requires that the revocation be made in writing. As such, the timing of service of the second offer to settle would be determinative of the motion.

The Court held that in determining whether to enforce a Rule 49 offer to settle, a two-step approach is to be undertaken, similar to the pre-Hryniak v Mauldin 2014 Supreme Court of Canada decision Rule 20 summary judgment analysis.

As such, the Court agreed with the motion judge’s analysis in accordance with the above-noted framework was appropriate as follows:

  1. Whether an agreement to settle had been reached;
  2. Whether, on all the evidence, the agreement should be enforced.

The Court agreed that the motion judge had to make credibility findings and held that the Respondent’s position was more credible such that the June 8, 2015 was accepted and that judgment in accordance with the said offer should be enforced. In particular, the Court had trouble with the fact that the Appellant had known for over a year that the Respondent took the position that their counsel was not served with the second offer to settle until 5:23 p.m. on September 20, 2016, but did not submit an Affidavit of Service from the process server.

In light of this decision, it is particularly important to be mindful of the particular rules related to Rule 49 offers to settle, both in making an offer to settle and considering to revoke same. Particularly in relation to service of an offer to settle, it may a good idea to serve it in such a manner as to be able to confirm receipt of same by the other side, such as via facsimile. It is important to remember that service via email will not qualify as proper service, particularly if the opposing side maintains the email was never received.

Thanks for reading!

Kira Domratchev

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

What is a Rule 49 Offer to Settle?

Revoking a Rule 49 Offer to Settle

Cost Awards and Offers to Settle

13 Sep

Detecting Warning Signs of Elder Abuse

Kira Domratchev Capacity, Elder Law Tags: , , , , , , , , 0 Comments

Many of us are familiar with the concept of “elder abuse” or “elder neglect”, however, it is not always clear what that entails. WEL Partners consulted with the Toronto Police Services in developing an information guide for officers, on this very topic. It is now a guide that has been distributed to officers in the field.

Elder abuse/neglect “is any action or inaction, by a person in a position of trust, which causes harm to an older person”, as the guide indicates. As Toronto Police Services officers are often the only point of contact for older adults with the “outside world”, they are also often their only real chance of getting the help they need.

The guide lists various reasons as to why elder abuse/neglect is often under reported by the older adults that are the victims of such treatment:

  • shame/embarrassment
  • dependence on abuser/family member
  • guilt/self-blame
  • rationalization/minimization of the abuse
  • denial of the abuse
  • lack of recognition of abuse
  • physical inability to report abuse
  • feelings that they will not be believed

In the absence of victim/witness statements that are often relied on as evidence, the officers investigating these situations should be able to recognize some subtle warning signs of potential abuse of older individuals.

Some common types of abuse are noted as follows:

  • Financial abuse
  • Physical abuse
  • Psychological abuse
  • Neglect

The report describes various red flags for each of the categories listed of the common types of abuse. It further describes some additional considerations such as the mental capacity of the senior adult and the following questions to consider in assessing whether capacity is present:

  • ability to understand the information needed to make a decision; and
  • ability to appreciate the consequences of making, or not making, a decision.

For more information on this valuable resource in assessing whether the circumstances at hand show signs of elder abuse/neglect, see the Elder Abuse & Neglect: A Guide for Police Officers.

Thanks for reading!

Kira Domratchev

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

When Elder Abuse Goes Undetected

Elder Abuse in the News

A New Way to Prevent Elder Abuse

 

27 Aug

Predatory Marriages: A Growing Concern in Ontario

Kira Domratchev Capacity, Elder Law, Estate & Trust, Estate Planning, Guardianship, Litigation, Power of Attorney, Wills Tags: , , , , , , , 0 Comments

We sometimes hear about an elderly person marrying a much younger person. What we often do not consider, however, is the possibility that such a marriage is entered into by a “predatory” spouse in order to take advantage of an elderly victim with the ultimate goal of assuming control of his or her finances.

The “predator” is often a caregiver or a family friend or neighbour. In most cases, it is a person who uses a position of trust to cause an elderly victim to change a Will, a power of attorney, an insurance policy designation or other documents. It is also not uncommon for inter vivos transfers to be made while the senior is alive.

According to Ontario law, the act of marriage grants the new spouse certain property rights, specifically with respect to the matrimonial home and spousal support. The most significant effect of a marriage, however, is the fact that the Succession Law Reform Act, revokes any Will executed prior to the marriage. To make matters worse, predatory marriages often occur in private such that the senior’s family members are not aware that he or she has married.

The evidentiary burden imposed upon the elderly victim’s adult family members to prove that a marriage should be declared void as it is a marriage of a “predatory” nature is significant.

Why is it so tough to show that a marriage is void?

Capacity is a fluid concept. It means that a person could have capacity for one task and no capacity for another, as capacity is time and situation specific. Capacity to enter into a marriage, is the lowest threshold of capacity. As such, a person can be entirely capable to enter into a marriage but may be incapable of managing his or her own financial affairs.

In addition, a person likely does not just lose capacity in a day; it is a gradual process such that there is a “grey zone” between having capacity and having no capacity at all. It is in that “grey zone” that a predator will take advantage because a person may start forgetting things but is otherwise capable for all intents and purposes.

Because of that, many are of the opinion that Ontario laws make seniors an easy target for “predatory marriages”. Will there be a change in the law coming our way, in light of the growing phenomenon of such marriages? Only time will tell.

For more information regarding this growing concern and the manner in which this issue has been treated by the courts, please see a paper by Kimberly Whaley of WEL Partners on Predatory Marriages.

Thanks for reading.

Kira Domratchev

25 Jun

Who Can Set Aside a Transaction Under the Fraudulent Conveyances Act?

Kira Domratchev Estate & Trust Tags: , , 0 Comments

The Fraudulent Conveyances Act, RSO 1990, c F.29 (the “FCA”) is designed to prevent a debtor from hiding assets from creditors by fraudulently transferring the assets to a third party. If the FCA applies, the Court shall make the property that was fraudulently conveyed available for creditors of the transferor.

Based on the general description and purpose of the FCA, it would appear as though it is a means of redress for frustrated creditors, only. However, that is not the case.

In accordance with section 2 of the FCA, the Court is authorized to set aside transactions that are entered into with the intent to defeat an action (amongst other things), for the benefit of “creditors and others”. The specific wording of this section of the FCA is as follows:

“Every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful action, suits, debts, accounts, damages, penalties or forfeitures are void as against such persons and their assigns.”

Although the FCA does not define what is meant by “others”, it is clear that the statute specifically delineates “others” to signify that it is a group of entities that could otherwise not be defined as “creditors”.

The Ontario Court of Appeal in Hopkinson v Westerman (1919) 45 OLR 208, 48 DLR 597 (ONCA) defined “others” as those persons who, though not judgment creditors, had pending actions in which they were sure to recover damages.

Since then, the definition of “others” has been used in many cases, including in the family law context, such that, a spouse could qualify as a person who is intended to be protected from conveyances of property made with the intent to defeat his or her interest.

The court in Robins v Robins Estate [2003] OTC 285, 121 ACWS (3d) 1104 (ONSC) held that a spouse who brought a claim against her husband’s Estate could not make a claim under the FCA.

The Court held that if the spouse was found to be a “creditor” it would have to be based on the Deceased’s obligation to support her as a spouse. The Court held that “[B]oth spouses have an obligation to support themselves and each other” and if the theory of the surviving spouse was accepted, spouses in a marriage would be in a “constant creditor-debtor relationship throughout cohabitation and marriage unable to alienate any property, the result of which may leave them unable to pay support at a later time.”

In deciding that the spouse in this matter was not a “creditor” the Court gave particular weight to the fact that the relationship was relatively short-term and that the spouse was able to support herself. In addition to that, the conveyance in question took place before the date of marriage, which reasonably made the surviving spouse’s argument that it was made with a fraudulent intent of defeating her support claim, all the more difficult.

In contrast, the Ontario Court of Appeal in Stone v Stone, 55 OR (3d) 491, [2001] OTC 412 (ONCA), in interpreting the same obligation of spouses to support themselves and each other, found, in the context of an election under section 6 of the Family Law Act, following the Deceased’s death, that the FCA did apply. Particular weight was placed on the fact that the Deceased did know that his wife would survive him and was aware that the value of her assets was less than the value of his and that she would not accept her legacy under the Will.

The Court in Robins v  Robins Estate found that the Stone v Stone decision was different because it addressed the claim of equalization of property rather than the issue of support under the Family Law Act. The Court further held that unlike the conveyance of property accumulated during a 24 year marriage in Stone v Stone, the case of Robins v Robins Estate addressed an asset owned by the Deceased before the cohabitation date and the marriage.

Of interest is the fact that the courts do not seem to significantly distinguish between the category of “creditors” and the category of “others”. Perhaps, if more of a difference is seen between the two, concerns regarding creating an overarching creditor-debtor relationship between spouses would not seem as significant.

The question remains whether the FCA category of “others” could extend to a spouse in the context of a claim as against an Estate? That remains to be seen, however, based on the assessment made by the courts in the two cases discussed, it very well could – it just depends on the factual circumstances.

Thanks for reading.

Kira Domratchev

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

Fraudulent Conveyance and The Estate Planning Defence

When is a Transfer of Property a Fraudulent Conveyance?

Hull on Estates #342 – Estate Freeze Considered as Fraudulent Conveyance

18 Jun

When is it Appropriate to Extend the Time Granted in Favour of Equalization under the Family Law Act?

Kira Domratchev Estate & Trust, Litigation Tags: , , , , , , , , , , 0 Comments

Applications for an extension of time (beyond six months from date of death) to elect under the Family Law Act (“FLA”) are regularly brought before the Court. Decisions with respect to that are often dealt with by way of short endorsements.

Justice Dunphy, in Aquilina v Aquilina, 2018 ONSC 3607, a recent court decision, made some interesting comments regarding applications for an extension of time in such circumstances.

Background

The Deceased passed away in December, 2017, leaving the Applicant (his wife) and their three adult children. The Applicant was primarily a homemaker and as such, her level of information regarding the family financial affairs was imprecise. The Estate was not a simple one to administer, in part due to a number of business interests the Deceased had in the family’s native country, Malta, held through various corporations, real estate holdings and an active business.

At the time of the hearing, the Estate did not have an administrator. It was determined that the Deceased did not leave a Will.

Statutory Regime

The Applicant in this matter had two options – making a claim under the Succession Law Reform Act (“SLRA”) or the FLA.

Under the SLRA, in the event of an intestacy, the beneficiaries of the Deceased’s estate are the Applicant and their three adult children. Under s. 46(2) of the SLRA, where there is no Will and there is more than one child of the Deceased, the surviving spouse is entitled to 1/3 of the Estate plus the “preferential share” prescribed by s. 45 of the SLRA.

In contrast, s. 5(2) of the FLA provides that the surviving spouse will receive 1/2 of the difference between the value of the net family property of each of the spouses where the Deceased had the higher of the two amounts.

The Applicant has a period of six months from the date of death to make the election as per s. 6(10) of the FLA. Absent an election, the surviving spouse takes under the SLRA.

Criteria for Extension

The Applicant requested that the court: (i) extend the time to make an election until two years from the date of the application; (ii) extend the time for the deemed election to the same date; and (iii) extend the time during which distributions from the Estate are suspended until the same date.

In making a finding, the Court must consider:

  1. Whether there are apparent grounds for relief;
  2. Whether delay, if any, was incurred in good faith; and
  3. Whether anyone will be substantially prejudiced by the delay.

It is important to note, that the surviving spouse does not have to have precise and accurate information but that he or she must have sufficient information to make an informed choice. Justice Dunphy noted that extensions are intended to be the exception and not the rule.

Analysis and Decision

Justice Dunphy held that it was going to take a period of time – very likely a year or more – to be able to gather the facts necessary to understand the value of this Estate and the Applicant’s intersecting interests within (meaning the consequences flowing from her different roles as a shareholder, widow and spouse). Therefore, Justice Dunphy held that there are some grounds for relief in the circumstances of this case.

In considering whether there was any delay that was not incurred in good faith, though Justice Dunphy noted that the Application was brought very close to the six month anniversary of the Deceased’s date of death, he placed weight on the fact that the death was “sudden, unexpected and shocking” and the relative complexity of the Estate. He held that the delay was incurred in good faith.

Justice Dunphy found that there would be no substantial prejudice in this case if an election was granted because the only other beneficiaries of the Estate are the three adult children of the Deceased and the Applicant, who confirmed that they did not oppose the motion. He did balance against that finding, however, the inherent prejudice in having all or a substantial portion of the Estate frozen. In making this consideration, Justice Dunphy found that any prejudice in this matter was slight.

Based on the facts, Justice Dunphy held that more time would be required to consider the rights of the Applicant, as the surviving spouse, under the SLRA as compared to the FLA. As such, he granted the Applicant all the relief sought, but reduced it to one year from the date of the Application instead of the two years that the Applicant was seeking.

Thanks for reading.

Kira Domratchev

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

Lundy v Lundy Estate: Delay in Seeking Extension to Make Family Law Act Election

Revoking a Family Law Act Election

Family Law Elections: Inclusion/Exclusion of Assets in the Net Family Property of the Deceased

11 Jun

Can a Death Note Ever be Considered a Will?

Kira Domratchev Capacity, Estate & Trust, Wills Tags: , , , , , , , , , 0 Comments

The general rule, one that most people are probably familiar with when they think of a Will, is that the testator has to have the requisite capacity in order to be able to execute it. But what does that mean?

Generally, it means that a person should be of sound mind and understanding and have sufficient capacity to appreciate the various dispositions of property that would be put into effect with his or her execution of the Will. In other words, the testator must:

(1) understand that they are giving their property to one or more objects of his or her regard;

(2) have the capacity to comprehend the extent of their property and the nature of the claims of others to whom they are giving nothing under the Will.

In the case of a deceased who committed suicide, a question that may arise is whether a person who is about to commit suicide has the appropriate testamentary capacity to be able to execute a Will?

In that regard, it is important to remember that the onus is on the person who is propounding the Will – in other words applying to the court for an order that the Will is valid. In the usual course, there is certainly no presumption against the testamentary capacity of a testator. Indeed, it is quite the opposite. However, in cases where a proposition is made that a death (suicide) note is the last valid will and testament of a testator, it is more likely that someone may object. That is especially the case where an expected beneficiary is disinherited under such a circumstance.

 

 

As soon as capacity is called into question, the onus lies on the party propounding the Will to affirm testamentary capacity.

Suicide, in itself, does not equate to testamentary incapacity – although it is a circumstance that may be considered. In fact, a testator may have testamentary capacity even if they are not of entirely sound mind. That means that prior to committing suicide, a person can very well have testamentary capacity. If that is the case, then a death note can be considered a Holograph Will, which in Ontario, in accordance with section 6 of the Succession Law Reform Act, has the following requirements in order to be valid:

(1) It must be entirely in the testator’s hand writing; and

(2) It must be signed by the testator.

There is no requirement for witnesses in the case of a Holograph Will and it must be that the testator intended to dispose of their property after death.

Thanks for reading.

Kira Domratchev

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

Testamentary Capacity and Suicide

Will Drafting and Testamentary Capacity

Age and Testamentary Capacity

16 Apr

Robert Gordon Price’s Law Practice – Now at Hull & Hull LLP

Kira Domratchev Estate & Trust, General Interest, Wills Tags: , , , , , , 0 Comments

Robert Gordon Price began the practice of law in the small northern Ontario mining community of Kirkland Lake in 1952 when he joined his uncle Bruce Williams, and the Williams and Price law firm had its beginning. Bob, as he was known to friends and colleagues would practice law for over 65 years until his passing in Toronto on November 26, 2017 at the age of 92.

In or around the time Bob began practicing law, the International Law Commission began working on the issue of diplomatic and consular relations. After more than ten years of international preparations and after a discussion on the draft articles, countries proceeded to a Conference on Consular Relations, which was attended by delegates of 95 states. The Conference adopted the Vienna Convention on Consular Relations which was signed on 24 April 1963 and came into force on 19 March 1967. Article 37 provides that a country must “without delay” notify consular officers if a person dies while away in another country or has a guardian or trustee appointed over him or her. From this, certain international obligations would flow.

Around the same time, a miner, who was originally from Poland, died in Kirkland Lake. He died without a Will and his family in Poland had to be identified, located, and contacted. Arrangements were made in regard to the funeral, the body, and the estate. No one was quite sure how to proceed given the new treaty obligations, but the Polish Ambassador was put in contact with Bob. For Bob, it was a beginning of a niche law practice on international estates inheritance and heir locate in over 15 countries. Bob soon developed a practice where he was involved with almost all estates in Canada with a connection to Eastern Europe and the Soviet Union.

Part of Bob’s legacy are the international relationships that he built over many years. As international relations between countries continue to evolve and change, the relationships Bob established are even more important today.

Today, Hull & Hull LLP is working with Bob’s former colleagues around the world by assisting clients in solving complex and difficult problems involving international estate inheritance matters.

Thanks for reading.

Jim Jacuta & Kira Domratchev

09 Apr

The Support Claim as a Remedy for the Disappointed Spouse

Kira Domratchev Support After Death, Wills Tags: , , , , , , , 0 Comments

Occasionally, a person finds themselves in a situation in which, following their spouse’s death, they were either not adequately provided for under their spouse’s Will or were not provided for at all.

Especially in situations where the deceased fully supported his or her spouse, one viable option is for the surviving spouse to assert a claim for support under Part V of the Succession Law Reform Act, RSO 1990, c. S. 26 (the “SLRA”).

A surviving spouse, either married or common-law as defined in the SLRA fits into the definition of a “dependant” and is thus entitled to support from the deceased spouse’s estate.  The question for the Court is whether the deceased made adequate provision for his/her surviving spouse and, if not, what ought to be the quantum of support.

Under the SLRA, a “dependant” includes not just married spouses, but also either of two persons who,

  • were married to each other by a marriage that was terminated or declared a nullity; or
  • are not married to each other and have cohabited,
    • continuously for a period of not less than three years, or
    • in a relationship of some permanence, if they are the natural or adoptive parents of a child.

It is important to keep in mind that such a claim under the SLRA must be brought within six months of obtaining probate, unless the Court allows for an extension of time. Probate is another term for a Certificate of Appointment of Estate Trustee with a Will that is usually obtained by the Estate Trustee for proper administration of the Estate.

The Court may consider various factors in assessing the nature, amount and duration of support, including the eighteen factors listed under section 62(1) of the SLRA some of which are:

  • The Dependant’s current assets and means;
  • The Dependant’s capacity to contribute to their own support;
  • The Dependant’s age and physical and mental health;
  • The Dependant’s needs – with regard to accustomed standard of living;
  • Any agreement between the Dependant and the deceased spouse; and
  • The proximity and the duration of the Dependant’s relationship with the deceased spouse.

If a claim for dependant’s relief is successful, the Court has broad discretion and can make a variety of orders for support, including but not limited to:

  • A monthly or annual payment, for an indefinite or limited period of time or until the occurrence of a specific event;
  • A lump sum payment;
  • The transfer of specified property, either absolutely, for life, or a specified number of years; or
  • The possession or use of any specified property for life or for such period as the Court considers appropriate.

In any event, if a person believes that they may have a good case for a Dependant’s Support Claim under the SLRA, it is important to consult with a lawyer as soon as possible so as to file the claim within the allotted limitation period and discuss any other options.

Thanks for reading.

Kira Domratchev

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

Dependant’s Support – Do common law spouses have to live in the same residence?

Dependant Support and Pre-Retirement Death Benefits

Can Divorced Spouses No Longer Be Dependants?

 

02 Apr

Alberta or British Columbia? Conflicts of Law Issues in a Guardianship Case

Kira Domratchev Capacity, Guardianship, Litigation Tags: , , , , , , , , , , , , , , , , , , , 0 Comments

The Court of Appeal of British Columbia (the “BCCA”) recently dealt with an appeal from an Order of the British Columbia Supreme Court which declined to exercise jurisdiction by staying a petition for guardianship of an incapable person. This Order also included various terms relating to the person’s care and property.

This appeal dealt with the guardianship of Ms. Dingwall, the mother of both the Appellant and the Respondent.

At all material times, Ms. Dingwall and the Appellant lived in Alberta and the Respondent resided in British Columbia. Between 2010 and 2014, Ms. Dingwall resided for various periods in both Alberta and British Columbia. At the time of this appeal, Ms. Dingwall lived in a care home in British Columbia. She suffered from advanced dementia.

The Alberta Proceedings

On February 5, 2015, the Appellant sought an Order from the Alberta Court of Queen’s Bench appointing him as Ms. Dingwall’s guardian and trustee. The Respondent opposed this Order and in September, 2015 filed an Application to move the proceedings to British Columbia. This Application was never heard and the matter continued to be heard in Alberta.

On July 7, 2016, the Court granted the Order sought by the Appellant which appointed him as Ms. Dingwall’s guardian and provided him with the authority to make decisions with respect to Ms. Dingwall’s health care, the carrying on of any legal proceeding not related primarily to Ms. Dingwall’s financial matters and Ms. Dingwall’s personal and real property in Alberta.

The British Columbia Proceedings

A few weeks prior to the Alberta hearing, the Respondent filed a petition with the Supreme Court of British Columbia seeking a declaration that Ms. Dingwall was incapable of managing herself or her affairs due to mental infirmity and an Order appointing her as committee of Ms. Dingwall’s person and Estate. The Appellant opposed the Respondent’s petition by arguing that the Supreme Court of British Columbia lacked jurisdiction.

The Supreme Court of British Columbia asserted jurisdiction because Ms. Dingwall was at the time of the decision, ordinarily resident in British Columbia and because there was a “real and substantial” connection to British Columbia. The Court found that, in this case, both Alberta and British Columbia had jurisdiction.

Despite British Columbia having jurisdiction in this case, the Court found that the Alberta forum was nonetheless more appropriate and cited the following factors in favour of its decision:

  • The similarity of the proceedings;
  • Alberta having issued a final order; and
  • The Respondent having attorned to Alberta’s jurisdiction by opposing the Appellant’s petition.

As a result, the Court stayed the Respondent’s petition but also made several Orders respecting Ms. Dingwall’s care and property. The parties’ costs on a “solicitor client basis” were to be payable by Ms. Dingwall’s Estate.

The Appellant appealed the following Orders made by the Court, other than the stay of the Respondent’s proceedings:

  • issuing an Order on the matter after declining to exercise jurisdiction respecting it;
  • finding the Court had territorial competence over the matter; and
  • awarding solicitor-client costs payable from Ms. Dingwall’s Estate.

The BCCA Decision

The BCCA allowed the appeal and found that the lower Court erred in making Orders concerning the very matter over which it had declined to exercise jurisdiction. The Court noted that a decision to decline jurisdiction over a particular matter renders a judge incapable of deciding issues or making orders as to the substance of that matter.

As a result, the Court set aside the Orders respecting Ms. Dingwall’s care and property. In light of that finding, the Court of Appeal found it unnecessary to deal with the issue of whether British Columbia had territorial competence over this matter, given that the lower Court declined to exercise jurisdiction, in any event.

The Court of Appeal found that the Appellant was entitled to special costs payable by Ms. Dingwall’s Estate and that the Respondent was not entitled to costs.

The full decision can be found here: Pellerin v. Dingwall, 2018 BCCA 110

Thanks for reading.

Kira Domratchev

26 Mar

What is a Rule 49 Offer to Settle?

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

Ontario is a jurisdiction where parties are encouraged to settle their legal disputes well before reaching the ultimate hearing of a matter, and as such it is not uncommon for opposing parties to exchange offers to settle throughout the duration of the dispute.

An additional incentive provided for under the Rules of Civil Procedure to settle the matter is what is called a “Rule 49” offer to settle. Generally, it operates by ensuring a costs award that is favourable to a party who:

(i)         makes an offer to settle that complies with the specifications of Rule 49; and

(ii)        achieves a more favourable result at the hearing than offered under the offer to settle.

General Requirements

An offer to settle under this rule can be served by a plaintiff, defendant, applicant or respondent in an action, application, counterclaim, third party claim, crossclaim or motion. This means that this rule is applicable to motions on discrete issues within a legal dispute and is not limited only to offers made to settle the entire dispute.

In order to be eligible for the benefits provided under Rule 49, the following requirements must be met:

(i)         the offer to settle must be made at least 7 days prior to the commencement of the hearing;

(ii)        the offer to settle must be fixed, certain and understandable; and

(iii)       it cannot be withdrawn or expire before the commencement of the hearing.

In deciding whether or not to make an offer to settle under this rule, it is important to take into account the fact that the court, in exercising its discretion with respect to costs, may take into account any offer to settle made in writing, the date the offer was made and the terms of the offer.

Cost Awards

Where a plaintiff or applicant makes an offer under this rule and the judgment is as or more favourable to that party than the offer to settle, the plaintiff or applicant is entitled to the following:

(i)         costs on a partial indemnity basis to the date of the offer to settle; and

(ii)        costs on a substantial indemnity basis from that date forward.

Where a defendant or respondent makes an offer under this rule and the judgment is as or less favourable to the plaintiff or applicant than the terms of the offer to settle, the following applies:

(i)         the plaintiff or applicant is entitled to partial indemnity costs to the date that the offer to settle was served; and

(ii)        the defendant or respondent is entitled to partial indemnity costs from that date forward.

In the event that a party that made an offer to settle under this rule wishes to withdraw it, such withdrawal must be clear and unequivocal.

For more information on the manner in which Rule 49 operates, the Ontario Bar Association summarized the general rules and case law related to it here: https://www.oba.org/getattachment/Sections/Civil-Litigation/Resources/Resources/Litigation-Fundamentals-Sunrise-Series/Offers-to-Settle/Rule49OffersToSettle.pdf

Thanks for reading.

Kira Domratchev

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

Revoking a Rule 49 Offer to Settle

Cost Awards and Offers to Settle

Offers to Settle: Open Until When?

 

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