Author: Paul Emile Trudelle
The right to a trial by jury is a fundamental right in many proceedings. In a trial by jury, the lay jurors consider the evidence led at trial and make factual determinations based on the admissible evidence. Trials by jury, however, involving 12 (or 6 in the civil context) lay people as triers of fact can easily get complicated in a wired world where access to additional facts outside of the trial process is widely available.
Take, for example, the recent decision in R. v. Graham. There, the two accused were charged with fraud over $5,000 in relation to an alleged fraud and misappropriation of over $2m from a lawyer’s trust account.
In the course of the trial before a jury, one juror asked to be excused, as he learned that his child’s school was near where one of the accused lived. He feared for his and his family’s safety in the event that they bumped into the accused or her family in their neighbourhood. He was excused. Then there were 11.
A second juror was subsequently excused. That juror had accessed the LinkedIn profile of one of the accused. The juror admitted that she had done so, but said that she did the searches at the beginning of the trial, in July 2019. However, a LinkedIn printout showed that she had done so in September, 2019. The juror had also searched the lawyers involved in the case. She was excused. Then there were 10.
As there was an issue as to what the other jurors may have learned or have been told, the trial judge conducted an inquiry of the other jurors. They were asked if they did research into any of the participants in the trial, what they found, and what they told or were told by other jurors. The judge learned that three of the jurors had conducted “research”, despite the trial judge’s instruction not to. One searched the lawyers on LinkedIn, one searched the lawyers on Facebook. A third was told by other jurors about where one of the lawyers went to school.
The trial judge found that while the two jurors had breached her instructions, the breach was not one that should lead to their discharge. Unlike the juror who was discharged, the other inquisitive jurors did not search for information on the accused, just their counsel.
The trial judge noted that if further jurors were discharged, there would be a mistrial: a jury with less than 10 members was not permitted.
In the criminal context, the Supreme Court of Canada in R. v. Khan at para. 72 stated that “…the accused is not entitled to a perfect trial. He is entitled to a fair trial, but it is inevitable that minor irregularities will occur from time to time. The trial cannot be held to a standard of perfection, provided it remains fair in reality and in appearance.” In other words, we can’t let perfection be the enemy of the good.
The trial judge referred to this quote, and ordered that a discharge of the two further jurors or a mistrial was not warranted, and that a further, strong, mid-trial instruction to the jurors advising them that they are not to investigate, research or seek out information about the case or anyone involved in it, including the accused or any of the lawyers was sufficient.
Thanks for reading.
“Secret trusts are rarely encountered today, but have a long history.”
So begins the B.C. Court of Appeal decision in Bergler v. Odenthal, 2020 BCCA 175 (CanLII).
There, the deceased died without having made a will. The trial judge found that prior to her death, the deceased told her common-law spouse and other relatives that she wanted her estate to pass to her niece Susanne if and when her common-law spouse became involved in a new relationship.
Upon the deceased’s death, her assets passed to her common-law spouse as jointly held assets. The common-law spouse then entered into a new relationship, and ended up getting married. Susanne sued, claiming that she was entitled to the deceased’s estate pursuant to the terms of the secret trust.
The trial court and Court of Appeal agreed with Susanne’s claim.
The two essential elements of a secret trust are (1) a communication by the deceased person to his or her beneficiary of the terms of the trust (ie, that the “three certainties” are addressed) and (2) an acceptance by that person of the terms of the trust. Acceptance does not have to be express: acquiescence may be sufficient. The evidence was sufficient to establish that the deceased clearly expressed the terms of the trust in her spouse’s presence, and that he agreed to the terms.
As in most “secret trust” cases, the evidence of the terms of the trust was hearsay. However, in Bergler, the trial judge accepted the evidence as being necessary and reliable. In addition, the common-law spouse confirmed that he told the deceased that he would abide by her wishes.
The common-law spouse argued on appeal that the trust would not apply to the jointly held property, as this would pass outside of the deceased’s estate. The Court of Appeal disagreed, finding that, firstly, it was the deceased and the common-law spouse’s understanding that the trust would apply to the jointly held property, and secondly, that as a matter of law, the creation of the secret trust would have severed the joint tenancy. The court relied on a number of cases that held that a finding of a secret trust either impressed certain jointly held assets with the secret trust or severed the joint ownership.
As can be seen from Bergler, a finding of a secret trust can be a very powerful tool, tying up estate assets and even assets passing outside of the estate.
Thank you for reading.
I like wine. But I don’t know a lot about wine. My friend, Henry, knows a lot about wine. When picking a wine, I often refer and defer to Henry’s extensive knowledge of wine. I outsource many of my wine buying decisions to Henry. I adopt Henry’s knowledge of wine as my own.
I also like to golf when I can. I am an ok golfer, but could be better. My friend, John, is a great golfer. He reads all of the magazines and watches all of the instructional videos. When we golf together, John shares that knowledge with me. I can take John’s learning and make it mine. (Unfortunately, my increased knowledge doesn’t necessarily translate into lower golf scores.)
In a recent podcast by Michael Lewis called “Against the Rules”, (Season 2, Bonus episode), Michael Lewis interviews Malcolm Gladwell and Jacob Weisberg. At one point, Malcolm Gladwell refers to a concept akin to a “collective memory”, whereby he outsources things he needs to know to friends and family. He says that his approach is that we should appoint experts to our friendship circle and outsource things we need to know to them. Their knowledge and experience becomes ours. He suggests that in personal and professional life, we should let others do the things that they can do better than us.
The context of the discussion was the running of Pushkin Industries, which is a podcasting company formed by Gladwell and Weisberg. Gladwell is the “ideas” person, whereas Weisberg is more of the operations person. Gladwell relies on Weisberg to manage the financial and day-to-day aspects of the business. This allows Gladwell to do what he does best.
There is a great lesson in Gladwell’s brief comment. Personally and professionally, surround yourself with smart people whom you respect and trust and who have a broad range of strengths and interests. Listen to them. Free yourself to rely on their knowledge and experience. Your life will be better and easier for it. (Although you may not become a much better golfer.)
Thanks for reading.
One of the primary and often urgent duties of an Estate Trustee is to dispose of the deceased’s body. Often, issues arise with respect to the proper disposal of the deceased’s remains: how it is to be done, and by whom. These issues are exacerbated when the deceased dies intestate. No one has the immediate authority to make the necessary decisions.
The difficulties that can arise are illustrated in the companion decisions of Re Timmerman Estate, 2020 ONSC 3424 (CanLII) and Re Timmerman Estate, 2020 ONSC 3425 (CanLII).There, Marguerite died on October 16, 2019. She was survived by a daughter, Shannon and a son, Craig. Craig died shortly thereafter, on November 12, 2019. Both died without a will and with only nominal assets.
Marguerite’s sister (Craig’s aunt) applied for a Certificate of Appointment as Estate Trustee for both estates. However, she did not have Shannon’s consent or a Renunciation from Shannon, as required by the Rules of Civil Procedure. She applied to the court to dispense with these formalities.
There was evidence before the court that Marguerite wished to be cremated. Shannon objected to this. However, there was evidence that Shannon may have had capacity issues. After raising her objection to the cremations, Shannon appears to have disappeared.
The judge hearing the applications noted that the bodies had remained in a hospital morgue for over 7 months, a delay that was “unconscionable” and “intolerable”, and due for the most part to difficulties in contacting Shannon despite reasonable efforts.
The court granted the applications notwithstanding the lack of consent or a renunciation from Shannon, citing Rules 2.01 and 2.03, which allow a court to dispense with the strict compliance with the Rules of Civil Procedure where it was necessary and in the interest of justice. “It is in no-one’s interests to delay the administration of this estate and, hence, the removal of the bodies and their cremation or burial, because of Shannon Timmerman’s failure or inability to take any steps herself to address the need to attend to these formalities.”
In both estates, the court directed the Estate Trustee to make best efforts to bring the Certificate of Appointment to the attention of Shannon before the bodies were finally laid to rest. However, this requirement was not to unduly delay things further. If Shannon could not be located using best efforts, the Estate Trustee was to proceed with the disposal of the remains as she saw fit.
See here for our blog on The Duty to Dispose of the Body.
Thanks for reading.
A recent report of the Canadian Armed Forces into the state of five Ontario nursing homes has shed light on disturbing issues inside of the homes.
Early into the COVID state of emergency, the Canadian Armed Forces was asked to assist at 5 Ontario nursing homes, and 25 Quebec nursing homes. In the course of their duties, the Armed Forces noted serious shortcomings at the nursing homes. The report has led to calls for various action, including a coroner’s investigation, and possible police investigations.
It should be noted that there is a statutory duty on everyone to report any suspected impropriety occurring at a long-term care facility. Specifically, s. 24 of the Long Term Care Homes Act, 2007 requires that a person who has reasonable grounds to suspect any of the following has occurred or may occur to immediately report the suspicion and the reasons upon which it is based to the Director of Long Term Care:
- improper or incompetent treatment or care of a resident that resulted in harm or a risk of harm to the resident;
- abuse of a resident by anyone or neglect of a resident by the licensee or staff that resulted in harm or a risk of harm to the resident;
- unlawful conduct that resulted in harm or a risk of harm to a resident;
- misuse or misappropriation of a resident’s money; or
- misuse or misappropriation of funding provided to a licensee.
While there is an obligation on everyone to report the suspicion of such conduct, it is only an offence if certain described individuals fail to report. These individuals include the licensee, an officer or director of any corporate licensee, a staff member, or any person who provides professional health, social work or social services to a resident or licensee.
Long term care licensees also have a statutory obligation to ensure that any alleged, suspected or witnessed incident of abuse of a resident by anyone, neglect of a resident by the licensee or staff is investigated, and that “appropriate action” is taken in response to any incident. The results of the licensee’s investigation and the action taken in response are to be reported to the Director. Further, the Act requires that the licensee must establish a procedure for initiating complaints to the licensee and for how the licensee deals with the complaints.
The report of the Canadian Armed Forces will, hopefully, bring about positive change for a vulnerable, often voiceless segment of society. Others should (or in some cases, must) also come forward to report harmful conditions or conduct. If you see something, say something.
Thanks for reading.
A recent class action proceeding against the estate of a deceased illustrates an estate’s limited liability. That is, an estate can’t be liable for more than what is left in the estate.
The case, Davidson v. Solomon (Estate), 2020 ONSC 2898, involved a class action against the estate of a deceased orthodontist. The orthodontist was alleged to have, for years prior to his retirement in 2015, “inappropriately” video recorded patients while he was providing them with dental services. 295 patients, many of whom were minors, were identified as victims.
Dr. Solomon was charged in 2017 with various offences, including voyeurism, making child pornography and possessing child pornography. He died on October 5, 2017 at the age of 69, before the criminal charges were tried. Accordingly, the criminal charges were withdrawn.
The incidents were discovered in 2017 when the Royal College of Dentists began investigating after receiving a complaint about Dr. Solomon’s services. In the course of the investigation, camcorder tapes were discovered, and Children’s Aid and the police were notified. The tapes dated from 1994 to 2014.
A class action was brought against Dr. Solomon on September 29, 2017. According to a news report, the claim sought damages of $1m, Family Law Act damages of $50,000 for each family law claimant, and $500,000 in punitive and exemplary damages. The claim was continued against Dr. Solomon’s estate after his death.
The estate denied the allegations. The allegations were never proven in court.
However, after extensive investigation, including dialogue with the estate’s lawyers, the representative plaintiff’s lawyer determined that the value of the estate was likely limited to $500,000. In light of the criminal nature of the allegations, it was determined that professional liability insurance was not likely to respond to the claim. Thus, it was concluded by the representative plaintiff that any judgment for damages would be limited to $500,000.
In light of this, a settlement was reached which saw to the estate paying a total of $425,000 for damages, administration fees, and legal costs. The court approved this settlement, noting, amongst other factors, that the estate had limited assets to satisfy any judgment. In approving the settlement, the judge hearing the approval motion stated, “Furthermore, there is a significant risk that but for this settlement, the Class Members would recover nothing, given the limited assets available to satisfy any judgment.”
Presumably, the estate plead plene administravit praetor: that the estate had limited assets. Read about this doctrine here.
Thanks for reading.
The recent decision of the Ontario Court of Appeal in Laski v. BMO Nesbitt Burns Inc., 2020 ONCA 300 (CanLII) demonstrates the accommodations that will be given to parties in advancing a proceeding, and the limits to that accommodation. It demonstrates that while the courts will be generous to parties requesting adjournments, that generosity will only go so far.
There, the Plaintiff was proceeding with a claim against BMO Nesbitt Burns with respect to their involvement in the setting up of a joint account. The Plaintiff had alleged that the setting up of the joint account was fraudulent. He had already lost his claim against the joint account holder. The court hearing that proceeding found that the joint account passed to the joint account holder by right of survivorship. The Plaintiff sought to continue his claim against BMO. BMO moved to strike this claim.
The matter proceeded on April 23, 2019. The Plaintiff did not appear, but had emailed opposing counsel shortly before the hearing to advise that he was only released from the hospital on April 18, 2019, and could not attend. The motions judge treated the email as a request for an adjournment. The request was denied, and the motion proceeded in the Plaintiff’s absence. The Plaintiff’s claim was dismissed.
The April 2019 adjournment request was not the first adjournment request. The proceeding had a long history. On April 2018, a judge set a return date of September 19, 2018, and dates for filing materials. On September 18, 2019, an adjournment was granted to February 11, 2019, peremptory to the Plaintiff, and revised dates for the delivery of materials were set. The adjournment was at the request of the Plaintiff and the Respondent did not object.
On January 28, 2019, the Plaintiff, a lawyer representing himself, filed a medical note saying that he was unable to work for six months. The motion was adjourned to April 23, 2019. The judge endorsed the record stating that no further adjournments would be granted unless the Plaintiff provided more specific information regarding his health limitations from a qualified doctor.
No materials were ever delivered by the Plaintiff.
The Plaintiff’s claim was dismissed in his absence on April 23, 2019. The Plaintiff appealed.
In dismissing the appeal, the Court of Appeal noted that adjournments would be granted where it was “in the interests of justice”. The judge has broad discretion, and appellate intervention is limited. The Court also noted that the Plaintiff was already granted two adjournments and had failed to comply with previous orders requiring that he file materials and file a medical note if a further adjournment was being sought. Further, while the Plaintiff filed additional medical evidence on the appeal, there was no motion brought to allow the “fresh evidence”. In any event, the further evidence did not explain why responding materials were not filed as required.
An appeal on the merits was also dismissed.
In the context of adjournments, the court will usually grant an adjournment if the there is a good, substantiated reason for the adjournment, and no injustice will result from the delay. Opposing parties know this, and usually act accordingly. (In this case, the first adjournment request was unopposed.) However, the party seeking the adjournment should put strong evidence supporting the request before the court. Additionally, the requestor should not be in default of any other orders of the court without a good reason.
See also, Suzana Popovic-Montag and Devin McMurtry’s blog on adjournments in estate litigation, here.
Thank you for reading.
P.S. And now for something completely different, check out this remarkable obituary.
Today I learned about the National Initiative for the Care of the Elderly (“NICE”) and their Talk 2 NICE program.
NICE is an international network of researchers, practitioners and students dedicated to improving the care of older adults. Members come from a broad spectrum of disciplines and professions.
In response to the COVID-19 pandemic, NICE is providing free outreach and counselling to older adults and persons with disabilities. Callers are able to speak to social workers or social work students. Talk 2 NICE can be reached toll free at 1 (844) 529-7292. Or, a time for a call from Talk 2 NICE can be scheduled on their webpage. The program can also be accessed over the internet by clicking on a link. Referrals for friends or family members are also accepted.
Callers have a choice of scheduling either a 15 minute or 30 minute “Friendly Check-In”.
The call is designed to help those socially isolated and lonely due to the current crisis. The service is also offered to caregivers. The trained volunteers will provide uplifting phone calls that respond flexibly to the needs of the caller, and will offer information about other available resource
Another excellent resource provided by NICE is a pamphlet entitled “To Stay Or To Go?: Moving Family from Institutional Care to your Home During the COVID-19 Pandemic”. The brochure discusses a number of considerations to be taken into account when considering whether to remove a family member from a Long-Term Care Facility.
Mental health should be top of mind during these unique times. This is particularly so for the elderly. The service provided by NICE is an excellent resource. Pass on this information to anyone who may benefit from such a call.
Thanks for reading.
P.S. Call your mother (or anyone else you know who may benefit from an isolation-breaking telephone call).
Many of us are in the midst of spring cleaning, or, this year, the deeper, extended COVID cleaning.
As part of cleaning process, consider cleaning up your estate plan. Organize the documents and information relevant to your estate plan for your own reference, and for the ultimate ease and convenience of your estate trustees.
There are many websites that offer tips on organizing and simplifying your estate documents. There are apps available to help organize and store your information.
As a starting point, BDO has produced a comprehensive list, “My Financial Story and Estate Organizer”, that can be completed by the testator and left in a readily accessible place: perhaps with the testator’s Estate Trustees.
I have seen too many estates where a person passes away leaving a state of chaos. Often, it is not known whether the person left a Will, or who the estate trustee is. This presents immediate problems when trying to address the steps necessary upon death, such as making or implementing burial decisions. In addition, after burial, the estate trustee is often scrambling to find out what assets the deceased had, and where they are.
This game of cat and mouse can be readily avoided by listing what and where your assets are. Not making such a list is simply vexatious.
Remember Gerald Cotten? He was the founder of QuadrigaCX who died in 2018. He was the only one who knew the password to access the $137m or more of holdings of the company’s clients. Leaving an organized estate plan (or even a sticky note with a password scrawled on it) would have eased a lot of tension. See Natalia Angelini’s blog on this, here.
The issues that arise upon one’s death are difficult in the best of cases. Make them easier to address by organizing your affairs so as to assist your estate trustees. Take advantage of the time available now to clean up your estate plan.
Have a great weekend. Stay safe.
Representatives of the Courts of Ontario, the Ministry of the Attorney General and various stakeholder representatives are meeting regularly in order to deal with the COVID-19 crisis and the courts’ response to it.
At present, the Ministry and the courts are working towards a further expansion of the courts. To date, since the declaration of the emergency, the Superior Court of Justice has heard about 1,000 matters, being motions, conferences and pre-trials. However, it is hoped that the types of matters to be heard and the number of matters can be expanded in the near future.
Committees are currently considering the expansion of court services. Priorities being discussed include:
- Identifying a Document Sharing Platform to be used by judges, counsel and parties;
- Identifying a Video Conferencing Platform to be used by judges, counsel and parties; and
- Determining a protocol to be used by court staff for supporting virtual hearings.
It is expected that the selection of a Document Sharing Platform will be made by next week, with the other items to be in place shortly thereafter. While there is no set time frame, once the systems are put in place, there will be an announcement with respect to the expansion of court services.
It would appear that once these systems are put in place, there will be no turning back. Virtual hearings, at least to a certain extent, will be the new norm. Previous attempts to modernize the court by allowing virtual attendances, through a service called CourtCall, did not gain much traction. However, I suspect that there is now a greater appetite for and comfort with virtual hearings. Further, it is likely that the hearings will be supported by better document management and document filing facilities; something that was lacking under past experiments.
And stay safe.