Author: Paul Emile Trudelle
Yesterday, Natalia Angelini blogged on a “purification grave” for students in Holland. The grave allows students to reflect on their lives, and their inevitable death. The grave serves as a very real memento mori, or awareness of our own death.
Another memento mori is the Swedish practice of “döstädning”, or death cleaning. As explained in Margareta Magnusson’s The Gentle Art of Swedish Death Cleaning: How to Free Yourself and Your Family From a Lifetime of Clutter, the practice calls for the decluttering of one’s lifetime of possessions so that your death is not such a burden on those left behind.
Magnusson advocates the proactive and mindful clearing out of possessions. This is therapeutic and cathartic for the cleaner, and benefits those who have to deal with a person’s “stuff” after they die.
One test of whether to discard something or hang on to it is to ask yourself whether anyone will be happier if you were to hold onto the object. This is similar to Marie Kondo’s test of asking yourself whether the item “sparks joy”.
Unlike Marie Kondo’s methods, Magnusson’s approach is a slower, more methodical one. The “gentle” process involves examining one’s possessions, one by one, and deciding whether to keep it, gift it to family or friends, donate it to a charity, recycle it or trash it. It is a slow shedding of the baggage of life.
As with other minimalist approaches, less is more: for you and for those you leave behind.
Thanks for reading.
Most professions require their members to complete a certain amount of continuing education. For example, lawyers in Ontario are required to complete 12 hours of Continuing Professional Development, with a minimum of 3 hours of Continuing Professional Development having certain “professionalism” content.
Failure to complete the required continuing education can lead to suspension. Often, professionals scramble at the last minute to complete their continuing education requirements.
In recent disciplinary proceedings, insurance agents had their insurance agent licences revoked where they did not complete the required continuing education, and submitted fraudulent continuing education certificates
In both D’Mello v. Ontario (CEO of FSRA), 2019 ONFST 20 and Sohi and Sandhu v. Ontario (Superintendant Financial Services), 2019 ONFST 9, insurance agents purchased continuing education certificates from a Mr. Rutledge, a continuing education teacher. The certificates confirmed that the agents received 30 hours of continuing education. However, the teacher did not provide the agents with any training or educational materials. The agents paid the teacher $100 for the certificates.
In the Sohi and Sandhu proceeding, the Financial Services Tribunal refers to the evidence of Mr. Rutledge. It is said that while he was at one point a continuing education teacher, he stopped teaching long before the incidents in question. When contacted by a former student or person referred by a former student, he would “help” them with their licence renewals by selling them the false continuing education certificates for courses they did not actually study for or take.
The Tribunal held that the agents knowingly submitted false continuing education certificates and intentionally misled the Financial Services Commission of Ontario. Their licences as insurance agents (all three had been agents for 20 years or more) were revoked.
The moral of the story is obvious: complete your continuing education. Actually complete it!
Also, complete it early. As stated in the D’Mello decision, while failing to complete your continuing education does not automatically constitute incompetence, leaving it to the last minute constitutes “brinksmanship”: in the case of the insurance agents, “leaving 30 hours of CE compliance to late in the two year cycle would seem to demonstrate a lack of good planning”.
For our blog from 2010 on the introduction of Continuing Legal Education requirements, see here.
Thank you for reading.
Do you smell that? Good!
The sense of smell, or lack of it, can be an indicator of the future onset of dementia.
In a study of 3,000 adults, researchers at the University of Chicago Medical Center found that those who could not identify four out of five common odours were twice as likely to develop dementia within five years.
The study, “Olfactory Dysfunction Predicts Subsequent Dementia in Older US Adults”, was published in September 2017 in the Journal of the American Geriatrics Society. The scents used, in increasing difficulty of recognition, were peppermint, fish, orange, rose and leather. The study found that 78.1% of those studied had a normal sense of smell, and could identify four out of the five scents. 18.7% could identify only three of the scents, and 3.2% could only identify one or two of the scents.
After five years, almost all of those who could only identify one or less scents were diagnosed with dementia.
According to the study, the sense of smell may signal a key mechanism that also underlies human cognition. The olfactory system has stem cells which regenerate, and “a decrease in the brain’s ability to smell may signal a decrease in the brain’s ability to rebuild key components that are declining with age, leading to the pathological changes of many different dementias.”
Because the smell test is so easy to administer, it is believed that the test could lead to an earlier determination of the possible onset of dementia.
A few Thanksgiving-related items:
- To go “cold turkey”: to stop an addictive habit suddenly and completely. To be contrasted with a gradual cessation or weaning.
There are differing opinions on the origin of the term. One theory is that the term derives from the cold, clammy feel of the skin during withdrawal, like a turkey that has been refrigerated. Along the same lines, the term may refer to the goosebumps and cold sweats that abstaining addicts may suffer from.
Another theory is that the term derives from a combination of “cold”: in the sense of “straightforward” or “matter-of-fact”, as in “the cold, hard truth”, and “talking turkey”, meaning to speak plainly. Proponents of this theory refer to the fact that the term was used before it was applied to withdrawals from drug addiction.
- John Lennon wrote a song called “Cold Turkey”, which was performed by the Plastic Ono Band. The song was first performed on September 13, 1969 in Toronto, and appeared on an album called “Live Peace in Toronto 1969”. The song’s lyrics are definitely not about a Thanksgiving dinner leftover.
- When cooking turkey, it shouldn’t be cold. Butterball has a “Turkey Calculator” that will tell you how big a turkey to buy, how long to thaw it, and how long to cook it, based on the number of guests.
- “Did you know that Canadians celebrate Thanksgiving at the beginning of October and yet Americans celebrate their Thanksgiving at the end of November? That means we must have invented it, because we celebrate it first. Did you? It’s a fact.” – “It’s a Canadian Fact”, SCTV.
Cold turkey or hot, enjoy your Thanksgiving.
Fall arrived this year on Monday September 23. On that date, the plane of the earth’s equator passed through the centre of the sun. The Earth’s axis is not tilted towards or away from the sun: equinox. Simply put, colder days and longer nights ahead.
“Equinox” comes from the Latin word “aequinoctium, or “equal nights”. On equinox, we have darkness and light for approximately 12 hours each. (There are some variations, depending on geography and physics.)
The onset of fall signals the onset of pumpkin spice time. Although I am not a fan of the mixture of cinnamon, nutmeg, ginger, cloves and allspice in anything other than a pumpkin pie, it appears that the spice mix has found its way into just about everything. Lattes are an obvious example. However, it is now found in Spam. At the liquor store, you can find pumpkin spice beer, whisky (“Nose: Perfect subtle sweet pumpkin pie combined with a barrel oak scent to create a very pleasing aroma. Taste: Pumpkin and whisky at the forefront with the spice becoming more predominant later in the taste sequence. A nice whisky/pumpkin finish.”), and Baileys (“aromas and flavours of nutmeg, pumpkin, vanilla pie crust and coffee”).
In Canadian courts, pumpkin spice has made a few recent appearances. In R. v. King, 2019 ONCJ 366, the accused was charged with communicating with a person under 16 for the purposes of committing an unlawful sexual act. The admitted facts were that the accused, aged 52, chatted online with a police detective posing as a 14 year old girl. The accused arranged to meet with the “girl”, and arrived in his vehicle with “a flannelette blanket, a purple vibrator, some baby wipes and the pumpkin spice latte” that the “girl” requested. As summarized by the court, “”the defendant drove over 200 kilometres with tools of seduction at hand and pumpkin spice latte at the ready.”
Pumpkin spice latte also figured in a very different type of case. In Bernstein v. Peoples Trust Company, 2019 ONSC 2867, the issue was the certification of a class action involving a claim of improperly charged fees on “payment cards”. The Defendant argued that the payment card was not a gift card because it did not create an entitlement to purchase any specific item, and was merely a cash replacement. In the Applicant’s Factum, which the judge agreed with, the Applicant argued that the card entitled the holder to make purchases. It was akin to a gift card. “… the holder of a Starbucks card does not have a specific entitlement to be sold a pumpkin-spice latte in July, only a general entitlement to the products that the coffee chain offers at a particular time.”
Enjoy the season/seasoning.
The Ontario Court of Appeal recently set aside an order committing an estate trustee to 15 days in jail, to be served on weekends, for contempt of an order requiring the estate trustee to pass his accounts.
In Ross v. Ross, 2019 ONCA 724 (CanLII), the estate trustee was a lawyer, 73 years of age, with no prior convictions or findings of contempt. At the time of the appeal, the estate trustee had purged his contempt.
At the hearing below, the judge found that the contempt arose from “a failure to understand and appreciate or to ignore the need for, and importance of, complying with the order within the specified time or within a reasonable time.” The Court of Appeal held that this finding meant that the estate trustee’s actions did not amount to a callous disregard for the court’s authority. Accordingly, a jail sentence was not appropriate.
For other cases on contempt and sentencing, see our blog, here and here. In the first blog, reference is made to a case where an 88 year old litigant with health issues was sentenced to 30 days in jail for contempt. In the second blog, we discuss a case where an attorney for property failed to pass accounts as required by court order. He was fined $7,000.
Finally, consider the case of Canavan v. Feldman, 2004 CanLII 4787 (ON SC). This was a claim by an estate trustee against his former lawyer. There, the estate trustee, 67 years old, spent 35 days in jail for contempt of court orders relating to a passing of accounts, and was only released when new counsel put further evidence before the court. The estate trustee’s prior lawyer had consented to an order of contempt without the estate trustee’s knowledge. The lawyer told the estate trustee that he had “nothing to worry about”. At a sentencing hearing, the lawyer did not attend. The estate trustee was sentenced to 6 months in jail. The estate trustee was awarded general damages of $200,000 and punitive damages of $100,000 against his prior lawyer.
Thanks for reading.
“There is no love lost between sisters [K] and [A].” So starts the endorsement in Nutzenberger v. Pryde, 2019 ONSC 5030 (CanLII).
There, the parents made a loan to A of $75,000. In their wills, the residue of the estate is to pass to the surviving parent. Both wills contained a clause that provided that if the other spouse was not living on the 30th day following the first spouse’s death, the $75,000 was to be forgiven.
Mother died on September 25, 2015. Father died on May 30, 2016.
K, as estate trustee of mother’s estate, brought a claim against A for the repayment of the loan. A moved for summary judgment on the claim.
Justice Harris agreed that summary judgment was appropriate. There were no primary facts in dispute, and no credibility issues. He dismissed the claim on two basis: first, mother’s estate had no standing to bring the claim, and second, the loan had been forgiven according to the terms of the wills.
On the first point, the loan came from father’s assets. Any interest that mother had in the loan passed to father under the terms of her will. Only father, or father’s estate had standing to pursue the loan.
Secondly, although the terms of the wills forgiving the loans were not “a model of drafting dexterity, to put it mildly”, the court interpreted the wills to mean that the intention of the parents was that either one could call in the loan while alive, but upon the death of the survivor, if no action was taken, the loan would be forgiven.
In determining the intention of the parties, the court looked at other terms of the wills. One term in both wills gave the estate trustee the discretion to pursue a loan. Another term acknowledged that a certain advance was in fact a gift. The term in question was “an awkward hybrid”. However, the court was able to conclude that the intention was that the loan would be forgiven if the surviving parent did not take any steps to collect on it.
As usual, more careful drafting may have avoided the litigation.
Thank you for reading.
I always thought of Labour Day as more of a new beginning than New Year’s Day. There is a seasonal change: the carefree days of summer give way to cooler, more productive and contemplative days. There is a strong feeling of a fresh start: whether it be at school or at work or otherwise.
That led me to consider Labour Day resolutions. Apparently, I am not alone. An internet search of “labour day resolutions” (or “labor day resolutions”) leads to thousands of results.
Resolve to be better in the months ahead. A study has shown that those wanting to change their behavior are ten times more likely to do so where they make a resolution to do so, compared to those who do not make resolutions.
When making resolutions, experts advise us to set realistic goals. Further, don’t be deterred by slip ups. Look at slip ups or lapses as bumps, not walls.
Each of us has areas where we can improve. I won’t tell you what your resolutions should be. (Although I do make a detailed list of resolutions for my kids each year. One of the resolutions is that they should resolve to be more receptive and appreciative of my list of resolutions.)
However, if you need suggestions, consider the Labour Day resolutions suggested by Heinz Marketing. They include:
- Spend more time on the phone (as opposed to texting or emailing);
- Spend at least one hour a day on focused reading;
- Spend at least 30 minutes a day on networking;
- Complete the day’s most important task before checking your email;
- Read the Wall Street Journal every day; and
- Take at least 10,000 steps every day.
Have a great Labour Day weekend and enjoy the year ahead.
I recently came across a case out of the Court of Appeals of Texas (Royce Homes, L.P. v. Neel, 2005 Tex.App.LEXIS 1514) where the Court of Appeal overturned a jury’s determination of damages that was based on weak evidence from a construction defect expert. Although apparently well qualified, the expert simply estimated the costs of repairs based on his experience: he did not take any notes or measurements.
The court rejected the evidence as “ipse dixit” (sometimes spelled “ipse dexit”). The term is latin for “he said it himself”. The fallacy of logic is that by baldly asserting a state of affairs without evidence to support it sidesteps the argument. It is an assertion without proof. The fallacy is similar to an argument from authority.
My kids used to call me out on the use of ipse dixit all the time. When I made an assertion, they would ask “Why?” My usual, lazy, response was “Because I said so.”
Ipse dixit has been recognized as a problem in litigation, particularly in the area of expert evidence. In General Electric Co. et al. v. Joiner et ux, the U.S. Supreme Court recognized the problem of “opinion evidence which is connected to existing data only by the ipse dixit of an expert.”
The term has been used in several Canadian cases. For example, in Young v. Insurance Corp. of British Columbia, 2017 BCSC 2306 (CanLII), an expert gave evidence that damages in a motor vehicle accident were not caused by a sideswipe-type collision. At trial, the plaintiff objected to the evidence, with counsel asking “where is the science”. The court agreed, and rejected the evidence. The expert did not refer to his own assessment of sideswipe-type collisions. He did not refer to any studies or tests involving sideswipe-type collisions. As stated by the trial judge, “Instead, what we are left with is an exercise in ipse dixitism: it is so because I say it is so.”
In Lord’s Day Alliance fo Canada v. Regional Municipality of Peel et al., the issue was whether an exemption from Sunday closing by-laws was “essential for the maintenance or development of a tourist industry”. Town council said the exemption was essential, without citing any evidence. The Court of Appeal disagreed, holding that something more was required beyond council merely saying so. The legislation required proof that the exemption was essential, not just council deeming it to be essential.
In Lewis v. The King, 1949 CanLII 376 (QC CA), the Quebec Court of Appeal overturned a conviction for keeping a common betting house. In a concurring judgment, the appeal judge states that “there is no evidence, except the ipse dixit of the police officer, that the accused was the keeper of the place in which the search was made”.
In Ontario, Rule 53.03 of the Rules of Civil Procedure require that an expert report shall contain, inter alia, “The expert’s reasons for his or her opinion”.
As we head into elections, both here and in the US, keep your eyes open for ipse dixit.
Further, in litigation, be wary of ipse dixit evidence. Simply saying something is so does not make it so.
Make it a great weekend ahead. No ipse dixit. Provide proof.
“What could be more Canadian than Toronto neighbours arguing about building an addition on a house? Home owners arguing about a maple tree, of course.”
And so begins the saga of Allen v. MacDougall, 2019 ONSC 1939, a decision of Justice Morgan.
There, the Allens wanted to build an extension to their Moore Park home. To do so, they wanted to remove a tree that was on the property line between their property and their neighbours, the MacDougalls.
The Allens had obtained municipal permits to cut down the tree. However, as the court noted, the permits were necessary as a matter of regulatory compliance: they did not reflect any adjudication of property rights.
The MacDougalls argued that as the tree was on the boundary line between the properties, it was the common property of both adjoining owners. This was confirmed by The Forestry Act.
The Allens countered with an assertion that the tree constituted a “nuisance”, and therefore should be removed. “The law of nuisance seeks to balance the competing rights of owners – one neighbour to do what he wants and the right of the other neighbour not to be interfered with”.
The court held that although the tree was interfering with the proposed addition, it was not interfering with the Allens’ current use and enjoyment of the property. Further, the court found that no reasonable alternative to destroying the tree was explored. The application for an order authorizing the destruction of the tree was dismissed.
On the issue of costs, reported here, the Allens were ordered to pay the MacDougalls $77,000 in costs. This was based on partial indemnity costs up to the time of an offer to settle by the MacDougalls, and substantial indemnity costs from the time of the offer.
So, it appears, the tree still stands. However, I expect that the neighbourly relations between the parties have been clear-cut.
To read about one expensive dock, see my blog, here.
Have a great weekend.