Author: Paul Emile Trudelle
As spring leans toward summer, many begin to think about spending time sitting on a dock. While sitting on a dock (or a patio, if that is more your thing), consider the recent decision of Krieser v. Garber,  O.J. No. 1619.
In 2012, the Garbers decided to build a dock attached to their property on Lake Simcoe. They retained Nealon Wood Products to do so. It must have been a nice dock. The cost was $150,000.
Unfortunately, the dock was not built according to Ministry of Natural Resources-approved plans. It was built 17 feet to the west of where it was supposed to be. Boulders placed around the dock for ice protection extended over the projected lot line of Garbers’ neighbour, the Kriesers. While the placement of the dock improved the view of the Garbers, it did not improve the Kriesers’ view. Additionally, it interfered with the Kriesers’ ability to access their own property by boat.
At trial, the court found that injunctive relief was appropriate. The Garbers were ordered to remove the dock from its current location, and repair the lake bed. In addition, the Garbers and Nealon were ordered to pay the Kriesers $100,000 in punitive damages.
On the issue of costs, reported here, the court awarded the Plaintiff costs of $518,000 for the two week trial, payable by the Garbers and Nealon, jointly and severally. The Garbers were ordered to pay an additional $80,000 for costs “thrown away” in relation to an earlier adjournment of the trial.
In awarding costs, the court noted that the Plaintiff had made a very reasonable offer to settle. The offer was, according to the judge, “the most generous offer to settle I have ever seen”.
In their offer, the Kriesers offered to pay for all of the costs of having the dock and the protective boulders moved. It was estimated that this costs could be in the $150,000 range. This “with prejudice” offer was relied on, in part, to support an award of substantial indemnity costs. It also was a factor in the award of punitive damages.
Thanks for reading. Have a great weekend.
On May 5, 2019, CBC reported on a story of a lawyer who had his cell phone and laptop seized by the Canada Border Services Agency when he refused to give them his passwords.
According to the report, Nick Wright was returning to Canada after a 4 month trip to Guatemala and Colombia. After his bags were searched, the Canada Border Services officer asked for the passwords to his phone and laptop, so that they could be searched as well. Wright refused, telling the officer that his devices contained confidential solicitor-client information. His devices were then confiscated, to be sent to a government lab which would try to determine the passwords and search the files.
According to Canada Border Services, digital devices are classified as “goods”, and Canada Border Services is allowed to examine the goods, including any electronic files on the device, for customs purposes. If a traveller refuses to reveal their password, Canada Border Services may seize the device. According to the policy manual, although an arrest would “appear to be legally supported, a restrained approach will be adopted until the matter is settled in ongoing court proceedings.”
U.S. customs and border protection officials have similar rights to search devices. Refusal to disclose passwords may result in confiscation or a denial of entry.
Such digital device searches do not occur frequent. In the 17 months between November 2017 and March 2019, 19,515 travellers entering Canada (0.015% of all travellers) had their digital devices examined by Canada Border Services.
The Canadian Bar Association warns about the risks of such searches to lawyers. Lawyers have a duty to keep client communications private. This applies to all information about a client or former client. The duty extends to staff, as well. “Your client has a right to privacy which requires you not to disclose to anyone, with exceptions, when any communications between you relate to legal advice sought or given.”
The Canadian Bar Association says that a breach could result in a loss of client trust, a client lawsuit for negligence, an E&O claim, disciplinary action and public criticism.
The Canadian Bar Association suggests that when crossing a border, lawyers should travel with a “clean device”. They should use cloud technology to store any solicitor-client information. Lawyers should erase all privileged information from their devices, including contact lists with clients’ names, addresses and contact information. The search by border services does not allow them to access information on the cloud. Once across the border, this information can easily be reinstalled from the cloud.
In Daniel Estate (Re), 2019 ONSC 2790 (CanLII), the applicants applied to have their estate trustee and attorneyship accounts passed. As stated by the judge hearing the application, “Unlike many applications to pass accounts, this is a “good news” story.”
The applicants were the friends and former neighbours of a high net worth, elderly couple, Isabel and Wayne. For over 20 years, the applicants provided extensive personal assistance to the elderly couple. “In many ways, [the applicants] acted like loyal and dutiful family members.” In addition to completing simple neighbourly tasks, the applicants helped the couple in many other ways. They eventually became the attorneys for property and personal care for the couple. When Wayne died, the applicants took on the role of acting as his Estate Trustee.
The application to pass accounts was supported by an affidavit from Isabel, who indicated that she was content with the claim for compensation being made by the applicants. The application materials also included an accounting analysis prepared by a Chartered Accountant, who reviewed the accounts in detail, and also an analysis by a Certified Case Manager and Certified Canadian Life Care Planner, who assessed the value of the personal services provided by the applicants.
In the end, the court awarded the applicants compensation for administering Wayne’s estate of $129,775; compensation for acting as attorneys for property of $435,772.36 and compensation for acting as attorneys for personal care, for a total of $757,659.
With respect to costs, the court awarded the applicants their costs of $125,021 for the unopposed passing of accounts. According the judge, “While this amount seems at first blush high, I note the accounting report alone was worth $45,000. In my view of the detailed, thorough and helpful material filed and in view of the hours it took to assemble, digest and present the financial information provided, I find that the fees and disbursements claimed are reasonable.”
The court appears to have been impressed by the extent and quality of the assistance provided by the applicants to Isabel and Wayne. Further, the court appears to have been impressed with the detailed and extensive materials put before the court in order to justify the claims on the passing.
Thanks for reading.
What a weekend we have coming up! So many things to celebrate! Consider participating in some of the following revelries:
- Cinco de Mayo:
This celebration is held on, you guessed it, the 5th of May. The date is to commemorate the Mexican Army’s victory over the French in the Battle of Puebla on May 5, 1862. Mexico’s smaller force defeated the larger French force, serving as a significant morale booster. Unfortunately for Mexico, the French forces were victorious a year later, when the French won the Second Battle of Puebla, and took control of Mexico City.
Cinco de Mayo is not to be confused with Mexico’s Independence Day, which is celebrated on September 16.
- Cinco de Cuatro
This celebration on May 4th was created by the Bluth family on “Arrested Development” in retaliation to Cinco de Mayo. The Bluths, and in particular, Lucille Bluth, were upset that their Hispanic staff were not showing up for work on May 5th. They therefore created a holiday for the evening before Cinco de Mayo, designed to use up all of the party supplies and food the night before.
- Star Wars Day
May the fourth. Get it?
- Beer Pong Day
Beer Pong Day is observed on the first Saturday of May. Apparently, this day was first organized in 2006 at the University of Arizona. (However, there is conflicting information about the date. Another site states that Beer Pong Day is July 6, while yet another site (albeit Australian) says that January 5 is Beer Pong Day AND Bikini Day.)
Other May the 5th holidays include:
- Cartoonist Day
- International Bereaved Mother’s Day
- Childhood Stroke Awareness Day
- International Midwives Day
- International Permaculture Day
- Lemonade Day
- Motorcycle Mass and Blessing of the Bikes Day
- Mayday for Mutts
- Museum Lover’s Day
- Oyster Day
- National Infertility Survival Day
- National Silence the Shame Day
- National Hoagie Day
- Revenge of the Fifth (A sequel to May the Fourth)
It is also my birthday.
Lots of reasons to celebrate. Have a great weekend! Salud!
In estate litigation, medical records are key sources of evidence with respect to the capacity of the deceased. In most cases, the parties seek and obtain an order for their disclosure at an early stage. The order serves to waive any doctor-patient privilege that would otherwise attach to the records.
Litigants and their lawyers must, in most cases, be careful to ensure that such an order is in place prior to seeking such medical records. Doctors, too, must ensure that such an order has been obtained and that they are therefore authorized to release the medical records.
A recent decision, Smith v. Muir, illustrates the possible perils of improperly seeking medical records. That case involved a motor vehicle accident. Trial was approaching and defence counsel wrote to two of the Plaintiff’s doctors. Defence counsel served them with a summons to attend at trial, and also the following request: “We will require an entire copy of your file for preparation of this matter for trial. Would you please forward to us a complete copy of the entire contents of your file, including … . Should you be unable to provide us with this documentation, please ensure that you bring your original complete records with you upon your scheduled attendance at trial.”
The Plaintiff learned of this, and then moved to have defence counsel removed as lawyer of record. While the court did not remove counsel, it was highly critical of the defence lawyer’s conduct. The court stated that the request for medical records directly from the Plaintiff’s doctors, rather than through the Plaintiff’s lawyer or through the court, was inappropriate. The court noted that the letters did not indicate that defence counsel did not have the Plaintiff’s consent to disclosure, or that the doctor may wish to seek advice before disclosing. The letter, said the court, “invites the unwitting health practitioner to breach his or her duty of confidentiality and the privacy of the patient”.
The court referred extensively to the decision of Burgess v. Wu, which sets out the appropriate protocol to follow for obtaining medical records. The appropriate routes are either through the discovery provisions of the Rules, or through a disclosure order from the court. Otherwise, “A plaintiff’s health care professional has a duty to refuse to disclose information about his or her patient unless required to do so by law”.
Although the Plaintiff’s motion was unsuccessful, the court awarded the Plaintiff her costs.
In estates litigation, matters are complicated due to the fact that the patient is no longer able to consent to disclosure, and there often isn’t an estate trustee who can consent. In those cases, an order is almost always required.
Have a great weekend.
This weekend sees The Masters Tournament being hosted once again at the Augusta National Golf Club in Augusta, Georgia. The Masters was established in 1934, making this its 85th year.
Elizabeth and Herman Thacker have seen many of those tournaments. They have lived in their home next to Augusta since 1959.
Over the years, the Augusta national Golf Club has spent a reported $40 million (US), according to Business Insider, buying up homes next to the course, to accommodate parking. However, to date, the Thackers have resisted Augusta’s offers.
A 2019 article in Bisnow reported that Augusta National has spent $200 million over the past 20 years to purchase land surrounding the famed course. Purchases include two strip malls, and a church.
The spending spree does not seem to have had an impact on food prices at the tournament. A pimento cheese sandwich is still only $1.50, and a beer is $4.00. Take that, Rogers Centre!
On to the green jacket: all members of the Augusta National Golf Club (there are about 300 of them) get a green jacket. This was to identify them as members. In 1949, the club began awarding a jacket to tournament winners (although they don’t get a membership). The winner is allowed to take the jacket off of the club grounds, but only for one year. The green in the jacket is “Pantone 342”.
Caddies at The Masters are not so sartorially lucky. They are required to wear white coveralls and a green baseball hat. Until 1983, golfers couldn’t bring their own caddies, but had to use caddies supplied by Augusta National. The coveralls each have a number on the front. The defending champion gets #1; other numbers are based on the order that the caddies check in to the tournament.
Have a great weekend.
The “doctrine of facts of independent significance” is a doctrine that can assist in resolving potential uncertainty in a will.
For example, a bequest of “my car to my partner at the time of my death” may be void for uncertainty. However, certainty can be achieved by reference to a fact of independent significance: that is, a fact that is independent of simple testamentary significance, such as the fact of who the testator’s partner was at the time of death. The fact of the make and model of the testator’s care is also a fact of “independent significance”.
The doctrine is illustrated in the 1837 decision of Stubbs v. Sargon (1837) 2 Keen 255, 48 E.R. 626. There, the testatrix directed that certain of her property be divided “amongst my partners who shall be in co-partnership with me at the time of my death or to whom I may have disposed of my said business”. Prior to her death, the testatrix sold her business to certain persons. An action was brought to challenge the gift in the will. It was argued that the gift was “imperfect”, as the testatrix did not designate the beneficiaries, leaving them to be constituted afterwards, with none of the solemnities associated with making a will.
The court disagreed. The court drew an analogy to a bequest to a testator’s children. Even though the testator may not have children at the time of making the will, the gift will be upheld.
“The point is that though a non-testamentary act may affect the disposition of property passing through a will, if it can be said that the act has a non-testamentary significance, that is, a significance which is not exclusively referable to the passing of property under the will, then the non-testamentary act is effective to pass such property.”
Thus, in the example above, children are children regardless of what is stated in the will. Their status as children is of independent significance.
The doctrine is of limited application. It will not be extended to validate a “pour-over” clause in a will that makes a bequest to an amendable, revocable inter vivos trust. As noted in Osterhoff on Wills, 8th ed., such trusts do not have a sufficient “independent significance”, and the “testator is purporting to make a future unattested codicil to the will”.
Thanks for reading.
 Quinn Estate v. Ryland, 2019 BCCA 91, para. 25, citing Professor Litman, “Pour-Over Wills: Their Relationship to the Doctrine of ‘Incorporation by Reference’ and the Doctrine of ‘Facts of Independent Significance’”, (1979) 4 E.T.R. 48.
 Quinn Estate, supra, para. 28
Ariana Grande has a hit song with “7 Rings”, and the company that owns the rights to the Rodgers and Hammerstein catalogue is enjoying the sound of her music.
The song “7 Rings” is based largely on “My Favorite Things”, the 1959 song written by Rodgers and Hammerstein for the movie “The Sound of Music”. In it, Ms. Grande sings about some of her favourite things. There are no “raindrops on roses” or “whiskers on kittens”, but, rather, “breakfast at Tiffany’s and bottles of bubbles, girls with tattoos who like getting in trouble”. In the song, Ms. Grande laments (or boasts) that her receipts “be lookin’ like phone numbers”. I doubt that Julie Andrew’s character Maria in “The Sound of Music” ever observed that “Whoever said money can’t solve your problems must not have had enough money to solve ‘em”.
The video for the song had 268,264,254 views as of the time of writing.
According to a story in the New York Times, Concord, a music company that owns the Rodgers and Hammerstein catalogue, is to receive 90% of the song writing royalties. This high percentage is thought to be because of the original song’s iconic status, and the extent to which the new song is based on the original.
Composer Richard Rodgers died in 1979, and lyricist Oscar Hammerstein died in 1960. According to The AM Law Daily, their estates sold Rodgers and Hammerstein Organization, which controlled the rights to the complete words of both artists, to Imagem Music Group in 2009 for more than $200 m US.
This is not the first time that modern artists have borrowed from Rodgers and Hammerstein. In 2006, Gwen Stefani sampled from their “Lonely Goatherd” song, also from “The Sound of Music”. There, the song writing duo’s catalogue only received 50% of the royalties.
Have a great weekend.
In his Will, Moses Woods left his family home to his third son, David, subject to a life interest in favour of Moses’ wife, PROVIDED THAT David has not been convicted of a criminal offence before he reached 21 years of age. In the event that David was convicted, the home was to be sold and the proceeds would pass to his two other sons.
The deceased died when David was 20. Unfortunately, David was convicted of criminal offences at the age of 17. This was before the Young Offenders Act was in force. David was convicted as an adult.
Notwithstanding, David asked that the home be transferred to him. The estate trustee (one of the deceased’s two other sons) asked the court for advice and directions.
Before the lower court (Woods Estate v. Woods, 2005 CanLII 1411 (ON SC)), the court held that the condition was a “condition subsequent”, meaning that the home vested with David at the time of the deceased’s death, subject to divestment if David was to be convicted of a criminal offence before reaching the age of 21. Although he was convicted, the lower court held that the operation of the condition was postponed until David turned 18, the age of majority. The lower court held that the operation should not operate while David was a minor because, as a minor, he could not refuse or neglect to perform the condition.
The estate trustee appealed. On appeal (2005 CanLII 40134 (ON CA)), the Court of Appeal disagreed with the conclusions of the court below. First, they said that it was not clear that the condition was a “condition subsequent”, acknowledging that the application judge herself said that “the matter is not free from doubt”. In any event, they disagreed that David was not bound by the condition until the age of 18. They found that while a minor is not accountable for refusing or neglecting to comply with a condition subsequent that the minor is incapable of complying with, David’s circumstances did not fall within that category. David was capable at the age of 17, as a matter of law, of committing and being convicted of criminal offences. In the eyes of the [then] criminal law, he was an adult and responsible for his criminal misdeeds.
The Court of Appeal went on to find that relief from forfeiture was not available. None of the situations in which relief from forfeiture could granted applied here.
In sum, David was found to have breached the condition of the will, and therefore forfeited his right to the property.
Have a great weekend.
Standing was the new sitting. Now, sleeping is the new standing.
Behold – the sleeping desk:
As we all know, focus and attentiveness are key to workplace success and efficiency. Coffee is a great aid to maintaining this focus. However, afternoon coffee consumption can interfere with nocturnal sleeping patterns, leading to drowsy, unfocused mornings, thereby exacerbating the problem.
The solution? The sleeping desk (aka the nap desk).
According to an article by theheartysoul.com, an afternoon nap can improve mental alertness. A short nap can be more beneficial than a long sleep. (As if we needed more reasons to nap, see “8 Scientific Benefits of Napping”.)
The sleeping desk, designed by Nancy Leivaditou, is a multipurpose desk that can transform into a bed. See the desk in action, here.