Author: Rebecca Rauws
We have previously blogged about the CRA’s Voluntary Disclosure Program and how it can, for instance, be useful for estate trustees should they encounter a situation where the deceased whose estate they are administering failed to meet their tax obligations. Essentially, the program gives a taxpayer a second chance to come forward voluntarily and change a tax return that was previously filed, or to file a return that should have been filed, and to request relief from prosecution or penalties as a result of any erroneous or incomplete filings.
However, as discussed in a recent article in the Financial Post, the CRA has proposed some changes to the Voluntary Disclosure Program. The draft “Information Circular – IC00-1R6-Voluntary Disclosures Program” prepared by the CRA for discussion purposes can be found here. The key proposed changes would narrow the eligibility for the Voluntary Disclosure Program, and impose additional conditions on taxpayers who are applying. The proposed changes also include less generous relief in certain circumstances, such as cases of major non-compliance.
As discussed in a PwC Tax Insights publication, another proposed change creates two tracks into which the CRA can assign a taxpayer upon application to the Voluntary Disclosure Program—either the “general program” or the “limited program”. The general program is intended for inadvertent and minor non-compliance, while the limited program is intended for major non-compliance. The general program involves mostly minor changes, including a limitation on interest relief. Major non-compliance, which will fall into the limited program, includes, for example, active efforts to avoid detection, multiple years of non-compliance, a sophisticated taxpayer, or disclosure being made after an official CRA statement regarding its intended focus of compliance or following CRA correspondence or campaigns. If an application is assigned to the limited program, the relief available to the taxpayer will no longer include interest relief or relief from penalties other than gross negligence penalties. The determination of which track an application will be assigned to will be made on a case-by-case basis.
Previously, there were four conditions that had to be met in order to be considered as a valid disclosure. The proposal would add a fifth condition, requiring payment of the estimated tax owing along with the application. The changes described above are only a few of the proposed changes, and all such changes can be found in the Information Circular.
The CRA will be accepting comments with respect to the changes proposed in the draft Information Circular – IC00-1R6 – Voluntary Disclosures Program until August 8, 2017. Any changes to the program would come into effect as of January 1, 2018.
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Vanier v Vanier: Power of Attorney Disputes, Undue Influence, and Losing Sight of a Donor’s Best Interests
Often in power of attorney litigation, relationship issues between past or present attorneys may take centre stage, with the unfortunate consequence that the best interests of the donor of the power of attorney may get lost amid suspicions and accusations being thrown back and forth. This can often arise in situations where siblings are involved in a dispute regarding power of attorney for a parent, and, in fact, was the situation in the recent Ontario Court of Appeal decision in Vanier v Vanier, 2017 ONCA 561.
At issue was the power of attorney for property of Rita, whose husband had predeceased her, leaving her his entire estate. She had three adult children: twin sons, Pierre and Raymond, and a daughter, Patricia. There was a power of attorney for property executed in 2011 naming Patricia. Unfortunately, Patricia allegedly took advantage of her role as Rita’s power of attorney for property, leading to litigation and a settlement. As a result, Rita executed a power of attorney for property in 2013 naming Pierre and Raymond, jointly and severally, as her attorneys for property (the “2013 POA”).
However, Pierre and Raymond became suspicious of each other, steps taken by each of them as Rita’s attorneys for property, and their relationship broke down. Issues arose in relation to Rita’s ability to access her money; in particular, Raymond had failed to cooperate in relation to unfreezing some corporate assets that had been frozen as part of the litigation with Patricia, and instructed Rita’s lawyer not to release settlement funds received from Patricia to Rita. Consequently Rita could not access funds to pay for basic living expenses, including rent at her retirement home. As a result, Pierre suggested that Rita take certain steps to facilitate access to her funds, including executing a power of attorney for property naming Pierre as her sole attorney for property, which Rita did in 2015 (the “2015 POA”).
Litigation and Appeal
Raymond brought an application seeking Pierre’s removal as attorney for property and a declaration that the 2015 POA was void. He also brought a motion seeking interim relief. The decision on the motion was appealed by Raymond, leading to this decision from the Court of Appeal. The Court considered 5 issues on appeal, but I will address only 1 of them for the purposes of this blog, being whether the motion judge erred in applying the wrong test for undue influence.
Proper Test for Undue Influence
Raymond argued that the proper test to be used was not the test for testamentary undue influence, but rather the test for inter vivos equitable undue influence, which would shift the onus of proving undue influence from Raymond, to Pierre, who would have to prove that Rita signed the 2015 POA willingly and without undue influence.
The Court of Appeal found that the application of the inter vivos test had not been argued before the motion judge, was a new issue raised on appeal, and, based on the general rule, the Appeal Court could not consider it. Moreover, there was no need for the Court to consider whether to grant leave to allow a new argument in this regard, as in any event, the inter vivos equitable undue influence test had no application on the facts.
In order to shift the burden of proof from the complainant (in this situation Raymond, arguing on behalf of Rita) to the other party (in this case, Pierre), two prerequisites must be met:
- The complainant reposed trust and confidence in the other party; and
- The transaction is not readily explicable by the parties’ relationship; the transaction is “immoderate and irrational”.
Pierre conceded that Rita did repose trust and confidence in him. However, the Court found that Rita’s decision to execute the 2015 POA was not “immoderate or irrational”. The Court noted that while the decision was emotionally difficult for Rita, it was totally rational. She knew that she was having issues accessing funds needed to pay her basic expenses. She also knew that some of Raymond’s actions had led to her inability to access those funds. The Court also found that the 2015 POA conferred little, if any, benefit on Pierre. Lastly, even if the inter vivos test applied, the Appeal Court held that the record did not support a finding of undue influence.
In conclusion, the Court of Appeal commented that it endorsed the words of the motion judge who had expressed the view that Raymond and Pierre had “lost sight of the fact that it is Rita’s best interests that must be served here, not their own pride, suspicions, authority or desires”, stating also that it hoped that in light of this decision, Rita’s sons would honour her wishes and end the litigation.
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Approximately a month ago, it was reported that an Ontario woman had been charged criminally in relation to an elder abuse investigation. The woman will apparently be appearing in court this Monday, June 5, 2017.
The Ontario Provincial Police attended at a home in Warwick Township, Ontario to assist health-care workers in checking on the well-being of a resident. The home was in a state of squalor, and upon searching the house, they located an elderly woman who was incoherent, in need of medical intervention, and was taken to hospital.
We have previously blogged about the criminal consequences of elder abuse in the context of a financial abuse situation (here and here). However, financial elder abuse is not the only form of abuse that can constitute a crime. Physical, emotional and mental abuse, as well as neglect, can also lead to criminal charges. This can be seen in the situation of the elderly woman in Warwick Township, where a woman was charged with failure to provide the necessaries of life in relation to the elderly woman’s condition after the elderly woman had been found in ill-health and in a filthy environment.
Section 215(1) of the Criminal Code of Canada, R.S.C., 1985, c. C-46 establishes a legal duty for every one to provide necessaries of life to a person under his or her charge if that person (i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw him or herself from that charge, and (ii) is unable to provide him or herself with necessaries of life. Section 215(2) makes it an offence if a person fails to perform that duty if the failure “endangers the life of the person to whom the duty is owed or is likely to cause the health of that person to be injured permanently.” The punishment for this offence can be imprisonment for up to five years for an indictable offence, or imprisonment for up to 18 months on summary conviction.
The above is of course only one example of a criminal offence that may arise as a result of elder abuse. Many types of elder abuse will fall under the general criminal code offences, such as assault, intimidation, theft, and forgery.
The issue of elder abuse is a very real one, and is taken seriously by police and the justice system. It is important for victims of elder abuse, and anyone who suspects elder abuse, to be aware that there are options for reporting the abuse, preventing future abuse, and punishing the abuser.
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We previously blogged about the decision in Ozerdinc Family Trust v Gowling Lafleur Henderson LLP, 2017 ONSC 6, where a failure to advise of the deemed disposition date of trust assets resulted in an avoidable tax liability. Recently, additional reasons were released which set out the court’s decision with respect to costs arising from the motion for partial summary judgment. The court awarded costs to the successful plaintiffs in the amount of $160,889.76 (including tax) plus disbursements of $100,000.00
The costs decision is interesting as it thoroughly considers a number of elements of the litigation in relation to the factors listed in Rule 57.01 of the Rules of Civil Procedure.
Interestingly, while the court held that the matter was “obviously a very complex matter”, it nonetheless concluded that the costs claimed by the plaintiffs were higher than required for a motion of this nature. The court also noted, in considering the time spent by the plaintiffs on the motion for partial summary judgment, that the “total amount of time spent exceeds a fair amount and that which would reasonably be expected to be required in the circumstances”. This conclusion was made despite the court’s acknowledgment that the bulk of the plaintiff’s time was spent by junior counsel.
Another interesting comment was related to the costs awards with respect to disbursements. It seems that a large portion of the plaintiffs’ disbursements were expended to retain several experts. However, the court found that the amount claimed by the plaintiffs was out of proportion with the amounts spent by the defendants to address similar issues, and reduced the award for disbursements accordingly.
This decision may serve as a helpful reminder to litigators to be aware of the amount of their legal fees and disbursements. One should also try to ensure, as much as possible, that costs are proportional, both with respect to the size of the matter at issue, but also, based on this costs decision, with respect to the costs that may be incurred by the other parties.
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