Author: Sydney Osmar
As many of our blog readers will know, Ian Hull, Jordan Atin and Suzana Popovic-Montag have been working hard during the pandemic to host weekly webinars in efforts to increase resource sharing and practice management tips.
I have had the opportunity to help out with this endeavour, and have attended each webinar to date. Many helpful practice tips and resources have been shared, so I thought it may be useful to provide an overview summarizing some of the main takeaways that have been touched upon to date:
Virtual and Counterpart Execution of Wills/POAs
- After swift responses from the Attorney General of Ontario, Wills and POAs can now be witnessed virtually, and, executed in counterpart for the duration of the pandemic. Of course, the Emergency Order does not set out explicitly how to do so. Therefore, Ian and Jordan have attempted to outline best practices on how to accomplish the virtual and counterpart execution of Wills and POAs. Jordan has prepared a detailed blog setting out the process he uses, providing links to helpful checklists which can be found here.
- Some further tips discussed include circulating locked versions of the documents to be executed with a unique identifier so that the solicitor can ensure everyone is working off the same document.
- While the Emergency Order has opened up the possibility for counterpart and remote execution of Wills and POAs, clients should be encouraged to re-sign their Wills and POAs when in-person meetings can resume.
Holograph Wills and the use of an Amanuensis
- Some early discussions in the webinar series, before counterpart and remote execution was a possibility, focused on the possible use of holograph wills, or the use of an amanuensis (signing a testator’s Will, on their behalf, at their direction).
- Jordan has summarized these discussions in two blogs. To learn more about the use of holograph wills, see here. To learn more about the use of an amanuensis, see here.
- An important topic that has been touched on throughout the webinar series is avoiding LawPRO claims in a COVID-19 world. While much thought has been given to the actual execution and witnessing of Wills and POAs during the pandemic, practitioners should not let their regular practice management fall to the back burner. Regardless of COVID-19, LawPRO claims continue to result from errors such as: inadequate investigation, miscommunication, errors of law and poor time management.
- Now with the increasing necessity to take Will planning instructions by phone or video conference, heightened steps need to be taken to ensure that both client and solicitor understand the client’s instructions and intent, as well as testing for things like capacity and undue influence. WEL Partners have prepared a checklist for indicators of undue influence during virtual meetings which can be found here.
Tools and Technology for Practice Management
- LawPRO has prepared a resource page which includes links to various tools, articles, checklists and other resources which can be accessed by practitioners.
- E-State Planner – one of the many ways in which E-State Planner can be used to avoid claims, regardless of COVID-19, is by providing the client with visuals. Using visual aids while taking instructions ensures that there is an understanding between client and solicitor, right from the spelling of names to the actual impact their instructions have on the distribution of the estate.
- Virtual Web Conferencing Systems – while there are many options to choose from, it is clear that the web conferencing has become a significant part of the daily practice of law, one which is likely to stay. Whether using Zoom, Webex, Microsoft Teams, Google Hangouts or any of the many other systems available, lawyers should take the opportunity now, to familiarize themselves with web conferencing. In particular, screen sharing, which has become integral to virtual meetings, mediations, hearings, examinations and so forth, is a particular skill that should be honed.
- Protecting privacy – as we have learned, it is extremely important to take all necessary precautions to protect privacy when utilizing web conferencing systems. Examples of such steps are: using passwords, using the “waiting room” or “lobby” feature so that the host can limit access to the meeting to authorized individuals, or, requiring registration.
- Recordings – another unique feature of web conferencing systems is that the recording of meetings is becoming increasingly more common. While this can be helpful for ensuring that there is a complete record of instructions and advice given, it also means that lawyers will likely be held to a higher standard (as the recording will allow for greater scrutiny).
- Inter-office communication resources – with lawyers and staff working from home, there is greater need for fostering instant communication and resource sharing inter-office. Services such as Slack can be used for both inter-office communication and file management. Slack also allows for you to add in tools and apps to assist in practice management, such as Notability, the use of check lists, work flows, and even web conferencing platforms.
- File management in a “remote world” – with the office working from home, there is a greater need for remote office software. Programs such as Clio and Monday.com are examples of such software.
Moving Matters Forward
- With courts limited to hearing only urgent matters, lawyers have had to get creative in how we can continue to move matters forward and continue to meet and exceed client expectations. As discussed in the webinar series, this has included (for cases that are appropriate) conducting examinations and mediations virtually. To learn more about the Estate Arbitration Litigation Management initiative spearheaded by Suzana, see here.
Finally, as we have had a regular and significant turn out to the weekly webinar series, I would like to remind all participants that they qualify for CPD credits for having attended the webinars. In case you missed which credits you are eligible for, please see below:
- Webinar 1 – March 27, 2020: 15 mins substantive, 15 mins professionalism
- Webinar 2- April 3, 2020: 45 mins substantive, 15 mins professionalism
- Webinar 3 – April 11, 2020: 30 mins substantive, 30 mins professionalism
- Webinar 4 – April 17, 2020: 45 mins substantive, 15 mins professionalism
- Webinar 5 – April 23, 2020: 45 mins substantive, 15 mins professionalism
- Webinar 6 – April 24, 2020: 15 mins substantive, 15 mins professionalism
- Webinar 7 – May 1, 2020: 45 mins substantive, 15 mins professionalism
- Webinar 8 – May 8, 2020: 45 mins substantive, 15 mins professionalism
- Webinar 9 – May 15, 2020: 45 mins substantive, 15 mins professionalism
- Webinar 10 – May 22, 2020: 45 mins substantive, 15 mins professionalism
- Webinar 11 – May 29, 2020: 45 mins substantive, 15 mins professionalism
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Revocation of a Power of Attorney for Personal Care and its impact on substitute decision making under the Health Care Consent Act
Section 20 of the Health Care Consent Act (“HCCA”) provides for a legislative hierarchy of substitute decision makers for persons who have been found incapable with respect to treatment. The hierarchy is as follows:
- The incapable person’s guardian of the person;
- The incapable person’s attorney for personal care;
- The incapable person’s representative appointed by the Consent and Capacity Board;
- The incapable person’s spouse or partner;
- A child or parent of the incapable person, or an agency that replaces the parent’s authority;
- A parent of the person who only has a right of access;
- A brother or sister of the incapable person; and
- Any other relative of the incapable person.
Those in the above list may only give or refuse consent on behalf of the incapable person if they are: at least 16 years of age, are not prohibited by court order, are available, and are willing to assume this responsibility. A person from the above hierarchy may only act as the substitute decision maker with regard to treatment, if there is not a person who also meets these requirements who ranks higher within the hierarchy.
Sections 20(5) and 20(6) of the HCCA sets out that if no one in the above list meets the requirements to make treatment decisions, or, if there are two equally ranking parties who both meet requirements but disagree on the treatment decision, the decision will devolve to the Public Guardian and Trustee (“PGT”).
As is clear by the placement within the above hierarchy, the act of granting a power of attorney for personal care (“POAPC”) holds great weight when it comes to determining substitute decision makers with regard to treatment decisions. However, the significance of the act of revoking a POAPC in relation to the legislative hierarchy is less clear.
For example, it is quite common for a person to grant a POAPC to their spouse or child, however, in revoking the POAPC, the spouse or child could still remain the legal substitute decision maker under the section 20 hierarchy, should there be no other higher ranking individual willing and able to make treatment decisions, and if the grantor fails to execute a new POAPC.
I have located two decisions of the Consent and Capacity Board (the “Board”), which suggests that in such circumstances, the Board will pull language from other sections of the HCCA to circumvent the hierarchy provided under section 20, where it is clear to do so would be in the incapable person’s best interests.
In A(I) Re, Mrs. I.A. had previously appointed her two children as her attorneys for care. However, this POAPC was later revoked, with Mrs. I.A. informing her lawyer she feared her two children would be unable to reach agreements on important health care decisions. Two distant relatives were instead appointed pursuant to a new POAPC. However, when Mrs. I.A. lost capacity, and a treatment decision needed to be made, the distant relatives felt they were not best suited to make such a decision.
Both children applied to act as Mrs. I.A.’s representative under s. 33 of the HCCA. In coming to its decision the Board accepted that Mrs. I.A.’s overt act of revoking the POAPC that appointed her children was a prior expressed relevant value and belief, however, this did not impact the fact that both children still qualified as decision makers under the section 20 hierarchy. The Board ultimately determined that it was not in Mrs. I.A.’s best interests to have her children act as decision makers, and concluded they could not agree, such that the decision devolved to the PGT.
In D(D) Re, this issue again arose, where the incapable person, D.D. (prior to becoming incapable) granted a POAPC to her husband, later revoking the POAPC when she believed that her husband would not act in her best interests. Because a new POAPC was never executed, the husband remained the legal decision maker under section 20. D.D.’s daughter, J.R., brought an application to the Board to act as her representative. In coming to its conclusion, the Board noted that it was clear that D.D. had not understood that by revoking the POAPC, her husband would remain the decision maker under the HCCA hierarchy, and that it was equally clear her intention had been to remove her husband as the legal decision maker. Therefore, to circumvent the hierarchy, the Board turned to a best interests analysis and ultimately appointed D.D.’s daughter as her decision maker.
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For a related discussion on consent to treatment and the HCCA, click here.
In its recent decision, Baran v Cranston, the Divisional Court provides a helpful summary of the principles applied by the court when determining if the appointment of an Estate Trustee During Litigation (“ETDL”) is appropriate.
As a starting point, the court outlines the Superior Court of Justice’s statutory authority to appoint an ETDL. Section 28 of the Estates Act provides that an ETDL may be appointed “pending an action touching the validity of the will of a deceased person, or for obtaining, recalling or revoking any probate or grant of administration…” Additionally, Rule 75.06(3)(f) of the Rules of Civil Procedure expressly authorizes the court to appoint an ETDL on an application or motion for directions.
The court then looked to the jurisprudence for further support that an ETDL may be appointed even where the validity of a will is not in issue. In McColl v McColl, an ETDL was appointed, notwithstanding the fact that the validity of the will was not in issue. In McColl, the court ultimately appointed an ETDL “based on the conflict and the trustee’s lack of experience in managing a business.”
In Mayer v Rubin, the court set out that the appointment of an ETDL may be required (even where the validity of the will is not in issue) where the parties’ duties as fiduciaries are inconsistent with their ongoing litigation interests. The appointment of an ETDL will also be necessary where there is a trustee who is in an adversarial position towards a co-trustee or beneficiary, and who therefore, should not be left in charge of trust property.
After having reviewed the relevant statutory provisions and jurisprudence, the Divisional Court went on to note some of the factors that will be considered by the court in determining whether or not it should exercise its discretion to appoint an ETDL:
- whether a trustee may be a witness in the litigation;
- potential for conflict of interest;
- conflict between the interests of the trustees and/or beneficiaries;
- hostility between the trustees and/or beneficiaries;
- lack of communication between the parties; and
- evidence of settlement discussions that exclude some of the parties.
The Divisional Court also approved the lower court’s summary of the legal principles factored into its decision to appoint an ETDL, which included, among others:
- the court has broad and inherent powers to supervise the management of estates, and can draw upon its inherent jurisdiction (where appropriate) to protect parties so that justice can be done in the proceeding;
- the court must ensure that there is a level playing field between the parties, and the assets of the estate must be immunized from the tactics employed by litigating parties; and
- the appointment of an ETDL is not an extraordinary measure and the court should refuse the appointment only in the clearest of cases. The appointment of an ETDL will be “favoured by the court in the majority of cases of conflict between the trustee and beneficiaries unless the administration of the estate is particularly simple or straightforward.”
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Medical Assistance in Dying: Breaking down Bill C-7 and the Federal Government’s Proposed Amendments
At the end of January, my colleague, Nick Esterbauer, posted a blog series on recent developments in medical assistance in dying (MAID), with a particular focus on the September, 2019 decision of the Quebec Superior Court of Justice.
In Truchon c Procuruer général du Canada, the court declared sections of the federal and Quebec laws on medically-assisted dying, unconstitutional. The court took specific concern with the Criminal Code requirement that a natural death be “reasonably foreseeable” in order to be eligible for assisted death.
As discussed in Nick’s previous blog, rather than appeal the decision, the federal government announced that it would be proposing legislative amendments.
Those proposals were introduced by way of Bill C-7 to the House of Commons on February 24, 2020. In order to provide for assisted deaths where a natural death is not “reasonably foreseeable,” the Bill proposes the following changes and framework:
- two independent practitioners must confirm that all eligibility criteria is met, and, one of the two practitioners must have expertise in the condition causing the patient’s suffering;
- the person must be informed of, and offered consultations on all counselling, mental health, and disability supports, including community services and palliative care available to them; and
- the two practitioners must agree that the person requesting MAID has “appropriately considered” their options.
The Bill also proposes the following changes:
- The written request (whether the death is reasonably foreseeable or not), need be witnessed by one, rather than two people, which would now (if the Bill is passed) include those directly involved in providing health care services or personal care to the person making the request (except for those health care workers who will be providing the medical assistance in dying to the person, or who have provided an opinion regarding the eligibility criteria);
- The reflection period, previously 10-days in length, will be removed in relation to cases where death is reasonably foreseeable. Where natural death is not reasonably foreseeable, the Bill proposes a 90-day period of assessment (which can be shortened if the person’s loss of capacity is deemed imminent);
- In cases where death is reasonably foreseeable, patients would be able to waive the requirement to consent immediately before the procedure, if consent is given in advance, the procedure has been scheduled, and the person is informed that they may not be able to provide consent at the time of the procedure. In cases where death is not reasonably foreseeable, those patients will still need to confirm consent in order to receive the procedure;
- The Bill also seeks to clarify the information pharmacists (and pharmacist technicians) have to provide when dispensing a substance for an assisted death, as well as to expand the data collected by medical practitioners, those responsible for preliminary assessments regarding the patients eligibility, and pharmacists/technicians.
Parliamentary review of the Bill is scheduled to occur in June of this year. More information on medical assistance in dying can be found on the Government of Canada’s webpage here. For a discussion on the possible impact MAID may have on a will challenge, click here.
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Other blogs that may be of interest:
Recently, Marketplace has released the results of an investigation into seniors’ homes using trespass orders to ban family members from visiting. The investigation reviewed over a dozen cases across Canada where family members believe they were banned from visiting their loved ones by retirement homes and long-term care homes as a method of silencing them from advocating on behalf of their loved ones.
In Ontario, one’s entry to a premises can be prohibited through the issuance of a notice under the Trespass to Property Act.
Marketplace spoke with counsel at the Advocacy Centre for the Elderly (“ACE”) in Toronto, who explained that with regard to retirement homes in Ontario, case law has established that residents who pay to live on the property have a right to receive visitors they choose, without interference.
With regard to long-term care, the Long-Term Care Homes Act (the “Act”) provides residents with statutory protection, setting out that “[e]very resident has the right to communicate in confidence, receive visitors of his or her choice and consult in private with any person without interference.” This particular protection can be located at section 3(14) of the Act, which forms part of the Residents’ Bill of Rights (the “Bill of Rights”). The Act also provides for a reporting and complaints procedure set out from sections 21 to 28.
The Bill of Rights statutorily mandates licensed care homes under the Act (“licensees”) to fulfill certain duties and obligations to their residents, including unhindered visitation and communication with family members and friends, the right to be protected from abuse, the right to exercise the rights of a citizen, and the right to be treated with courtesy, respect and in a manner that fully recognizes the residents’ individuality and respects their dignity.
Importantly, section 3(3) of the Act sets out that a resident may enforce the Bill of Rights against the long-term care home “as though the resident and the licensee had entered into a contract under which the licensee had agreed to fully respect and promote all of the rights set out in the Residents’ Bill of Rights.” While I have been unable to locate a reported decision where a resident (or a litigation guardian of a resident) has attempted to enforce the Bill of Rights vis-a-vis section 3(3), arguably, a resident pursuing such enforcement would have access to relief available in any other breach of contract case, including the specific performance of the contract and monetary damages.
In response to the Marketplace investigation, Ontario MPPs have called for a full investigation into the use of trespass orders against visitors and family members in retirement homes.
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Pursuant to the 2018 Federal Budget, there will be new trust reporting requirements coming into effect for taxation years ending after December 31, 2021.
Prior to the implementation of the forthcoming changes, a Trustee would only have to file a T3 trust return if the trust generated income or distributions were made to beneficiaries during the year.
In addition to this expanded filing requirement, certain parties to the trust (such as trustees, beneficiaries and settlors) will soon be required to provide personal identification information including: names, addresses, dates of birth, social insurance numbers (or in the case of a business, a business number), as well as their jurisdiction of residence.
These requirements will apply to express trusts resident in Canada. The new proposed provisions of the Income Tax Act (the “ITA”) would extend the application of these new requirements to include express trusts that are deemed to be resident in Canada pursuant to section 94 of the ITA.
Express trusts can be loosely defined as those created “on purpose,” that is, the trust is set in express terms, usually in writing, and can be distinguished from trusts that are implied by conduct.
There are exceptions to the application of these changes, including, among others:
- Trusts that have been in existence for less than three months at the end of the tax year;
- Employee life and health trusts;
- Graduated rate estates;
- A lawyer’s general trust account (but not specific client accounts);
- Qualified disability trusts; and
- Trusts that are governed by registered plans such as RRSPs and RRIFs.
Trustees managing trusts that do not fall within one of the enumerated exceptions, may be reluctant to make the disclosure required by these changes, especially where there is a preference to keep personal matters related to the trust private. In such cases, the changes may encourage Trustees to take early steps to wind-up trusts.
Anyone who is subject to the new reporting requirements who fails to file a T3 trust return can be subjected to a penalty in an amount equal to the greater of $2,500 and 5% of the highest fair market value of the assets of the trusts in the year.
Given the risk of potentially significant penalties, estate practitioners should be careful to remind clients who are acting as Trustees that tax advice needs to be obtained, regardless of whether trust assets are generating income.
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In the recent decision of Rabba v Rabba, 2019 ONSC 5205, the Honourable Justice Dietrich provides a helpful reminder and summary of the tests applied and the relevant factors considered by the court in determining whether or not a temporary stay or a consolidation of proceedings is appropriate.
Pursuant to rule 6.01(1) of the Rules of Civil Procedure, where two or more proceedings are pending in the court and it appears to the court that,
- they have a question of law or fact in common,
- the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences, or
- for any other reason an order ought to be made.
Additionally, the court may order that,
- the proceedings be consolidated, or heard at the same time or one immediately after the other, or
- any of the proceedings may be stayed until after the determination of any other of them, or asserted by way of counterclaim in any other of them.
In addition to the parameters provided for in rule 6.01, there are overriding policy considerations aimed at:
- avoiding the multiplicity of proceedings,
- promoting the expeditious and inexpensive determination of disputes, and
- avoiding inconsistent judicial findings.
Justice Dietrich then went on to highlight the factors considered by the court in determining whether to matters should be heard together, or one immediately after the other, as set out in Marchant (Litigation Guardian of) v RBC Dominion Securities, 2013 ONSC 2042:
- will the order sought create a savings in pretrial procedure?
- will the number of trial days be reduced?
- will a party be seriously inconvenienced by being required to attend a trial where they only have a marginal interest?
- will costs of experts’ time and witness fees be reduced?
- is one matter at a more advanced stage of litigation than the other?
- will the order result in delay in one of the actions?
- are any of the actions proceeding in a different fashion?
In considering whether a temporary stay is appropriate, Justice Dietrich outlined the principles set out in Hathro Management Property v Adler, 2018 ONSC 1560, including, among others:
- differences in the substantive scope and remedial jurisdiction of the two courts;
- the comparative progress of the two proceedings,
- whether the proceedings will proceed sequentially or in tandem,
- the ability of the defendant to respond to both matters, apart from just the financial burden or inconvenience of having to do so,
- the possibility for inconsistent results, and
- the potential for double recovery.
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Under the Substitute Decisions Act, 1992 (“SDA”), if a person is eighteen years of age or more, there is a presumption of capacity. However, pursuant to section 2(4) of the SDA, if a gift, or contract is made by a person either while the person’s property is under guardianship, or within one year before the guardianship is established, the onus shifts to the other person to prove that they did not have reasonable grounds to believe the person incapable.
In the recent decision of the Ontario Superior Court of Justice (Divisional Court), Foisey v Green, the Court provides clarification on the correct test to be applied under section 2(4).
In Foisey v Green, Ms. Foisey and Ms. Green were the co-beneficiaries of their brother’s estate, who had died intestate. Ms. Foisey and Ms. Green had been estranged for many years, however, through the use of a private investigator, Ms. Green was able to locate her sister at a retirement residence in Ontario. Ms. Green then met with her sister and arranged for legal representation. Ms. Foisey ultimately renounced her right to act as estate trustee of her brother’s estate and when the time came to distribute the assets of the estate, Ms. Foisey provided Ms. Green with a release.
Shortly after having provided the release, Ms. Foisey was found to be incapable of managing her own property, and the Public Guardian and Trustee (“PGT”) was appointed as her guardian of property. The PGT became concerned that Ms. Foisey had received significantly less than what was supposed to be a 50% share in the estate. The PGT made repeated inquiries for more information from Ms. Green and her counsel, but received little to no response. In result, the PGT brought an application seeking to compel Ms. Green to pass her accounts.
In applying section 2(4) of the SDA, the application judge concluded that because of the existence of red flags, Ms. Green had not satisfied that she did not have reasonable grounds to believe Ms. Foisey was incapable when she signed the release. The red flags identified by the application judge included the fact that Ms. Foisey had a long-standing mental illness, that Ms. Foisey lived in a retirement residence, that Ms. Foisey was part of a trusteeship program and that Ms. Green and her lawyer had failed to provide the PGT with any information to satisfy their concerns. For these reasons, the application judge ordered Ms. Foisey to pass her accounts.
On appeal, the Divisional Court held that the “red flags” test applied by the application judge was the incorrect test to apply, because in doing so, the judge failed to consider the extent to which each red flag was known by Ms. Green, and whether Ms. Green had reasonable grounds to believe that Ms. Foisey was incapable of providing the release.
The Divisional Court examined the meaning of “reasonable grounds to believe” looking to jurisprudence and dictionary definitions, concluding that it means a reasonable probability, or that there be an objective basis for the belief which is based on compelling and credible information.
The Divisional Court went on to hold that when assessing whether a person has capacity to enter into a contract, at the time of entering into the contract, they must understand the information relevant to deciding whether or not to enter into the contract. If they can do this, you must further ask if the person can appreciate the reasonably foreseeable consequences of entering into the contract.
After laying out the framework of section 2(4), the Divisional Court went on to consider the red flags identified by the application judge, holding that:
- there was no evidence to suggest Ms. Green knew of her sister’s mental illness,
- no one from the retirement residence suggested that Ms. Foisey was incapable,
- Green had spoken with the case manager of the trusteeship program and had not been told that Ms. Foisey had severe mental health difficulties,
- There was evidence from Ms. Green’s lawyer that Ms. Foisey had legal representation, and appeared to be lucid and understood the release that was properly explained to her by counsel. The Court further acknowledged that a person who suffers from a cognitive impairment is competent with respect to a specific act as long as the act in question takes pace during a lucid interval.
On balance, the Divisional Court concluded that the application judge erred in pointing to “red flags” without addressing what was actually known by Ms. Green, and whether or not that knowledge would lead to reasonable grounds to believe that Ms. Foisey lacked capacity to enter into the release. The Court noted that the most alarming of red flags was the failure of Ms. Green and her lawyer to provide the PGT with information to address his concerns. However, the Court found that the lack of cooperation of Ms. Green and her counsel was not relevant to whether or not Ms. Green had reasonable grounds to believe Ms. Foisey incapable, and, it occurred many months after the execution of the release.
In reaching this conclusion, the Court noted that there is nothing inherently unusual or sinister about an estate trustee requesting a release from a beneficiary – such releases have been commonly used by estate trustees for decades.
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A common question encountered by estate practitioners is what happens if an estate trustee dies before completing the administration of an estate. In today’s blog, instead of focusing on the devolution of executorship, I look at procedural steps that can be taken to confirm the authority of surviving estate trustees, where one of multiple appointed estate trustees dies, during the administration of the estate.
In such an instance, the surviving estate trustees may experience difficulty in completing the administration of the estate, if third-party institutions require the consent and approval of each jointly appointed estate trustee listed in the Certificate of Appointment of Estate Trustee with a Will.
If this occurs, there is a fairly straightforward procedure for “confirming” the authority of the surviving estate trustees. This process is governed by Rule 74.14.2 of the Rules of Civil Procedure. This rule applies if:
- there has been a change of estate trustees as a result of: (a) a devolution of executorship on the death of an estate trustee with a will, (b) the death of an estate trustee, if one or more surviving estate trustees continue to be authorized to act, (c) a court order, or
- there has been no change of estate trustees.
The Rules set out that the confirmation of the status of a person as an estate trustee may be obtained by making a written request to the registrar of the court that issued the applicable certificate of appointment for a court status certificate providing confirmation.
In the example provided above, where the request for the status certificate results from the death of another estate trustee appointed by the same certificate of appointment, the request must be accompanied by an affidavit confirming the death of the estate trustee and the circumstances under which the surviving estate trustee(s) continues to be authorized to act, including proof of death of the deceased estate trustee.
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It is not uncommon for people to find themselves in situations where they are facing a long legal battle, while simultaneously lacking funds to see them through to the finish line. In some instances, people may even seek out assistance from third parties.
Third-party litigation funding is a relatively recent and growing phenomenon in Canada. Canadian jurisprudence has recognized that the third-party litigation funding model can have a positive effect on access to justice. However, the model has raised concerns regarding strangers, involving themselves in the litigation of others’, improperly “stirring up strife.”
Historically, the common law has curtailed these concerns through the doctrines of champerty and maintenance. In McIntyre Estate v Ontario, the Ontario Court of Appeal has defined “maintenance” as being directed against those who, for an improper motive, become involved with the disputes of others, in which the maintainer has no interest whatsoever. Champerty is an egregious form of maintenance which carries with it the added element that the maintainer shares in the profits of the litigation.
Champerty is no longer a crime, and its strictures have been substantially loosened over time, recognizing that a bona fide business arrangement that did not “stir up” litigation was not necessarily champertous. In other words, the courts have recognized that a commercial motive is not necessarily an improper motive (see Buday v. Locator of Missing Heirs Inc.).
In Houle v St. Jude Medical Inc. the court summarized the current state of the law of champerty. Some of the main points are highlighted below:
- the elements of a claim of champerty are: (1) the defendant for an improper motive (officious intermeddling) provides assistance to a litigant in a lawsuit against the plaintiff; (2) the defendant has no personal interest in the lawsuit; (3) the defendant’s assistance to one of the litigants is without justification or excuse; and (4) the defendant shares in the spoils of the litigation;
- the law has evolved such that supporting another’s litigation is not categorically illegal, and thus, contingency fees and third-party funding of litigation has become a possibility;
- to approve a third-party funding agreement, the court must be satisfied that:
- (a) the agreement is necessary in order to provide access to justice;
- (b) the access to justice facilitated by the agreement must be substantively meaningful;
- (c) the agreement must be fair and reasonable;
- (d) the funder must not be overcompensated for assuming the risks of an adverse costs aware; and
- (e) the agreement must not interfere with the lawyer-client relationship.
In McIntyre Estate, the court held that it is the motive of the third party funder that is among the most relevant factors in determining whether maintenance is made out – if the motive is genuine and arises out of concern for the litigant’s rights, it is not maintenance.
In Houle, the court recognized that while the law no longer automatically treats third-party litigation funding agreements as unlawful, it does not follow -– in the class action industry – that a third-party funding agreement is necessary or appropriate in all cases. Instead, the court predicts that the common law in this area will continue to evolve incrementally, as each case comes forward.
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