As many are aware, the Superior Court of Justice has essentially shut down operations, subject to certain narrow exceptions, in light of COVID-19.
On May 13, 2020, a Consolidated Notice to the Profession, Litigants, Accused Persons, Public and Media was published regarding “Expanded Operations of Ontario Superior Court of Justice, effective May 19, 2020”. The Notice can be read in its entirety here. Below, I discuss some of the highlights relevant to the estates list.
- The Notice specifically denotes that the Superior Court of Justice has not closed and that it continues to expand its operations virtually – in writing, or by telephone or video conference hearings. It is further highlighted, that during the suspension of regular in-court operations, lawyers and parties are expected to actively move cases forward.
- Although the requirement to gown for a Superior Court of Justice appearance is suspended, parties participating in video conferences are expected to dress in appropriate business attire and should have an appropriate technical set-up and observe etiquette appropriate to the nature of remote hearings. In fact, some guidance from the Superior Court of Justice on the issue of technical set-up can be found here.
- On the issue of filings, the Notice indicates that factums should be hyperlinked to relevant cases (instead of filing a Brief of Authorities) and there is a very specific format of the email that is to be sent to the Court to request dates or file materials. Importantly, the size of emails has been expanded to 35MB, however, it is also noted to limit filed materials to only those necessary for the hearing (in addition to the restrictions related to the length of material, already in place).
- Although materials are being filed electronically, given the pandemic and the need to isolate, the Superior Court of Justice expects that all materials filed electronically be later filed in hard copy with the Court and the requisite filing fee be paid. That means, that it is important to keep track of all materials filed electronically, as there is a positive obligation to deliver hard copies and payment for the filing, at a later time.
- Service via email is permitted such that it is not necessary to obtain consent or a court order to serve a document by email where email service is permitted.
- Whereas, urgent matters continue being heard (subject to the Superior Court of Justice’s discretion to decline to schedule for immediate hearing any particular matter listed in the Notice), the following Toronto Commercial and Estate List matters are being heard (the Notice to Profession – Toronto, can be found here):
- Select motions;
- Select applications;
- Case management conferences;
- Pre-trial conferences; and
- Judicial settlement conferences.
Reviewing this Notice shows that court services are expanding. Certainly, one positive effect of the pandemic has been the overall embrace of various technologies by the Superior Court of Justice, that had not been in place before.
Here is to hoping that the restrictions associated with COVID-19 are soon lifted and the pandemic blows over. At the same time, I am certainly excited to see whether we will see a significant change in court operations moving forward, as a result of this involuntary technological leap forward.
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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.
My last blog discussed recent steps taken by the legislature to modernize the administrative side of the practice of law in Ontario. The practical side has also seen a number of developments that have emerged as a direct result of the ongoing pandemic. Some of these efforts have been spearheaded by the courts directly, while others, such as the Estate Arbitration and Litigation Management initiative, have been developed by members of the Bar an in effort to continue moving matters towards a resolution despite limited court access.
A recent decision of the Superior Court of Justice provides some important commentary on the judiciary’s expectations of parties and counsel to adapt to the current reality using these tools and others so that files can continue to progress.
In Arconti v Smith, Justice Myers grappled with the competing views of the parties as to whether an examination for discovery ought to proceed by way of a videoconference. The defendant, who was to submit to examination, proposed that the examination proceed by way of videoconference given the social distancing guidelines in place.
The plaintiff objected on several grounds. Among other objections, the plaintiff argued that the defendant and their counsel ought to be in each other’s presence to ensure the process proceeded smoothly. Alternatively, the plaintiff argued that the fact of conducting an examination remotely would “[deprive] the occasion of solemnity” and would otherwise make it more difficult to assess the defendant’s demeanour as a witness. The plaintiff argued that the examination ought to be deferred until social distancing guidelines were lifted.
Justice Myers’ initial response to the plaintiff’s position was simple, yet persuasive: “It’s 2020.” He held that the parties have technological tools at their disposal to conduct examinations and other litigation steps remotely, and that the use of such tools was especially salient in the context of the social distancing guidelines. Although Justice Myers advised that the concerns raised by the plaintiff might be relevant in different circumstances, they were not at issue there.
Ultimately, Justice Myers held that the use of readily available technology should be part of the skillset required both of litigators and the courts, and that the need to use such tools was merely amplified, not created, by the pandemic. The plaintiff was ordered either to conduct the examination of the defendant by videoconference, or to waive their entitlement to conduct the examination altogether.
This decision provides a glimpse into the court’s expectations of litigants and counsel to move matters forward in spite of the social distancing guidelines and court closures. While the current directives and legislation cannot be used to compel a party to perform a particular litigation step by audiovisual means, one may read Arconti as suggesting that the courts will nonetheless expect the parties to consider the entirety of their skillset to move matters along so that they do not languish in litigation purgatory as a result of social distancing guidelines.
Once social distancing guidelines have been lifted, it will likely be some time before the courts have dealt with the matters that were adjourned between March and June and are in a position to hear new matters. Parties who are willing to use the tools at their disposal to move matters forward and avoid contributing to this delay may find themselves commended by the judiciary. Those who are resistant to adapt, on the other hand, may expose themselves to commentary from a judge, or possibly cost consequences for their client, depending on the circumstances.
If you are interested in learning more about litigation procedure and estate planning best practices in the time of COVID-19, please consult our information guide.
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Amidst this terrible COVID-19 pandemic, as with past crises and other contentious affairs, we see the steady emergence of dichotomies in the policy debate – public health versus the economy, liberty versus protection, individual versus group interests … In some cases, however, we see disputes arise wherein two sides share the same source of inspiration but disagree upon how best to do justice to their ostensibly common cause. Many of history’s religious wars demonstrate this phenomenon – two factions purportedly fighting for the same god, but interpreting the god rather differently. In the context of estates law, this phenomenon is discernible in the commentary surrounding statutory wills in Canada: proponents of statutory wills want to incorporate them in our law out of concern for incapable people’s equality rights, while critics of statutory wills oppose their introduction out of concern for incapable people’s equality rights.
A statutory will, in essence, allows for a judge to execute, revoke or amend a testamentary instrument on behalf of an incapable person. They are often praised for their tax advantages, as they may include testamentary trusts and other tax-avoiding instruments (avoid not evade, an important distinction for the C.R.A.) that are not available to incapable people if their estates devolve under intestacies. The drafter of a statutory will may also arrange a statutory will in a manner that will tend to preserve the affection of an incapable person’s relatives – no spurned children or blindsided spouses, in other words.
There is more controversy with respect to whether statutory wills should be used to “protect”. In one prominent English case, Re Davey,  3 AII E.R. 342, a 92-year-old incapable woman, who was residing in a nursing home, married one the nursing home’s employees, a man 45 years her junior. The woman’s relatives, alarmed at the prospect of the man gaining everything on an intestacy, applied to the court for a statutory will, and won.
Critics of statutory wills observe that since courts cannot interfere with the testamentary freedom of the capable, they should not have the power to commandeer and transform the estate plans of the incapable. Perhaps, as well, skeptics are wary of variable outcomes (i.e. how judges will devise statutory wills), which may flow from what they may perceive as an excess of judicial discretion – unlike an intestacy, the terms of which are definite and predictable; a similar debate is often had with respect to minimum sentences in criminal law, which boils down to, as with statutory wills, how one balances trust for legislators with trust for judicial discretion, to achieve the best results.
In Canada, only New Brunswick has a statutory will. Section 11.1 of the New Brunswick Infirm Persons Act emphasises that courts must act in concert with what incapable people would want, if competent to make a will themselves. In somewhat of a legal bombshell, however, the Manitoba Law Reform Commission has favoured the adoption of a statutory will in Manitoba’s Wills Act.
Thank you for reading … have a wonderful Wednesday!
Suzana Popovic-Montag & Devin McMurtry
As Ontario begins to witness a glimmer of relief from the ongoing COVID-19 pandemic, one cannot help but notice how the outbreak has forced the hand of many industries towards modernization, and law is no exception. Our firm has blogged extensively over the past two months on the multitude of changes to estate planning practices, litigation, and the practice of law in the province, more generally, the implementation of which is directly attributable to the new business reality. Wills may be executed in identical counterparts, rather than as a single a document, by way of audiovisual communication. Motions and other court hearings are being conducted virtually, and materials to be filed in respect of those hearings can be filed with the court registrar electronically.
Most recently, Bill 190, the COVID-19 Response and Reforms to Modernize Ontario Act, 2020, received royal assent on May 12, 2020 and implements modest, but impactful, changes to numerous statutes. These changes continue the trend of modernizing the practice of law to match the business realities of the circumstances by, for example, specifically authorizing or validating the electronic signature of certain documents, providing mechanisms for the filing of such documents, if need be, by electronic means, or generally allowing for certain practice components to proceed in a virtual capacity. The legislative goals of Bill 190 fit with the province’s broader mandate, in the words of the attorney general, to have “modernize[d] the justice system 25 years in 25 days.”
The Bill also includes a formal amendment to the Commissioners for Taking Affidavits Act to authorize a commissioner of oaths to administer an oath or declaration, generally in the form of an affidavit, without being in the physical presence of the deponent, provided the commissioner can “satisfy himself or herself of the genuineness of the signature.” In other words, this amendment authorizes a commissioner to administer an oath or commission an affidavit by audiovisual means provided the signature, and the act of signing, are made visible to the commissioner.
This amendment reflects an interpretive directive issued by the Law Society of Ontario in March. The prior version of this statute required both commissioner and deponent to be in the presence of one another for the oath to be validly administered. Though physical presence was not a strict requirement under the prior version, it was considered to be an element of best practice. In light of the recent restrictions in having a commissioner and a deponent meet together for the purposes of commissioning an oath, the Law Society issued this directive to ensure that the requirement could be satisfied in the absence of physical presence, thus authorizing the commissioning of oaths to proceed virtually. The amendments to this act set out in Bill 190 simply serve as a more permanent statutory codification of the directive issued by the Law Society.
Please feel free to review our other blogs dealing with the practice of law in a post COVID-19 reality:
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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).
A wave of changes in how wills can be signed is sweeping over the legal profession with the force of a tsunami in the last month. While there is still momentum for change, why not include other areas of estate law like an online mechanism to search for unclaimed estate assets. Now is the time to do it.
In the United Kingdom the government posts a weekly list of estates with unclaimed property in those cases where the responsible local authorities were unable to find the legal heirs of estates. It is known as the “Bono Vacantia “ list, and it also provides instructions on making claims where someone has died and not left a will, or where family could not be located.
This publicly available list works well and is similar to the Bank of Canada’s online list of bank accounts with unclaimed balances that can be found here.
In Ontario, there is no publicly available system in place for unclaimed property, or for provincially regulated financial institutions like credit unions, or for estates with unknown heirs. There have been attempts in the past, but, legislation was never put into force. Other provinces, like British Columbia, do have systems in place. In Ontario, if the Office of Public Guardian and Trustee does not locate the beneficiaries of an estate then the money will remain unclaimed. There is no way for a beneficiary to search online for inheritance assets that they might be legally entitled to receive.
The current wave of changes in estate law forced by the pandemic also creates opportunities for further changes – why not do it now?
For more information on unclaimed assets please see:
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We have previously written about the Estate Arbitration and Litigation Management (“EALM”) initiative, which has been spearheaded in an effort to keep estate litigation matters moving forward during the COVID-19 pandemic. Our previous blogs on the EALM initiative can be found here and here.
In its Notice to the Profession dated May 5, 2020, the Ontario Superior Court of Justice announced that it will not resume in-person hearings until July 6, 2020, at the earliest. The notice further states that the scope of matters being heard by courts virtually will be expanded in the near future, but the particulars regarding such an expansion have not yet been released.
While access to the courts remains limited, EALM is available as a means of obtaining assistance in the determination of procedural and/or interim (and certain substantive) matters that are not necessarily urgent in nature and not currently eligible for a virtual court hearing. The matters set out in an EALM agreement can be arbitrated by senior estates practitioners in a timely and cost-efficient manner. EALM arbitrations can take place via teleconference or video conference, depending on the preferences of the parties and the arbitrator.
As previously indicated, EALM is not intended to in any way circumvent the role of the Office of the Public Guardian and Trustee (the “PGT”) or the Office of the Children’s Lawyer (the “OCL”) where the estate matter involves unprotected charitable interests or the rights of persons under legal disability. Since our last blog post regarding EALM was posted, the initiative has received the support of the PGT and the OCL and our precedent EALM agreement has been further updated to recognize the potential role that the PGT and/or the OCL may have in EALM process. Best EALM practices include ensuring that the PGT and/or the OCL are provided with the opportunity to participate, and further include the following:
- Where any substantive issue to be submitted to arbitration affects the rights of persons under legal disability, or an unprotected charitable interest, the parties must provide notice of their intention to enter into an EALM agreement to the PGT and/or the OCL;
- The PGT and/or the OCL should be served at the early stages of a matter, particularly when the issues will have a significant effect upon the interests that they represent;
- Where the PGT and/or the OCL are participating in a proceeding, their consent to proceed to EALM is required;
- Where it is necessary for a court to appoint the PGT or the OCL as litigation guardian, each office may consider requests to engage in the EALM process after they have been appointed as litigation guardian (rather than prior to their formal appointment); and
- An arbitrator’s decision to resolve substantive issues involving the rights of persons under legal disability will be considered to be a final settlement, which requires court approval under Rule 7.08 of the Rules of Civil Procedure.
A revised copy of our precedent EALM agreement, which has been updated in consultation with the PGT and the OCL in consideration of the comments set out above, can be found here. An updated list of senior estates practitioners who are prepared to assist as EALM arbitrators is available here. I again thank all of those who have demonstrated an interest in assisting other members of the Estates Bar as arbitrators.
EALM is a cost-effective measure to move matters forward and provides the parties to litigation with more control than the traditional court process. Once the courts resume full operations, we can only anticipate that they will be at full capacity and hearing dates will be in high demand. In light of this, we are hopeful that EALM will continue to assist parties to estate litigation and their counsel as a suitable and efficient alternative to in-court hearings.
If you are interested in introducing EALM into your own practice, or if you are interested in being added to our roster of EALM arbitrators, please contact me at firstname.lastname@example.org.
Thank you for reading and stay safe.
A recent decision out of Alberta on holograph wills is interesting. The Alberta Court of Queen’s Bench decision released on February 20, 2020 in Edmonton in the Estate of Dalla Lana, 2020 ABQB 135 starts with the following :
“Mr. Dalla Lana made a will in 1997. On March 1, 2018 (four days before he died) and via notes made on two sticky notes, he made what he described as “changes to my earlier will”. The “changes” if valid, effectively rewrote the entire will.”
The decision then goes on to find that the “two sticky notes” were a valid will. This was one more decision in a long line of cases (in substantial compliance jurisdictions, unlike Ontario) with wills being upheld when written on everything from napkins to tractor fenders.
If a valid will can be done on a sticky note, one should ask is there any reason now why an electronic will could not be done on an iPad or smartphone?
Pandemic emergency Orders in Ontario have recently accepted wills being signed and witnessed by video conference or by counterpart. However, there is still a requirement for a “hard copy” of the will. A purely electronic will with a digital signature is still not permissible.
Some jurisdictions have already allowed electronic wills into probate. In Australia, the High Court of Queensland gave probate to a will in 2013 contained in the iPad of the deceased, in Yu Estate 2013 QSC 322.
Although digital electronic signatures have been allowed in Ontario for use in some business situations for many years, there are some restrictions on doing electronic will signatures which are found in the Electronic Commerce Act, 2000, SO 2000, c 17,
31 (1) This Act does not apply to the following documents:
- Wills and codicils.
- Trusts created by wills or codicils.
- Powers of attorney, to the extent that they are in respect of an individual’s financial affairs or personal care.
Given the emergency statutory provisions triggered by the pandemic, it seems inevitable that a meaningful debate will soon ensue about the merits of electronic wills and the broader question of whether Ontario should adopt substantial compliance in its estates legislation.
Thanks for reading.
Please enjoy these blogs on the subject:
Video conferencing has been around for about forty years. It has been used in criminal court bail hearings and on applications to the Supreme Court of Canada for more than thirty years in some parts of the country. There are many good reasons to now expand the use of video and other technology in the law of wills and estates. The technology “Genie” is now out of the legislative bottle it has been kept in for too long, and it is not likely to be put back in when this pandemic fully ends.
The changes made in the last month to how a will can be validly signed in Ontario have been made far more quickly than anyone expected. The substance of these changes has been dealt with in other Hull and Hull blogs. The Emergency Management and Civil Protection legislation in Ontario, and the Orders made pursuant to that legislation beginning on Tuesday March 17, 2020 have effectively amended past practice to such a degree that the usual caution of the legal profession has been surrendered. Wills can now be signed and witnessed over the internet. Counterpart signed wills are now allowed. Affidavits can be commissioned by video conference now. These and other changes have been made and implemented quickly, with effect to the core of basic principles. The legal profession in Ontario has not seen changes like this in the past one hundred years!
The changes are brought on by the circumstances of the current pandemic emergency and are necessary. It has been impressive to watch these changes being made so quickly. Immense credit is due to those involved. Led by the Attorney General of Ontario, Doug Downey, and with the Deputy Minister, lawyers at the Ministry, members of the Estate Bar, and others, they have all truly done monumental work. On Monday May 4, 2020 a notice was posted on the Ontario Court of Justice website that included the following statement that the Court would be, “…working closely with its justice partners, including the Ministry of the Attorney General, to adopt technology that will increase participants’ ability to access the Court’s services using remote means, such as by the electronic filing of court material, remote scheduling processes, and remote hearings.”
It is interesting to ask however, while changes were happening incrementally in other areas of the law over many years, why was there no progress in the area of execution of wills? It is important to also ask what further changes should be made at this time. For many lawyers the recent storm of events and the subsequent changes are anxiety making. Nevertheless, this is the time further permanent changes should be considered. What should be of interest now is how technology can be used to benefit all going forward. Before the timing of the window for change closes this should become an important discussion among estate lawyers.
Thank you for reading.
These blog posts on the subject may also be of interest: