Category: Public Policy
In Drummond v Cadillac Fairview, the Court of Appeal for Ontario considered the issue of the admissibility of hearsay evidence on a motion for summary judgment. The facts in Drummond are quite simple. The plaintiff tripped on a skateboard while shopping at the Fairview Mall in Toronto, owned by the defendant. The plaintiff brought an action for occupier’s liability, supported by an affidavit sworn by him. The defendant, Cadillac Fairview, responded by bringing a motion for summary judgment.
At the hearing of the motion, not only did the judge dismiss Cadillac Fairview’s motion for summary judgment, but it granted summary judgment in favour of the plaintiff (a remedy that the plaintiff was not seeking). Cadillac Fairview appealed and was successful at the Court of Appeal.
In granting the appeal, the Court identified serious concerns regarding the hearsay evidence relied on by the plaintiff in responding to Cadillac Fairview’s summary judgment motion. The plaintiff’s responding affidavit relied heavily on statements purportedly made by his fiancée and his daughter, and two unidentified staff members working at the mall. The trial judge agreed that these statements were hearsay but admitted them nonetheless under the business records exception to the hearsay rule and under Rule 20.02 of the Rules of Civil Procedure.
The Court of Appeal rejected the admission of the hearsay statements. While the Court agreed that Rule 20.02 permitted the admission of affidavit evidence “made on information and belief”, the Court also noted that the Rule permits a trier of fact to draw an adverse inference if a party with personal knowledge of contested facts does not give evidence.
The Court of Appeal found that the information relayed by the plaintiff from his fiancée and his daughter “went to the heart” of his claim. The plaintiff’s failure to have his fiancée or daughter swear their own affidavits with respect to the key facts at issue caused the Court to have considerable reservations about admitting their evidence. The Court of Appeal ultimately held that the finding of liability against Cadillac Fairview was based on an “erroneous admission of hearsay evidence on key, contested issues” and reversed the decision.
On motions for summary judgment, courts will expect the parties to put their best foot forward, including the nature and source of relevant evidence. As can be seen in this case, a party’s failure to do so can have serious consequences.
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Since the Supreme Court of Canada’s landmark decision in Carter v Canada (Attorney General) and the subsequent decriminalization of medical assistance in dying (“MAID”) in 2016, there has been considerable debate regarding the accessibility of MAID.
Currently, MAID is available only to individuals able to satisfy the following test (set out in the Criminal Code):
- they are eligible — or, but for any applicable minimum period of residence or waiting period, would be eligible — for health services funded by a government in Canada;
- they are at least 18 years of age and capable of making decisions with respect to their health;
- they have a grievous and irremediable medical condition;
- they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
- they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.
The criteria do not feature any mechanism for providing advance consent to MAID. Similarly, an attorney or guardian of personal care cannot consent on behalf of the patient at the time of the procedure, once he or she loses the capacity to consent him or herself.
As it currently stands, an individual who qualifies for MAID must consent at the time of the procedure, before he or she may suffer from diminished mental capacity that compromises the patient’s ability to provide informed consent. In some cases, this has resulted in individuals accessing MAID before they otherwise may have chosen to do so to ensure that they would not be exposed to prolonged suffering during a subsequent period of incapacity, during which MAID would not longer be accessible.
Some individuals and groups, including Dying with Dignity Canada, argue that the laws regarding MAID should be amended to provide for the option of providing advanced requests for MAID.
According to a recent Toronto Star article (“No rush to change assisted-death law”, published on February 17, 2019), Justice Minister David Lametti has stated that MAID laws will not be updated in advance of a five-year parliamentary review in 2021 of how the current MAID regime is operating. At that time, it will no doubt be difficult in considering any changes to balance the rights of those with grievous and irremediable medical conditions to die with dignity on one hand, and the protection of individuals who are vulnerable and whose capable wishes can no longer be confirmed on the other.
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Other blog entries that may be of interest:
On a recent trip to Rochester, New York, my fiancée and I had the pleasure of touring the George Eastman Museum and came across an interesting piece of estates lore.
George Eastman, the founder of Kodak and a pioneer of bringing photography to the mainstream, died leaving a Will drawn in 1925. As his wife had predeceased him and they had no children, Mr. Eastman devised all of his real property and left a substantial cash legacy to his closest family member, his niece, Ellen Dryden. Mr. Eastman’s estate held significant assets, and the value of liquid assets alone was estimated as exceeding the equivalent of USD$35 million today.
However, on March 9, 1932, only five days before his death, Mr. Eastman had a change of heart with respect to the distribution of his estate. Rather than leave the bulk of his estate to an individual, Mr. Eastman wished to ensure that his legacy would be one of service to the community that had fostered his photography empire. True to form as a philanthropist and benefactor of local enterprise, Mr. Eastman executed a Codicil to his Will, changing the primary beneficiary of his estate from his niece to the University of Rochester.
The testamentary dispositions under the Codicil represented a significant deviation from those under his Will. Typically, where a testator’s dispositions vary substantially from one instrument to another, concerns may arise with respect to the their testamentary capacity or the presence of undue influence.
A shrewd entrepreneur in his own right, Mr. Eastman recognized the risk that the Codicil might later be the subject of scrutiny or litigation. On the date the Codicil was to be executed, Mr. Eastman hosted a gathering at his residence and invited many guests and acquaintances. He devoted time to speaking to each individual guest about topical, personal subjects so that they could attest to Mr. Eastman’s soundness of mind in the event that a certain disgruntled niece chose to commence a Will challenge.
In a way, Mr. Eastman’s goal is not too dissimilar from some of the criteria that are relied on even today to assess a testator’s capacity. Third-party evidence that a testator appeared to be of sound mind immediately prior to the execution of a testamentary document may help a trier of fact draw a favourable conclusion with respect to capacity. While the formal criteria to assess capacity primarily consider a testator’s appreciation and understanding of his or her assets, Mr. Eastman’s clever scheme demonstrates that he turned his mind to questions about his own capacity and took steps to mitigate the risks.
Mr. Eastman’s Codicil was not later subject to any litigation, and the University of Rochester received a handsome distribution out of his estate.
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Is a notice of objection to accounts, filed by a responding party in the context of an Application to pass accounts by an estate trustee, a “claim” within the meaning of the Limitations Act, 2002?
The answer to this question could have significant consequences for individuals with a financial interest: the general two-year limitation period under the Limitations Act, 2002 may apply to a “claim,” and objections that fall outside the period may be statute-barred.
The Honourable Justice Mulligan of the Ontario Superior Court of Justice addressed this issue in Re Wall Estate, 2018 ONSC 1735.
A Recent History of Limitation Periods and Passing of Accounts
In Armitage v The Salvation Army, 2016 ONCA 871, the Court of Appeal held that a passing of accounts by an attorney for property under the Substitute Decisions Act was not subject to the general two-year limitation period under the Limitations Act, 2002.
Writing for a unanimous court, Justice Hourigan noted that there was historically no statutory limitation period for the passing of accounts. Justice Hourigan concluded that the enactment of the Limitations Act, 2002 did not establish a two-year limitation period for passing of accounts, because a passing did not fit the definition of a “claim” as defined by the Act. Given the Court’s conclusion, the equitable doctrine of laches and acquiescence were the only defences available.
However, in a footnote to the judgment, Justice Hourigan specifically noted that the judgment did not mean that the Act categorically has no applicability to passings. In particular, Justice Hourgan left open the possibility that the filing of a notice of objection in a passing of accounts is a “claim” within the meaning of the Act.
Wall Estate: Is An Objection A Claim?
In Re Wall Estate, the testator died in 2005. The Estate Trustee had annual meetings with the testator’s two children, who were the beneficiaries of testamentary trusts. However, the beneficiaries did not sign releases and the Estate Trustee did not pass his accounts.
The testator’s daughter subsequently compelled a passing of accounts from the Estate Trustee in 2014, and the Estate Trustee was removed in 2016. The testator’s daughter filed an objection to the Estate Trustee’s accounts in June 2015.
The Estate Trustee brought a motion to strike the objections to his accounts, and argued that he was not required to address objections to his accounts for the period prior to December 31, 2012 due to the Limitations Act, 2002, laches or acquiescence.
After discussing Justice Hourigan’s decision in Armitage, Justice Mulligan concluded that the notice of objection filed by the testator’s daughter was not statute-barred:
In my view, if the passing of accounts does not constitute a claim, I am not satisfied that a Notice of Objection is a claim. In filing a Notice of Objection, the beneficiary is seeking answers to questions about steps taken by the estate trustee during the currency of an administration of an estate. Answers to those questions may assist the beneficiary in consenting to the passing of accounts without the necessity of a formal hearing. An absence of consent will require a formal hearing. A formal hearing will assist the court in determining if the fees sought and investment steps taken are appropriate under all the circumstances.
The objections taken at their highest may result in a reduction or loss of compensation for the estate trustee or other remedies. In this case, if the objections are successful to any extent, no additional funds would be payable immediately to Elizabeth as beneficiary of the discretionary trust. The corpus of the estate would be enlarged, increasing the funds available for the discretionary trust, and ultimately, could increase the amount available to be paid to Elizabeth, but only if she survives to age 60. On the facts here, I am not satisfied that the Notice of Objection rises to the level of a “claim” as contemplated by the Limitations Act, 2002.
What’s On the Other Side of the Wall Decision?
Given that the question was left open in Armitage, it remains to be seen if Re Wall Estate or another case that raises this limitations defence will be appealed to a higher court.
In addition, Justice Mulligan noted that the objections did not rise to the level of a claim “on the facts here.” Thus, Re Wall Estate leaves open the possibility that the Court may reach the opposite conclusion after making a fact-specific enquiry.
In tomorrow’s blog post, I will discuss the issues of laches and acquiescence, which were also pleaded as defences in Re Wall Estate.
Thank you for reading,
Umair Abdul Qadir
Section 241.1 of the Criminal Code sets out a detailed procedure for determining when medical assistance in dying can be provided. However, the medical and legal communities are still grappling with the application of the provisions.
In A.B. v. Canada (Attorney General), 2017 ONSC 3759 (CanLII), two physicians concluded that AB met the criteria for a medically assisted death. A third doctor, however, did not, as he felt that AB did not meet the Criminal Code requirement that a natural death was reasonably foreseeable. Although only two medical opinions are required, the opinion of the third doctor had a chilling effect on one of the other physicians, who declined to provide assistance to AB for fear of being charged with murder.
AB then applied to court for a determination that she met the requirements of the Criminal Code, and a declaration that she may receive medical assistance in dying.
Justice Perell, who had previously considered the issue of assisted death in another proceeding, heard the application.
Ontario and Canada took the position that a declaration should not issue, as the regime established by the Criminal Code does not require judicial pre-authorization. Further, the civil courts should not issue a declaration as such a declaration would interfere with the prosecutorial discretion of the Crown by predetermining criminal liability.
Justice Perell agreed with the position of Ontario and Canada. However, he felt that their position was “as unhelpful as it is technically correct.” The practical effect of such a position was that AB qualified for medically assisted death, but no physician was prepared to assist.
In his decision, Perell J. thoroughly reviews the legislative history of medical assistance in dying. He agrees that it is the medical practitioner and not the court that is to decide whether the Criminal Code criteria are satisfied. He agrees that the court cannot make the decision for them.
However, Perell J. expresses that some form of declaration would be “useful” and have “utility”.
Perell J. walks a fine line in his decision. He accepts that the court is not to make declarations that the Criminal Code criteria for assisted death are met: that must be done by the medical practitioner or nurse practitioner: s. 241.2(3)(a). What Perell J. does, however, is attempt to clarify what is meant by s. 241.(2)(d): the provision that requires the person to meet the criteria that “their natural death has become reasonably foreseeable”. As a matter of statutory interpretation, he declares that in AB’s case, AB’s natural death is reasonably foreseeable.
Perell J. cautions that in making a declaration, he is not conferring immunity on the physicians from prosecution. He also states that he is not finding that courts could or should grant pre-approvals for persons seeking medical assistance in dying. It is unclear as to whether this will provide much comfort to medical practitioners.
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Canada’s population of seniors continues to rise and with that comes the concerns of attending to the unique needs of an ageing demographic. In 2016, Canadian census data showed that the number of seniors in Canada was slightly higher than that of children 14 and under. Canada, like the rest of the world, has been undergoing changes to account for the population changes that include a growing number of individuals struggling with dementia. Today, I’ll explore an innovative new project in British Columbia aimed at providing a safe yet independent living environment for seniors with dementia.
The Village is a new residence which will accommodate those with dementia in an environment meant to provide the feel of a small village or community. Residents will live in cottage style residences with nearby amenities such as a grocery store, a salon, a coffee shop and a community garden. While residents will be able to go about their lives in the community, they’ll also have the care they require. The project is modeled after the first “dementia village” that was opened in Amsterdam. The goal behind such communities is to move those with dementia away from an institutional setting so as to improve their quality of life.
With estimates that approximately 940,000 people will have dementia in Canada by 2031, it’s great to see new and innovative options available for those with such an illness. Right now, the project in BC is slated to open in 2019 and is a private endeavour meaning residents (or their family) will be responsible for the full cost.
While the project is still in its infancy, it will be interesting to see how it develops and how it might be implemented in the rest of Canada.
From a legal (and Ontario-centric) perspective, it is interesting to note how the goals of “dementia villages” align with the Residents’ Bill of Rights under Ontario’s Long-Term Care Homes Act, 2007. The Residents’ Bill of Rights includes a lengthy list of rights of residents of long-term care facilities designed to promote recognition of the dignity, security, safety, and comfort of residents. Included in the Residents’ Bill of Rights is “the right to receive care and assistance towards independence based on a restorative care philosophy to maximize independence to the greatest extent possible.” The development of dementia villages shows one way in which this right may be furthered.
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The practice of injecting policy considerations into court decisions has long been a tenet of the Ontario judiciary. However, such considerations may arguably raise questions that go beyond the scope of the decision. Cotnam v Rousseau, 2018 ONSC 216, is one such case.
In Cotnam, the Court was tasked with determining whether a pre-retirement death benefit received by a surviving spouse was available to be clawed back into an Estate pursuant to section 72 of the Succession Law Reform Act (the “SLRA”). The Respondent took the position that section 48 of the Pension Benefits Act (the “PBA”) sheltered the death benefit from being clawed back given that she was the spouse of the Deceased. The Court disagreed and held that such benefits ought to be available for claw back in order to prevent irrational outcomes resulting from their exclusion.
In the context of the facts at play in Cotnam, the Court reasoned in favour of equity, in particular, to ensure a dependant disabled child of the Deceased was properly provided for. However, the Court’s reasons appear to gloss over a fundamental conflict between the SLRA and the PBA, a clash about which the estates bar might have appreciated some judicial commentary. Specifically, the Court held that the provisions of the SLRA ascribing pension death benefits as available to satisfy a claim of dependant’s relief ought to prevail over the PBA’s provisions sheltering them from claw back.
Section 114 of the PBA provides that, “[i]n the event of a conflict between this Act and any other Act […] [the PBA] prevails unless the other Act states that it is to prevail over [the PBA].” The SLRA, in contrast, is silent as to whether its provisions are to prevail over those of the PBA.
However, the Court’s reasons make no mention of the interplay between section 114 of the PBA and the equities of ensuring the dependant daughter in Cotnam was properly provided for. While we may opine on the fact that the outcome in Cotnam favours equity over rote statutory interpretation, the estates bar is left to grapple with the apparent inconsistency with the intention of the Ontario legislature, and whether it will affect similar decisions going forward. As of this date, no written decisions have yet interpreted Cotnam, nor has the decision been appealed. Accordingly, it may be some time before the impact of the decision, if any, is felt.
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In November 2017, my colleague, Sayuri Kagami, blogged about the Ontario Court of Appeal’s decision in Teixeira v Markgraf Estate, which considered the validity of a gift in the form of a cheque cashed after the death of the payor. Today’s blog discusses similar facts in the court’s decision in Rubner v Bistricer. That is, whether pre-signed blank cheques cashed after the payor is declared incapable of managing property constitute either an enforceable promise to gift or, in the alternative, a valid inter vivos gift.
In the late 1960s, the patriarch of the Rubner family, Karl, purchased a 10% stake in a real estate development in Oakville known as the Lower Fourth Joint Venture. Karl kept legal title to this interest in the name of his wife, Eda, with the intention that their three children, Marvin, Joseph, and Brenda, each receive beneficial ownership of a one-third share in the Lower Fourth interest.
Brenda subsequently renounced her share in the Lower Fourth interest to avoid triggering certain tax consequences. Accordingly, her share reverted back to Eda, who then set up an account into which the income generated by Brenda’s former share would be deposited. Notwithstanding that she had disclaimed her share, however, Brenda nonetheless wanted to retain the income that her share generated. In 2014, Eda agreed to sign several blank cheques for the benefit of Brenda and her husband, allowing them to collect the income from Brenda’s former share without incurring the tax liability.
In November 2016, Eda was assessed as being incapable of managing property. Shortly thereafter, Brenda’s husband filled in and deposited two of the blank cheques previously signed by Eda in order to prevent Brenda’s brothers from using those funds to pay for Eda’s expenses.
Brenda’s brothers subsequently commenced an application seeking, amongst other relief, a declaration that the funds withdrawn by Brenda after Eda became incapable were held on a resulting or constructive trust for Eda’s benefit. Brenda took the position that Eda had intended that these funds be considered gifts for Brenda’s benefit. She claimed that at a family meeting in 2012 or 2013, Eda had specifically agreed to gift to Brenda all future income generated by Brenda’s former share in Lower Fourth.
The court was tasked with considering whether a purported promise of future gifts could constitute valid inter vivos gifts. In order to establish a valid inter vivos gift, the recipient must show:
- An intention to make a gift on the part of the donor, without consideration or expectation of remuneration;
- An acceptance of the gift by the donee, and
- A sufficient act of delivery or transfer of the property to complete the transaction.
The court held that the first step and third steps in this analysis could not be satisfied once Eda had been declared incapable of managing her property. Eda was deemed to have been unable to formulate the necessary intention to make a gift with respect to the blank cheques. Moreover, the court held that the delivery of “signed, blank cheques cannot amount to a complete gift”, as the drawer retains an interest in the amount of the cheque until it is cashed. Once Eda became incapable of managing her property, the gift could no longer be perfected. The blank cheques that were cashed after Eda was assessed as incapable of managing her property were held to be invalid, and Brenda was ordered to repay the amounts withdrawn.
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The interplay between evolving social norms and the legal foundations that predate or accelerate these changes has seen significant development in the last decade. Courts of law and of public opinion have made important strides in shaping social policy in many areas, such as medically-assisted death, gender diversity and inclusion, and marriage rights, to name a few. A recent case out of the Ontario Superior Court of Justice considered this last issue, marriage rights, with a particular focus on predatory marriages.
In Hunt v Worrod, 2017 ONSC 7397, the Court was tasked with assessing whether an individual who had suffered a catastrophic brain injury possessed the necessary capacity to marry. In 2011, Kevin Hunt suffered a serious head injury following an ATV accident and spent four months recuperating in hospital. He was eventually discharged into the care of his two sons, but three days after his release, Mr. Hunt was whisked away by his on-and-off girlfriend, Kathleen Worrod, to be ostensibly married at a secret wedding ceremony.
Mr. Hunt’s children brought an application to the Court on his behalf to void the marriage, partly to preclude Ms. Worrod from accruing spousal rights to share in Mr. Hunt’s property or assets. Ultimately, the Court concluded that Mr. Hunt did not possess the requisite capacity to enter into the marriage.
In its reasons, the Court relied heavily on the opinions of several expert witnesses and the existing body of legal authority. The Court began by reviewing section 7 of Ontario’s Marriage Act, which provides that an officiant shall not “solemnize the marriage” of any person that the officiant has reasonable grounds to believe “lacks mental capacity to marry.”
The expert evidence tendered by the parties suggested that Mr. Hunt had significant impairments in his ability to make decisions, to engage in routine problem-solving, and to organize and carry out simple tasks. He was characterized as “significantly cognitively impaired”, and was assessed as being incapable of managing his property, personal care, or safety and well-being.
The Court subsequently relied on the test for capacity to enter into a marriage contract established by the British Columbia Supreme Court in Ross-Scott v Potvin in 2014. The Court held that a person has the capacity to enter into a marriage contract only if that person has the capacity to understand the duties and obligations created by marriage and the nature of the commitment more generally.
The Court also identified the tension between balancing Mr. Hunt’s autonomy as against the possibility that he lacked the capacity to appreciate the legal and social consequences of marriage. Ultimately, the Court was satisfied that Mr. Hunt’s children had met their burden of demonstrating that their father lacked the necessary capacity to marry Ms. Worrod. The marriage was declared void ab initio, and the attendant spousal property rights that would have otherwise flowed to Ms. Worrod were lost.
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Locating assets of a deceased person’s estate can sometimes be a problem for the estate trustee. If you are searching for forgotten money on deposit at a Canadian Bank it is very easy to search online at the Bank of Canada website on older accounts, or to contact the bank directly. In 2016, the Bank of Canada paid out $15 million and holds a total of $678 million of unclaimed accounts.
Federal legislation applies to banks under our constitution. Provincial legislation applies to real property, credit unions, and many businesses. In British Columbia you can search online for “unclaimed money” sitting in a dormant account not only from banks but also other business organizations and government.
Since July 2000, the British Columbia Unclaimed Property Act provides the statutory framework for the regulation of unclaimed property in BC. The purpose of the legislation is to unite owners with their unclaimed property held by government and non-government holders. Last year $5.6 million dollars of unclaimed property was received of which $1,217,965 was returned to claimants as the rightful owners instead of the British Columbia government taking it.
Alberta and Quebec are the only other provinces that also have some systems in place to assist those searching for forgotten dollars and property. Every state in the U.S. has some system in place making it easy to search for assets there. Canadians are more frequently purchasing property or maintaining accounts in other countries, and these online systems make it easier to search for assets involving international inheritance.
Other provinces, like Ontario, have no such legislation in force and if the Office of the Public Guardian and Trustee does not locate the beneficiaries on unclaimed estates then the money will be transferred to the provincial government by way of “escheat”. There is no easy way to search Ontario government records for inheritance assets. In announcing budget objectives for the 2012 Ontario Budget, provincial officials indicated the Ontario government would establish a program to reunite owners with unclaimed intangible property (things like amounts due under an insurance policy and interests recognized by such instruments as share certificates and bonds) and for the government of Ontario to hold such property for the benefit of Ontarians unless and until the property is claimed. There have been public consultations but no legislation is in force yet.
Similarly, most provinces do not have a system in place to search for forgotten money in credit unions. Advances in technology should make it just as easy for consumers to search for a forgotten asset like a credit union account as it is to search for a forgotten bank account. The long term trend is towards reuniting people with the money and property they are entitled to, instead of government or business keeping it. The British Columbia Unclaimed Property Society states their objective as, “Reuniting forgotten dollars with their rightful owners.” They are truly a Canadian leader in this area and have set the benchmark for other provinces like Ontario!