Category: Continuing Legal Education
As all litigators in the province of Ontario likely know by now, January 1, 2010 ushers in not only a new decade but New Rules of Civil Procedure. The New Rules apply to all matters, regardless of when they were commenced.
The amendments to the Rules effected by Ont. Reg. 438/08 are the most extensive and significant since the Rules were adopted in 1985. The fundamental goal of the reform is to make the civil justice system more affordable and accessible for Ontarians.
Some of the more significant changes are as follows:
Proportionality – In April of 2009 we saw a movement toward proportionality of time and expense with the interests at issue in estate litigation upon the introduction of the New Practice Direction for the Estates List of the Superior Court of Justice in Toronto. New Rule 1.04(1.1) brings this factor into play for litigation in all jurisdictions and mandates that Court Orders and Directions be proportionate to the importance and complexity of issues and amounts at stake.
Summary Judgment – Rule 20 expands the Court’s discretion to assess credibility, weigh evidence, conduct mini-trials with oral evidence, and award substantial indemnity costs against a party acting unreasonably or in bad faith.
Expert Evidence – Experts must provide fair objective and non-partisan opinion, give opinion evidence only on matters that are within their expertise, and assist the Court as reasonably required. This duty to the Court prevails over any obligation experts owe to the party who retained them. Expert reports must be filed 90 days before the pre-trial conference and responding expert reports must be served 60 days prior to the pre-trial conference.
Discovery – Among the many changes regarding discovery is a new definition of relevance. The phrase “relating to any matter in issue in the action” has been replaced with “relevant to any matter in issue in the action”. This changes the test to one of simple relevance. Proportionality comes into play again in Rule 29.2, which sets out the considerations that must be made in determining questions to be answered or documents to be produced. Parties must agree to a written discovery plan (Rule 29.1) and there is a 7-hour time limit on oral examinations for discovery (R. 31.05.1).
Time – Calculation of time pursuant to Rule 3.01(1)(b) for notice periods of 7 days or less excludes holidays. There are also earlier deadlines for service and filing of materials for motions (Rule 37) Applications (Rule 38) and appeals from interlocutory orders (Rule 61).
If your New Year’s resolution is to learn the New Rules and their impact on your estates practice, you should attend the OBA Trusts and Estates Section Seminar, "Stay on top of the New Rules of court" on January 6, 2010.
Program Chair, Jane Martin, and speakers, Mr. Justice David M. Brown and Madam Justice Lois B. Roberts of the Superior Court of Justice, and Hull & Hull’s own Suzana Popovic-Montag, will guide you through the changes and provide an opportunity to ask questions regarding implications for estates practitioners.
For more on this topic see Gary Watson’s summary of the amendments and Marni Pernica’s recent article in OBA’s Deadbeat magazine. Previous Hull & Hull commentary by Rick Bickhram and Paul Trudelle can be found here and here.
I suspect that following the New Rules is one Resolution you will be sure to keep!
Sharon Davis – Click here for more information about Sharon Davis.
There are several interesting continuing legal education (CLE) events coming up in September and October 2008 that I wanted to mention as summer draws to a close and we look to the fall.
One is an Ontario Bar Association (OBA) full day program on September 23, 2008 commencing at 9:00 a.m. entitled “Trusts, Trustees, Trusteeships III – All you need to know and more”. This is the third year that this program on Trusts is running. The use of Trusts and Trust drafting are said to be the primary focus of this year’s program.
Topics include: Valuation Issues and Discretionary Trusts, The Effect of Bankruptcy on Estate Planning, Testamentary Trust Planning, The Use of Trusts as a Will Substitute, Charitable Gifts made by a Trust, Trust Variations, Insurance Trusts and Declarations, Judicial Supervision of the Exercise of Trustee Discretionary Powers and Trust Drafting.
What are some of the "red flags" to be wary of in the course of a retainer to prepare a Will? Corina Weigl considered this issue in an article she wrote for the 2007 LSUC Six Minutes Estates Lawyer (find it here) titled "How to Bullet-Proof Your Will". By far the most typical "red flag" arises in the context of third party involvement, such as where a close friend or relative (commonly a child of the testator), contacts the lawyer directly asking for advice in respect of the testator’s estate (i.e. “My Dad needs a will drawn up”). This is a common scenario for most estate planning practitioners. The lawyer should remind the third party who the "real" client is and that best practice demands that he or she deal with the testator (as opposed to the third party) directly. Lawyers are advised to hold meetings in private with the "real" client; to prepare detailed notes of telephone conversations and meetings with the "real" client, and to scrutinize motivations in cases where there are blatant departures from the provisions of former Wills. Another “red flag” is the unequal treatment of beneficiaries. To avoid the possibility of a dispute down the road, clients should be clear in expressing their wish to exclude an obvious beneficiary (i.e. leaving out 1 of his 3 kids). The lawyer may ask for an explanation of why the person is being treated differently, and the lawyer will likely take notes. Unequal treatment inevitably leads to family friction and may up the chances of a will challenge. Lastly, it is a lawyer’s duty to be satisfied that their client has the requisite mental capacity – once again the lawyer is advised to take notes and when in doubt, consult expert opinion.
Sarah Hyndman Fitzpatrick