Category: Estate Litigation
Previously, Hull and Hull LLP blogged on the decision of Tarantino v. Galvano, 2017 ONSC 3535 (CanLII). After a ten day trial, the court set aside a transaction whereby the deceased’s daughter, acting as attorney under a Power of Attorney, transferred the deceased’s interest in her home to the daughter. The court also allowed a claim by the daughter for services provided to the deceased. The court disallowed a claim for occupation rent against the daughter.
We also blogged on the costs decision, reported at Tarantino v. Galvano, 2017 ONSC 6635 (CanLII). The collective legal fees of the parties on a substantial indemnity basis (ie., the actual legal fees were higher) were $621,660. The main asset of the estate was 80% of a house valued at $680,000 in 2012. Neither party was awarded costs, other than a reimbursement for the cost of an expert report.
The matter was before the courts once again. On September 6, 2019, the Ontario Court of Appeal dismissed the appeal brought by the grandchildren of the deceased (the daughter’s nieces): Tarantino v. Galvano, 2019 ONCA 699 (CanLII).
The Court of Appeal held that with respect to the dismissal of the claim for occupation rent, the trial judge did not err. The daughter remained in the house (of which she owned 20%) after death. However, the granddaughters had sought and obtained an undertaking from the daughter not to sell the house while the litigation was pending. Of note is the fact that the daughter, under the deceased’s will, had a first option to purchase the house. As the daughter was prevented from selling the house by reason of the undertaking sought by the granddaughters, it would be “unfair” to charge the daughter rent when she was unable to deal with the house.
With respect to a second ground of appeal, the Court agreed with the trial judge that the costs of maintaining the home during the deceased’s lifetime, and while she was in poor health, should fall on the deceased. As the trial judge concluded, “Having accepted that [the deceased’s] wish was to be looked after at home, and having accepted that in her capacity as attorney for personal care it was appropriate for [the daughter] to make arrangements for [the deceased] to be looked after in the home, those expenses are properly attributable to the care of [the deceased].”
The appeal was dismissed, with costs of $15,000 payable by the granddaughters to the daughter.
I expect that this is the last chapter in this unfortunate, expensive saga.
Thank you for reading.
The Substitute Decisions Act (the “SDA”) was passed in 1992. It governs what happens when a person becomes incapable of managing their own property or personal care. Under section 3 of the SDA, if the capacity of a person in a legal proceeding is in issue, the Public Guardian and Trustee (the “PGT”) may arrange for the legal representation of that person. Section 3 also provides that the person shall be deemed to have the capacity to retain and instruct counsel.
Although section 3 seems to be fairly straightforward, the details surrounding the appointment and position of section 3 counsel are somewhat obscure. Cases such as Sylvester v Britton and Banton v Banton have added some clarity to the role of section 3 counsel. The recent case of Kwok v Kwok provides a further illustration as to when section 3 counsel is to be appointed.
In Kwok v Kwok, Jiefu Kwok was involved in two motor vehicle accidents in 2011. He suffered a traumatic brain injury as a result and commenced two legal actions in relation to the accidents. A capacity assessment was conducted in 2014, which revealed that Jiefu was incapable of taking care of himself and managing his own property. In 2015, Jiefu’s son, Derek, was appointed as his guardian for property and personal care. Derek later filed an application to be released from these roles as he stated that it was putting a strain on his relationship with his father. Derek’s mother, Ellie, brought an application to take Derek’s place and be appointed as Jiefu’s guardian of property and personal care.
The PGT took the position that section 3 counsel should be appointed to represent Jiefu and obtain his wishes before Ellie was appointed as Jiefu’s guardian of property and personal care. The PGT was of the view that Jiefu’s capacity assessment conducted in 2014 was outdated and that a more limited guardianship might be appropriate for him.
Counsel for Derek and Ellie (the “Applicants”) argued that section 3 counsel is to be used in cases where a capacity assessment has not already been conducted. They added that, since a capacity assessment was already conducted in this case, the appointment of section 3 counsel was inappropriate. Moreover, a primary concern for the Applicants was the high costs associated with the appointment of section 3 counsel.
The Court considered the arguments of the PGT and the Applicants and noted the following about the role of section 3 counsel:
- The appointment of section 3 counsel is a safeguard that protects the dignity, privacy and legal rights of a person who is alleged to be incapable
- Section 3 of the SDA does not make the appointment of legal representation mandatory
- In deciding whether to appoint section 3 counsel, the Court must consider the specific facts and issues in each case
- The Court can appoint section 3 counsel even in cases where a capacity assessment has already been conducted or where there is an existing Court order declaring that a person is incapable
The Court concluded that the appointment of section 3 counsel would not be in Jiefu’s best interests and would be a waste of resources. The Court made this finding based on the following reasons:
- There were no completing claims amongst Jiefu’s closest relatives as to who should be his legal representative. Both Derek and Ellie supported the appointment of Ellie as Jiefu’s guardian of property and personal care
- There was no evidentiary basis to question the validity of the 2014 capacity assessment
- A letter from Jiefu’s primary care physician regarding his current condition did not suggest that Jiefu’s condition had improved
- Jiefu attended Court and expressed that he supported the appointment of Ellie as his guardian of property and personal care
As a result, Derek was released from his role as Jiefu’s guardian for property and of the person and Ellie was appointed in his place.
Kwok v Kwok adds to a growing body of cases examining the role of section 3 counsel. It provides that the Court can appoint section 3 counsel even in cases where a capacity assessment has already been conducted or where there is an existing Court order declaring that a person is incapable. Furthermore, it indicates that the wishes of the incapable person are to be given a considerable amount of weight in assessing whether section 3 counsel is appropriate.
For further reading on section 3 counsel, check out these other blogs:
Thanks for reading – have a great day!
Suzana Popovic-Montag and Celine Dookie
“There is no love lost between sisters [K] and [A].” So starts the endorsement in Nutzenberger v. Pryde, 2019 ONSC 5030 (CanLII).
There, the parents made a loan to A of $75,000. In their wills, the residue of the estate is to pass to the surviving parent. Both wills contained a clause that provided that if the other spouse was not living on the 30th day following the first spouse’s death, the $75,000 was to be forgiven.
Mother died on September 25, 2015. Father died on May 30, 2016.
K, as estate trustee of mother’s estate, brought a claim against A for the repayment of the loan. A moved for summary judgment on the claim.
Justice Harris agreed that summary judgment was appropriate. There were no primary facts in dispute, and no credibility issues. He dismissed the claim on two basis: first, mother’s estate had no standing to bring the claim, and second, the loan had been forgiven according to the terms of the wills.
On the first point, the loan came from father’s assets. Any interest that mother had in the loan passed to father under the terms of her will. Only father, or father’s estate had standing to pursue the loan.
Secondly, although the terms of the wills forgiving the loans were not “a model of drafting dexterity, to put it mildly”, the court interpreted the wills to mean that the intention of the parents was that either one could call in the loan while alive, but upon the death of the survivor, if no action was taken, the loan would be forgiven.
In determining the intention of the parties, the court looked at other terms of the wills. One term in both wills gave the estate trustee the discretion to pursue a loan. Another term acknowledged that a certain advance was in fact a gift. The term in question was “an awkward hybrid”. However, the court was able to conclude that the intention was that the loan would be forgiven if the surviving parent did not take any steps to collect on it.
As usual, more careful drafting may have avoided the litigation.
Thank you for reading.
In September 2016, Elizabeth Wettlaufer quit her nursing job and checked herself into the Centre for Addiction and Mental health in Toronto where she subsequently confessed to harming and killing a number of people during the last nine years of her nursing practice. Wettlaufer’s choice method of harm was injecting her victims with insulin overdoses. The majority of these incidents took place in licenced, regulated long-term care homes in southwestern Ontario. Wettlaufer is, by all accounts, a healthcare serial killer.
In June 2017, Wettlaufer was convicted of eight counts of first-degree murder, four counts of attempted murder, and two counts of aggravated assault. She was sentenced to life in prison with no chance of parole for 25 years.
But the story did not end there. Wettlaufer’s crimes spurred public outrage and debate over the quality of Ontario’s long-term care system and the safety of those who rely on it. One of the many troubling questions that arose was: how could a registered nurse commit such serious crimes in regulated healthcare facilities for years without getting caught? To find answers and figure out how to prevent similar tragedies from occurring in the future, the Long-Term Care Homes Public Inquiry was launched (the “Public Inquiry”).
The Public Inquiry concluded on July 31, 2019 when the Honourable Eileen E. Gillese, Commissioner of the Public Inquiry, released her four-volume final Report of the Public Inquiry into the Safety and Security of Residents in the Long-Term Care Homes System (the “Report”).
The Report makes three chief findings. First, the harmful acts committed by Elizabeth Wettlaufer would not have been discovered if not for her confession. Second, systemic vulnerabilities in the long-term care system are to blame for the harms that took place, rather than any individual or organization operating within the system. Third, the long-term care system is strained but has the robust regulatory regime and workforce needed to address existing systemic issues that have been exposed by the Public Inquiry.
Though I write at the risk of fear-mongering, that is by no means my intent. Indeed, I firmly believe that the large majority of healthcare providers uphold the ideals of patient or resident-centred care. The Report, in my view, is noteworthy for the bright light it shines on the potential for a nurse or other healthcare professional to intentionally harm those under their care. As astutely stated in the Report, “We can prevent, deter, and detect only matters of which we are aware” (volume 1, page 18).
It is prudent for residents or their substitute decision-makers to be on high alert for signs of abuse by staff in long-term care homes and issue complaints where appropriate. The Long-Term Care Homes Act , the statute which governs Ontario’s long-term care homes, contains several provisions concerning residents’ rights and the complaints process that can be of assistance. The takeaway is that anyone can be a potential advocate for a vulnerable resident of a long-term care home.
Arielle Di Iulio
With the enactment of Rule 75.1 of the Rules of Civil Procedure, those involved in disputes relating to an estate, trust or substitute decision-making matter in Toronto, Ottawa or the County of Essex are referred to mediation unless there is a court order exempting it under Rule 75.1.04.
As lawyers, “mediation” is a term we are familiar with. However it may not be as familiar to clients. Many of them may have never heard of “mediation” before. As such, if you or a client have an upcoming mediation, it is important to prepare early to avoid being caught off guard during the mediation.
What is Mediation?
Mediation is a form of alternative dispute resolution where people can settle their disputes outside of court. It is a voluntary process in which the parties meet with a neutral third-party (referred to as the “mediator”) who provides them with assistance in negotiating a settlement. The mediator does not impose a judgment as the process is led by the parties.
Mediation vs. Litigation
The big “pull factor” to mediation is that it vastly differs from litigation. The major differences include:
- Decision-Making: With mediation, the parties decide the outcome but with litigation, a judge imposes his or her decision upon the parties
- Private vs. Public Process: Mediation is a private and confidential process, whereas litigation is a public process
- Costs: The costs of mediation are typically lower than that of litigation
- Time: The mediation process tends to be faster than litigation
- Adversarial vs. Non-Adversarial: Mediation is viewed as a non-adversarial process, whereas litigation is viewed as an adversarial process
Preparation for Mediation
Preparation for mediation should start well in advance of the mediation date.
Preparing the Client
Start by explaining to the client what mediation is and how the process works. Assure the client that the mediator will be a neutral facilitator and that abusive behaviour by the other party will not be tolerated.
As part of discussing the mediation process with the client, let the client know about the time commitment that mediation entails. The mediation could last the entire day or even multiple days.
Determine the client’s interests and goals for the mediation. Are they looking to settle the case at mediation or are they prepared to go to trial? What types of offers would they be willing to accept?
Preparation for the Lawyer
Know the mediator’s background and approach beforehand. Is the mediator someone who has a background in estates law? Are they a lawyer? Are they a former judge? Knowing the answers to these questions can help the lawyer determine what approach would be the most beneficial to employ during mediation.
Prepare a comprehensive mediation brief and send it to the opposing counsel and mediator well in advance of the hearing date. A comprehensive mediation brief can maximize a lawyer’s presentation at the mediation. It is helpful to include copies of all relevant documents, such as the wills in question, within the brief. Additionally, it might be helpful to include a chronology of events as a schedule to the mediation brief.
If the mediation results in a settlement, ensure that the terms of the settlement are formally documented and that each client has signed the document. In some cases, however, a “cooling-off period” of one or two days from the proposed settlement might be necessary.
At the end of the day, the best approach a lawyer can take in preparing for mediation is to know the mediator, prepare their documents ahead of time and provide the client with as much information about the mediation process as possible. The more prepared the lawyer and the client are, the smoother the mediation will go.
For more information on preparing your client for an estate mediation, visit this link.
Thanks for reading,
Ian Hull & Celine Dookie
I have previously blogged about the need to have any settlement which affects the interests of a party under a “legal disability”, whether on account of them being a minor or otherwise, to be approved by the court in accordance with rule 7.08 of the Rules of Civil Procedure before the settlement is binding upon the party under a disability. Although rule 7.08 is clear what materials need to be included in any Motion to approve a settlement, with affidavits being required both from the incapable person’s litigation guardian as well as the litigation guardian’s lawyer outlining why they believe the settlement should be approved, what is less clear is the actual procedure by which such a Motion is brought before the court.
There has been some debate recently about whether in Toronto a Motion to approve a settlement should be brought in writing or if they should be brought before a Judge in person. The apparent confusion appears to be caused by what appear to be competing instructions that are contained in the practice direction for the Toronto Region as well as the practice direction for the Estates List, with one appearing to tell you to bring the Motion in writing and the other appearing to tell you to do the opposite.
The general practice direction for the Toronto Region provides the following regarding an approval Motion under rule 7.08:
“A motion under Rule 7.08 must be brought in accordance with the Best Practice’s Guidelines and Checklist for rule 7.08 matters.”
The Best Practice’s Guidelines and Checklist in turn provides:
“Rule 7.08 requires the approval of a judge for any proposed settlement on behalf of a party under a disability. This is done by way of a motion made in writing or if no action has been commenced, then the approval of a judge is obtained by way of an application. In Toronto, Rule 7 motions and applications are to be filed as in-writing motions through the civil intake office, in the motions department.” [emphasis added]
The checklist appears clear that if you are bringing a motion to approve a settlement in Toronto that it is to be done in writing. As a result, if your matter is subject to the general Toronto practice direction, it would appear fairly clear that your approval Motion must be brought in writing.
Although the general Toronto practice direction appears clear that approval Motions are to be brought in writing, many, if not most, estates matters in Toronto are adjudicated on the specialized Estates List. The general Toronto practice direction notes that it does not apply to matters on the Estates List unless it is specifically mentioned, stating:
“This Practice Direction does not apply to motions or applications heard on the Commercial and Bankruptcy Lists, Estates List, or under the Class Proceedings Act, 1992, unless specifically mentioned.” [emphasis added]
There appears to be no reference in the general Toronto practice direction that the “in writing” rule for approval Motions is to apply to matters on the Estates List. As a result, it would appear that such a rule does not apply to matters on the Estates List, and that we are to revert to any direction provided in the Estates List practice direction regarding approval Motions.
The Estates List practice direction provides the following regarding how approval motions are to be brought before the court:
“Where the settlement of a proceeding on the Estates List requires court approval, the motion for approval of the settlement and the application for the appointment of a guardian of property should be brought before a judge on the Estates List.” [emphasis added]
There is no reference in the Estates List practice direction to the approval motion having to be brought in writing, with the practice direction simply stating that it has to be brought “before a judge”. Although a technical reading of such a direction may suggest that a matter could be brought “before a judge” in writing, in the absence of any specific bar to bringing the approval Motion before a Judge in person, and as Judges often have questions about a settlement before granting their approval, it would appear that absent any additional direction from the court that approval motions on the Estates List can (and probably should) still be brought before a Judge in person.
The result of all of this appears to suggest that if you are seeking the approval of a settlement in Toronto and your matter is on the general civil list that you have to bring the approval motion in writing. If you matter is on the Estates List however it would appear likely that you can continue to bring your approval Motions in person before a Judge. Matters in jurisdictions outside of Toronto should consult with your local practice direction for any direction regarding how they may want you to bring any approval Motions.
Thank you for reading.
I always thought of Labour Day as more of a new beginning than New Year’s Day. There is a seasonal change: the carefree days of summer give way to cooler, more productive and contemplative days. There is a strong feeling of a fresh start: whether it be at school or at work or otherwise.
That led me to consider Labour Day resolutions. Apparently, I am not alone. An internet search of “labour day resolutions” (or “labor day resolutions”) leads to thousands of results.
Resolve to be better in the months ahead. A study has shown that those wanting to change their behavior are ten times more likely to do so where they make a resolution to do so, compared to those who do not make resolutions.
When making resolutions, experts advise us to set realistic goals. Further, don’t be deterred by slip ups. Look at slip ups or lapses as bumps, not walls.
Each of us has areas where we can improve. I won’t tell you what your resolutions should be. (Although I do make a detailed list of resolutions for my kids each year. One of the resolutions is that they should resolve to be more receptive and appreciative of my list of resolutions.)
However, if you need suggestions, consider the Labour Day resolutions suggested by Heinz Marketing. They include:
- Spend more time on the phone (as opposed to texting or emailing);
- Spend at least one hour a day on focused reading;
- Spend at least 30 minutes a day on networking;
- Complete the day’s most important task before checking your email;
- Read the Wall Street Journal every day; and
- Take at least 10,000 steps every day.
Have a great Labour Day weekend and enjoy the year ahead.
The mysterious death of Jeffrey Epstein is generating a hubbub across the world. It reads like the beginning of an Agatha Christie detective novel and has a central figure who is reminiscent of a James Bond villain: a wealthy financier who is accused of operating a pedophilic sex trafficking ring. He has connections with scores of famous people: politicians, celebrities, royalty … In the early stages of his prosecution, he attempts to commit suicide; then, shortly afterwards, he is taken off suicide watch, the guards purportedly sleep through their checkups on him, and he is found dead.
In the aftermath, there have been conspiracy theories and much controversy, including an FBI investigation. The case has also prompted some questions regarding succession law, for it has just been reported that Epstein signed a new Will two days prior to his death. For the purposes of this post, we shall posit what would happen to the Will and the estate if this had all occurred in Ontario.
Validity of the Will
If Epstein indeed committed suicide, his suicidal mind would be considered in determining whether he had testamentary capacity, but it would not be conclusive (Topp Estate, 1983 CanLII 2329 (SKSU)). The applicable test is still the contextual factors set out in Banks v. Goodfellow.
If it comes to light that Epstein was murdered, then the Will could be attacked on the basis of undue influence. To achieve this, the objector would have to meet a fairly high evidentiary threshold, establishing “that what appears to be the testator’s will is not his or her will” (Kozak Estate (Re), 2018 ABQB 185).
As Epstein’s brother is named the sole beneficiary of the estate, if he is found to have murdered his brother, then public policy would likely bar him from benefiting from the estate (Papasotiriou, 2012 ONSC 6473).
It has been reported that the alleged victims’ lawyers are seeking to continue their action against the Epstein estate. One of these lawyers, Lisa Bloom, is demanding a freeze of the assets in the meantime. In Ontario, if the deceased dies during the time in which he or she is a defendant in litigation, Rule 11.02 of the Rules of Civil Procedure may allow for an action to be continued against the deceased’s estate.
If the alleged victims win their lawsuit against the Epstein estate, it is uncertain whether they will obtain their damages awards, for Epstein likely sheltered many of his assets. In Ontario, the claimants could launch claims of unjust enrichment and constructive trust in order to gain access to funds which have been sheltered amongst Epstein’s friends, family, and offshore accounts. Sadly for the accusers, the same dark cunning which enabled Epstein to evade justice was likely employed in securing his assets in inaccessible vaults. Just a little something to think about.
Thank you for reading … Have a great day,
Suzana Popovic-Montag and Devin McMurtry
I recently came across a case out of the Court of Appeals of Texas (Royce Homes, L.P. v. Neel, 2005 Tex.App.LEXIS 1514) where the Court of Appeal overturned a jury’s determination of damages that was based on weak evidence from a construction defect expert. Although apparently well qualified, the expert simply estimated the costs of repairs based on his experience: he did not take any notes or measurements.
The court rejected the evidence as “ipse dixit” (sometimes spelled “ipse dexit”). The term is latin for “he said it himself”. The fallacy of logic is that by baldly asserting a state of affairs without evidence to support it sidesteps the argument. It is an assertion without proof. The fallacy is similar to an argument from authority.
My kids used to call me out on the use of ipse dixit all the time. When I made an assertion, they would ask “Why?” My usual, lazy, response was “Because I said so.”
Ipse dixit has been recognized as a problem in litigation, particularly in the area of expert evidence. In General Electric Co. et al. v. Joiner et ux, the U.S. Supreme Court recognized the problem of “opinion evidence which is connected to existing data only by the ipse dixit of an expert.”
The term has been used in several Canadian cases. For example, in Young v. Insurance Corp. of British Columbia, 2017 BCSC 2306 (CanLII), an expert gave evidence that damages in a motor vehicle accident were not caused by a sideswipe-type collision. At trial, the plaintiff objected to the evidence, with counsel asking “where is the science”. The court agreed, and rejected the evidence. The expert did not refer to his own assessment of sideswipe-type collisions. He did not refer to any studies or tests involving sideswipe-type collisions. As stated by the trial judge, “Instead, what we are left with is an exercise in ipse dixitism: it is so because I say it is so.”
In Lord’s Day Alliance fo Canada v. Regional Municipality of Peel et al., the issue was whether an exemption from Sunday closing by-laws was “essential for the maintenance or development of a tourist industry”. Town council said the exemption was essential, without citing any evidence. The Court of Appeal disagreed, holding that something more was required beyond council merely saying so. The legislation required proof that the exemption was essential, not just council deeming it to be essential.
In Lewis v. The King, 1949 CanLII 376 (QC CA), the Quebec Court of Appeal overturned a conviction for keeping a common betting house. In a concurring judgment, the appeal judge states that “there is no evidence, except the ipse dixit of the police officer, that the accused was the keeper of the place in which the search was made”.
In Ontario, Rule 53.03 of the Rules of Civil Procedure require that an expert report shall contain, inter alia, “The expert’s reasons for his or her opinion”.
As we head into elections, both here and in the US, keep your eyes open for ipse dixit.
Further, in litigation, be wary of ipse dixit evidence. Simply saying something is so does not make it so.
Make it a great weekend ahead. No ipse dixit. Provide proof.
Comedian Steve Martin’s 1977 “Let’s Get Small” album foreshadows a lot of what’s been happening in our world recently.
While Martin used the phrase “let’s get small” literally (you take a drug and shrink, rather than “get high”), our world is getting smaller in other ways, only with technology, not drugs.
Our shrinking footprint
Think of the ways that technology has shrunk our world. How many paper files do we need today? How many books? A friend toured the “new look” U of T law school recently and couldn’t believe how small and sparse the offices were for professors. The reason? You don’t need space for shelves full of books and papers anymore.
Look at the trend in condominiums – smaller, smarter, more efficient. We simply don’t need (or value) as much “stuff” – china plates, workrooms, desk space, huge freezers. I cleaned out a small office in our home recently, and took to recycling a satellite receiver, a printer, an old laptop, a DVD player and more cords than you could imagine. I hadn’t used most of it in years, and seeing the clean empty space in the office was extremely satisfying. Less is more sometimes.
A timely trend
With all of the concerns about environment footprints, the fact that we can “get small” much easier today than in the past is a huge positive. We can build laneway housing, take Ubers or use auto shares instead of owning a car – and we don’t need to print mountains of paper when electronic files are faster, simpler and far more desirable. Much of our life truly “lives” on the phone in our front or back pocket. And that doesn’t take up much space.
I’m not recommending a “get small” theme for environmental reasons though (that’s an added bonus). I’m recommending it because it can lead to a simpler and more satisfying life. Instead of thinking “what can I get”, the focus becomes “what can I get rid of.” It doesn’t have to be extreme. Every so often, you eliminate one thing you plug in, or gas up, or store away. Bigger steps might include downsizing a home or going from two cars to one.
This article in Forbes.com – Ten Hacks for Simplifying Your Life – suggests going beyond the downsizing of possessions to include downsizing toxic people in your life, onerous debt, and personal grudges, amongst other things.
Give the article a read – and consider what getting small could mean for your life.
Have a great day, and thanks for reading.