Category: General Interest
A recent decision of the Federal Court provides detailed instructions for proceeding with a virtual trial.
- the technology to be used;
- document management;
- counsel preparation to ensure they have the required hardware and software;
- witness preparation with respect to hardware, software;
- testimony protocols, including camera positioning, access to documents, and who can be present;
- how documents are to be put to a witness;
- what is to happen if there is a loss of internet connection;
- how objections are to be raised and dealt with;
- how the principle of “open courts” is to be addressed;
- testing of the systems before trial;
- access to Zoom “chat” functions.
The Direction also includes a schedule entitled “Information for Witnesses” which summarizes part of the Direction, and is to be provided to witnesses in advance of their testimony.
The decision is not a “Practice Direction” applicable to all virtual trials. However, it is comprehensive and should be considered by the parties and the trial judge in a case conference prior to the commencement of any other trial.
Justice Lafreniere begins the Direction by setting out the balancing act that the courts must engage in when dealing with trials during these COVID times. “The Court recognizes the importance of reducing the spread of COVID-19 and prioritizes the health and safety of all court participants, including members of the Court, registry staff, counsel, witnesses, stenographers and interpreters. At the same time, the Court must balance the need to maintain judicial operations. Bearing in mind these important factors, it has been ordered that the hearing of this trial continue remotely via videoconference.”
The show must go on. Albeit with a very different script.
Thank you for reading.
The looming threat of COVID-19 has caused some people to see their own mortality in a new and clearer light. In addition to the existential and/or religious contemplation that may arise from this reality, individuals are also turning their minds to more practical end of life planning.
An end of life plan, also referred to as an advance care plan (“ACP”), sets out how an individual would like to be cared for in the final months of their life. In Ontario, an ACP will usually include a Power of Attorney for Personal Care designating a trusted person(s) to make healthcare decisions on behalf of an individual in the event of their incapacity.
An ACP may also include an advance directive, or “living will”, which is a written statement of wishes about future care. Unlike a Power of Attorney, advance directives are not referenced in Ontario’s health care legislation and are not a legal document. However, Ontario law does recognize that wishes and preferences regarding future care choices that are expressed when mentally capable ought to be respected and followed, if possible. Thus, a Power of Attorney or other substitute decision maker is expected to abide by an advance directive to the extent possible. This makes advance directives a useful tool for anyone seeking greater control over the medical treatment they receive while incapable.
Interestingly, a COVID-19-specific advance directive has emerged in the United States. Dr. Andrea Kittrell, a head and neck surgeon practicing in Virginia, established an organization called Save Other Souls (“SOS”) whose objective is to assist individuals with their advance care planning as it pertains to COVID-19-related medical treatment. Specifically, SOS provides guidance on preparing a document that has been coined the “COVID-19 SOS Directive”. This document is a type of altruistic advance directive wherein a person expresses their wish to defer lifesaving critical care hospital placement, medication, and/or equipment to another patient in need during a declared emergency and where there are insufficient health care resources to go around.
Since the COVID-19 SOS Directive was developed for use in jurisdictions outside of Ontario, I will not opine on the effectiveness of this particular document. However, the document is a reminder of the importance of considering one’s own ACP in light of the global pandemic. For information on COVID-19-related advance care planning for Canadians, you can check out Dying With Dignity Canada’s COVID-19 ACP Toolkit. Another helpful resource is the Plan Well Guide which is discussed in Nick Esterbauer’s blog here.
Thanks for reading!
Monday, September 7 is Labour Day (or Labor Day, as they call it in the U.S.).
Labour Day is a great time to reflect on the summer that was, and plan for the fall and winter ahead.
Last Labour Day, . After making it this far through the COVID pandemic, I thought that now would be a good time to repeat the advice from last year’s blog and emphasize the benefits of adopting reasonable resolutions.
Have a great long weekend.
Needless to say, this has been an unprecedented summer. COVID-19 has wreaked havoc on just about everything and everyone. Now, as summer winds down, we face an equally unprecedented and indefinite fall and winter.
This week would have been the opening of the Canadian National Exhibition: the true harbinger of the end of summer.
Before summer ends, be sure to enjoy whatever summer experiences you can, before it is too late.
For example, earlier this week, I learned that the corpse flower was in bloom at the Metro Zoo. Nicknamed “Pablo ‘Pe-ew’caso”, the Zoo’s specimens of the corpse flower, or amorphophallus titanium, also known as the titan arum, blooms for only a short time (8 to 36 hours) every year. The plant usually doesn’t bloom for the first 7 to 10 years of its life, and thereafter may only bloom every few years. The plant can reach a height of over 3 m. The plant attracts bugs for pollination by giving off the smell of rotting meat or a rotting corpse, hence the common name. The red colour of the flower contributes to the illusion of meat.
A time-lapse video of the plant blooming can be found here.
Alas, I was too late, and missed it.
Make the most of the rest of your summer. Enjoy an Ontario peach. It is going to be a long, long fall and winter.
Thanks for reading.
My colleague, Sydney Osmar, blogged in June on a summary of actions taken by the Ontario Legislature to issue, and later extend, the terms of certain orders issued in the days following the provincial state of emergency declared on March 17, 2020. These orders were intended to provide direction in light of the procedural and administrative concerns arising as a result of the immediate suspension of courthouse operations that followed the declaration of the state of emergency and, in particular, the effect of the declaration on litigation time periods provided under the Rules of Civil Procedure.
The Legislature introduced two key regulations in an effort to provide guidance to the litigation bar. O.Reg 73/20, made on March 20, 2020, provided for an indefinite suspension of any limitation periods or period of time within which litigation steps were to be taken, as established by statute, by-law, or order of the Ontario government, for the duration of the state of emergency.
O.Reg 259/20, made on June 5, 2020, amended O.Reg 73/20 primarily in decoupling the suspension from the “duration of the emergency” to a fixed date of September 11, 2020, in order to provide certainty and predictability to members of the litigation bar. The Emergency Management and Civil Protection Act provides that temporary suspensions by emergency order shall not exceed 90 days, hence the choice of a fixed date of September 11. However, the Legislature remains empowered to issue further orders extending the suspension beyond the chosen date should such deferrals be required in light of the pandemic.
As of the posting date of this blog, no further guidance or direction has been delivered by the Legislature with respect to a suggested extension of the suspension period. Although the circumstances are such that direction in that respect may be received on minimal notice, this blog is intended to serve as a mere reminder of the upcoming expiration of the suspension period or, in other words, the resumption of applicable litigation timings.
Thanks for reading.
Many parts of the world remain under some degree of lockdown due to the COVID-19 pandemic. For older adults who may have limited access to assistance or company outside of immediate family during the pandemic, and/or whose transition to long-term care may have been delayed as a result, temporary relocation to live with supportive family members may be a suitable option.
As our readers know, inheritance tax is payable in respect of the assets of estates located in a number of jurisdictions, which do not include Canada. In the United Kingdom, for example, an inheritance tax of 40% is charged on the portion of an estate exceeding a tax-free threshold of 325 thousand pounds (subject to certain exceptions).
One way that some families choose to limit inheritance tax is to gift certain assets, in some cases a family house, prior to death, such that its value will not trigger the payment of inheritance tax. In the UK, if an asset is validly gifted at least seven years before death, inheritance tax will not be payable on the asset. However, where the donor of the gift reserves the benefit of the property – for example, if he or she continues to live at real property gifted to another family member – the gift will not be valid for the purposes of inheritance tax calculations.
A recent news article highlights the risk that older individuals in the UK who move back into previously gifted property during the pandemic may lose the benefit of potential inheritance tax exclusions by falling under the “gift with reservation of benefit” exception as a result of benefitting from continued occupation of the gifted property. While this risk may not outweigh the benefits of obtaining family support, it is a factor that a family may wish to consider as part of a decision to alter living arrangements.
Approximately 600 gifts have failed in the past several years, triggering up to 300 million pounds in inheritance tax in the UK. It is certainly possible that these figures will continue to increase as a result of shared family accommodations during the pandemic.
Thank you for reading and stay safe,
Other blog posts that you may enjoy reading:
I learned about Blue Zones recently through Zac Efron’s new Netflix travel show, Down to Earth with Zac Efron. Episode 4 brings Zac and the audience to Sardinia where Zac meets with Dr. Giovanni Pes, nutritionist and medical statistician, and Dr. Valter Longo, bio-gerontologist, to discuss their research on the centenarians who live there. Blue Zones are regions of the world where people live much longer on average than everywhere else. This concept was coined by Dan Buettner and there are five Blue Zones in the world:
- Sardinia, Italy
- Okinawa, Japan
- Loma Linda, California (side note: California is also home to some of the world’s oldest-known living trees)
- Nicoya Peninsula, Costa Rica
- Icaria, Greece
According to Wikipedia, these Blue Zones have the highest rates of centenarians (i.e. people age 100 or above), and the people who live there suffer a fraction of the common diseases that ails the rest of the world and they enjoy more years of good health.
During the episode, Zac also visits a local woman who was born on April 15, 1920. She was 98 years old when the episode was filmed. Her husband had lived to 103 years old before his passing. According to Dr. Longo, it is extremely rare to have a couple with such longevity. Thereafter, Liliana was asked to do a cognitive test that one-third of centenarians or people with dementia will have trouble with, but Liliana does this with flying colours by accurately drawing the numbers on a clock and overlapping shapes on camera.
Liliana’s test was administered in her native language. In North America, the Montreal Cognitive Assessment (also known as the MOCA) is commonly administered to seniors as a screening tool for cognitive impairment like dementia. The MOCA is in the news recently as a result of Donald Trump’s interview with Chris Wallace on Fox News Sunday. Trump didn’t actually identify the exact cognitive test involved but he was proud to have “aced” the test.
Thanks for reading!
The late Donald Farb called his insurance company to renew his travel insurance policy before his trip to Florida. Mr. Farb spent about half an hour with a telephone representative from Manulife to complete the insurance application. He said “no” to a variety of questions regarding his medications and pre-existing conditions. Thereafter, the travel policy was issued on the basis of the information provided by Mr. Farb, and Mr. Farb went on his trip. While he was in Florida, Mr. Farb was unexpectedly hospitalized and he incurred over $130,000 (USD) in hospital expenses. Manulife later denied Mr. Farb’s claim for reimbursement and took the position that his policy was voided on the grounds of misrepresentation. Mr. Farb died before his insurance claim was resolved and his Estate commenced a court application to continue Mr. Farb’s dispute with Manulife.
In considering the Estate’s application, Justice Belobaba of the Ontario Superior Court of Justice reviewed the first principles of the Insurance Act and how the Act is designed to protect both the insurer and the insured. While insurance companies are protected by the insured’s duty to disclose, and the right to void coverage if there was a failure to disclose or misrepresentation, the consumer is protected by the requirement that the application process be done in writing so that the consumer will have the opportunity to review the information provided and to make any necessary corrections before the policy takes effect.
Justice Belobaba found that Manulife’s application process satisfied the requirements under the Insurance Act. He found that there was no issue with the telephone service provided by Manulife and the way that information is collected verbally from the applicant because the completed application form is emailed, in writing, back to the applicant for verification. The emailed and mailed copy of the insurance policy also contained a multitude of warnings asking the insured to review their policy carefully before traveling and that “the policy is void in the case of fraud, attempted fraud, or if you conceal or misrepresent any material fact in your application”.
As evidence before the Court, Justice Belobaba was provided with an audio recording of Mr. Farb’s telephone call with the insurance representative, and a copy of the materials that were emailed and mailed to Mr. Farb. Justice Belobaba found that Mr. Farb had two months to review his answers to the medical questions that were asked of him, and there was no evidence that Mr. Farb ever contacted Manulife to correct his answers, which was sufficient to conclude that Manulife was within its rights to void the policy.
The Estate’s application was dismissed, and you can read the full reasons for decision in Estate of Donald Farb v. Manulife, 2020 ONSC 3037, by clicking here.
Travel insurance should always be top of mind before travelling. It is a good idea to reach out to your insurance company and review your existing policy and the information contained in the underlying application before you go, especially under the present circumstances with COVID-19. The issue of whether testing and medical care for COVID-19 will be covered while abroad is important to consider before any travel plans are finalized.
Thanks for reading,
I am proud to be part of a COVID-19 Working Group established by the Ontario Bar Association’s (OBA) Elder Law Section. We are urging the Ontario government to act now to increase the safety of older adults living in long-term care homes. The OBA letter to Ministers Fullerton and Cho found here makes specific recommendations for the implementation of immediate measures, some of which are:
Resume unannounced annual Resident Quality Inspectors
The Long-Term Care Homes Act requires inspections at least annually, without advance notice, to ensure compliance. However, in the fall of 2018, the Ministry of Long-Term Care scaled back comprehensive Resident Quality Inspections to focus on ‘risk-based’ complaints-triggered inspections. The government is being asked to resume unannounced annual on-site and in-person inspections, as they are an essential compliance measure to protect the vulnerable population of residents in long-term care homes.
Safeguard residents’ right to give informed consent or refusal to treatment and the delivery of personal assistance services
In the long-term care setting, Ontario law requires informed consent of a person or their legally authorized substitute decision-maker both in respect of treatment and personal assistance services. This necessitates health care providers and personal support workers having the ability to engage with residents, to explain risks and options, and to address questions. Their ability to do so is hampered by staff shortages, insufficient personal protective equipment and a lack of resources and training. The Ministry of Long-Term Care is being asked to ensure that health care providers and personal support workers have the knowledge, resources and time to properly engage with residents and ensure their consent or refusal to treatment is fully informed.
Ensure sufficient life safety measures are installed in long-term care homes.
Long-term care homes are exempt until January 1, 2025 for installation of automatic fire sprinklers under the Ontario Fire Code, on the basis that under a long-term care home rebuild program, all Ontario long-term care homes would be brought up to current standards by January 1, 2025. Given the delay in the rebuild program, many older long-term care homes still do not have automatic fire sprinklers, and are unlikely to be brought up to current standards by January 2025. The government is being called upon to implement sufficient life safety measures, including installing automatic fire sprinklers in all Ontario long-term care homes as soon as possible.
Accelerate the completion of a long-term care home rebuild program**
Currently, approximately one-third of all long-term care beds in Ontario remain at the 1972 standard. These beds accounted for 57% of the province’s 1,691 reported COVID-19 deaths in long-term care homes (as of early June). The Ministry of Long-Term Care is being asked to take immediate control of the rebuild program to ensure that new homes are built or rebuilt promptly, in locations that meet the demand for long-term care home services.
I am appreciative of everyone who supported this initiative, and to the Working Group in particular: Lawrence Swartz (Chair), Graham Webb, Raymond Leclair, Kim Gale and Amy MacAlpine.
Have a great day,
** Here you can find the announcement that was just made regarding the acceleration of the rebuild program.
Courts are reopening across the province. However, going to court will not be like it used to be.
In order to be allowed to enter the courthouse, lawyers and the public will need to complete a COVID-19 courthouse screening questionnaire.
The questionnaire is online and can be completed in advance. Choose the courthouse that you want to visit, and answer five simple questions about your health status. Get the answers right, and you’ll get a checkmark on your screen that you can show to courthouse security. If you didn’t take the test on your smartphone, you can print the results and take that to the courthouse. Get the answers wrong and you are told that you cannot enter the courthouse. The page tells you who you should contact.
The test and results are only good for one day. You have to take the test on the morning of your planned court attendance.
As there will be inevitable delays when entering a courthouse, extra time will be required.
Other changes include enhanced cleaning, hand sanitizer stations, barriers and physical distancing measures. In courtrooms, barriers are being installed in the courtroom where the judge sits, at the witness stand, court personnel work stations and counsel tables. Disinfectant wipes are available at counsel tables. Documents handed up to the judge are to be placed in a bin or on a trolley. Access to elevators is limited. Court counters are open for limited hours.
Read more about court reopening protocols here.
Thanks for reading.