Category: General Interest
Recently, I came across the Japanese term “kaizen”. The term means change for the better, or continuous improvement. The concept envisages constant self- or organizational review in order to make large or small improvements.
A similar concept is explained in James Clear’s book, Atomic Habits. There, Clear explains how small (atomic) changes can make substantial improvements to all aspects of our lives.
My favourite anecdote from Atomic Habits relates to the British Cycling team. The team had historically performed poorly. Then, Sir David Brailsford came on board and implemented his theory of “marginal gains”. Under this theory, a 1% improvement in a number of areas will lead to substantial cumulative gain. In implementing the theory, Brailsford had the floors of the team truck painted white, so that any dust that might impair bicycle maintenance could be seen. He retaught the riders how to wash their hands properly, so as to avoid illness. He had the riders’ sleep habits studied and made changes to their bedding and sleep schedules. He implemented numerous other changes affecting every aspect of the cycling program.
The results from Brailsford’s small changes led to the British Cycling team winning 16 gold medals over 2 Olympics, and 6 Tour de France wins in 7 years. Individually, no change led to the result, but taken together, the small changes resulted in a big gain.
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The title of today’s blog comes from the opening line of Derek Thompson’s article, Why Americans Die So Much, published in The Atlantic.
In the article, Thompson observes that U.S. life spans over the past 30 years are falling behind those of other similarly wealthy countries. The author looks at a September 2021 study by the National Bureau of Economic Research which shows that Americans die earlier than their European counterparts in every age group. American babies are more likely to die before they turn 5 compared to Europeans; American teens are more likely to die before they reach 20 than their European peers, and American adults are more likely to die before they reach 65, compared to Europeans. Overall, Europeans have a longer life expectancy.
And the study’s numbers go back several decades. The results are not due to recent COVID deaths, or the recent drug overdose crisis.
Thompson says that finding a straightforward explanation is hard. One factor is gun violence, which is more prevalent in the U.S. Another might be motor vehicle accidents: Americans drive more than residents of other countries.
The study makes three important findings:
- European mortality rates are consistent between rich and poor. This is said to be due to health improvements, which are better disseminated in Europe. The poor in America do not all enjoy the benefit of such health improvements. In America, black teenagers in the poorest areas are twice as likely to die before they turn 20 than those in the richest areas. The effect of poverty on lifespan is substantially higher in the U.S.
- Overall, Europeans live longer than Americans, even when comparing rich Americans to rich Europeans. This, it is said, “says something negative about the overall health system of the United States”.
- On a brighter note, longevity amongst Black Americans is improving, and the gap between white life expectancy and Black life expectancy is closing. This is said to be due to advances in science and technology, which are now more readily accessible to all. In addition, reductions in air pollution have helped, as Black Americans were more likely to live in more polluted areas. Other factors contributing to the closing of the gap include increased drug deaths (more prevalent amongst white Americans), and a decline in homicides, which disproportionally kill Black Americans.
Thompson concludes his article by calling for greater income redistribution and universal health care. “For decades, U.S. politicians on the right have resisted calls for income redistribution and universal insurance under the theory that inequality was a fair price to pay for freedom. But now we know that the price of inequality is paid in early death – for Americans of all races, ages and income levels.”
Thank you for reading.
Our blog has been following Britney Spears’ conservatorship proceeding closely in the recent months. So far, the #FreeBritney movement has seen significant progress through the appointment of a new lawyer for Britney, and very recently through Jamie Spears’ petition to end the conservatorship. Even though Britney is still under a conservatorship of property and of person, the iconic popstar surprised the world with her engagement to long-time boyfriend, Sam Asghari.
This fantastic news follows Britney’s stunning court testimony back in June that she wanted to be able to get married and have a baby but that she was told that she could not do so because of the conservatorship.
To celebrate Britney’s engagement, I wanted to share Justice Benotto’s words in Calvert (Litigation Guardian of) v. Calvert, 1997 CanLii 12096, as affirmed by the Court of Appeal in 1998 CanLii 3001, with leave to the Supreme Court of Canada dismissed:
“A person’s right of self-determination is an important philosophical and legal principle. A person can be capable of making a basic decision and not capable of making a complex decision. Dr. Molloy, the director of the Geriatric Research Group and Memory Centre and associate professor of geriatrics at McMaster University, said:
Different aspects of daily living and decision-making are now viewed separately. The ability to manage finances, consent to treatment, stand trial, manage personal care, make personal care or health decisions, all require separate decision- making capabilities and assessments.
The contract of marriage has been described as the essence of simplicity, not requiring a high degree of intelligence to comprehend: Park, supra, at p. 1427.”
While the foregoing passage may not sound particularly romantic, the notion that marriage is the essence of simplicity seems rather befitting to the intimate decision that was made between Britney and Sam.
Britney is not yet a “freed” woman, but as her song goes,
”All I need is time (is all I need)
A moment that is mine
While I’m in between”.
Thanks for sharing your engagement moment with us Britney! Click here for the video of “I’m Not a Girl, Not Yet a Woman”.
The twentieth anniversary of 9/11 took place this past weekend. It was a day of reflection, heavy with the sentiment that we must “never forget” what transpired. There were endless stories on the heroism of first responders in Ground Zero but the story that gave me the most pause was this Washington Post article on “The Mystery of 9/11 and Dementia”.
The article by Patrick Hruby starts with Ron Kirchner. Ron was a firefighter in Queens. He was in his thirties on September 11, 2001. By 2009, Ron was retired on disability. He had asthma and lung disease that were both linked to Ground Zero exposure. By 2015, Ron was diagnosed with dementia. He was only 52 years old at the time. Ron’s neurologist thought that his brain scan resembled the brain scan of an 85-year old. Ron now requires full-time care as he has trouble speaking, eating, and bathing.
In one study, 9/11 first responders were found to report instances of cognitive impairment three times the rate of people in their 70’s.
In another study, first responders with PTSD and cognitive impairments were found to have both blood and brain protein abnormalities as those with Alzheimer’s.
The article notes that cognitive ailments are not currently covered under the 9/11 Health and Compensation Act, a federal statute that provides health care and compensation to responders, survivors, and victims. In order to add cognitive ailments to the Act, more research is needed to show that the condition is substantially likely caused by 9/11 exposures.
Hopefully, with the media attention on 9/11 first responders and their needs, funding for all necessary research will be made available to effectively help this tremendous group of individuals.
Thanks for reading.
Does a judge have the authority to treat a claim as having been commenced when the court did not issue a Statement of Claim in time? Yes, according to the decision in Patkaciunas v. Economical Mutual Insurance Company, 2021 ONSC 5945 (CanLII).
There, the plaintiff sought to commence a claim against the defendant. The limitation period was to expire on June 25, 2019. The paralegal for the plaintiff attended the court office to have the claim issued. He was at the court office at 4:29 pm; well before the 5 pm closing time. The paralegal told the court staff about the urgency of the matter, and was told that he would be seen. When called to the counter, the paralegal was told by the lone clerk on duty that the computer system was shutting down at 5 pm, and the Statement of Claim could not be issued. The clerk then turned and walked away. The claim was not issued until the next day.
Justice Dunphy found that the court staff acted improperly in not issuing the claim. He went on to find that he had the inherent jurisdiction to treat as done that which the public officials had a duty to do. “The court must have the capacity to control its own processes and when a demonstrated failing in the court’s processes is proved to be the proximate cause for the apparent failure to accomplish fully a required step before the expiry of a limitation period, the court’s inherent jurisdiction extends to treating as done that which its own staff ought to have done.” He declared that the Statement of Claim be amended to show an issue date of June 25, 2019.
A useful precedent for those rare circumstances where, through no fault of your own, the court, inadvertently, due to backlog or otherwise, doesn’t get done what needs to get done.
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New Medical Assistance in Dying (MAID) legislation came into force on March 17, 2021, which provisions include expanding eligibility to those whose death is not reasonably foreseeable. Although the new legislation temporarily, until March 17, 2023, does not allow those with a mental illness as their sole underlying medical condition to be eligible for MAID, the statute obliges the Minister of Health and Minister of Justice to initiate an independent expert review “respecting recommended protocols, guidance and safeguards to apply to requests for medical assistance in dying by persons who have a mental illness.”
Further to this mandate, the Government of Canada recently announced that an Expert Panel on MAID and Mental Illness has been established to undertake the review. The announcement includes a link to the member biographies, and describes them as reflecting “a range of disciplines and perspectives, including clinical psychiatry, MAID assessment and provision, law, ethics, health professional training and regulation, mental health care services, as well as lived experience with mental illness.”
The Government news release also highlights the critical importance of this work, with the Minister of Health quoted as saying:
“Protecting the vulnerable, including those suffering from mental illness or in crisis, is a priority for the Government of Canada. That is why the work of the Expert Panel is so important to me. The Expert Panel will provide us with independent, objective advice on safe and appropriate ways to assess and provide MAID to individuals living with mental illness who are seeking this avenue to end their suffering. The work of the Expert Panel will be difficult, but will provide Canadians with reassurances that we are balancing justice with compassion.”
The Expert Panel’s final report containing its recommendations is due by March 17, 2022. We will be sure to keep an eye out for further updates on this issue.
Thanks for reading and have a great day,
An almost ubiquitous figure in pop culture, Bob Ross has been immortalized through references as broad-spanning as t-shirts quoting his famous line, “happy little accidents”, to a cameo in the Marvel action hero movie, Deadpool.
Bob Ross’ long-running series, “The Joy of Painting”, which ran from 1983 until his untimely death in 1994, resulted in the production of thousands of original artworks. The ownership of this substantial art collection was left in the hands of Bob Ross Inc. (“BRI”), as discussed in a previous blog.
Recently, a documentary was released on Netflix, “Bob Ross: Happy Accidents, Betrayal & Greed”, bringing the estate of Bob Ross back into the public eye. It explores behind the scenes Bob Ross’ legacy, delving into the disputes surrounding the use of his name and likeness following his death.
Our previous blog on Bob Ross’ estate explained that, following his death, ownership and control of BRI fell to his business partners, Annette and Walt Kowalski. Bob Ross was known for his easy-going and kind-hearted personality. However, the documentary exposes tensions in the inner business workings of the multi-million dollar empire that was the Bob Ross trademark.
By the end of his life, Bob Ross was allegedly at odds with the Kowalskis and their vision for his brand. Through his will, Bob Ross tried to create a trust in the name of his brother, Jimmie, and son, Steve, that would give them control of his interest in BRI, as well as complete ownership of his name and likeness.
Bob Ross was known for his ‘alla prima’ technique of wet-on-wet paint, which allowed him to be creative in ‘using’ his mistakes to create solutions. Unfortunately for the beneficiaries of the trust, the ink on a contract dries quickly, and the partnership agreement with the Kowalskis was one ‘mistake’ Bob Ross could not fix.
The litigation that followed his death resulted in a settlement granting the Kowalskis complete control of BRI pursuant to the terms of its partnership agreement. Steve, the son, attempted to renew the litigation in 2019 on grounds of an undisclosed term of the trust agreement, granting him exclusive rights to the name and likeness of Bob Ross. The US federal court ruled in favour of BRI, as the plaintiff could not own property that the trust never actually had a legal right to.
The outcome was no doubt disheartening for Steve. However, the law upheld what was ostensibly a valid and enforceable contract, the partnership agreement.
Business vehicles such as partnerships and corporations are commonplace. However, the articles of incorporation of a corporation, for example, can restrict the sale and/or transfer of shares. In entering any kind of business structure, it is always wise to plan ahead. Where so desired, make sure your beneficiaries can benefit from your interest in a business, and remember your estate may not have the power to change or undo contracts you were a party to.
Thank you for reading and have a great day!
Suzana Popovic-Montag & Raphael Leitz
A baby in a swimming pool reaching for a $1 bill. Music lovers would instantly recognize this description as the album cover of Nirvana’s 1991 album “Nevermind.”
Until recently, Spencer Elden – the baby in question – embraced the fame that came with being on the cover of one of the most recognizable albums of all time. Elden even recreated the notorious photo several times over the last 30 years to mark the album’s 10th, 20th, and 25th anniversaries. In those photos, Elden is wearing swimming trunks.
Earlier this week, Elden made headlines when the media learned that he was suing the parties involved for sexual exploitation. Elden argues that his parents never authorized the use of his photograph for the Nirvana album, and that the band used the image to promote their music at his expense. Elden is seeking $150,000.00 USD in damages from each of the 15 defendants, which include the photographer Kirk Weddle, the surviving band members, and Kurt Cobain’s Estate.
Elden’s lawsuit has many people wondering: can an Estate be sued 30 years after an incident took place?
In California, where Elden began his lawsuit, victims of sexual abuse crimes who were children at the time of the alleged incident have until their 40th birthday or 5 years from the date that they discovered their abuse to file a civil action.
What if this claim had been commenced in Ontario? On March 9, 2016, the Limitations Act, 2002, S.O. 2002, c. 24 Sched. B was amended to remove all limitation periods for civil claims based on sexual assault. Therefore, assuming that a judge would find that Elden’s lawsuit can be properly classified as sexual abuse, Elden would be well-within his rights in bringing this claim.
However, if a judge ultimately found that Elden’s claim is not a civil claim based on sexual assault, different limitation periods would apply. Generally, the Limitations Act, 2002, provides an individual with two years from the date on which a claim is “discovered” to commence a claim before it is statute barred. However, individuals intending to commence a claim against someone who has died, such as Kurt Cobain, must also consider the much stricter limitation period imposed by section 38 of the Trustee Act, R.S.O. 1990, c. T.23.
Section 38 of the Trustee Act imposes a strict two year limitation period from the date of death for any individual to commence a claim against a deceased individual in tort. This limitation period is much more strict, as it is not subject to the same “discoverability” principle as the limitation period imposed by the Limitations Act. We have previously blogged about the limitation period imposed by section 38 of the Trustee Act here.
It remains to be seen whether Elden will be successful in his claim. However, this case should serve as a reminder to Estate Trustees and solicitors that Estates may be held accountable for events that took place well before the Deceased’s death, depending on the nature of the claim.
Thank you for reading,
When someone dies and their wish is to be buried or cremated in another country, grieving family members are left with the daunting task of figuring out how to transport the remains of their loved ones. This can be even more stressful when the death is unexpected.
While most major airlines facilitate the transportation of human bodies or ashes by air cargo, it is not as simple as it sounds. The whole process can be complicated and expensive, so seeking assistance from a professional repatriation company is advisable.
Professional repatriation companies have the expertise to ensure that the entire experience is smooth and easy, as they lead you through the process. They can help obtain and translate death certificates, liaise with government departments and embassies, and coordinate with airlines. These companies usually have pre-existing relationships with airlines as “known shippers” and therefore can make the necessary arrangements to securely transport the deceased with dignity. They can also deal with all compliance issues that may arise, and preparing the paperwork required by both the country of departure and the country of arrival.
The costs of transporting the body of a deceased varies depending on the airline carrier, travel distance, and weight among other factors. While domestic transportation can start at $3000, international transportation of a body can range from $10,000 to $20,000 on average. Transporting cremated ashes has lower compliance requirements and can be a less expensive option to consider.
Most major airlines also offer discounted fares for family members travelling as a result of a bereavement. While each airline has its own eligibility, Air Canada has a broad definition of immediate family which includes:
- child and grandchild
- parent and grandparent
- legal guardian or spouse of legal guardian
The categories include step, half, in-law, and common-law relatives that would fall under each of these classifications. Same-sex partners and in-laws of such are also included.
For more information, it would be best to contact airlines directly or get in touch with a professional repatriation company so they can further guide you in this process.
Thanks for reading, and have a great day,
Suzana Popovic-Montag & Ekroop Sekhon
Recently, the Divisional Court examined whether a text message is a “signature” for the purposes of section 13 of the Limitations Act (the “Act”).
In 1475182 Ontario Inc. o/a Edges Contracting v Ghotbi, 2021 ONSC 3477 (“Edges”), Edges Contracting was hired by Dr. Ghotbi to conduct leasehold improvements at his new dental practice.
The last payment made by Dr. Ghotbi occurred on March 11, 2016, leaving an outstanding balance of over $24,000. On June 2, 2016, the parties exchanged text messages regarding the outstanding invoice. Dr. Ghotbi, by text message, acknowledged the outstanding balance and indicated that no payment would be made until the work had been completed and a third-party inspector had reviewed the work conducted by Edges Contracting.
No further payments were made by Dr. Ghotbi, and Edges Contracting commenced a claim in Small Claims Court for damages. Dr. Ghotbi defended the action by asserting that Edges’ claim was out of time, calculating the start date of the relevant limitation period as the date of the last payment, being March 11, 2016. Edges, however, argued that the June 2, 2016 text exchange included an acknowledgment of the indebtedness by Dr. Ghotbi, such that the correct start date for the purposes of calculating the limitation period began on June 2, 2016.
In conducting its analysis, the Divisional Court turned to the relevant provisions of the Limitations Act.
Section 4 of the Act provides for a basic two-year limitation period, such that no proceeding shall be commenced after the second anniversary of the day on which the claim was discovered. Section 5 establishes the framework for discoverability. Section 13, provides for, in effect, the extension of the commencement date of a limitation period in relation to a claim for liquidated damages where an acknowledgment of the indebtedness is made. Section 13 further sets out that the acknowledgment must be in writing and signed by the person making it, or the person’s agent.
The trial judge found that the content of the text exchange constituted an acknowledgment of the debt owing. The judge looked to the plain wording of the texts as well as the broader context of the exchanges. While the texts were not signed in the traditional sense, the trial judge found that there was no dispute as to their authenticity.
The Divisional Court agreed with the trial judge’s findings. In finding that there was no question of authenticity regarding the text exchange, the trial judge had relied on the decision of Lev v Serebrennikov, 2016 ONSC 2093, where The Honourable Justice Pattillo, sitting for the Divisional Court, concluded that an email with the debtor’s name had satisfied the requirement of section 13 of the Act, noting that “the issue in every case will be one of fact concerning authenticity”.
The Divisional Court in Edges further held that while the text messages were obviously not “signed” in the traditional sense, section 13(10) does not prescribe any particular form of signature. The Divisional Court agreed that there was no question of authenticity, and, found that the express requirement of a signature had been met, pointing to the fact that there are unique identifiers associated with cell phones, including an International Mobile Equipment Identifier (IMEI) number, which provide in effect a digital signature on every text message sent by the user of the particular device.
The Divisional Court provided additional commentary, noting that the “world is changing…We live in a digital world now, much more than was the case when the Act came into force in 2002. It is incumbent upon the court to consider not just traditional means of affixing one’s signature to a document, but other, more modern means, including digital signatures.”
While we have yet to reach the point where a text message could be found to be a valid last Will and Testament in Ontario, the ever evolving digital world remains a relevant consideration for Estate and Trust practitioners and their clients alike, particularly as it relates to possible extensions to the tolling of limitation periods.
Thanks for reading!