Category: General Interest
The COVID-19 pandemic has changed the way the legal profession works at least on a temporary basis. In Ontario, lawyers are required to embrace technology to facilitate dispute resolution and to move files along. Mediations, discoveries, and Court hearings are being conducted virtually via videoconference. Today I will consider some of the benefits of remote mediation and then tips on how to master it.
- Cost – cost will inevitably be lower as it will be organized on an online platform.
- Convenience – The mediation can be arranged on short notice, as all parties can participate from their location of choice. Travel and the associated costs are no longer an issue. Participation of parties that might not have otherwise be available to participate in mediation may now be accessible.
Tips for Successful Remote Mediation:
- Ensure your client is set up with the proper technology: a computer equipped with webcam, microphone, and speakers. Lawyers cannot assume that every client has access to a computer and quick internet connection.
- Consider using a 3rd party provider such as Neesons Court Reporting & Mediation, to host the mediation. This provider can facilitate the movement of parties in and out of plenary and breakout rooms, summon the mediator, arrange a counsel-to-counsel meeting, and assist with technical issues. This will ultimately save the parties time and expense.
- Ensure your clients are aware of privacy and confidentiality within meeting rooms. Client comfort is essential for a successful mediation.
- A lack of personal interaction means that your client may not be able to warm up to a mediator, which often times is necessary for a successful mediation. An effective mediator will structure a meditation in a way to facilitate adequate confidential one-on-one communication with the parties to assist with resolving the limitations of working with a
mediator through a video link rather than in person.
- Take lots of breaks as attending virtual mediation is more tiring than in person.
Thanks for reading!
I like wine. But I don’t know a lot about wine. My friend, Henry, knows a lot about wine. When picking a wine, I often refer and defer to Henry’s extensive knowledge of wine. I outsource many of my wine buying decisions to Henry. I adopt Henry’s knowledge of wine as my own.
I also like to golf when I can. I am an ok golfer, but could be better. My friend, John, is a great golfer. He reads all of the magazines and watches all of the instructional videos. When we golf together, John shares that knowledge with me. I can take John’s learning and make it mine. (Unfortunately, my increased knowledge doesn’t necessarily translate into lower golf scores.)
In a recent podcast by Michael Lewis called “Against the Rules”, (Season 2, Bonus episode), Michael Lewis interviews Malcolm Gladwell and Jacob Weisberg. At one point, Malcolm Gladwell refers to a concept akin to a “collective memory”, whereby he outsources things he needs to know to friends and family. He says that his approach is that we should appoint experts to our friendship circle and outsource things we need to know to them. Their knowledge and experience becomes ours. He suggests that in personal and professional life, we should let others do the things that they can do better than us.
The context of the discussion was the running of Pushkin Industries, which is a podcasting company formed by Gladwell and Weisberg. Gladwell is the “ideas” person, whereas Weisberg is more of the operations person. Gladwell relies on Weisberg to manage the financial and day-to-day aspects of the business. This allows Gladwell to do what he does best.
There is a great lesson in Gladwell’s brief comment. Personally and professionally, surround yourself with smart people whom you respect and trust and who have a broad range of strengths and interests. Listen to them. Free yourself to rely on their knowledge and experience. Your life will be better and easier for it. (Although you may not become a much better golfer.)
Thanks for reading.
The last will and testament of the gunman responsible for Nova Scotia’s mass shooting in April 2020 was recently made public. The gunman’s will names his common law spouse as the executor of his estate, estimated to be worth around $1.2 million. However, the gunman’s spouse has renounced her right to be executor of his estate and it is now being administered by the Public Trustee. It was also rumoured that the spouse had renounced any interest she may have had in the gunman’s sizable estate.
Whether the gunman’s partner did in fact relinquish any inheritance remains to be confirmed. However, there are a multitude of reasons why someone may choose to waive their right to an inheritance, including:
- Emotional grounds;
- Personal moral or ethical grounds;
- To avoid taking possession of an undesirable or costly asset, such as real property that requires significant repairs or maintenance;
- To avoid subjecting assets to potential creditors if the beneficiary is on the brink of bankruptcy or involved in a lawsuit; or
- To allow the asset to pass to a secondary beneficiary.
For an overview of what is required to properly disclaim an inheritance, you can read Ian Hull’s blog here.
As shown by the above list, even where a beneficiary does not plan to benefit personally from an inheritance they may still be interested in what happens to that inheritance. In such situations, the beneficiary may want to think carefully about whether disclaiming their inheritance is the best option.
It is important to note that a person can only disclaim a gift if they have not yet benefited from the assets and, once disclaimed, that person has no control over the assets. In other words, a beneficiary who renounces a gift should not have anything to do with those assets either before or after they have been disclaimed. This also means that the beneficiary should not have any say in who receives the inheritance.
If a person wants to disclaim their inheritance in order for it to pass to a secondary beneficiary, they should confirm whether the deceased’s will or intestacy laws, as applicable, provide for that outcome. If it does not, or if the person wishes to direct their inheritance to some other individual or charity, there is another option: they can accept the inheritance and give some or all of the assets to whomever they choose. Depending on the beneficiary’s particular goals and circumstances, accepting an inheritance and distributing the assets as they see fit may be preferable to disclaiming the assets.
Thanks for reading!
George Floyd died tragically during an arrest by Minneapolis Police officers on May 25, 2020. Mr. Floyd’s highly publicized death ignited demonstrations and protests across the United States and Canada against police brutality and in support of anti-racism. Many individuals are also showing their support to this cause with donations to community groups, non-profit organizations, and other fundraising campaigns with a related mission or purpose.
One of the more successful fundraising campaigns has been the George Floyd Memorial Fund established by Mr. Floyd’s brother, Philonise Floyd, on GoFundMe, an online crowdfunding platform. This campaign has raised just over $14 million to date, far surpassing its original target of $1.5 million. The overwhelming success of this GoFundMe campaign invites the question – what happens if more funds are donated to a fundraising campaign than originally requested?
Crowdfunding campaigns are often created in order to raise money for a specific purpose or project. If more money is raised than is needed to fulfill the campaign’s intended purpose, then there will be surplus funds. A common example is a GoFundMe campaign created to defray funeral expenses and the campaign ends up raising funds over and above the actual costs incurred for the funeral. What is the campaign promoter entitled, or perhaps required, to do with the leftover funds?
In general, if money is donated for a specific purpose and not all of the funds raised can be applied to that specific purpose, the surplus funds may be returned to the donors via a resulting trust. Returning donated monies can be burdensome where there have been a significant number of donors and/or anonymous donors who cannot be easily identified. To help avoid this situation, a campaign promoter can include alternative purposes for which funds can be used. These additional purposes must be set out at the time the funds are solicited.
In the case of the George Floyd Memorial Fund, the GoFundMe page states:
“This fund is established to cover funeral and burial expenses, mental and grief counseling, lodging and travel for all court proceedings, and to assist our family in the days to come as we continue to seek justice for George. A portion of these funds will also go to the Estate of George Floyd for the benefit and care of his children and their educational fund.”
The above description includes multiple purposes for the collected funds. Some of these purposes likely have been or will be fulfilled, such as the payment of funeral expenses. However, other purposes are seemingly unbounded, such as supporting the care and education of Mr. Floyd’s children. Thus, although the George Floyd Memorial Fund garnered millions of dollars in excess of its original goal, it is likely that all of these funds can properly be applied to the campaign’s defined purposes. If this is the case, then no portion of the collected funds will be considered to be surplus and all of the money should remain available for the benefit of the Floyd family.
Thanks for reading!
As the province of Ontario slowly emerges from the strict measures in place to prevent the spread of Covid-19, businesses and organizations alike are considering what workplaces will look like moving forward. Modernizing technology in workplaces is a fundamental aspect of these considerations, and Ontario courtrooms are no exception.
On Thursday, May 28, 2020, Chief Justice Geoffrey Morawetz, Senior Family Justice Suzanne Stevenson and Regional Senior Justice Michelle Fuerst answered questions posed by members of the legal profession on the Superior Court’s response to the Covid-19 pandemic and the future of the courtroom as we know it. The overarching message conveyed by Chief Justice Morawetz was that the courts have acknowledged the need to modernize and that great efforts are being made to adapt to new technologies and integrate those technologies into our justice system.
I will briefly highlight some of the key takeaways from the Ontario Bar Association’s (OBA) webinar, although I encourage all those who are interested to watch the full webinar, which is free and accessible to the public on the OBA website. To watch the webinar, click here.
- Currently, the Superior Court of Justice has suspended in-person hearings until July 6, 2020, at the earliest. It is expected that the next phase of modernization will see a hybrid of both in-person and video or telephone conferencing. Courts will likely not return to “normal” operations (i.e. in-person hearings of all matters) until a vaccine is widely available.
- It was acknowledged that the courts moved quickly to allow for remote hearings of matters that were easily suited to a virtual hearing, such as matters that were unopposed, on consent, or in writing. Over the course of the pandemic, the courts have twice expanded the scope of matters it will hear. Moving forward, it is expected that the courts will continue to expand the virtual courtroom to be able to hear contentious matters that require oral advocacy.
- In conjunction with the Minister of the Attorney General’s office, the courts are aiming to increase availability to video conferencing across all regions.
- Given that the courts have not been operating at their full capacity since mid-March, and the backlog that existed prior to Covid-19, it is expected that there will be a significant backlog of matters that will have to be heard. In an effort to resolve this issue, judges from different regions will likely hear matters virtually in order to bring the court system back up to speed.
- We can expect to see an expansion of matters that that are being overseen by a case management judge.
- It is expected that eventually, there will be electronic scheduling platforms in place that will allow counsel to schedule attendances online.
Thank you for reading!
Today I learned about the National Initiative for the Care of the Elderly (“NICE”) and their Talk 2 NICE program.
NICE is an international network of researchers, practitioners and students dedicated to improving the care of older adults. Members come from a broad spectrum of disciplines and professions.
In response to the COVID-19 pandemic, NICE is providing free outreach and counselling to older adults and persons with disabilities. Callers are able to speak to social workers or social work students. Talk 2 NICE can be reached toll free at 1 (844) 529-7292. Or, a time for a call from Talk 2 NICE can be scheduled on their webpage. The program can also be accessed over the internet by clicking on a link. Referrals for friends or family members are also accepted.
Callers have a choice of scheduling either a 15 minute or 30 minute “Friendly Check-In”.
The call is designed to help those socially isolated and lonely due to the current crisis. The service is also offered to caregivers. The trained volunteers will provide uplifting phone calls that respond flexibly to the needs of the caller, and will offer information about other available resource
Another excellent resource provided by NICE is a pamphlet entitled “To Stay Or To Go?: Moving Family from Institutional Care to your Home During the COVID-19 Pandemic”. The brochure discusses a number of considerations to be taken into account when considering whether to remove a family member from a Long-Term Care Facility.
Mental health should be top of mind during these unique times. This is particularly so for the elderly. The service provided by NICE is an excellent resource. Pass on this information to anyone who may benefit from such a call.
Thanks for reading.
P.S. Call your mother (or anyone else you know who may benefit from an isolation-breaking telephone call).
“The Adventure of the Norwood Builder” begins when Holmes and his companion, Watson, are visited by a Mr. MacFarlane, a “wild-eyed and frantic” young man who has been pursued by the police and charged with the murder of Mr. Oldacre, an eccentric and reclusive bachelor. Mr. MacFarlane swears upon his innocence, but his situation is forlorn, as Mr. Oldacre, on the day he was allegedly murdered, prepared a holograph Will in which he gave everything to Mr. MacFarlane.
Upon inspection of the holograph Will, Holmes deduces that it was written on a train, since there are some sentences that are clear and discernible, and others which are illegible – “the good writing represents stations, the bad writing movement”. According to Holmes, this corroborates Mr. MacFarlane’s credibility:
“It is curious – is it not? – that a man should draw up so important a document in so haphazard a fashion. It suggests that he did not think it was going to be of much practical importance.”
Holmes becomes more suspicious of the official narrative when he discovers, amongst other things, that prior to his death, Mr. Oldacre transferred his assets to a mysterious unknown, Mr. Cornelius.
In estate litigation in Ontario, it is common practice for litigants to employ handwriting experts to investigate the authenticity of documents and signatures, but they, likely cautious and mindful of their professional reputations, may be less inclined to make such momentous and bold inferences. In cracking the case (spoiler alert!), Holmes certainly employs measures that go far beyond those available to present-day estate litigators, experts, investigators, and the authorities.
Working with some suggestive facts – such as that Mr. Oldacre executed his Will sloppily and that he transferred his wealth to one party while designating another party as his estate beneficiary – Sherlock Holmes deduces that Mr. Oldacre has faked his own death, framed Mr. MacFarlane, and transferred his wealth to the fictitious Mr. Cornelius, who is in fact himself, in order to defraud his creditors. In an effort to vindicate his theory and save Mr. MacFarlane, Holmes invites the police into Mr. Oldacre’s home, instructs Watson to put a match to some straw, and then, when there is a blaze and smoke billowing within the house, Holmes has the police yell “fire”:
“A door suddenly flew open out of what appeared to be solid wall at the end of the corridor, and a little, wizened man darted out of it, like a rabbit out of its burrow. ‘Capital!’ said Holmes, calmly. ‘Watson, a bucket of water over the straw … allow me to present you with your principal missing witness, Mr. Jonas Oldacre.’”
These types of truth-finding artifices, though extreme and unorthodox, are within the purview of the unofficial detective. Estate litigators, on the other hand, operate under the stricter ambit of the Law Society of Ontario, which would likely frown upon such irregular practices.
Thank you for reading – have a great day,
Suzana Popovic-Montag & Devin McMurtry
The University of Saskatchewan’s College of Law proudly displays the will that was etched onto the fender of a tractor by a dying farmer. That happened in 1948. Decades later, the Saskatchewan Queens Bench was similarly asked to determine whether a note handwritten on a McDonald’s napkin is a valid will.
Philip Langan died in 2015. He was a widower with eight children (Earl was predeceased and Landry died after the napkin was written but before Langan’s death). Shortly after Langan’s death, two of his children came forward with a McDonald’s napkin that they claim to be their father’s last will and testament. Ronald and Sharon explained that the napkin was made when their father thought he was having a heart attack at McDonald’s. Sharon said that she was not there when her father started to write on the napkin but she was there to see him sign his name. She said he gave the napkin to her and said “This is my will. I want you to keep this in case something happens”. A third child, Philip, supported the validity of the will because he was also at the McDonald’s that day. Like Sharon, Philip did not see his father write on the napkin but he was there when the napkin was given to Sharon and he heard what his father said to Sharon.
Maryann challenged the validity of the napkin because she was skeptical of whether it was in her father’s handwriting. She also stated that Langan told her that he would not leave a will because “he wanted us to fight like he had to”. Yet, interestingly enough, an intestacy would still give rise to the same result as the napkin on the consent of the siblings.
The napkin itself was described as follows in Gust v. Langan, 2020 SKQB 42 (CanLII):
“written in pen on a very thin, brown-coloured, paper restaurant napkin reads as follows:
Philip W. Langan
Marann Langan (Gust)
Split my property evenly,
“Dad Philip Langan”
The court found that the napkin was a valid holograph will. Justice Layh was persuaded by the propounders’ explanation that the napkin was made at a time when Langan thought he was having a heart attack “a time when one’s mind would reasonably turn to the question of estate planning, especially in the absence of an existing will. Mr. Langan’s immediate delivery of the will to his daughter, Sharon, and the comment he made to her – as evidenced by both Sharon and Philip’s statements – that she keep the document in case something happened to him, shows a clear testamentary intention.” (para. 22).
While the legal analysis in this case is based on the law in Saskatchewan (unlike Ontario, Saskatchewan has curative legislation that permits substantial compliance), Gust v. Langan is a timely reminder that, in addition to the formal requirements of a holograph will, testamentary intent is crucial in determining whether a document can be given effect as a will. On the face of the napkin, there was nothing to indicate when Langan intended to divide his property. The essential characteristic of a will is the intention to dispose of property after one’s death. Here, the court had to rely on the extrinsic of evidence from Langan’s state of mind and what he said to Sharon.
Should you find yourself in a situation where an emergency holograph will is needed, you may want to refer to Ian Hull and Jordan Atin’s blog on the subject:
I would also suggest that regular paper be used, if you have some, for practical reasons or to simply avoid media coverage since this particular McDonald’s napkin has made the news in New York and Australia.
Thanks for reading.
The way that we practice law has shifted rapidly over these past couple of weeks as we social distance ourselves. This includes the adoption of electronic means of communication such as video conferencing for things that would have seemed impossible only a couple of weeks ago such as the witnessing of Wills or the commissioning of affidavits. There has also been a significant expansion of the courts hearing matters virtually, with the court currently hearing urgent matters virtually through the use of video conferencing or conference calls with the scope of what is being heard appearing to be expanded.
Although, generally speaking, I believe that most legal practitioners would likely be in agreement that the court and/or the various administrative bodies have responded fairly quickly to implementing new electronic methods and means of practicing law under trying times, this does not necessarily mean that the shift to the more virtual form of practicing law is not without its hiccups or concerns.
One of the areas that may need further consideration is the application of the “open court” principle if hearings are to shift to being heard virtually. It is generally accepted that a fundamental principle of our justice system is that the courts are open to being attended by anyone in the general public, with the court only restricting the general public’s access to attend and/or review a matter under very limited circumstances. As matters shift to being heard virtually, with a potential attendee to a video and/or telephone conference likely needing an access code to attend the matter, is there the risk that the “open court” principle could be impacted?
The Toronto Star recently reported about the steps and efforts that they were having to take to still be provided with electronic access to matters before the court during the pandemic. Although the article notes that they were having difficulty being provided with access for certain matters, it noted that they had been successful in obtaining electronic access to matters in others. Hopefully as time progresses any issues are able to be worked out.
One unknown element is whether any of these changes will become permanent after the pandemic has subsided. If elements such as virtual hearings should become more permanent steps will likely need to be taken to ensure that as part of the more permanent shift to virtual and electronic hearings that the “open court” principle is not lost.
Thank you for reading and stay safe and healthy.
Ontario has officially declared a state of emergency amid the COVID-19 pandemic, and efforts to quell the spread of the coronavirus are now stronger than ever. Indeed, the Federal Government is urging everyone to engage in social distancing, and the courts are no exception.
On March 15, 2020, the Superior Court of Justice published a Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings (the “Notice”), wherein it announced the suspension of Superior Court of Justice regular operations.
Specifically, the Notice states that all criminal, family and civil matters scheduled to be heard on or after March 17, 2020 are adjourned except for urgent and emergency matters. Matters considered to be “urgent” are set out in the Notice and include motions and applications related to public health and safety and COVID-19; the safety of a child or parent; and time-sensitive civil motions with significant financial repercussions if not heard, among others.
To bring an urgent matter, the motion and application materials can be filed with the court by email. Notably, where it is not possible to email a sworn affidavit, an unsworn affidavit can be delivered as long as the affiant participates in any telephone or videoconference hearing to swear or affirm the affidavit. Urgent matters may be heard and determined in writing, by teleconference or videoconference, unless the court determines that an in-person hearing is necessary and safe.
Although people are being advised to avoid unnecessary attendances at Court, they nevertheless remain open and parties can continue to process “regular filings”. However, the flexible procedures that have been put in place for urgent matters do not extend to regular filings, which remain subject to the Rules of Civil Procedure.
The court’s response to COVID-19 is a prime example of how the legal system as a whole is being forced to lean on technology in these unusual and uncertain times. While many legal professionals have already adopted digital practices, the courts continue to be behind the times. The Auditor General’s latest audit of Ontario’s court system found that “the Ministry’s pace in modernizing the court system remained slow, and the system is still heavily paper-based, making it inefficient and therefore keeping it from realizing potential cost savings”. Perhaps this period will give the much-needed impetus for courts to modernize their operations by using electronic service, filing, hearings, and document management more routinely. This would likely be a welcome change for all.
Thanks for reading and stay safe!