Category: General Interest

10 Sep

Judges Fixing Court Errors

Paul Emile Trudelle General Interest Tags: , , , 0 Comments

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.

Thanks for reading.

Paul Trudelle

09 Sep

MAID for those with mental illness

Natalia R. Angelini Ethical Issues, General Interest, Health / Medical, In the News Tags: , 0 Comments

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,

Natalia Angelini

08 Sep

Bob Ross: A Not-So-Happy Mistake

Suzana Popovic-Montag Estate & Trust, General Interest, In the News, Wills Tags: , , , , 0 Comments

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

26 Aug

Can an Estate be Sued 30 Years Later?

Hull & Hull LLP Estate Litigation, General Interest, In the News, News & Events Tags: , , , , , 0 Comments

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,

Juanita Valencia

25 Aug

One Final Trip Around the Globe

Suzana Popovic-Montag General Interest Tags: , , , 0 Comments

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:

  • spouse
  • child and grandchild
  • parent and grandparent
  • sibling
  • 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

05 Aug

Is a text message a “signature”?

Sydney Osmar General Interest Tags: 0 Comments

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!

Sydney Osmar

30 Jul

Funeral Pre-Planning: Take a Lesson From a Pirate

Paul Emile Trudelle Estate Planning, General Interest Tags: , , 0 Comments

Sailors, and in particular, pirates are often depicted as wearing gold earrings. There are many legends as to why they adopted this particular fashion statement. One has a clearly estate-related basis.

Sailors were often given earrings to commemorate certain sailing milestones, such as crossing the equator or rounding the treacherous Cape Horn. Superstition also played a role, as many believed that gold earrings would improve their eyesight, prevent seasickness or even drowning. Wax was often pressed onto the earrings, which could serve as earplugs when firing a cannon. Another theory is that the gold earrings were just a way for pirates to show off their wealth.

From an estate planning point of view, sailors would wear valuable earrings so that their funerals could be paid for if their bodies washed ashore. If a pirate died on the ship, the value of the earrings could be used to cover the cost of transporting their body back home, so as to avoid a burial at sea (assuming that there is honour amongst thieves, and that the earrings were used as intended).

Actor (non-pirate) Morgan Freeman sports gold earrings. He has been reported as saying that his earrings are worth just enough to pay for a coffin in case he dies in a strange place.

Preplanning a funeral is always a good idea. It alleviates significant stress, both financial and emotional, on those left behind. It also allows the planner to ensure that they are given the burial they want. Take a lesson from a pirate: make a plan.

Thanks for reading. Have a great weekend.

Paul Trudelle

23 Jul

Olympic Medals: Going for the Gold

Paul Emile Trudelle General Interest, In the News Tags: , , 0 Comments

Finally, the 2020 Olympics appear to be about to begin (at the time that this is being written).

The Tokyo Olympics will have 339 medal events. Approximately 5,000 medals have been minted. The medals are made from recycled materials.

This year, for the first time in recent memory and due to COVID concerns, athletes will be putting their medals around their own necks.

According to International Olympic Committee regulations, each medal must contain a depiction of Nike (the Greek goddess of victory, not the swoosh), the official name of the Games  (eg. XXXII Olympiad Tokyo 2020) and the Olympic five rings symbol.

Although the medals are probably priceless to the winner, they do have an actual value. The cost of the materials used to make the medals is said to be $1,010 CDN for a gold medal, $640 CDN for a silver medal, and $5 CDN for a bronze medal. The gold medal contains six grams of gold plating over silver, the silver medal is all silver, and the bronze medal is made of brass. The Olympic Committee stopped giving out pure gold medals after the 1912 Olympics.

The medals clearly have a value beyond their cost to produce. Most notably, one of Jesse Owens’ 4 gold medals from the 1936 Berlin Olympics was sold in 2013 for over $1.4m US.

On eBay, an original silver medal from the 1906 Olympic Games is available for $15,289 CDN. Replica medals from most Olympic Games are available on eBay for about $35.00 CDN.

In addition to having value in and of themselves, Olympic medals often come with a hefty bonus from the winner’s country. Singaporean winners get $1m, $500,000 or $250,000 US for bringing home a gold, silver or bronze medal. Canadian winners get $20,000, $15,000 or $10,000 depending on where they are on the podium.

For the intriguing story of the 1972 Olympic gold medal basketball game and what lead to a term in the will of competitor Kenny Davis prohibiting his descendants from ever accepting the silver medal from the 1972 Games, see Ian Hull’s blog, here.

May you be faster, higher, stronger this weekend.

Paul Trudelle

22 Jul

Thousands Have Unclaimed Funds Waiting for Them!

James Jacuta General Interest Tags: , , , , 0 Comments

Thousands of individuals have unclaimed funds waiting for them in inactive credit union accounts, as well as unpaid wages, overpayments to debt collectors, proceeds from courts, pension funds, estates and real estate deposits in British Columbia. The British Columbia Unclaimed Property Society (BCUPS), whose mission is to put unclaimed money back in the hands of rightful owners, returned $1,035,932 last year in forgotten funds.

BCUPS holds unclaimed property as the custodian for rightful owners. The Society maintains a free online database where people can search to see if they have any unclaimed money waiting for them. Individuals can claim the funds by completing a verification process. There is no limitation period to claim funds and no cost for BCUPS’s services. BCUPS also works with companies and organizations to help get dormant assets off their books. In 2020, BCUPS received $4,858,925 in unclaimed funds from the courts, the Public Guardian and Trustee of British Columbia, credit unions, insurance companies, various levels of government, companies in liquidation, among other organizations.

Technically, an account is deemed dormant when a prescribed period of time has transpired with no activity, from a year to 10 years, depending on the type of account involved. Under BC law, credit unions, debt collection agencies, real estate agencies, companies in liquidation, municipal and provincial courts and municipalities, which are classified as mandatory holders, are required to make a “reasonable effort” to identify forgotten account holders before transferring these funds to BCUPS. Other organizations holding trust funds, insurance policies, brokerage accounts and closed pension plans are encouraged to voluntarily transfer their unclaimed property accounts to BCUPS if the rightful owners cannot be located.

British Columbia is the only jurisdiction in North America that has set up a not-for-profit society to administer its unclaimed property program where a portion of funds are transferred to charity.

Unclaimed Property in British Columbia by the Numbers:

$148,933,709 – Total amount of money sitting in dormant accounts waiting to be claimed.

$4,858,925 – Amount of unclaimed funds BCUPS received from financial institutions, companies and organizations in 2020.

$1,035,932 – Amount of money returned to verified claimants in 2020.

$106,789,525 – Total amount of money from dormant accounts BCUPS has received since its inception on April 1, 2003.

$18,514,588 – Amount of money from dormant accounts BCUPS has returned to rightful owners since its inception.

$48.4 Million – Funds BCUPS has transferred to Vancouver Foundation for charitable purposes since its inception.

$1.01 Million – Largest amount claimed. An outstanding estate claimed in July 2019.

$1.9 Million – Largest dormant account in BC waiting to be claimed.

The above information was taken from the British Columbia Unclaimed Property Society (BCUPS) website.

Thanks for reading!

James Jacuta

20 Jul

Finding Unclaimed Estates

James Jacuta General Interest Tags: , , , , 0 Comments

The use of technology is permeating the practice of law at a faster pace as a result of the pandemic, as with every other aspect of our lives. However, some areas of law remain unchanged.

Other than in British Columbia, there is still no system that provides the public with easily accessible information about unclaimed property in Canada. For example, it is difficult to locate accounts in provincially regulated financial institutions like credit unions left by a deceased individual if you do not know where the deceased left the account. This is in contrast with the federally regulated Bank of Canada searchable website for banks.

In England and Wales, the list of unclaimed estates with missing heirs is now posted daily on a searchable website. Probate genealogists and individuals can search the list on the bona vacantia page of gove.uk.

In Scotland, the list provides additional information like the value of the estate, or the status of the administration of the estate, which can be found on the website: Queen’s & Lord Treasurer’s Remembrancer.

Beneficiaries and heirs in the United Kingdom have the ability to search online for inheritance assets that they are legally entitled to receive and which are being held in trust for them.

Thanks for reading.

James Jacuta

 

For more information on this topic  please see some of our other blogs:

Reuniting forgotten dollars with their rightful owners!

Lost and Found – $5 Billion

“Bono Vacantia” – Latin for Ownerless Goods or Unclaimed Property

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