Category: In the News
September has brought some news out of the world of James Bond.
Labour Day saw the release of the new trailer for No Time To Die, the 25th installment of the blockbuster spy franchise, and fifth (and final) for current 007 Daniel Craig. While Craig is exiting, and there is no word yet as to who will don the most famous code name of all time, the newest trailer sees the return of familiar characters, friend and foe alike: Ernst Blofeld, head of the notorious terrorist organization, SPECTRE, CIA Agent Felix Leiter and of course, Ms. Moneypenny.
As for those looking for a cottage or a second home, September also brought the news that Sean Connery, the most famous 007 of them all, has placed his house in Cote d’Azur, France on the market for a cool €30 Million.
Truly a house built for a super spy on the banks of the Mediterranean in Cap de Nice, Connery’s 1.24 acre Belle Epoch-inspired abode boasts a saltwater pool, indoor gym and pool, and two guest houses. While Sir Sean may be leaving town, Elton John and Tina Turner have also owned homes nearby, and Monaco is just a 30 minute drive away.
One is encouraged to be mindful of the tax liabilities in France, however, as the Taxe Foncière is based on the cadastral income of a property, while the Taxe d’Habitation is traditionally only paid by residents. While the TH has been the subject of much political attention for primary residences, if the house is a second home, authorities can levy a surcharge of as much as 60% if a furnished home is left vacant for more than 120 days per year. Finally, France has a wealth tax that applies to residents and non-residents alike if they have real property assets of €1.3 million or greater. A significant tax risk for cottaging Canadians to be sure.
If a Canadian is considering a property purchase on the Riveria, it’s worth investigating the consequences for an estate plan. While Canada has no tax on testamentary gifts, one would be wise to check with the jurisdiction in which a prospective beneficiary lives. In the United States, for example, citizens are taxed on their worldwide income, so a gift of this size to an American relative may yield a tax burden. Finally, while personal property is governed by the jurisdiction in which the testator lives, real property is governed by the jurisdiction in which it’s located. So France will decide what taxes will apply to the property itself.
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Ian Hull and Daniel Enright
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.
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The presence of COVID-19 in Canada has been felt through all communities, but those living in long-term care facilities have been most significantly affected. The virus’s exponential infection rate, coupled with the pre-existing medical conditions of many of those who reside in these care facilities, has resulted in high death rates and little insight on how best to protect the elderly community going forward.
On May 19, 2020, Premier Doug Ford announced the Ontario Long-Term Care COVID-19 Commission (the “Commission”) in response to the devastating impact COVID-19 has had on residents and staff of long-term care homes.
The Commission has a mandate to investigate the spread of COVID-19 in long-term care facilities, the adequacy of efforts taken by the facilities to prevent transmission during the first wave of the pandemic, and how various elements of the existing system may impact the spread of COVID-19 within long-term care homes. The commission aims to provide recommendations to the government regarding the health and safety of residents and staff of these facilities and how to better protect them from potential outbreaks in the coming months.
The establishment of the Commission emphasizes the need for quick and decisive action in response to the virus’s overwhelming effect on Ontario’s elderly population. Though the virus’s impact remains prominent at this time, a second wave of COVID-19 is anticipated in the coming months. Consequently, the Commission will work diligently to provide the government with a final report by April 30, 2021.
Three commissioners will lead the investigation. The Honourable Justice Frank N. Marrocco was appointed as Chair of the Commission. Associate Chief Justice Marrocco has been involved in high-profile matters in the past, including as the lead counsel for the Province of Ontario in the Walkerton inquiry. Justice Marrocco was appointed to the Superior Court of Justice in 2005. Angela Coke and Dr. Jack Kitts will accompany Associate Chief Justice Marrocco on the Commission.
Angela Coke is a former senior executive of the Ontario Public Service (OPS), where she spent 27 years committed to the transformation of government operations. Ms. Coke retired in 2017, having previously served as the Deputy Minister, Ministry of Government and Consumer Services, where she played a leadership role on a range of government and public service priorities.
Dr. Jack Kitts completed a three-year tour of duty as a medical officer in the Canadian Armed Forces. He later returned to school for specialty training in anesthesia. In 1995, he was appointed Chief of Anesthesia and Associate Professor at the University of Ottawa. Within three years, he was appointed Vice-president of Medical Affairs and led the medical staff through a large restructuring, in which three hospitals and five large programs merged into the Ottawa Hospital.
Given the qualifications of the members of the Commission and the importance of taking any possible steps to protect the lives of residents of Ontario’s long-term care facilities, the creation of the Commission appears to be a promising first step in implementing necessary measures to enhance the ability of long-term care facilities to adequately respond to the pandemic and to protect their residents and staff once the current health care crisis has passed.
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While remote communication has become the norm for many, there continues to be resistance to using technology in the legal sphere. A recent decision by Justice Myers of the Ontario Superior Court of Justice suggests that, in 2020, the court will not easily acquiesce to such resistance.
In Arconti v. Smith, the plaintiffs sued their former lawyer and his partner for negligence, breaches of duty, and other causes of action in connection with the lawyer’s representation of the plaintiffs in a securities fraud case. In January 2020, Justice Myers ruled that a focused mini-trial was required to determine if summary judgment ought to be granted with respect to one of the issues. In a later case conference, he agreed with the plaintiffs that they should be entitled to further examination for discovery of the defendants prior to the mini-trial. An examination of one of the defendants was then scheduled for May 6, 2020.
However, at a case conference held on May 1, 2020, counsel for the plaintiffs advised that his clients did not want the examination of the defendant to proceed by video conference. He argued that because in-person examination is not possible due to the implementation of social distancing in response to the pandemic, the proceedings should be delayed until the requirement for social distancing is ended. The plaintiffs objected to a videoconference examination on the bases that:
- they need to be with their counsel to assist with documents and facts during the examination;
- it is more difficult to assess a witness’s demeanour remotely;
- the lack of physical presence in a neutral setting deprives the occasion of solemnity and a morally persuasive environment; and
- the plaintiffs do not trust the defendants not to engage in sleight of hand to abuse the process.
In his case conference endorsement, 2020 ONSC 2782 (the “Decision”), Justice Myers dealt with the issue of whether the plaintiffs ought to be required to conduct an examination out-of-court by video conference rather than in person. He ultimately held that if the plaintiffs wish to take advantage of the opportunity to examine the defendant out-of-court, before the upcoming mini-trial, they must do so remotely by video conference. The general sentiment of Justice Myer’s reasons is captured in paragraph 19 of the Decision:
“In my view, the simplest answer to this issue is, “It’s 2020”. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.”
Justice Myers further explained that the use of readily available technology is a necessary component of a civil litigator’s basic skillset. Like other tools at a lawyer’s disposal, technology does not produce perfection and parties ought to remain vigilant to the risks and shortcomings associated with remote processes. However, one’s own unfamiliarity with the technology is not a good basis to decline to use available technology, particularly where remote processes can help move a proceeding forward more efficiently and affordably.
As the Decision suggests, justice will not be served by sitting and waiting for the pandemic to pass. We must learn to accept our circumstances and adapt to the new normal. As Max McKeown wrote, “adaptability is about the powerful difference between adapting to cope and adapting to win.” It is becoming increasingly evident that in today’s legal system, adopting technological processes is adapting to win.
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Previously, I blogged on Medical Assistance in Dying (MAID) and the changes to the Criminal Code proposed by Bill C-7, which sought to provide for assisted deaths where a natural death is not “reasonably foreseeable”. The changes would have included the potential to waive the requirement that late-stage consent be obtained immediately prior to MAID.
The proposed amendments contained in Bill C-7 sought to address the concern that people who qualified for MAID were faced with a difficult decision – ending their life earlier than they wanted so as to ensure they possessed the requisite capacity to consent to MAID, or, risking that should they wait to access MAID, they could lose capacity and therefore eligibility for MAID. This scenario was the reality of Nova Scotian, Audrey Parker, who campaigned heavily to change the late-stage consent requirement, however, ultimately accessed MAID earlier than she wanted so as to ensure that she would not lose eligibility as a result of declining capacity. Bill C-7 is now known as “Audrey’s Amendment”.
Parliamentary review of the Bill was scheduled to occur in June, 2020. However, with the global impact of COVID-19 and the current proroguing of Parliament, the Bill has yet to become law.
While we wait for Parliamentary review of the Bill, a new and novel question has been raised once again out of Nova Scotia – can you prevent someone else from accessing MAID, even when they have been found eligible under the law? This question has been raised in the context of an elderly couple – called X and Y — grappling with these issues – X wants to die, and his wife of 48 years, Y, does not want to let him. Y attempted to seek an injunction, preventing X from accessing MAID, though he had already qualified for MAID. X is concerned that the delay caused by Y’s filings could risk him losing capacity and therefore eligibility to access MAID – a concern that could be addressed if late stage consent could be waived. However, as Bill C-7 has yet to become law, the proposed amended provisions cannot assist X.
As reported by The Star, in seeking the injunction, Y must make a case for “irreparable harm.” From Y’s perspective, should the injunction fail, her irreparable harm is the death of her husband. From X’s perspective, going on living would be worse. A hearing in X and Y’s case was scheduled for August 26, 2020.
Jocelyn Downie, professor and the James Palmer Chair in Public Policy and Law at the Schulich School of Law at Dalhousie University has offered her opinion: “…it’s straightforward in law and what the answer should be, which is: No, a third party doesn’t get to go to court and prevent somebody from having access to something that the Supreme Court of Canada said we have a Charter right to access.”
We will continue to watch and keep our readers updated as this case develops.
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Over the past few weeks, the #FreeBritney movement has been gaining traction on social media. My colleague, Doreen So, previously blogged on the movement, and discussed some of the similarities between conservatorship (in California) and guardianship in Ontario.
Recent headlines confirm that #FreeBritney is no longer merely a social media movement spearheaded by fans, but Britney herself no longer wishes for her father, Jamie Spears, to continue as her sole conservator.
According to a New York Times’ article, Britney’s father stepped down as her conservator last year, citing health problems, with a temporary conservator appointed in his place. Britney has now filed seeking to have her lawyer and a bank or financial institution permanently replace her father as conservator. Britney’s current conservatorship has been extended to at least February 2021, after which a hearing will be scheduled.
With #FreeBritney trending and ongoing media coverage, the ACLU has spoken up on the matter, recently tweeting that “People with disabilities have a right to lead self-directed lives and retain their civil rights, if Britney Spears wants to regain her civil liberties and get out of her conservatorship, we are here to help her.” The ACLU also released an article breaking down what conservatorship is, and its potential threats to civil liberties. As explained by the ACLU, Britney is subject to a court-imposed conservatorship, which means the court has determined she is unable to provide properly for her food, clothing or shelter. The court has granted the legal right to make such decisions, including financial decisions on Britney’s behalf, to her conservators.
In Ontario, the guardianship regime is governed by the Substitute Decisions Act, which sets out that a guardian of property can be either court appointed, or appointed by statute. Section 15 of the SDA sets out that if a certificate is issued under the Mental Health Act, certifying that a person who is a patient of a psychiatric facility is incapable of managing property, the Public Guardian and Trustee is the person’s statutory guardian of property. Section 16 further sets out that a person may request an assessor to perform an assessment of another person’s capacity (or of their own) to determine whether or not the PGT should become the statutory guardian of property.
Sections 22-30 of the SDA sets out the framework wherein a person or corporate guardian can apply to the court to be appointed as guardian of property. For more information on when a court will appoint a guardian, please see here.
From the current news cycle, it appears that Britney is not seeking to terminate her conservatorship, but amend it. In Ontario, a motion under section 26 of the SDA can be brought seeking to vary a guardianship order, including the substitution of another person as guardian. If one is seeking to terminate the guardianship order, a motion may be brought under section 28. If the court agrees, and the guardianship is terminated, the individual on whose behalf the guardian was appointed, would regain control over their financial affairs and decision making.
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The Ontario government has recently announced which orders currently in force under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (ROA) have been extended, and which will end. Under ROA, orders can be extended for up to 30 days at a time.
The Limitation Periods order will end and suspended time periods will resume running on September 14, 2020.
O. Reg. 129/20, which allows for the temporary virtual and counterpart execution of Wills and Powers of Attorney, has been extended until September 22, 2020. For a full list of orders under the ROA which have been extended, please see here.
For more information and resources on witnessing and executing Wills and Powers of Attorney virtually and in counterpart, please see our COVID-19 Wills & Estate Planning resource page, here, or the eState Planner blog, here.
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Last week, I blogged on the Supreme Court of Canada decision of Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19 (CanLII) and “three-card monte”. This week, I would like to discuss the bigger take-away from the decision: the rejection of the existence of the cause of action of “waiver of tort” in Canada.
In Atlantic, the claimants in a class action proceeding alleged that certain video lottery terminal games (“VLTs”) were inherently dangerous and deceptive, and contravened the Criminal Code. The defendants failed to warn the claimants. As a result, the claimants sought an order that the defendants disgorge any profits made by them. They did not allege any specific damages on the part of each claimant. The defendants moved to dismiss the claim.
The claimants pled “waiver of tort”. The term itself was criticized in the SCC decision as being a misnomer. Rather than “waiving” the tort or wrongdoing, the claimant is simply electing to pursue a different remedy: disgorgement of profits earned by the defendants without proof of any damages suffered by the claimants.
Brown J., speaking for the majority, held that disgorgement is a remedy, not a cause of action. Before disgorgement can be ordered, a recognized tort or breach of contract or claim in equity must be established.
In order to establish negligence, causation must be established. It must be shown that the defendant’s wrongful actions caused damages to the claimant. “…the conduct of a defendant in negligence is wrongful to the extent that it causes damage.” “In other words, negligence ‘in the air’ – the mere creation of risk – is not wrongful conduct.”
Citing certain scholarly articles on the topic, Brown J. went on to reject waiver of tort as an independent cause of action. “Granting disgorgement for negligence without proof of damages would result in a remedy ‘arising out of legal nothingness’ (Weber, at p. 424). It would be a radical and uncharted development, ‘[giving] birth to a new tort over night’ (Barton, Hines and Therien, at p. 147).
From an estates and trusts point of view, Brown J. acknowledged that disgorgement may be available without proof of damages for certain forms of wrongdoing, such as breach of trust. “However, it is a far leap to find that disgorgement without proof of damages is available as a general proposition in response to a defendant’s negligent conduct.”
R.I.P Waiver of Tort.
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On Thursday August 6, 2020 there was a town hall discussion with the Province of Ontario Attorney General, Doug Downey. Part of his virtual discussion with members of the bar included the topic of allowing courts in Ontario greater latitude in validating or rectifying an improperly prepared will in Ontario.
Currently, in Ontario, a person making a will is required to meet all of the legislated formalities relating to the making of a will, known as “strict compliance”. If there is an error in complying with the requirements of the legislation, then the will is not valid. At present, the law in Ontario does not give a judge options to correct the error, even if the will was entirely correct otherwise, known as “substantial compliance”.
As the entire country is now attempting to make appropriate changes necessitated by the coronavirus pandemic emergency it is useful to take a look at what other provinces have done and are proposing to do.
In British Columbia, Section 58 (2) of Wills Estates and Succession Act provides the power for the court to make corrections where: On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents (a) the testamentary intentions of a deceased person, (b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or (c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
Further in Section 58 (3) of the Wills Estates and Succession Act: Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made (a) as the will or part of the will of the deceased person, (b) as a revocation, alteration or revival of a will of the deceased person, or (c) as the testamentary intention of the deceased person.
Is it time for Ontario to consider making the change from a “strict compliance” to a “substantial compliance” regime for wills legislation? On Thursday August 6, 2020 the Attorney General of Ontario, Doug Downey, was part of a virtual town hall discussion on the merits of such possible changes.
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On Thursday August 6, 2020 the Province of Ontario Attorney General, Doug Downey, was part of a virtual discussion with members of the bar regarding legal policy and possible legislative changes. One of the topics was whether to make permanent the provisions of the coronavirus pandemic emergency order for witnessing of Wills and Powers of Attorney virtually, utilizing electronic means.
Similar discussions are taking place across Canada as a consequence of the coronavirus emergency and measures requiring action by the government. In the Province of British Columbia Attorney General, David Eby, introduced Bill 21 on June 22, 2020 called the Wills, Estates and Succession Amendment Act, 2020. The proposed British Columbia legislation would make permanent the provisions on virtual witnessing of wills and goes further to allow electronic wills. The British Columbia government states: “The changes will benefit British Columbians who, for example, have a disability, are quarantined, live in rural or remote communities, or would have difficulty attending a lawyer’s or notary’s office due to child care or other responsibilities.” The changes: “will enable the courts to accept wills that are created on a computer and signed electronically, and for which there is no printed copy.” The proposed British Columbia legislation includes:
“electronic form”, in relation to an electronic will, means a form that (a) is recorded or stored electronically, (b) can be read by a person, and (c) is capable of being reproduced in a visible form;
“electronic signature” means information in electronic form that a person has created or adopted in order to sign a record and that is in, attached to or associated with the record;
“electronic will” means a will that is in electronic form.
The proposed draft legislation in entirety can be read here.
This is now a rapidly changing area of the law. There will certainly be more developments across Canada that we will be following for you.
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