Yesterday, I blogged on Public Guardian and Trustee v. Cherneyko et al, 2021 ONSC 107. Today’s blog will focus on some of the breaches of fiduciary duty that were found by the Court. For those who have not read yesterday’s blog, this is a case that involves Jean, a 90 year old woman, and Tina, the attorney for property, who was purportedly given a gift of $250,000.00 just days before Jean was hospitalized for acute delirium and progressive cognitive decline.
While the purported gift of $250,000.00 to Tina was found to be invalid, the Court went on to find that Tina was in breach of her fiduciary duty to Jean by accepting the money. Tina was in breach because she knew that Jean was exhibiting signs of cognitive decline when they went to the bank. In the Court’s view,
“a person acting in a fiduciary capacity for a person actively demonstrating moments of irrationality should be very cautious about any big financial moves that person claims they want to make in and around such periods of demonstrated incapacity. Even if Jean was clearly acting in a competent manner during the few hours she attended the CIBC with Tina on August 27, 2019, I agree with the submissions of the PGT it is no answer to an accusation of breach of duty to assert that an attorney was simply acting in accordance with the wishes of the grantor of the attorney. Tina should have proceeded with caution at that time. I find she did not exercise the appropriate degree of caution and good judgment given the circumstances about which she knew.” (para 42)
The Court also reiterated Justice Penny’s comments in Ontario (Public Guardian and Trustee) v. Harkins,  O.J. No. 3313, that a fiduciary’s first duty is to see to the best interest of the person regardless of what their stated wishes may be. The Court was very critical of how a $250,000.00 gift to Tina could possibly benefit Jean, and expressed disapproval on how there was no evidence of any effort on Tina’s part in considering whether this money would better serve Jean if it was applied towards Jean’s in-home care instead of admitting Jean to a long term care home.
Of relevance to the unique circumstances that surround the care of others during Covid-19, the Court commented that,
“since March 2020 more than at any time in the past, any genuinely concerned person charged with caring for an elderly person in long term care would have at least considered the issue of taking whatever steps could be taken to remove the person from this situation if it was in any way possible.” (para. 47)
Instead, Tina allowed her adult son to move into Jean’s home, and she was found to be actively misusing Jean’s assets for her own and her family’s benefit which were additional breaches of her duties as fiduciary. The Court also disapproved of how Tina did not take any steps to sell Jean’s house in order to maximize or preserve its value which, reading between the lines, seem to be a concern for the uncertainty in today’s markets.
Thanks for reading! Stay safe!
It has not always been easy to keep up with the rapid technological changes to court processes and court hearings that have been happening over the last several months. We have all needed to adapt, and adapt we have! Although, to me, in person hearings remain the ideal way in which to interact with counsel, clients and judges, I admit the Zoom court hearings have been a welcome respite from the added time and stress of the early morning drive to far-away court houses in different cities to argue one case or another. Clients may also appreciate the cost-savings that result from less paper and less travel and waiting times.
Streamlining of court processes has recently been solidified by way of several changes to the Rules of Civil Procedure, and a couple of my colleagues have podcasted about it here. This trend has now also expanded to the Supreme Court of Canada, where the leave application process is reported to be changing effective January 27, 2021. The changes can be found here, and facilitate the electronic filing of material.
Should there be more changes to come, we will keep you posted.
Thanks for reading and have a great day,
Natalia R. Angelini
In British Columbia (“BC”), there is a process known as wills variation, whereby a spouse or child of a testator can challenge the distribution set out in the will upon the death of the testator. In these will variation cases, the Court must balance the autonomy of the testator – to decide how to distribute his/her estate – with certain moral obligations that might be present. The BC legislation that allows for this equitable claim is unique.
The BC Supreme Court’s decision in the 2015 Kong v Kong (“Kong”) case confirmed that, although difficult given the ability to bring a wills variation claim, it is possible to disinherit your children in BC. Mr. Kong was survived by seven children, all of whom were adults, at the time of his death. Mr. Kong’s Will provided for the overwhelming majority of his estate to be left to his youngest son, thus disinheriting his remaining children. Four of Mr. Kong’s disinherited children initiated a wills variation claim in an effort to vary the Will in their favour. In order for the Court to consider variation, it must determine whether the reasons for an adult child’s disentitlement meet the criteria of “valid and rational.” The onus lies on those challenging a will to establish that there were no valid or rational reasons to justify the testator’s decision.
In BC, a testator’s moral obligation to his/her children does not necessarily require the testator to provide for an adult child where there has been estrangement, misconduct, or sufficient provision to the child in the testator’s lifetime. Satisfying one’s moral obligation does not require an equal distribution to all surviving children. In the Kong decision, Justice Sharma found inconsistent claims regarding the nature of the relationship between Mr. Kong and his children who brought the variation claim. Justice Sharma held that some of the disinherited children had been estranged from their father prior to his death. On an evidentiary note, Justice Sharma refused to limit the Court’s analysis solely to discussions between Mr. Kong and his lawyer when the Will was prepared. Instead, the Court engaged in an objective investigation into the relationship between each of the Kong children and their father. Upon reviewing the reasons found for the estrangement, Justice Sharma concluded that Mr. Kong had no moral obligation to provide for the children who had been estranged (and were at fault for this estrangement). As such, Justice Sharma upheld the father’s decision to disinherit two out of the four applicants. A five percent share of the estate was awarded to the remaining applicants.
The Kong case demonstrates that, even where a variation is justified, the Court will still give strong deference to the testator’s intentions as expressed in his/her will.
Thanks for reading!
Suzana Popovic-Montag & Tori Joseph
The Ontario Superior Court of Justice decision released on December 8, 2020, in the Estate of Klaczkowski, deals with a number of issues including when the court should remove an Estate Trustee and appoint a litigation Trustee. Two brothers disagreed on matters related to their mother’s estate, including division of proceeds of a TD Trading Account, a commercial property, and a safety deposit box (with $32,000 in $1,000 dollar bills). They were named in the will as Estate Trustees and beneficiaries. Justice Leiper reviewed the following points in regard to the court appointment of an Estate Trustee During Litigation:
- Ordering the removal of an estate trustee is a decision not to be taken lightly and only where it is clearly necessary: Re Weil, 1961 CanLII 157 (ON CA),  O.R. 888 at 889 (C.A.)
- Friction between co-estate trustees may be a basis for a removal of both estate trustees where it impacts the decision-making process: Radford v. Wilkins (2008), 43 ETR (3d) 74, 2008 CanLII 45548 (S.C.J.) at paras 111-113;
- A failure to properly keep records resulting in the need to make corrective disclosure is an aggravating factor in considering whether a trustee ought to be removed. Similarly, failure to consult with co-trustees is significant. Graham v. Benton, 2020 ONSC 6985 at paras. 156-157;
- A testator’s choice of estate trustee should not be lightly interfered with, but the appointment of an ETDL is a “much less intrusive” remedy that exists where “parties’ duties as fiduciaries can be inconsistent with their ongoing litigation interests.” A court should consider the balance of convenience and, since the appointment of an ETDL is not an extraordinary remedy, “the court will favour appointment in the vast majority of cases unless the administration of the estate involved is particularly straightforward or simple”: Mayer v. Rubin, 2017 ONSC 3498 at paras. 24-36.
The Court ordered that –
- An Estate Trustee During Litigation will be appointed for the estate, and
- If the parties are unable to agree to the naming of the Estate Trustee During Litigation by February 1, 2021, they are to appear before March 1, 2021, to make submissions on an appropriate Estate Trustee During Litigation.
For more on Estate Trustees During Litigation please see the blog by Sydney Osmar: Appointing an Estate Trustee During Litigation.
Thanks for reading!
A party has a prima facie right to test the evidence given by a witness through cross-examination. This is a critical means to building a body of evidence to support one’s case. However, if a party does not make adequate efforts to avail themselves of the opportunity to cross-examine, they may lose this benefit. The Honourable Madam Justice Sylvia Corthorn of the Ontario Superior Court of Justice addresses this issue in her recent decision in Clayton v. Clayton et al., 2020 ONSC 7592.
Clayton involves an application to remove the trustees of two trusts that form part of an estate. The applicant in this case brought a motion for an order striking the affidavit sworn by one of the respondents and trustees, Shirley. Pursuant to a notice of cross-examination, Shirley was to be cross-examined on her affidavit on November 22, 2019. However, prior to the commencement of cross-examinations, Shirley’s counsel advised that she would not be produced for cross-examination due to concerns about her mental capacity. Counsel agreed that an assessment of Shirley’s capacity to be cross-examined was necessary and consequently, she was not cross-examined. The applicant did not obtain a certificate of non-attendance with respect to Shirley’s cross-examination and no notice to cross-examine Shirley on a subsequent date was served.
The geriatric assessment of Shirley was scheduled for May 2020 and then postponed to the fall of 2020 due to COVID-19. There was no evidence before the court as to whether this assessment was ever done. The hearing of the application was likewise delayed as a result of the pandemic. The application is currently scheduled to be heard in January 2021.
At no point after November 2019 did the applicant pursue cross-examination of Shirley. When the application returned to court in September 2020, the applicant took the position that Shirley’s affidavit cannot be used on the application in light of her supposed incapacity and the respondents’ alleged refusal to permit cross-examination. The applicant then brought a motion requesting that the affidavit be struck in its entirety on the grounds that the admission of this evidence would be prejudicial to the fairness of the hearing and constitute an abuse of process.
Justice Corthorn dismissed the applicant’s motion. She found that he did not take any steps, prior to bringing this motion, to seek the assistance of the court in determining the steps required to address concerns with respect to Shirley’s affidavit and whether she could be cross-examined. She also considered that the application had already been adjourned three times and that the applicant had not requested a further adjournment to permit cross-examination of Shirley. Justice Corthorn affirmed that the court has discretion to prevent or limit cross-examination where it is in the interests of justice to do so. She decided that in this case, it is fair to both the process and the parties to admit Shirley’s affidavit and leave the issue of the weight to be given to her evidence to be determined with the benefit of the complete record. The parties would also have the opportunity to make submissions with respect to the weight to be given to Shirley’s evidence, and this will permit the court to control the process and avoid an abuse of it.
Thanks for reading!
Like many institutions, Ontario’s justice system was directly impacted by the COVID-19 pandemic. Although the courts did not close, they were required to accommodate the public health measures taken to combat the pandemic. Beginning in March 2020, the Ministry of the Attorney General (the “Ministry”) and the Superior Court of Justice (the “Court”) moved diligently to adopt and normalize the use of technology including video and teleconferencing for hearings, electronic signatures, and online platforms for document sharing.
On November 30, 2020, the Attorney General for Ontario announced amendments to the Rules of Civil Procedure (the “Rules”) to solidify these changes effective January 1, 2021. This significant step toward modernization has been met with great enthusiasm from many legal professionals and advisory bodies who view the changes as long-overdue. The amendments to the Rules will ensure continued access to the courts, and enable legal professionals to serve their clients with greater efficiency and cost-effectiveness.
I have summarized several noteworthy changes to the Rules below:
Virtual Hearings are Here to Stay…
Given that between March and September 2020, the Court had heard over 50,000 hearings virtually, it should come as no surprise that the Ministry has opted to make virtual hearings a permanent option for litigants.
Rules 1.08 and 1.08.1 are revoked and replaced with Rule 1.08, which requires a party seeking a hearing or step to specify the method of attendance: in person; by telephone conference; or by video conference. This rule does not apply to proceedings at the Ontario Court of Appeal, or in respect of case conferences (which are to be held by teleconference unless the Court specifies an alternative method). The new Rule 1.08 also applies to the rules for mandatory mediations and for oral examinations, with necessary modifications.
If a party objects to the proposed method of attendance, they must do so before the earlier of 10 days or seven days before the hearing. The objection will be dealt with via case conference. When hearing an objection, the Court must consider various factors such as :
- the availability of telephone conference or video conference facilities;
- the general principle that evidence and argument should be presented orally in open court;
- the effect of telephone or video conferencing on the Court’s ability to establish the credibility and observe the demeanor of witnesses; and
- the balance of convenience between parties for and opposed to a remote attendance.
Rule 57.01(1) of the Rules is amended to allow the Court to consider whether a party unreasonably objected to proceeding by telephone or video conference under Rule 1.08 in determining costs.
Furthermore, the Rules no longer assume that hearings will be heard in the county where the proceeding was commenced (Rules 37.15(1), 38.11(2)(b), 60.17(b), and 62.01(6)) or that parties will participate in person (Rules 37.03, 38.03(1.1), 50.05(1), 50.13(2), 54.05(2), and 76.05(2)).
… As is the Virtual Commissioning of Affidavits
Effective August 1, 2020, section 9 of the Commissioners for Taking Affidavits Act was amended to permit virtual and remote commissioning of affidavits. What was initially enacted as a temporary measure has now become permanent, and Rule 4.06(1)(e) is amended to permit virtual commissioning.
Fare Thee Well, Fax Machine – Service by Email is the New Normal
References to the service and delivery of documents by fax have been struck from Rules 16, 37, and 38. Rule 51.01(c) is also amended to strike the reference to service by telegram – yes, you read that correctly. Rule 16.01(4)(b)(iv) and Rule 16.05(1)(f) are amended to permit the service of documents by email without the consent of the other party/parties or obtaining a court order. Rule 16.09(6), which required a certificate of service to prove service by email, is revoked.
Use of Electronic Signatures
A new rule, Rule 4.01.1, provides that documents that may or must be signed by the court, a registrar, a judge, or an officer under the Rules may be signed with an electronic signature.
Official Guidelines for Using CaseLines
We previously blogged about the Ministry ’s adoption of CaseLines, a cloud-based document sharing and storage e-hearing platform for remote and in person court proceedings.
The new Rule 4.05.3 outlines the requirements for using CaseLines, the deadlines for filing documents through CaseLines, and formatting requirements for documents submitted through CaseLines. Any part who submits a document through CaseLines is required to retain the original document until the 30th day after the expiry of the period for an appeal in the proceeding. On request of the court, registrar, or another party, the party must make the original document available for inspection within five days of such a request.
Inconsistencies between the information provided in a document in the court file and the information provided in a document through CaseLines will be resolved in favour of the information in the court file. Furthermore, submitting a document through CaseLines does not amount to filing or service of that document.
Rule 4.01 is revoked and substituted with a new Rule 4.01 that specifies document standards for filing in both paper and electronic formats.
Rule 4.05.3(7) requires that documents submitted to CaseLines be in PDF format and include bookmarks and section headings where appropriate. References to authorities must be hyperlinked to websites they can be viewed free of charge (i.e. CanLII, e-Laws, etc.). If the authority is not publicly available, the relevant excerpt from the cited authority must be included in the document.
Thank you for reading.
In a recent decision out of the Ontario Superior Court of Justice, a “continued and persistent lack of self-awareness” on the part of both parties resulted in cost consequences to each, one, a testamentary trustee, and one an estate trustee.
Cardinal v Perreault, 2020 ONSC 4825, involved the issue of costs in relation to two applications regarding the Estate of Joseph Edmond Beaulieu. The first application, an application for directions, was commenced by Mr. Cardinal, the testamentary trustee. The second, an application to pass accounts, was commenced by Ms. Perreault, the Estate Trustee.
Actions of both parties caused various difficulties and delays throughout the proceedings.
In rendering its decision, the Court provided a helpful summary of costs principles in estate litigation. That summary is highlighted below:
- Rule 57.01(1) of the Rules of Civil Procedure, which sets out that the Court, in exercising its discretion to award costs, the court may consider a number of factors including, among others: the result in the proceeding; any offer to settle; the principle of indemnity; the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed; the complexity of the proceeding; and the conduct of any party to shorten or lengthen unnecessarily the duration of the proceeding;
- In Davies v Clarington (Municipality), 2009 ONCA 722 the Court of Appeal held that reasonableness in the circumstances is the overarching principle applied in awarding costs;
- In Andersen v. St. Jude Medical Inc. (2006) the court outlined the elements to consider in its assessment of the reasonableness of the circumstances as, among others: the specific facts and circumstances of each case; a consideration of the experience, rates charged and hours spent that is appropriate, balanced with the overriding principle of reasonableness; the reasonable expectation of the unsuccessful party regarding what is fair and reasonable; inconsistencies should be avoided with comparable awards in other cases; and the indemnity principle should be balanced with the objective of access to justice; and
- In McDougald Estate v Gooderham, the Ontario Court of Appeal provided direction that the approach to fixing costs in the context of estate litigation should follow the modern approach, so as to carefully scrutinize the litigation and follow the costs rules that apply in civil litigation, unless public policy considerations dictate otherwise;
After reviewing the relevant costs principles, the court considered the parties’ behaviour in their respective applications. In Mr. Cardinal’s application for directions, he sought full indemnity costs of approximately $24,000. The court set what it reasoned to be a fair costs award of $18,000 in favour of Mr. Cardinal, and payable by Ms. Perreault.
In Ms. Perreault’s application to pass accounts, the court set a costs award of $48,000 in favour of Ms. Perreault and payable by Mr. Cardinal. All in all, the set-off of costs awards resulted in a net award to Ms. Perreault in the sum of $30,000. The court further held that the costs were to be payable by Mr. Cardinal, personally, rather than as an expense to the Estate. The Court reasoned that Mr. Cardinal’s attempt to impugn Ms. Perreault’s credibility without a credible evidentiary foundation was reprehensible. The court further reasoned that the estate and the remaining beneficiaries should not be burdened by Mr. Cardinal’s decision to pursue allegations that lacked any evidentiary foundation.
Hopefully this case will stand as a reminder to those who find themselves involved in estate litigation (and litigation generally) – your conduct throughout the proceeding is an important factor that will be considered by the court when setting costs awards.
Thanks for reading!
The recent decision of Mervyn Estate, Re, 2020 ONSC 6989 (CanLII) illustrates the types of issues that can arise on a passing of accounts, and also the underlying factors that can lead to a contested hearing.
In Mervyn, Bud died leaving a will. In his will, he appointed his second wife Anne, a long-time employee and his daughter as estate trustees. He also had two sons, who were beneficiaries. The estate trustees prepared an accounting, and his two sons raised objections.
Before getting to the specific objections, the court noted that there were a number of factors that contributed to the distrust and animosity between the trustees and the sons. Some of these pre-existed the estate administration, and several arose in the course of the estate administration. For example, the sons had a strained relationship with the second wife and their sister for some time. (Alarm bell: testators should reconsider appointing estate trustees who already have a strained relationship with the beneficiaries.) In addition, the estate trustees failed to disclose a bank account in their initial accounting. (Alarm bell: even though the judge found that this was an oversight, and that the estate trustees did not know of the account, this served to heighten the distrust.) Another factor was a “different understanding” between the parties as to whether Bud wanted a one-day open-casket visitation. (Alarm bell: this trigger point could be avoided by a testator making his or her plans clear to all.)
With respect to the specific objections to the accounts, one was that two rifles listed as estate assets in fact belonged to one of the sons. This led to the son reporting the “theft” to the police. The estate trustees countered by alleging that the son’s position that he owned the guns “effectively amounts to theft” by him. (Alarm bell: accusations of theft and the involvement of police can only intensify the animosity and distrust.)
The court ultimately accepted that the son had purchased the guns. Spouse Anne didn’t get the guns.
Which brings me back to the title of this blog. What came to mind was Squeeze’s “Annie Get Your Gun” from 1982. A great song that I will now be humming all weekend. What I wasn’t thinking about and only learned of after further digging was the 1946 musical about sharpshooter Annie Oakley, “Annie Get Your Gun” by Irving Berlin. The musical features the song “There’s No Business Like Show Business”. Think Ethel Merman. Another song that I might be belting out this weekend. Sorry family.
Have a great weekend.
Prudent estate planning techniques frequently lead a testator or settlor to contemplate gifts or distributions to alternative beneficiaries to whom they do not necessarily intend to convey an express interest.
Often, these gifts-over are made in contemplation of a particular condition coming to pass – for example, where the intended beneficiary predeceases the testator. Failing to account for such instances could result in a lapsed gift (subject to the applicability of the anti-lapse provisions at section 31 of the Succession Law Reform Act), a partial intestacy, or, more generally, the conveyance of an interest to a person that the testator did not intend to benefit.
Although gifts-over are generally granted in favour of individuals of the testator’s choice, to maximize their control over their estate, that need not be the case. Gifts-over may be made in favour of individuals who may not yet have been born, such as the issue or lineal descendants of a testator’s young grandchildren. When litigation that impacts the interests of these unborn or unascertained beneficiaries arises, the first questions that ought to come to a litigator’s mind are who should be appointed to act on their behalf, and how should that appointment be achieved?
One’s mind might immediately jump to the appointment of a litigation guardian. In the case of a beneficiary who is a minor, that would be correct. Pursuant to Rule 7 of the Rules of Civil Procedure, a party under disability (which would include a minor) must be represented by a litigation guardian. Furthermore, the Children’s Lawyer is the presumptive litigation guardian for all minors unless and until another individual files an affidavit following specific criteria set out at Rule 7.02.
However, where the interests of an unborn or unascertained person or class of persons is concerned, recent direction from the Children’s Lawyer suggests it is Rule 10, not Rule 7, that guides us. Rule 10.01 empowers a judge to appoint a person to represent “any person or class of persons who are unborn or unascertained” who have a present, future, contingent, or unascertained interest in the subject matter. Strictly speaking, an unborn or unascertained individual is not a person under disability or a minor as defined under the Rules, and so a litigation guardian, although filling a similar role as a representative, should not be appointed.
As a point of practice, a party seeking a representation order would be well advised to serve the Children’s Lawyer whether or not the applicant is seeking to have the Children’s Lawyer act as representative, or whether another individual is seeking that appointment. Although Rule 10 differs from Rule 7 in that the latter requires the Children’s Lawyer to have notice of any motion to appoint a litigation guardian while the former does not in the context of a representation order, it is nonetheless recommended that the Children’s Lawyer be given notice to ensure the interests of the unborn beneficiaries are appropriately represented.
Thanks for reading.
On May 31, 2019, I blogged on the decision of Justice Morgan in Krieser v. Garber,  O.J. 1619. There, the court found that a dock constructed by the Garbers (at a cost of $150,000) was improperly positioned, and posed a nuisance to the adjoining land owners, the Kriesers. The dock was ordered to be removed. The Garbers and the dock builder were also ordered, jointly and severally, to pay $100,000 in punitive damages, and $518,000 in legal costs, and the Garbers were ordered to pay further legal costs of $80,000.
The story does not end there. The Garbers and the dock builder appealed. In a decision released on November 5, 2020, the Ontario Court of Appeal allowed the appeal in part. The Court of Appeal upheld the finding of nuisance and the order to remove the dock. However, it struck the award of punitive damages against the dock builder. Further, it reduced the cost liability of the dock builder to $108,000.
With respect to punitive damages as against the dock builder, the Court of Appeal found that it was incorrect to treat the Garbers and the dock builder “as one” for the purposes of assessing punitive damages. Where there are multiple defendants, the court must consider the misconduct of each of the defendants separately. Punitive damages were appropriate as against the Garbers, as the protracted nature of the interference and their failure to accept a reasonable offer were significant factors. However, these did not apply to the dock builder. The dock builder had no power to move the dock, or to accept the offer to settle. Accordingly, the dock builder’s acts were “not so outrageous that punitive damages were rationally required to punish, deter or denounce it.” In addition, the dock builder was already punished by a criminal court, where a fine was imposed ($4,500), and by the judge’s order that the dock be relocated at the dock builder’s expense.
In reducing the dock builder’s cost liability, the court noted that the dock builder had limited ability to settle the claim. It could not relocate the dock without the Garbers’ approval. “It is unclear to me how [the dock builder] could have brought the action to an end prior to trial without Garber’s agreement.”
Thanks for reading. Have a great weekend.