The right to a trial by jury is a fundamental right in many proceedings. In a trial by jury, the lay jurors consider the evidence led at trial and make factual determinations based on the admissible evidence. Trials by jury, however, involving 12 (or 6 in the civil context) lay people as triers of fact can easily get complicated in a wired world where access to additional facts outside of the trial process is widely available.
Take, for example, the recent decision in R. v. Graham. There, the two accused were charged with fraud over $5,000 in relation to an alleged fraud and misappropriation of over $2m from a lawyer’s trust account.
In the course of the trial before a jury, one juror asked to be excused, as he learned that his child’s school was near where one of the accused lived. He feared for his and his family’s safety in the event that they bumped into the accused or her family in their neighbourhood. He was excused. Then there were 11.
A second juror was subsequently excused. That juror had accessed the LinkedIn profile of one of the accused. The juror admitted that she had done so, but said that she did the searches at the beginning of the trial, in July 2019. However, a LinkedIn printout showed that she had done so in September, 2019. The juror had also searched the lawyers involved in the case. She was excused. Then there were 10.
As there was an issue as to what the other jurors may have learned or have been told, the trial judge conducted an inquiry of the other jurors. They were asked if they did research into any of the participants in the trial, what they found, and what they told or were told by other jurors. The judge learned that three of the jurors had conducted “research”, despite the trial judge’s instruction not to. One searched the lawyers on LinkedIn, one searched the lawyers on Facebook. A third was told by other jurors about where one of the lawyers went to school.
The trial judge found that while the two jurors had breached her instructions, the breach was not one that should lead to their discharge. Unlike the juror who was discharged, the other inquisitive jurors did not search for information on the accused, just their counsel.
The trial judge noted that if further jurors were discharged, there would be a mistrial: a jury with less than 10 members was not permitted.
In the criminal context, the Supreme Court of Canada in R. v. Khan at para. 72 stated that “…the accused is not entitled to a perfect trial. He is entitled to a fair trial, but it is inevitable that minor irregularities will occur from time to time. The trial cannot be held to a standard of perfection, provided it remains fair in reality and in appearance.” In other words, we can’t let perfection be the enemy of the good.
The trial judge referred to this quote, and ordered that a discharge of the two further jurors or a mistrial was not warranted, and that a further, strong, mid-trial instruction to the jurors advising them that they are not to investigate, research or seek out information about the case or anyone involved in it, including the accused or any of the lawyers was sufficient.
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“Secret trusts are rarely encountered today, but have a long history.”
So begins the B.C. Court of Appeal decision in Bergler v. Odenthal, 2020 BCCA 175 (CanLII).
There, the deceased died without having made a will. The trial judge found that prior to her death, the deceased told her common-law spouse and other relatives that she wanted her estate to pass to her niece Susanne if and when her common-law spouse became involved in a new relationship.
Upon the deceased’s death, her assets passed to her common-law spouse as jointly held assets. The common-law spouse then entered into a new relationship, and ended up getting married. Susanne sued, claiming that she was entitled to the deceased’s estate pursuant to the terms of the secret trust.
The trial court and Court of Appeal agreed with Susanne’s claim.
The two essential elements of a secret trust are (1) a communication by the deceased person to his or her beneficiary of the terms of the trust (ie, that the “three certainties” are addressed) and (2) an acceptance by that person of the terms of the trust. Acceptance does not have to be express: acquiescence may be sufficient. The evidence was sufficient to establish that the deceased clearly expressed the terms of the trust in her spouse’s presence, and that he agreed to the terms.
As in most “secret trust” cases, the evidence of the terms of the trust was hearsay. However, in Bergler, the trial judge accepted the evidence as being necessary and reliable. In addition, the common-law spouse confirmed that he told the deceased that he would abide by her wishes.
The common-law spouse argued on appeal that the trust would not apply to the jointly held property, as this would pass outside of the deceased’s estate. The Court of Appeal disagreed, finding that, firstly, it was the deceased and the common-law spouse’s understanding that the trust would apply to the jointly held property, and secondly, that as a matter of law, the creation of the secret trust would have severed the joint tenancy. The court relied on a number of cases that held that a finding of a secret trust either impressed certain jointly held assets with the secret trust or severed the joint ownership.
As can be seen from Bergler, a finding of a secret trust can be a very powerful tool, tying up estate assets and even assets passing outside of the estate.
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The case of Gefen v Gaertner 2019 ONSC 6015 revived the doctrine of unconscionable procurement, which had been dormant since the early 1900s, as an equitable principle capable of setting aside an inter vivos gift. The principle behind the doctrine is that it is unconscionable for someone to be instrumental in procuring a gift to themselves from a donor who does not fully appreciate his or her actions.
Facts of the Case
Henia Gefen, along with her late husband, Elias, had accumulated significant wealth through investing in real estate. The couple were married for 65 years and had three children: Harvey, Harry, and Yehuda. Unfortunately, relationships deteriorated in the family after Elias’s death, with Henia and Harvey becoming at odds with Harry and Yehuda.
In a series of inter vivos gifts, more than $25M in assets was transferred from Henia to Harvey after Elias’s passing. This was contested by Harry and Yehuda, who relied on the doctrine of unconscionable procurement. The court determined that the onus was on the party attacking the transfer (Harry and Yehuda) to prove, on the balance of probabilities, that a presumption of unconscionable procurement applies. This can be done by satisfying the following two requirements:
(1) A significant benefit has been obtained by the procurer; and
(2) There was active involvement on the part of that person in procuring or arranging the transfer from the maker of the transfer.
If these two requirements are satisfied on the balance of probabilities, the court then presumes that the transfers were prima facie unconscionable, and the onus shifts onto the other party in receipt of the gift to prove that the transfers were not unconscionable.
Specifically, the other party must prove the 3rd element, which is that:
(3) The gift was a voluntary, deliberate, well-understood act of the donor, and that the donor did appreciate its effect, nature, and consequence.
(See John E.S. Poyser, Capacity and Undue Influence, 2nd ed (Toronto: Thomson Reuters Canada, 2019)
This case has much wider significance in Ontario law. It continues to be the law that a significant benefit procured by the active involvement of the recipient may be set aside if the recipient fails to prove that the donor fully appreciated the nature, effect, and consequence of their gift. If this cannot be proved, the gift is deemed to have been unconscionably procured. The dormant doctrine of unconscionable procurement was awakened in Gefen v Gaertner, and an additional tool to challenge inter vivos gifts has been now revamped and reintroduced into the legal system.
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Ian Hull and Sean Hess
This week on Hull on Estates, Natalia Angelini and Doreen So discuss the estate administration issues surrounding the disposition of the body, where there is no will, in Re Timmerman Estate, 2020 ONSC 3424 (CanLII) and Re Timmerman Estate, 2020 ONSC 3425 (CanLII).
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.
This week on Hull on Estates, Noah Weisberg and Nick Esterbauer discuss continued accounting obligations during the COVID-19 pandemic and procedural considerations relating to fresh and pre-existing applications to pass accounts.
Should you have any questions, please email us at email@example.com or leave a comment on our blog.
After consulting with the Chief Medical Officer of Health, the Ontario government has extended all emergency orders that are currently in effect until June 19, 2020.
For a list of the emergency orders under s. 7.0.2(4) of the Emergency Management and Civil Protection Act (“EMCPA”) that have been extended, see here.
Ontario has also announced that it is extending the suspension of limitation periods and time periods in proceedings pursuant to O. Reg 73/20 until September 11, 2020, which is the maximum renewal period allowable under the EMCPA. O. Reg. 259/20 implements the extension and can be found here.
Furthermore, to address concerns raised by the bar, the Lieutenant Governor in Council has amended O. Reg. 73/20 to provide for further clarity. O. Reg. 258/20 amends the language of O. Reg. 73/20 such that the suspension of limitation periods is no longer tied to the “duration of the state of emergency,” allowing the duration of the order to be based on all relevant factors, and not just the state of emergency. As reported by the Ontario Bar Association, “decoupling” the duration of the suspension from the state of emergency was implemented to address the bar’s request for reasonable predictability and notice.
With regard to the suspension of deadlines and procedural steps set out in any statute, regulation, rule, by-law, or order of the Ontario government, O. Reg. 73/20 provides that the suspension is subject to the discretion of “the court, tribunal or other decision-maker responsible for the proceeding…” O. Reg. 258/20 has clarified that this discretion may be exercised by:
- the person or persons who have jurisdiction to make orders in the proceeding;
- the Chief Justice of Ontario, in respect of proceedings before the Ontario Court of Appeal;
- the Chief Justice of the Superior Court of Justice, in respect of matters before the Superior Court of Justice;
- the Chief Justice of the Ontario Court of Justice, in respect of matters before the Ontario Court of Justice; and
- the chair of a tribunal, in respect of proceedings before the tribunal.
Finally, O. Reg 258/20 provides for the resumption of enforcement under Part V of the Family Responsibility and Support Arrears Enforcement Act.
With court closures, limited filings, suspensions of limitation periods, and a likely period of “post-pandemic austerity” on the horizon, Ontario’s justice system is changing, and will need to continue to change to effectively meet the needs of the public. Limitation periods may be on pause, but peoples’ lives continue. For many, this means having some form of interaction with the justice system. Ontario’s Chief Justice, the Honourable Justice George Strathy, has provided his thoughts on what changes may be needed, and questions whether oral advocacy is necessary in every case. For more on Justice Strathy’s comments, see here.
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There is no denying that long-term care homes have been significantly impacted by the COVID-19 pandemic. Yesterday, the Globe and Mail released a sobering article on the impact social isolation has had on Canada’s long-term care and nursing homes, citing that approximately 82% of the country’s COVID-19 deaths have been linked to long-term care facilities.
Now, family members and advocates for Elders are learning that banning visitors from nursing homes could have inadvertently created negative consequences for residents. Prior to social distancing restrictions having been put into place, relatives and private caregivers were often-times relied upon at mealtimes. Through banning visitors, already short-staffed facilities lost the extra assistance provided by family members and private caregivers.
CanAge, a national seniors’ advocacy organization, is receiving concerning reports that some residents are not being fed, with mealtimes forgotten.
This is especially concerning given the risks that extreme temperatures bring as the summer months approach. Jane Meadus of the Advocacy Centre for the Elderly (“ACE”) explains that Ontario’s most recent design standards for new long-term care homes (last updated in 2015), still do not require rooms to be air conditioned, only common areas. For more on the difficulties extreme temperatures pose for residents and front-line workers alike, see here.
Heather Keller, who researches nutrition and aging at the University of Waterloo explained further difficulties social isolation poses to residents’ nutrition, especially those with cognitive impairments. When eating alone, residents tend to consume less, as they are not exposed to important social cues they would otherwise get if eating in a dining room setting.
Families and seniors’ organizations are calling on Ontario (and other provinces) to relax restrictions on visits, citing the risks to residents’ physical and mental health.
For more on our coverage of COVID-19’s impacts on long-term care, please see links to the below blogs:
Finally, for information on the Residents’ Bill of Rights within Ontario’s Long-Term Care Homes Act, 2007 see Stuart Clark and Doreen So’s podcast here.
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As Ontario begins to witness a glimmer of relief from the ongoing COVID-19 pandemic, one cannot help but notice how the outbreak has forced the hand of many industries towards modernization, and law is no exception. Our firm has blogged extensively over the past two months on the multitude of changes to estate planning practices, litigation, and the practice of law in the province, more generally, the implementation of which is directly attributable to the new business reality. Wills may be executed in identical counterparts, rather than as a single a document, by way of audiovisual communication. Motions and other court hearings are being conducted virtually, and materials to be filed in respect of those hearings can be filed with the court registrar electronically.
Most recently, Bill 190, the COVID-19 Response and Reforms to Modernize Ontario Act, 2020, received royal assent on May 12, 2020 and implements modest, but impactful, changes to numerous statutes. These changes continue the trend of modernizing the practice of law to match the business realities of the circumstances by, for example, specifically authorizing or validating the electronic signature of certain documents, providing mechanisms for the filing of such documents, if need be, by electronic means, or generally allowing for certain practice components to proceed in a virtual capacity. The legislative goals of Bill 190 fit with the province’s broader mandate, in the words of the attorney general, to have “modernize[d] the justice system 25 years in 25 days.”
The Bill also includes a formal amendment to the Commissioners for Taking Affidavits Act to authorize a commissioner of oaths to administer an oath or declaration, generally in the form of an affidavit, without being in the physical presence of the deponent, provided the commissioner can “satisfy himself or herself of the genuineness of the signature.” In other words, this amendment authorizes a commissioner to administer an oath or commission an affidavit by audiovisual means provided the signature, and the act of signing, are made visible to the commissioner.
This amendment reflects an interpretive directive issued by the Law Society of Ontario in March. The prior version of this statute required both commissioner and deponent to be in the presence of one another for the oath to be validly administered. Though physical presence was not a strict requirement under the prior version, it was considered to be an element of best practice. In light of the recent restrictions in having a commissioner and a deponent meet together for the purposes of commissioning an oath, the Law Society issued this directive to ensure that the requirement could be satisfied in the absence of physical presence, thus authorizing the commissioning of oaths to proceed virtually. The amendments to this act set out in Bill 190 simply serve as a more permanent statutory codification of the directive issued by the Law Society.
Please feel free to review our other blogs dealing with the practice of law in a post COVID-19 reality:
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As a result of the COVID-19 pandemic, pursuant to the Notice to the Profession, the courts are presently restricted to hearing mainly urgent matters. For civil and commercial matters, this includes “urgent and time-sensitive motions and applications in civil and commercial list matters, where immediate and significant financial repercussions may result if there is no judicial hearing.” There is also a broad ability for the court to hear any other matter that it deems necessary and appropriate to be heard on an urgent basis, but these matters will be strictly limited.
In a recent decision, Weidenfeld v Parikh-Shah, 2020 ONSC 2401, the court considered two urgent motions brought by the plaintiff and the defendants, respectively. The defendants sought to have monies that had been paid into court several years ago, paid out from court. The plaintiff sought, among other things, an order prohibiting the payment out of the monies. The decision did not provide details of the background of the litigation between the parties.
The court stated that the parties’ first step is to establish that their respective motions are, in fact, urgent. The court provided some guidance as to what is needed in this regard:
“The obligation is on the moving party to provide cogent, particular and specific evidence to show the court that the relief requested is urgent. Speculative, supposition or theoretical evidence is not good enough. The present environment and limited use of judicial resources mandate that the urgency must be real and immediate.”
Unfortunately for the parties in this case, the court found that their affidavit evidence did not provide cogent evidence to satisfy the court that the relief sought was urgent. The reason for which the defendants had brought the motion seeking to have money paid out of court was not set out in the decision.
The court did consider the category of urgent matters where “immediate and significant financial repercussions may result”, and specifically mentioned (a) matters that may put a person in financial jeopardy; (b) the funding of a business, business venture or construction project, failing which the financial viability of the project is in jeopardy; and (c) the necessity of a person to have resources to pay expenses or an order for the health and safety of a person; as issues that would meet the test of “immediate and significant financial repercussions”.
In the current circumstances, we are continually adjusting to new ways of doing things. This includes bringing court proceedings. Based on the Weidenfeld v Parikh-Shah decision, it is clear that parties will need to provide clear and sufficient evidence to satisfy the court as to the urgency of the matter in order for the court to hear the proceeding while court operations are restricted.
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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.
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