Category: Uncategorized

27 May

Ontario’s Cuts to Legal Aid

Sydney Osmar Uncategorized Tags: 0 Comments

Ontario first implemented an organized legal aid plan in 1951, with Legal Aid Ontario (“LAO”) becoming an independent agency in 1998 with the introduction of the Legal Aid Services Act, 1998.

Since this time, LAO’s services have grown to include:

  • Duty Counsel – lawyers who can quickly assess a client’s legal problems in court (or in some instances at tribunals) who would otherwise go unassisted or unrepresented;
  • Over the Phone Services – Toll free services where clients can access information, referrals, legal aid applications, and advice from a lawyer;
  • Certificates – those who are financially eligible can apply for certificates for representation by a private lawyer; and
  • Community Clinics – LAO funded clinics assist low-income communities meet their most basic needs and provides a point of access to justice.

LAO’s Annual Report for the 2017-2018 fiscal year indicates that:

  • 102,873 certificates were issued to fund private representation for individuals and families across Ontario. This broke into 56,777 certificates for criminal law, 27,049 certificates for family law, 13,687 for immigration and refugee law and 5,360 for civil law matters;
  • LAO’s client service centre fielded over 450,000 calls; and
  • Duty counsel in criminal court alone provided services to 504,636 clients.

In addition to the above, LAO is the primary funder of 74 community legal aid clinics across Ontario, which provide a wide range of legal services, including: housing and landlord and tenant matters, issues with entitlement to income supports and social benefits, criminal injuries compensation, criminal law, immigration and refugee law, family law as well as employment law.

During law school, I had the opportunity and privilege to work at the Community and Legal Aid Services Program (“CLASP”) located at York University. Like many of my colleagues, who also spent time either working or volunteering with community based clinics, I saw the direct impact CLASP has had on its surrounding community, providing essential legal and social work services to marginalized and low-income Toronto community members.

There is an obvious and growing need for access to affordable legal services for individuals and families across Ontario. Despite this need, the Ontario government has announced cuts to LAO’s funding in the 2019 Provincial Budget:

  • A decrease of 30% of LAO’s funding in 2019, amounting to a total cut of $133 million;
  • Raising the decrease to 40% by 2021;
  • Ending all provincial funding for refugee and immigration law services; and
  • Removing mandatory ancillary fees from university tuition.

A number of community legal clinics are associated with Ontario universities. While the bulk of their funding comes from LAO, an important source of funding comes from mandatory ancillary tuition fees. With the government’s announcement that these fees will no longer be mandatory, providing students with the option to “opt-out”, community clinics are facing an additional hit to their funding structures.

International research has shown that investing in community legal clinics reduces overall costs to the legal system and to government programs generally, by decreasing the number of self-represented litigants, helping to keep people housed, and empowering people to live independently and to participate in their communities.

Ontario is comprised of a vast number of diverse and vibrant communities – all of whom deserve to have access to legal services and representation when they need it. As stated by the Honourable R. Roy McMurtry during his tenure as Ontario’s Attorney General: “Legal Aid, and in particular community law, is perhaps the single most important mechanism we have to make the equal rights dream a reality.”

What You Can Do:

If you are as angered by the Ontario government’s proposed cuts as I am, please see just a few examples of actions you can take below:

(1)        Emails, Letters and Phone calls

You can write a personalized letter or email to your local MPP. You can also send a personalized letter or email directly to Premier Doug Ford and the Ontario Attorney General, the Honourable Caroline Mulroney. Depending on your level of comfort, you can also call them.

If you do not have time to write a personalized letter, there are many template letters or forms that are being circulated by community clinics. You can also go here for a template form and more information generally.

(2)        Petitions

In addition to template forms that are being circulated, so are petitions. For examples and further information, you can go here or here.

(3)        Town Halls and Rallies

Community members have been active in their organizing. For example, there is an upcoming joint Town Hall on the recent cuts to legal aid (and its impact), hosted by CSALC (the Chinese and Southeast Asian Legal Clinic), CCSP (the Centre for Spanish Speaking Peoples), and SALCO (the South Asian Legal Clinic for Ontario).

The Town Hall will be May 29, 2019 at 6:00pm at the Ryerson Centre for Urban Innovation; 44 Gerrard St. East, 2nd Floor Room 219. For more information you can go here.

(4)        Donate

While our communities work together to urge the Ontario government to reconsider, and reverse the devastating cuts to legal aid, those who are able to, can donate directly to a community clinic of their choosing. For example, to donate to CLASP you can go here, or, to donate to the Advocacy Centre for the Elderly, you can go here.

Stay tuned for more on this issue which will be discussed by my colleague Nick Esterbauer. Thanks for reading!

Sydney Osmar

24 May

Washington is the first state to allow human remains to be composted

Suzana Popovic-Montag Estate & Trust, Estate Planning, Funerals, Uncategorized, Wills Tags: , 0 Comments

You’re likely familiar with the Christian burial phrase “ashes to ashes, dust to dust.” While that phrase has been recited over graves for centuries, it may need changing in Washington state. With the green light given to the composting of human remains,  “dust to dirt” may be a more appropriate way of putting it.

A new path for human remains

The Washington state law allowing the composting of human remains will take effect in May of 2020. It means that, in addition to cremation or burial, a body can now be composted naturally into soil.

Like all composting, it’s a simple and natural process. The body is covered in a natural material, like straw or wood chips. Over the course of several weeks, the body breaks down into soil. Families are free to visit the complex during this process. When the composting is finished, the soil is given to the family and they can do with it as they please.

Environmental friendly – and cost effective

While composting won’t be an option for everyone, it will certainly appeal to those who want a cost-effective, environmentally-friendly option for disposing of their remains at death.

For instance, there are no air quality concerns that can come with cremation, and composting doesn’t use up valuable tracks of land the way a cemetary can. In fact, the process actually “creates” land by adding more soil to the world.

And cost-wise, the woman who spearheaded the move to allow composting – Katrina Spade, CEO of Recompose – estimates that the approximate cost of composting (US$5,500) will be just below the cost of cremation, and far less than a burial.

Are we ready Canada?

The composting of human remains makes sense on many levels, and it wouldn’t surprise me to see this practice spreading to other jurisdictions, including Canada. It may not be for everyone, but it’s hard to see a downside.

This CNN article and short video provide some more context to the adoption of human remains composting in Washington state.

Thanks for reading … Have a wonderful day,

Suzana Popovic-Montag

23 May

What can you do with damaged cash in Canada?

Doreen So Estate & Trust, Executors and Trustees, General Interest, Uncategorized Tags: , , , , , 0 Comments

I noticed a rip in a twenty dollar bank note in my wallet the other day. I was struck by the rip because Canadian bank notes are now made with a polymer that is meant to last longer than paper bank notes.  The idea that money can be accidentally damaged is a potential issue for estate trustees who are charged with the responsibility of gathering and preserving the assets of an estate until it’s distributed to the beneficiaries.

Luckily enough, The Bank of Canada has a policy on contaminated or mutilated bank notes.  Under certain circumstances, The Bank of Canada will redeem bank notes that have become contaminated or mutilated beyond normal wear and tear and issue the claimant with replacement bank notes.  The Bank of Canada will carefully scrutinize each note and the circumstances of each claim in order to determine whether the claim is legitimate.

 

 

According to The Bank of Canada, a claim will be rejected if it is their opinion that:

  • the identity of the claimant cannot be substantiated;
  • the notes are counterfeit or there are reasons to believe that the notes were acquired or are connected to money laundering or other criminal acts;
  • there has been an attempt to defraud the Bank or there exists contradictory or improbable explanations about significant aspects of the claim, such as how the notes were damaged or how they came into possession of the claimant;
  • any of the security features of the notes have been removed or altered or where the notes have otherwise been altered or damaged deliberately or in a systematic fashion, including dyed or chemically washed or treated, by a process that could be reasonably expected to have the effect of altering them.

While this particular problem might seem unlikely to occur, our blog has covered past instances where cash was found to have been destroyed.  There is also a very thorough wikiHow on how to replace damaged currency in the U.S. with some practical tips for worldwide application, such as tips on how to package and deliver the damaged currency to the appropriate authorities.

Thanks for reading!

Doreen So

22 May

Happy 60th – now start saving

Suzana Popovic-Montag Elder Law, Elder Law Insurance Issues, Estate & Trust, Estate Litigation, Uncategorized Tags: , 0 Comments

There are lots of positives to retirement and your senior years: fewer costs, more leisure time, and less daily stress to name a few. And these are all worth celebrating. But the negatives can be crushing: more body pains and disease, the deaths of close friends and family, and being that much closer to death yourself.

It’s not that age 65 or 70 can’t be wonderful. It often is. If you could freeze the best time of older age, most people would take it in a snap, even over their younger years. But you can’t freeze time, so onward we go to the inevitable: settling our estate (but without us being there).

Bolt out of the gate

These facts don’t depress me, they actually motivate me. I’m not a senior yet, but many in my circle are. And the ones who impress me are the ones who embrace their senior/retirement years right out of the gate.

That means making maximum use of the freedom that comes with their “new normal.” While the activities people choose will differ radically, one common thread is often a need to watch cashflow a little more carefully. For many, it’s a balance between enjoying life now and not running out of money later.

Becoming thrifty

Which brings me to my confession and my point, with the confession first: I’ve never been a coupon clipper. My spending could be described (charitably) as a bit loose. I know I could get $30 off my phone bill for 6 months if I phoned Bell and threatened to leave, but I save my energy for my work and family and choose to battle Bell another day.

Now my point: that “other day” should be when you turn 60. The reason? The discounts are far too rich to turn down, you have a little more time to organize your life around saving, and your need (if you’re retired) has likely never been greater.

Be ruthless

From banking, to grocery and drugstore shopping, to travel, you can easily knock 20% to 50% off your costs once you reach your prime senior years. And those savings can be channelled into pursuits that you find most meaningful.

You have to know what’s available and sometimes you have to ask. But the deals (which are not time-limited) are substantial.

This website is a great place to start

Happy 60th, and happy saving. Thanks for reading!

Suzana Popovic-Montag

21 May

Video footage of a person who is no longer alive to give evidence – is it admissible?

Doreen So Continuing Legal Education, Estate Litigation, In the News, Uncategorized Tags: , , , , , 0 Comments

Written reasons from a mid-trial motion was recently released in Barker v. Barker, 2019 ONSC 2906.  The only issue in this motion was whether a particular video of a deceased plaintiff was admissible at trial.  The larger claim at issue surrounds the Oak Ridge division of the Penetanguishene mental health centre and its treatment of maximum security mental health patients between the 60’s and the 80’s.  One of the plaintiffs, James Motherall, died after the action was brought and his claims were continued by the estate trustees of Mr. Motherall’s estate under Rule 9 of the Rules of Civil Procedure.

Prior to Mr. Motherall’s death, Mr. Motherall was examined for discovery in the ordinary course but he was not examined under Rule 36 for the purpose of having his video testimony tendered as evidence at trial.  Since a de bene esse examination did not occur, the trial judge was  literally unable to assess Mr. Motherall’s credibility with his own eyes.  In an effort to address this issue, counsel for the plaintiffs sought to introduce video footage of Mr. Motherall from a CBC documentary that featured Mr. Motherall and his experiences at Oak Ridge.  The footage was taken a month before Mr. Motherall’s death and counsel for the Plaintiffs proposed to call the filmmaker as a witness to introduce the unedited footage of the filmmaker’s interview with Mr. Motherall.

Without criticizing the filmmaker’s work, the trial judge found that the video interview was not conducted under reliable circumstances for the purposes of a trial because Mr. Motherall was not sworn, he was not cross-examined, and he was simply asked to tell his story without more.  The video was presumptively hearsay and it was up to the plaintiffs to meet, on a balance of probabilities, the criteria of necessity and reliability under the principled approach for the admissibility of hearsay evidence (R v. Khelawon, 2006 SCC 57, R. v. Chretien, 2014 ONCA 403).

In addition to the issues of reliability, the trial judge also found that the video was not necessary since there was a transcript of evidence from Mr. Motherall’s examination for discovery and an affidavit from Mr. Motherall in the course of a prior summary judgment motion.

Both the filmmaker’s proposed testimony and the video footage of Mr. Motherall was found to be inadmissible.

Even though Barker v. Barker is at its core a civil matter, the reasoning from this motion is instructive for estate litigators who are also bound by the additional hurdle for material corroboration pursuant to section 13 of the Evidence Act.

Thanks for reading!

Doreen So

17 May

Lawyers at Borders

Paul Emile Trudelle Estate & Trust, Estate Litigation, Estate Planning, Uncategorized Tags: , , , , 0 Comments

On May 5, 2019, CBC reported on a story of a lawyer who had his cell phone and laptop seized by the Canada Border Services Agency when he refused to give them his passwords.

According to the report, Nick Wright was returning to Canada after a 4 month trip to Guatemala and Colombia. After his bags were searched, the Canada Border Services officer asked for the passwords to his phone and laptop, so that they could be searched as well. Wright refused, telling the officer that his devices contained confidential solicitor-client information. His devices were then confiscated, to be sent to a government lab which would try to determine the passwords and search the files.

According to Canada Border Services, digital devices are classified as “goods”, and Canada Border Services is allowed to examine the goods, including any electronic files on the device, for customs purposes. If a traveller refuses to reveal their password, Canada Border Services may seize the device. According to the policy manual, although an arrest would “appear to be legally supported, a restrained approach will be adopted until the matter is settled in ongoing court proceedings.”

U.S. customs and border protection officials have similar rights to search devices. Refusal to disclose passwords may result in confiscation or a denial of entry.

Such digital device searches do not occur frequent. In the 17 months between November 2017 and March 2019, 19,515 travellers entering Canada (0.015% of all travellers) had their digital devices examined by Canada Border Services.

The Canadian Bar Association warns about the risks of such searches to lawyers. Lawyers have a duty to keep client communications private. This applies to all information about a client or former client. The duty extends to staff, as well. “Your client has a right to privacy which requires you not to disclose to anyone, with exceptions, when any communications between you relate to legal advice sought or given.”

The Canadian Bar Association says that a breach could result in a loss of client trust, a client lawsuit for negligence, an E&O claim, disciplinary action and public criticism.

The Canadian Bar Association suggests that when crossing a border, lawyers should travel with a “clean device”. They should use cloud technology to store any solicitor-client information. Lawyers should erase all privileged information from their devices, including contact lists with clients’ names, addresses and contact information. The search by border services does not allow them to access information on the cloud. Once across the border, this information can easily be reinstalled from the cloud.

Happy travelling.

Paul Trudelle

16 May

Justice for Victims of Obituary Piracy?

Natalia R. Angelini Uncategorized Tags: , 0 Comments

Thomson v. Afterlife Network Inc. is a recent class-action case where success was achieved for victims of obituary piracy, reported on here.

The facts are saddening. The applicant and other class members, after losing loved ones, discovered that their loved ones’ obituaries (often with a photo) had been duplicated and posted on Afterlife’s website without permission. Many class members had written the obituaries in a personal way, adding to the emotional blow. The class members were also outraged at Afterlife’s conduct in seeking to profit from their bereavement through sales of candles and other advertising, and in conveying to the public that the families were benefiting from such sales.

The Court granted much of the relief sought, including $10 million in aggravated damages, given its agreement with the applicant that “…Afterlife’s conduct, aptly characterized as “obituary piracy”, is high-handed, reprehensible and represents a marked departure from standards of decency.”

It is heartening to know that justice was done in this case, with the award including injunctive relief preventing the website to operate, as well as a total damage award of $20 million. However, this optimistic feeling is tempered by the fact that Afterlife did not defend the lawsuit and shut down its website shortly after the class proceeding was commenced. It may thus be that enforcement of the Judgment will present a challenge, which would be an unfortunate outcome in an otherwise encouraging decision.

Thanks for reading,

Natalia Angelini

15 May

Grocery store self-checkout: where will it lead?

Ian Hull Estate & Trust, Estate Litigation, Estate Planning, Uncategorized Tags: , 0 Comments

The move to retail automation amazes me – its impact is so unpredictable.

The most recent kerfuffle relates to claims by Shoppers Drug Mart cashiers that they’ve been made to pressure customers into using self-checkout stations rather than traditional cashiers. Cashiers claim (probably correctly) that stores are encouraging self-checkout to reduce the number of cashiers needed in store. You can read about it here.

Where will it lead?

I have no doubt that the use of self-checkout at grocery stores will increase in the future, but will it lead to the near elimination of cashier jobs? That’s hard to say. When ATMs started breeding like rabbits in the 1980s, the loss of bank teller jobs seemed almost a certainty. While there have been some branch closures and job losses, there are still thousands of branches across the country. Go into any one and the human touch is alive and well, even with online banking at our fingertips.

Contrast that with the move to self-serve gas stations. Even though a couple of cities in British Columbia (Coquitlam and Richmond)  still ban self-serve gas, more than 90% of automobile gas sold in Canada today is self-serve. Most of us never think twice about it – we just pump our own. A lot of gas attendant jobs have gone by the wayside.

Prediction – a niche only for grocery self-checkout

In London, England, I went to a 24-hour Tesco grocery store recently that had no cashiers on the overnight shift. The store had just one attendant at the front whose job was to help people navigate the self-checkout machines. That’s a use that makes sense. If you want the convenience of shopping overnight, you’ll need to do a bit of work yourself at the end. I can definitely see that trend carrying on in Canada.

But my best guess is that grocery self-checkout will remain a niche offering. Bricks and mortar retailers need to differentiate themselves from their online cousins, and the personal touch is a key way to do that. I think many people will do what I do – use the self-checkout only when the line at regular cashiers looks too long.

And who wants to make that impulsive scratch & win lotto ticket purchase from a machine anyways?

Thanks for reading!
Ian M. Hull

14 May

Is family conflict the greatest threat to estate planning?

Natalia R. Angelini Uncategorized 0 Comments

I came across an interesting article discussing a recent survey of professionals, including those in the financial and estates area, conducted by TD Wealth.

Almost half of the participants (for the last two years in a row) cite family conflict as the biggest threat to estate planning. As for the types of family conflict, three are reported as most prevalent: (1) the designation of beneficiaries, (2) not communicating with family members, and (3) working with blended families.

Is there a solution? What immediately comes to mind is the Family Conference, which we have podcasted about at length[1]. It is professionally mediated, and provides a forum whereby the testator reveals his/her proposed estate plan to intended adult beneficiaries, with the objective of obtaining their approval of the plan.  The attendees include the testator, the beneficiaries, the mediator and usually other professionals (i.e. the testator’s estate lawyer, financial planner and/or accountant etc.). Discussions are facilitated by the mediator and are held as a group as well as by way of one-on-one caucusing.  Views and input about the proposed plan are encouraged to be shared, so that grievances can be aired, resolutions can be discussed and agreement on the estate plan can ultimately be reached.   Like all mediation, it is a fluid process and unfolds differently in each case.  An estate plan may be accepted as is, changed moderately, or completely reworked if all are in agreement.

Once an agreement is reached, a Family Constitution is prepared.  A Family Constitution is a written agreement setting out the framework for the estate plan as well as the process for future family conferences and dispute resolution.  Importantly, the Family Constitution is signed by all concerned and includes an agreement not to contest the Will.

The value of such a process, even without reaching resolution, is in the fact that it shows a testator’s clear intention as to how to divide his/her assets, which will likely deflate a brewing Will challenge on the basis of lack of testamentary capacity, undue influence or lack of knowledge and approval of the contents of the Will.  If litigation-avoidance is the only positive outcome of the Family Conference, that alone could save the family hundreds of thousands of dollars down the road in legal costs, in addition to wasted time and unnecessary emotional suffering that usually accompanies such a path.

Thanks for reading and have a great day,

Natalia Angelini

[1] Ian Hull also discusses this subject in detail in his book, Advising Families on Succession Planning – The High Price of Not Talking

10 May

A “Good News” Story on Compensation

Paul Emile Trudelle Elder Law, Estate & Trust, Estate Litigation, Estate Planning, Passing of Accounts, Trustees, Uncategorized, Wills Tags: , , , 0 Comments

In Daniel Estate (Re), 2019 ONSC 2790 (CanLII), the applicants applied to have their estate trustee and attorneyship accounts passed. As stated by the judge hearing the application, “Unlike many applications to pass accounts, this is a “good news” story.”

The applicants were the friends and former neighbours of a high net worth, elderly couple, Isabel and Wayne. For over 20 years, the applicants provided extensive personal assistance to the elderly couple. “In many ways, [the applicants] acted like loyal and dutiful family members.” In addition to completing simple neighbourly tasks, the applicants helped the couple in many other ways. They eventually became the attorneys for property and personal care for the couple. When Wayne died, the applicants took on the role of acting as his Estate Trustee.

The application to pass accounts was supported by an affidavit from Isabel, who indicated that she was content with the claim for compensation being made by the applicants. The application materials also included an accounting analysis prepared by a Chartered Accountant, who reviewed the accounts in detail, and also an analysis by a Certified Case Manager  and Certified Canadian Life Care Planner, who assessed the value of the personal services provided by the applicants.

In the end, the court awarded the applicants compensation for administering Wayne’s estate of $129,775; compensation for acting as attorneys for property of $435,772.36 and compensation for acting as attorneys for personal care, for a total of $757,659.

With respect to costs, the court awarded the applicants their costs of $125,021 for the unopposed passing of accounts. According the judge, “While this amount seems at first blush high, I note the accounting report alone was worth $45,000. In my view of the detailed, thorough and helpful material filed and in view of the hours it took to assemble, digest and present the financial information provided, I find that the fees and disbursements claimed are reasonable.”

The court appears to have been impressed by the extent and quality of the assistance provided by the applicants to Isabel and Wayne. Further, the court appears to have been impressed with the detailed and extensive materials put before the court in order to justify the claims on the passing.

Thanks for reading.

Paul Trudelle

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