The Supreme Court of Canada recently refused leave to appeal a decision of the Quebec Court of Appeal that raises the issue of whether old age should be considered as a factor during sentencing.
The appellant had been convicted of fraud, conspiracy to commit fraud, and laundering the proceeds of crime at the direction of or in association with a criminal organization. A prior appeal regarding the conviction itself had been dismissed by the Quebec Court of Appeal.
The Lower Court recognized the role of the appellant as a directing mind of a criminal organization and the losses suffered by the government as a result of his fraudulent acts. The Court had stated that age, even if it could be taken into account, was “only one factor among many”, which “cannot have a determinative impact because of the great number of aggravating factors”.
The appellant subsequently sought leave to appeal his four-year prison sentence. The appellant asserted that, at 81 years of age and in a poor state of health, his sentence ought to be replaced with a conditional sentence to be served in the community or otherwise limited in duration to allow him the prospect of life after prison.
The Quebec Court of Appeal summarized the law as it relates to the consideration of age during sentencing as follows (at paras 38, 39, 42, 43):
The advanced age of an accused must be taken into account when determining a sentence, as Chief Justice Lamer indicated in R. v. M. (C.A.)…
The age factor must, however, be considered in light of the health of the offender as it relates to his life expectancy. Consequently, the mere fact that an accused is elderly is not, in and of itself, a mitigating factor in determining a prison sentence, unless the evidence reveals that he has little chance of serving the sentence before passing away. This is increasingly true with the general aging of the Canadian population and the raised probability of longer life expectancies.
As a result, if at the time a sentence is imposed, the offender’s state of health does not suggest that he is unlikely to complete the sentence before his demise, the judge then has the necessary discretion to impose an appropriate sentence in light of all the usual factors and criteria…
It is possible that an offender’s state of health deteriorates following sentencing. This possibility increases with the age of the offender. The sentencing judge may not, however, speculate on this subject and must determine the sentence in accordance with the evidence before him when it is rendered…
The Court nevertheless considered the prison sentence to be appropriate, notwithstanding the expectation of the appellant that he may not survive it. The Supreme Court agreed with the reasons of the Quebec Court of Appeal.
With Canada’s aging population, cases like this, in which an individual convicted of a crime is elderly and/or in a poor state of health, can be expected to increase in frequency. The Supreme Court has confirmed that (for the time being at least), while age is a factor to be considered during sentencing, it is merely one to be assessed among others, rather than being determinative of the issue.
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Last week, we discussed Cowper-Smith v Morgan, and considered when the presumption of undue influence is rebutted by legal advice. Today, we discuss the availability of the doctrine of proprietary estoppel in the circumstances of this case (the issue which the Supreme Court of Canada (“SCC”) has granted leave to hear on appeal from the British Columbia Court of Appeal (“BCCA”)).
The trial decision found that the son of the deceased, Max, had relied to his detriment on a promise made by his sister Gloria. Gloria had enticed Max to return from England to care for his ailing mother in her home by entering into an agreement to, among other things, sell Max her 1/3 interest in the home that she would inherit on her mother’s death. On the mother’s death, Gloria reneged. The trial judge, on the basis of proprietary estoppel, directed that Max was entitled to buy Gloria’s share of the property.
The BCCA decision (Smith J. dissenting on the proprietary estoppel finding), found that Max had not met the test in order to apply the doctrine. In short, the BCCA found that the remedy of proprietary estoppel could not arise as a result of assurances given by Gloria (a non-owner) with respect to her future intentions.
It is the question of whether the doctrine of proprietary estoppel applies in these circumstances that will be considered by the SCC.
The full facts of the case can be found in last week’s blog.
The Availability of Proprietary Estoppel
The BCCA applied the elements of the modern doctrine of proprietary estoppel as (in para 73 of the decision):
- an assurance or representation by the defendant that leads the claimant to form a mistaken assumption or misapprehension that he or she has an interest in the property at issue;
- a causative connection between the assurance or representation and the claimant’s reliance on the assumption such that the claimant changes his or her course of conduct;
- a detriment suffered by the claimant that flows from his or her reliance on the assumption, which causes the unfairness and underpins the proprietary estoppel; and
- a sufficient property right held by the defendant that could be transferred to satisfy the right claimed by the claimant.
In Ontario, the modern approach was established in the case of Schwark v Cutting, 2010 ONCA 61. Three factors must be present for proprietary estoppel:
- the owner of the land induces, encourages or allows the claimant to believe that he has or will enjoy some right or benefit over the property;
- in reliance upon this belief, the claimant acts to his detriment to the knowledge of the owner; and
- the owner then seeks to take unconscionable advantage of the claimant by denying him the right or benefit which he expected to receive.
The Matter for Debate
The BCCA found, in a 2-1 decision, that the doctrine of proprietary estoppel did not apply. The BCCA found that the trial court unreasonably expanded the scope of the doctrine by finding that Max could rely on Gloria’s assurance that he could buy her 1/3 interest in the property.
The majority found that Gloria’s assurance did not equate to unconscionable conduct: her obligations arose solely based on her mother’s actions and death and, as such, Max never had a proper basis to rely on Gloria’s promise: the property was not hers to give away at the time the assurance was made.
The dissenting opinion of Justice Smith proposed a solution to this dilemma by noting that, because of her cognitive deterioration, there was no possibility that the mother would have changed or rescinded the transactions that conveyed the property to Gloria on her death. As such, “Gloria’s ownership of the Property by the right of survivorship and the Declaration of Trust was therefore certain, despite not actually being owned by Gloria at the time of the promise to Max.”
It will be interesting to see how the SCC approaches this issue.
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In a recent Ontario Court of Appeal decision, Holgate v Sheehan Estate, 2015 ONCA 717, the court was asked to consider an appeal from a motion for determination of an issue under Rule 21.01(1)(a) of the Rules of Civil Procedure. The Rule 21 motion arose in the context of a trial with respect to the interpretation of the will and codicil of John Holgate, and particularly the meaning of the word “use”. The appeal also dealt with the trial judge’s jurisdiction to hear the mid-trial Rule 21 motion, but this blog will deal with the former issue.
Mr. Holgate had passed away and was survived by two sons from his first marriage (the “sons”) and his second wife, (“Mrs. Holgate”). Mr. Holgate’s will and codicil provided for a life interest in two trusts to Mrs. Holgate. Following Mrs. Holgate’s death, Mr. Holgate’s children were entitled to the remainder of the two trusts. The wording of the two trusts provided that the trust assets were to be held for “the sole use and benefit of my wife MAY HOLGATE during her lifetime”.
The sons brought an action against their father’s estate, Mrs. Holgate’s estate and Mrs. Holgate’s daughter personally, claiming that Mrs. Holgate’s life interest allowed her to use the money but not save it. They alleged that Mrs. Holgate had not only used trust assets, but had also saved money, thereby depleting the capital of the estate to their detriment and contrary to their father’s intention.
Three days into the trial, the trial judge invited counsel to bring a mid-trial motion either for determination of an issue or for directions in order to determine this critical issue with respect to the interpretation of the will and codicil, namely the meaning of the term “use”. Counsel agreed to bring a Rule 21 motion and asked whether the wording of the will and codicil precluded Mrs. Holgate from accumulating wealth from the trusts in her own name.
The trial judge concluded that:
- nothing in the will or codicil prevented Mrs. Holgate from saving and accumulating wealth;
- the language of the will came as close as possible to conferring an absolute gift on Mrs. Holgate; and
- neither of the trusts included any limitations on the use of the assets by Mrs. Holgate.
On appeal by the sons, the Court of Appeal agreed with the trial judge’s interpretation, that the words and phrases used in the trusts indicate a clear intention on Mr. Holgate’s part to allow his wife unrestricted access to the funds. They also cited Dice v Dice Estate, 2012 ONCA 469, which held that “[t]he golden rule in interpreting wills is to give effect to the testator’s intention as ascertained from the language that was used”.
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In Biancaniello, Romano, Prinova Technologies Inc. v. DMCT LLP, Collins Barrow, a recent decision by the Divisional Court, the dismissal of a motion for summary judgment was upheld despite the presence of a Release that appeared to bar the action in question. The Defendants sought summary judgment on the basis that the action was barred by execution of a broadly-worded Release as part of the settlement of a prior action between the same parties.
Under the Release previously signed by the Plaintiffs in 2008, they agreed to release and discharge the Defendants:
“of and from all manner of actions, causes of actions, suits, debts, duties, accounts, bonds, covenants, contracts, claims and demands which against each other they had, now have or hereafter may, can or shall have for or by reason of any cause, manner or thing whatsoever existing to the present time with respect to any and all claims arising from any and all services provided by [the Defendants] to [the Plaintiffs] through to and including December 31, 2007 and, without limiting the generality of the foregoing, with respect to any and all claims, counterclaims or defences that were pleaded or could have been pleaded in the action commenced in the Ontario Superior Court of Justice, as court file No. 08-CV-349246 PD3” (para 7).
The motions judge determined that the Release did not bar a negligence claim that had arisen in 2011, three years after the Release had been executed, notwithstanding its broad language and seemingly all-encompassing nature. The Ontario Superior Court of Justice had noted that the alleged negligence of the Defendants had not yet been adjudicated and should not have been subject to the Release that referred to claims “existing to the present time“, being 2008.
The Divisional Court recognized that a negligence claim may have been contemplated by the parties at the time that the Release was executed. However, the nature of the negligence claim (and the significant tax liabilities resulting from same, in the approximate amount of $1,200,000.00) was unknown by the parties at the time of the 2008 settlement. Justices Wilton-Siegel, Corbett, and Baltman found that the negligence claim was not barred by the Release, as it lacked any reference to the relevant transaction, language specifically releasing against claims resulting from “potential or undiscovered negligence”, and was limited in its scope through the reference to causes existing only at present, when the damages, in fact, resulted at a later time.
Although the motion for summary judgment and subsequent appeal did not involve an estate or trust, this decision is nevertheless relevant within the context of estate litigation, in which so many disputes are settled outside of court and settlements formalized by execution of Minutes of Settlement and Full and Final Mutual Releases. When assisting clients in settling disputes, it is important to adequately consider claims that could potentially arise in the future and whether the terms of the release should explicitly refer to and waive such causes of action.
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Yesterday, Ian Hull tweeted on the recent Ontario Court of Appeal decision of Aragona v. Aragona, 2012 ONCA 639.
There, the Court of Appeal dismissed, for the most part, an appeal by a guardian from a decision dismissing his application to pass accounts. The motions judge ordered that the guardian repay a significant amount to the estate; dismissed his claim for reimbursement for certain legal fees, and deprived the guardian of compensation.
The guardian appealed the finding that he had to repay funds to the estate on the basis that the application judge did not provide adequate reasons. The Court of Appeal noted that the appellate court’s focus is on whether the reasons explain what was decided and why the decision was made. “Ultimately, the test is whether the reasons permit reasonable appellate review.” The Court of Appeal found that, “Shortcomings notwithstanding”, the application judge’s reasons were adequate. The findings of the applications judge were supported by the record; the applications judge’s assessment of credibility was entitled to deference; and the application of the facts to the controlling legal principles leading to the conclusions reached was explained.
Tomorrow, I will look at the discussion of the application judge’s denial of compensation.
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Section 10(1) of the Estates Act provides that appeals in proceedings under the Act are to be made to the Divisional Court. This is a procedural holdover from the old days before the Surrogate Court was merged with the Superior Court of Justice (or more perhaps more accurately, acquired by). The Surrogate Court was an inferior court, and therefore appeals had to be made to the Divisional Court.
By section 10(2), any person beneficially interested in the estate may appeal, even if the personal representative does not. This provision resolves potential technical complications associated with standing. It is also required from a practical perspective since in many cases, the personal representative is also a litigant personally, and is largely and acceptably silent in his or her capacity as personal representative.
Note that this provision does not preclude appealing to the Court of Appeal, which by section 6(2) of the Courts of Justice Act has jurisdiction to hear and determine an appeal that lies to the Divisional Court, if an appeal in the same proceeding lies to and is taken to the Court of Appeal.
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Christopher M.B. Graham – Click here for more information on Chris Graham.
October 1, 2009 was a historical day in U.K.’s judicial history, as the Supreme Court of the United Kingdom was established.
Prior to last week, the House of Lords held the judicial function as the court of last resort.
A Committee of legally qualified lords who sat in the House of Lords, known as the Law Lords, heard final appeals of court decisions. Even though they rarely took part in political debates or voted on legislation, the Law Lords were peers of the House of Lords.
Prompted by concern and possible criticism by the European Union, due to the appearance of a conflict of interest as the officials who execute laws were those testing those laws, there was a movement to create visibly distinct legislative, judicial, and executive powers.
In 2003, then Prime Minister Tony Blair announced the creation of a judicial body to act as a Supreme Court. The Constitutional Reform Act, 2005 provides that the Supreme Court take over the judicial functions from the House of Lords. Now the Supreme Court has their own building, identity separate from the House of Lords, and blog.
The Supreme Court is the court of the last resort in all civil matters in the U.K. and criminal matters in England, Wales and Northern Ireland.
There are 12 Law Lords (with one current vacancy) who will hear appeals, with up to nine judges hearing an appeal. It will be interesting to see if the appointment of the Law Lords becomes politicized as in the United States or if this move merely re-brands the system that was already in place.
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Diane A. Vieira – Click here for more information on Diane Vieira.
Listen to The Question of Compensation and Complaints.
This week on Hull on Estates and Succession Planning, Ian and Suzana discuss the question of compensation and complaints regarding compensation.
Listen to Developments in Will Changes.
This week on Hull on Estates, Ian and Suzana discuss developments in will changes. They reference cases from Key Developments in Estates and Trusts Law in Ontario ed. 2008.
Listen to Dependant Relief.
This week on Hull on Estates, Natalia Angelini and Craig Vander Zee discuss dependant relief and reference a variety of cases that utilized the Succession Law Reform Act.