Tag: best practices

21 May

Modernizing the Litigator’s Toolkit

Garrett Horrocks Estate Litigation, Litigation, News & Events Tags: , , , , 0 Comments

My last blog discussed recent steps taken by the legislature to modernize the administrative side of the practice of law in Ontario.  The practical side has also seen a number of developments that have emerged as a direct result of the ongoing pandemic.  Some of these efforts have been spearheaded by the courts directly, while others, such as the Estate Arbitration and Litigation Management initiative, have been developed by members of the Bar an in effort to continue moving matters towards a resolution despite limited court access.

A recent decision of the Superior Court of Justice provides some important commentary on the judiciary’s expectations of parties and counsel to adapt to the current reality using these tools and others so that files can continue to progress.

In Arconti v Smith, Justice Myers grappled with the competing views of the parties as to whether an examination for discovery ought to proceed by way of a videoconference.  The defendant, who was to submit to examination, proposed that the examination proceed by way of videoconference given the social distancing guidelines in place.

The plaintiff objected on several grounds.  Among other objections, the plaintiff argued that the defendant and their counsel ought to be in each other’s presence to ensure the process proceeded smoothly.  Alternatively, the plaintiff argued that the fact of conducting an examination remotely would “[deprive] the occasion of solemnity” and would otherwise make it more difficult to assess the defendant’s demeanour as a witness.  The plaintiff argued that the examination ought to be deferred until social distancing guidelines were lifted.

Justice Myers’ initial response to the plaintiff’s position was simple, yet persuasive: “It’s 2020.”  He held that the parties have technological tools at their disposal to conduct examinations and other litigation steps remotely, and that the use of such tools was especially salient in the context of the social distancing guidelines.  Although Justice Myers advised that the concerns raised by the plaintiff might be relevant in different circumstances, they were not at issue there.

Ultimately, Justice Myers held that the use of readily available technology should be part of the skillset required both of litigators and the courts, and that the need to use such tools was merely amplified, not created, by the pandemic.  The plaintiff was ordered either to conduct the examination of the defendant by videoconference, or to waive their entitlement to conduct the examination altogether.

This decision provides a glimpse into the court’s expectations of litigants and counsel to move matters forward in spite of the social distancing guidelines and court closures.  While the current directives and legislation cannot be used to compel a party to perform a particular litigation step by audiovisual means, one may read Arconti as suggesting that the courts will nonetheless expect the parties to consider the entirety of their skillset to move matters along so that they do not languish in litigation purgatory as a result of social distancing guidelines.

Once social distancing guidelines have been lifted, it will likely be some time before the courts have dealt with the matters that were adjourned between March and June and are in a position to hear new matters.  Parties who are willing to use the tools at their disposal to move matters forward and avoid contributing to this delay may find themselves commended by the judiciary.  Those who are resistant to adapt, on the other hand, may expose themselves to commentary from a judge, or possibly cost consequences for their client, depending on the circumstances.

If you are interested in learning more about litigation procedure and estate planning best practices in the time of COVID-19, please consult our information guide.

Thanks for reading.

Garrett Horrocks

19 May

“Modernizing Ontario”: Bill 190 and Amendments to Practice

Garrett Horrocks Uncategorized Tags: , , , , , , 0 Comments

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:

Witnessing Wills and POAs in Counterpart

Virtual Mediation

Legal Innovations during COVID-19: Are Virtual Platforms the Future?

Thanks for reading.

Garrett Horrocks

16 Aug

When Might a Solicitor be Negligent in Preparing a Will?

Noah Weisberg Capacity, Litigation Tags: , , , , , , , , , 0 Comments

Solicitors preparing Wills need to be mindful of the obligations they owe to a testator.  The seminal Court of Appeal decision in Hall v Bennett Estate provides a helpful refresher of the steps a solicitor should consider to ensure best practices are followed.

According to the Court, it is well established that a “solicitor who undertakes to prepare a will has the duty to use reasonable skill, care and competence in carrying out the testator’s intentions. This duty includes the obligation to inquire into and substantiate the testator’s capacity to make a will”.

Testing for capacity is fundamental – a solicitor has a duty to make inquiries into the testamentary capacity of the testator.

Should the solicitor have any doubt as to capacity, Justice Cullity in Scott v Cousins, famously states that “…careful solicitors who are in doubt on the question of capacity, will not play God – or even judge – and will supervise the execution of the will while taking, and retaining, comprehensive notes of their observations on the question”.

The Court of Appeal proceeds to summarize an article written by M.M. Litman & G.B. Robertson outlining errors made by solicitors in the preparation of a Will, leading to negligence claims,  including failing to:

  • obtain a mental status examination;
  • interview the testator in sufficient depth;
  • properly record or maintain notes; and
  • test for capacity.

As such, notes from a drafting solicitor should ensure that all of these are addressed.

In certain instances, although narrow, a duty of care might also be owed to a disappointed beneficiary.  A two part test is applied as set out by the Supreme Court of Canada in Cooper v. Hobart.

While claims for negligence by testators and disappointed beneficiaries cannot be stopped, a file with detailed notes can go a long way in defending such a claim.

Noah Weisberg

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