Tag: Chris Graham

14 Sep

Challenging Decisions of the Consent and Capacity Board

Hull & Hull LLP Capacity, Estate & Trust Tags: , , , , , , 0 Comments

The basic principle governing health care treatment of patients is that treatments should not be administered in the absence of the patient’s consent, or where the patient is incapable the patient’s substitute decision-maker: section 10 of Ontario’s Health Care Consent Act ("HCCA").  The onus is on the health practitioner to decide whether the patient is capable and can give consent.  The range of persons within the HCCA’s s. 2(1) definition of "health practitioner" is broad. 

A person who wishes to dispute the finding of incapacity by the health practitioner may apply under section 32(1) of the HCCA to the Consent and Capacity Board (the "Board") for a review of the health practitioner’s finding that a person is incapable with respect to the treatment.  The Board may confirm the health practitioner’s finding or may determine that person is capable.  Section 80 of the HCCA allows a party to appeal Board decisions to the Superior Court.  The court may exercise all the Board’s powers, substitute its opinion for that of the health practitioner’s, or refer the matter back to the Board with directions for rehearing in whole or in part.     

The standard of review for the Board’s decision is correctness with respect to its interpretation of the law, and reasonableness with respect to its application of the law to the facts, since the issue of incapacity is a mixed question of fact and law: Starson v. Swayze, 2003 SCC 32 (CanLII), [2003] 1 S.C.R. 722.  Absent demonstrated unreasonableness, there is no basis for judicial interference with findings of fact or the inferences drawn from the facts.  This means that the Board’s conclusion will be upheld provided it is among the range of conclusions that could reasonably have been reached on the law and evidence. 

Courts tend to carefully review appeals from Board findings of incapacity.  In Starson v. Swayze, the Supreme Court upheld the trial judge’s overturning the Board’s finding of incapacity.  The trial judge examined the extent to which the conclusions drawn by the Board were supported by the evidence from the examination, and concluded they were not reasonably so.  In Re Koch, the Board’s finding of incapacity was overturned.  Again, the court found that the conclusions of the Board were not supported by the evidence from the examination.  Also, the examination itself was insufficiently probing to support the conclusions drawn.  In Hillier v. Milojevic, 2010 ONSC 4514 (CanLII), the court allowed an appeal of the Board’s finding of incapacity where the hearing had not been conducted in an procedurally appropriate manner.  The allegedly incapable person had not been given sufficient time to answer questions, had been questioned rapidly in a manner that disrupted his train of thought, and had to attend the hearing without his glasses and a computer on which he relied for organization.  The court returned the matter to the Board with directions to conduct another hearing with the assistance of an amicus curaie.

Have a great day,

Christopher M.B. Graham – Click here for more information on Chris Graham.





13 Jul

Appeals and the Estates Act

Hull & Hull LLP Estate & Trust Tags: , , , , 0 Comments

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.   

Have a great day,

Christopher M.B. Graham – Click here for more information on Chris Graham.

28 Apr

Capacity Litigators Beware: DSM-IV to be Revised

Hull & Hull LLP Capacity, Estate Planning, Health / Medical, In the News Tags: , , , , , , 0 Comments

A fifth edition of the Diagnostic and Statistic Manual of Mental Disorders (known as the "DSM-IV") is imminent, according to the chair of the task force responsible for the fourth edition, Dr. Allen Frances, quoted in this National Post article.  The DSM-IV is considered the most authoritative manual for defining and classifying mental illnesses. 

The relevance to capacity litigation is that the language doctors use to talk about patients and record their observations may change, perhaps significantly.  According to Dr. Frances, revisions to the definitions of attention-deficit hyperactivity disorder, autism and childhood bipolar disorder (i.e., manic depression) resulted in an unintended 40-fold increase in rates of diagnosed bipolar disorder.  A patient’s diagnosis is a major variable in his or her treatment.  There was a dramatic increase in prescriptions of anti-depressants over this period.

Revised definitions would not necessitate corresponding changes in legal capacity, of course.  The tests for the various levels capacity are functional in nature; they evaluate an individual’s observed ability to make decisions and do things.  Good capacity assessments tell a story, and the elements of the story must support the conclusions reached.  If not, the assessment will be rejected.  Re Koch is instructive on this point.  It is hard to read the judgment and imagine that including medical terms would have made any difference at all. 

On the other hand, changes to the DSM-IV may be very relevant for expert opinions on capacity given after an individual’s death, where the opinion relies heavily on medical reports and observations of treating physicians to assess an individual’s capacity at a specific time during that individual’s life. 

Have a great day,

Christopher M.B. Graham – Click here to learn more about Chris Graham.



27 Apr

Alleging Fraud and Breach of Trust: Need for Particulars

Hull & Hull LLP Estate & Trust, In the News, Litigation, Passing of Accounts, Power of Attorney Tags: , , , , , , , , 0 Comments

Billionaire and recently deceased American shopping mall developer Melvin Simon’s heirs are fighting over his last will.  Mr. Simon’s children from his first marriage are challenging a will that changed the distribution of his estate in favour of his second wife.  Aside from the glamour factor, the case is interesting in that an allegation of fraud was recently dismissed on the grounds that "[t]he complaints fail to allege affirmative misrepresentations that can support a claim of actual fraud".

This illustrates an important point in estate and trust litigation.  Ontario’s Rules of Civil Procedure similarly requires pleadings that contain allegations of fraud or breach of trust to contain full particulars:

"Rule 25.06(8)  Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred."

This could theoretically present beneficiaries challenging the actions of a trustee, since the trustee frequently has the particulars and the beneficiaries do not.  In practice, this problem rarely arises because most litigation occurs in the context of a passing of accounts, where it is unnecessary to make allegations against the estate trustee.  Instead, under the procedure in Rule 74, the beneficiaries can simply file and serve a Notice of Objection to Accounts challenging transactions or omissions in the trustee’s accounts.

After filing their Notice of Objection to Accounts, the beneficiaries can then bring a motion for an order giving directions (or an order for assistance) that will provide for the disclosure of the particulars they think exist.  After receiving full disclosure, the beneficiaries should in a position to make a better-informed decision on whether to add such allegations to their pleadings. 

Where this process is anticipated, the order should specifically authorize the parties to return to court for further directions.  Of course, it would rarely even be necessary to allege fraud at all, since the facts that support the allegation of fraud can form the basis of an objection to the accounts without using the words "fraud" or "breach of trust", and this can achieve the same practical result without the risks associated with alleging fraud.  Beneficiaries can also avoid the risk of having their pleadings struck at an early stage.  

Have a great day,

Christopher M.B. Graham – Click here to learn more about Chris Graham.


26 Apr

“Pre-taking” Compensation by Property Guardians: Plan Ahead

Hull & Hull LLP Estate & Trust, Guardianship, Power of Attorney Tags: , , , , , , , , , , 0 Comments

Trustees often run into difficulties when they pay themselves compensation prior to passing their accounts.  They are said to have "pre-taken" compensation, meaning having paid themselves compensation prior to passing their accounts.  Fortunately for guardians of property (and attorneys), section 40 of Ontario’s Substitute Decisions Act allows guardians to pay themselves compensation at intervals during the guardianship before passing their accounts:

40.  (1)  A guardian of property or attorney under a continuing power of attorney may take annual compensation from the property in accordance with the prescribed fee scale.

(2)  The compensation may be taken monthly, quarterly or annually.

Amounts taken monthly or quarterly could be divisions of a calculated "annual" amount, but this provision contains no element requiring equal divisions.  Regardless of how the property guardian takes compensation, any payment is subject to court approval.  Clients applying for guardianship should always be advised specifically of this point: if the court later disagrees with the compensation taken, the guardian may have to repay such amounts.  This holds true even where the Management Plan pursuant to which the guardian is managing the incapable person’s property authorizes the compensation the guardian has taken.

This raises another important consideration for lawyers in the application for guardianship stage.  Any compensation taken, or claimed later on a passing of accounts, should not be inconsistent with the provisions of the Management Plan.  Because the right to compensation is statutory, as are the prescribed percentages (though subject to discretionary reduction by the court), there is no need to declare an intention to take compensation in the Management Plan.  But if the Management Plan contains a provision disclaiming compensation, for instance, no compensation should be taken during the guardianship.

Have a great day,

Christopher M.B. Graham – Click here for more information on Chris Graham.


16 Apr

Digital Assets and Estate Planning

Hull & Hull LLP Estate & Trust, Estate Planning, In the News Tags: , , , , , 0 Comments

Estate planners now have yet another issue to address: how to deal with a testator’s digital assets. 

The term "digital assets" (wikipedia entry) generally refers to email, social media, and other online accounts, protected by a password and right to use a specific account.  People are now commonly storing huge amounts of unique data such as photographs, emails and any form of document.  The Michigan case where a court ordered Yahoo to allow executors to access a deceased’s email account notwithstanding that Yahoo’s terms of use and privacy policy did not allow for a transfer of access, is already five years old.

This may already be a professional liability issue.  The information stored in relation to the "digital assets" is arguably no less important than their predecessor "physical assets".  I say "predecessor" because for many people, physical forms of these assets are already quaint.  Other digital assets could have objective financial value; for instance, a PayPal account with a substantial balance, as Michael Panchieri points out.

Without addressing the swamp of legal issues associated with digital assets (even scratching the surface in a meaningful way would require many blogs), I recommend you peruse the following list of sources from Ontario and other jurisdictions to get a sense of how digital assets might fit into an estates plan:

-> mybangalore article expanding on how digital assets fit into estates

-> Dennis Kennedy’s article in the American Bar Association’s online e-zine Law Practice Today (attribution

-> Florida lawyer David Goldman has a must-read blog on what may be a fundamental planning challenge inherent to the nature of the digital asset (hint: it is a license that expires on death…)  

-> a general FT.com (UK) article on companies that offer services to store and pass on passwords and login credentials, link to this example of one such service provider, Entruset.

Thanks for reading,

Christopher M.B. Graham – Click here for more information on Chris Graham.




29 Mar

Unfinished Business: Administration of Estates After a Settlement

Hull & Hull LLP Estate & Trust, Litigation Tags: , , , , , , 0 Comments

Achieving a settlement is a major success in any estates dispute, but even the most comprehensive agreement cannot address every possible post-settlement wrinkle.  The recent case of Viau v. Kozicki et al, 2010 ONSC 1682 is an example of how a court will interpret Minutes of Settlement following court approval (required in this case because there were minors).   

The main issue in Viau was whether legal fees associated with administration of the estate after a judgment approving the settlement had been granted.  The judgment incorporating the settlement stated as follows:

"THIS COURT ORDERS AND ADJUDGES that [the estate trustee], be at liberty to pay all of the debts of the [Estate], which include:

(xiv)  Any legitimate debts of the [Estate], upon notification to [named Respondent], or approval of the court."

The court found that the wording of the order was not restrictive and did not establish caps on legal fees.  Further solicitor’s work to complete the estate would have been anticipated.  Of course, the legitimacy of the work or amount claimed would be subject to approval by the named Respondent or the court.  In coming to this conclusion, the court did not look beyond the terms of the judgment.  The judgment was clear and unambiguous and there was no need to review pre-settlement correspondence.

The decision illustrates a second principle: litigants should avoid unnecessary (or less efficient) proceedings.  Specifically, when the named respondent challenged the legitimacy of the additional legal fees, the estate trustee commenced a passing of accounts proceeding.  The court found that the issue concerning the legal fees could have been addressed by motion to the court without a passing of accounts and therefore the costs associated with the passing of accounts were not payable from the estate. 

Thanks for reading,

Chris Graham





24 Dec

Taking “Gifts”: The Very High Burden on Attorneys for Property to prove Gifts

Hull & Hull LLP Estate & Trust, Power of Attorney Tags: , , , , , , , , , 0 Comments




Attorneys for property who receive gifts from grantors tomorrow will have to give them back, unless they have good evidence supporting the fact of the gift.  The rule that fiduciaries (including attorneys for property) must prove purported gifts is stated in Cooke v. Lamotte(1851), 15 Beav. 234 at page 239.

Justice Sheard applied this rule in Kee v. Yip [1995] O.J. No. 2879, disallowing a series of transfers by an attorney to himself, stating with respect to one such transfer, “The burden on Tom Kee to show that his mother gave him the $20,000 is a heavy one. His evidence, simply the assertion that this transaction, one of many that he did under power of attorney, was intended by her as a gift to him falls well short of discharging that burden of proof. Under the principle stated in Cooke v. Lamotte, supra, the $20,000 cannot be allowed as a gift and must be refunded." 

Even more recently, in Volchuk v. Kotsis, 2007 CanLII 28527 (ON S.C.) Justice Langdon disallowed a series of purported gifts (cheques and money transfers) effected by an attorney, noting in addition that attorneys were precluded from relying solely on their own evidence by section 13 of the Ontario Evidence Act, which provides that the claimant “shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.” 


In estates litigation, this rule is very useful in passings of accounts initiated pursuant to section 42 of the Sustitute Decisions Act by disappointed beneficiaries of an estate against the deceased’s former attorney for property.  Of course, this rule forms part of the Common Law and is not confined to passing of accounts proceedings.

Merry Christmas to fiduciaries including attorneys, and enjoy your presents.

Chris Graham

Christopher M.B. Graham – Click here for more information on Chris Graham.

21 Dec

Capacity to Be Examined and Give Evidence

Hull & Hull LLP Capacity, Estate & Trust, Litigation Tags: , , , , , 0 Comments

When is a potential witness incapable of being examined?  Price J. examined this issue in Vokes Estate v. Palmer, 2009 CanLII 70132 (ON S.C.) in the context of a motion to compel a party to attend an examination under oath, where that party’s solicitor had earlier refused to allow him to take the oath or give a solemn affirmation.  

Ultimately finding the witness capable of taking an oath and giving evidence, Price J. reviewed the authorities.  The leading case of McGowan et al v. Haslehurst et al. (1977), 17 O.R. (2d) 440 (H.C.J.) states that parties should be able to avoid attendance at examinations for discovery on the basis of unsoundness of mind only in the clearest of cases.  The onus of proof of unsoundness is on the party seeking to avoid the examination (Barnes v. Kirk, [1968] 2 O.R. 213 (ON C.A.).

Price J. also applied the principles applicable to testing the competency of witnesses giving evidence at trial.  Under section 18 of Ontario’s Evidence Act, any person is presumed competent to give evidence, and therefore the onus is on the person to establish incapacity.  The presiding judge must examine the proposed witness. Section 16(1) of the Canada Evidence Act prescribes questions for such an inquiry, namely: whether the witness understands the nature of an oath or solemn affirmation, and whether the witness is able to communicate evidence.

As a sidenote to this decision, Price J. reviewed and rejected a capacity assessment that found the potential witness incapable of giving evidence.   

A review of this decision will be helpful to any practitioner dealing with questions of a potential witness’s capacity to give evidence.

Have a great week,

Chris Graham

Christopher M.B. Graham – Click here for more information on Chris Graham.

05 Nov

Two More Serious Charges Dropped Against Accused Shopkeeper

Hull & Hull LLP Estate & Trust Tags: , , , 0 Comments

Prosecutors have dropped the charges of kidnapping and carrying a concealed weapon against the shopkeeper accused David Chen.  Readers will remember Mr. Chen as Toronto’s Chinatown shopkeeper who arrested a shoplifter, with the help of two employees, then got charged himself.

Mr. Chen, owner of Chinatown store Lucky Moose Mart, had spotted the thief and with the assistance of his employees, tackled the thief, bound him in twine and detained him in a delivery truck until the police arrived four minutes later.  The thief had allegedly victimized local stores, and has a criminal record going back 32 years, all according to this news report.  Incredibly, this record includes – according to the news report – stealing from Mr. Chen’s own store and a neighbouring store, including on that same day.  Truth being stranger than fiction, the thief was granted a plea-bargain sentence of 30 days in relation to his theft from Mr. Chen’s store in part because he agreed to testify against Mr. Chen and the two employees. 

The Crown’s theory seems to be that because the arrest was not contemporaneous with the crime, the thief having returned to the store about an hour after committing the theft, the arrest is not protected by citizen’s arrest provisions.  Mr. Chen has apparently rejected a plea bargain – he had videotape evidence of the theft. 

Mr. Chen is married with 2 children, aged 2 and 6, and has become a bit of a folk hero.  How hot is this story?  The Globe and Mail reported at 12:13pm yesterday, the National Post at 4:03 pm, CBC at 2:54pm, the Toronto Star right away too. 

Have a good day,

Chris Graham

Christopher M.B. Graham – Click here for more information on Chris Graham.



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