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.
When an irresistable force meets an immovable object, we appeal to the Supreme Court of Canada.
In Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, the force is the Personal Information Protection of Electronic Documents Act ("PIPEDA") and the object is solicitor-client privilege. Section 12 of PIPEDA grants the Privacy Commissioner express statutory power to compel a person to produce any records that the Privacy Commissioner considers necessary to investigate a complaint “in the same manner and to the same extent as a superior court of record”. The issue in Blood Tribe was whether this conferred a right of access to documents protected by solicitor-client privilege. The Court held unanimously that the broad grant did not contain the requisite specific express authority to override privilege.
The Court stated the rule that "general words of a statutory grant of authority to an office holder such as an ombudsperson or a regulator do not confer a right to access solicitor-client documents, even for the limited purpose of determining whether the privilege is properly claimed. That role is reserved to the courts. Express words are necessary to permit a regulator or other statutory official to “pierce” the privilege."
The Court also noted that "while the solicitor-client privilege may have started life as a rule of evidence, it is now unquestionably a rule of substance applicable to all interactions between a client and his or her lawyer when the lawyer is engaged in providing legal advice or otherwise acting as a lawyer rather than as a business counsellor or in some other non-legal capacity."
Speaking of the Supreme Court of Canada, the law you’re looking for just might be in the "unreported judgments" section of the Supreme Court’s user-friendly website. How does a Supreme Court decision go unreported?
Have a great day,
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.
This week on Hull and Estates, Rick Bickhram and David Smith discuss how changes in the definition of marriage have impacted Estate Law and Estate Administration.
Listen to Keeping Good Records
This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the importance of keeping good records in order to account for your conduct financially.
Listen to The Formal Passing of Accounts.
This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the specifics of what happens when you have to go to court to formally pass accounts.
"Access to Justice" tends to be a topical issue in the newspapers. The general feeling seems to be that legal costs are spiraling ever upwards to the detriment of the public. Take this article from CanWest News Services.
Few would dispute that litigation costs can sometimes grow rapidly, particularly where the issues are complex or a litigant acts unreasonably. However, it seems to me that for many other legal services, there has actually been a reduction over the years. I am often surprised to find out the legal costs for the average client to: make a Will, buy or sell a house purchase, buy or sell a small business, set up a company or other routine solicitor’s work.
I suspect many lawyers, especially sole practitioners, might agree that many of these expenses have actually been reduced for clients over the years. They may even say that the standard of care tends to rise over time, so what was simple forty years ago is more complex today.
I suppose at the end of the day sympathy for lawyers doesn’t make for a great news story…
Have a great day.
Yesterday, I set out a fact situation giving rise to a certain interpretation issue.
The fact situation is based on the decision of Moore J. in Rudling Estate v. Rudling, 2007 CanLII 51794 (Ont. S.C.).
There, the court held that the word "debt" in relation to Property B could not include within its meaning all of the taxes, expenses and other charges that the estate trustee is directed by the will to satisfy in addition to "debts" of the estate. The court found that all reasonable charges against the estate arising from the death of the deceased were, by the terms of the will, intended to be paid from the estate before the specific bequests of the two properties are made. That is, both A and B are to share the burden of the testamentary expenses.
The court found that the will could be fairly construed upon the language contained within its four corners, and without the need to resort to extrinsic evidence in order to interpret the meaning.
However, in light of the Orders Giving Directions made in the case, and the issues is raised in the pleadings, and “because I am aware of the recent tendency of Canadian courts to apply the ‘armchair rule’”, the court also addressed the interpretation of the will in light of the surrounding circumstances. The court examined the surrounding circumstances, hearing from ten witnesses over the course of seven days. After considering this evidence, the court concluded that the evidence did not support a conclusion that the testamentary expenses be borne by A alone.
Did you make the right call?
In Kaplun v. Kaplun, Brown J. of the Ontario S.C.J. reminded all counsel of certain basic expectations that a court has of counsel who appear in Motions Court:
1. Be on time and ready to start at 10:00 a.m. Tardiness displays a lack of respect for the court, its staff, and fellow counsel;
2. Counsel should always be courteous and civil to opposing counsel.
3. Ill feelings that may exist between clients, particularly during litigation, should not influence counsel in their conduct and demeanour towards opposing counsel.
4. When scheduling a motion, counsel should consult the responding side before setting a date.
5. Requests for an adjournment should be communicated to opposing counsel well in advance of the hearing date. The not uncommon practice of adjournment by ambush is unacceptable;
6. Counsel should follow the two basic rules of courtroom etiquette:
(a) When one counsel is standing to make submissions, the other should sit down. Success in Motions Court does not depend on the last person standing; and
(b) Avoid "Jack-in-the-box" advocacy. Standing up to interject repeatedly during opposing counsel’s oral argument on a motion is rude and wastes time. Counsel should deal with any disputed matter and respond in a reply argument.
7. Finally, Brown J. states that for Motions Court to work efficiently and fairly, the court depends upon counsel observing the three “Cs”: courtesy, civility and co-operation.
Thank you for reading.