Tag: Ethical Issues
Although rare, disputes over the final resting place of a deceased are not unheard of. Such a dispute was the subject matter of Mason v. Mason, a decision of the Court of Appeal of New Brunswick.
There, the deceased died at the age of 53. He was survived by his mother, and his wife of 13 months. At first, the relationship between the mother and the wife appeared to be harmonious. The mother wanted the son’s cremated remains buried next to his father, and the deceased’s wife agreed. Later, however, the wife had a change of heart, as she came to believe that her husband did not have a good relationship with his father. She asked the cemetery to agree to disinter the remains and have them buried in another cemetery. As the original plot was owned by the mother, the cemetery required the consent of the mother. The mother refused to consent.
The wife then applied for and obtained letters of administration. This would normally cloak her with the authority to dispose of the body. The wife then applied to court to exercise this right. The court refused to assist her.
The applications judge held that the administrator had the right to determine the proper burial or disposal of the remains. However, this right was limited to carrying out those actions. The applications judge concluded that the remains were properly dealt with, with the agreement of the mother and the wife. At the time, there was no administrator, and therefore the next of kin could determine the disposition of the body, which they did.
The wife argued that as administrator, she had an ongoing right to determine the burial place. Support for this proposition was found in the Saskatchewan case of Waldman v. Melville. There, the deceased’s sister wished to disinter the deceased, over the objection of the executor. The court held that “The rights of the executor continue after the burial of the body, otherwise it would be an empty right … and those who oppose the executor could disinter the body as soon as it was buried.”
The applications judge distinguished the Melville decision. The rights of an administrator appointed months after burial did not entitle the administrator to disrupt burial arrangements agreed to by the person in her capacity as spouse.
The Court of Appeal upheld the applications judge’s decision. They went on to hold that once the body was properly discharged, it could not be moved, under s. 15 of the Cemetery Corporations Act, without the written consent of the Medical Health Officer or the order of a judge. The Court of Appeal stated that the powers conferred on the court by s. 15 of the Cemetery Companies Act were discretionary in nature. A judge to whom an application is made under that section is required to consider and weigh all the circumstances and make the order he or she considers appropriate. In this case, the court found no valid reason for moving the body.
Thank you for reading.
The interplay between evolving social norms and the legal foundations that predate or accelerate these changes has seen significant development in the last decade. Courts of law and of public opinion have made important strides in shaping social policy in many areas, such as medically-assisted death, gender diversity and inclusion, and marriage rights, to name a few. A recent case out of the Ontario Superior Court of Justice considered this last issue, marriage rights, with a particular focus on predatory marriages.
In Hunt v Worrod, 2017 ONSC 7397, the Court was tasked with assessing whether an individual who had suffered a catastrophic brain injury possessed the necessary capacity to marry. In 2011, Kevin Hunt suffered a serious head injury following an ATV accident and spent four months recuperating in hospital. He was eventually discharged into the care of his two sons, but three days after his release, Mr. Hunt was whisked away by his on-and-off girlfriend, Kathleen Worrod, to be ostensibly married at a secret wedding ceremony.
Mr. Hunt’s children brought an application to the Court on his behalf to void the marriage, partly to preclude Ms. Worrod from accruing spousal rights to share in Mr. Hunt’s property or assets. Ultimately, the Court concluded that Mr. Hunt did not possess the requisite capacity to enter into the marriage.
In its reasons, the Court relied heavily on the opinions of several expert witnesses and the existing body of legal authority. The Court began by reviewing section 7 of Ontario’s Marriage Act, which provides that an officiant shall not “solemnize the marriage” of any person that the officiant has reasonable grounds to believe “lacks mental capacity to marry.”
The expert evidence tendered by the parties suggested that Mr. Hunt had significant impairments in his ability to make decisions, to engage in routine problem-solving, and to organize and carry out simple tasks. He was characterized as “significantly cognitively impaired”, and was assessed as being incapable of managing his property, personal care, or safety and well-being.
The Court subsequently relied on the test for capacity to enter into a marriage contract established by the British Columbia Supreme Court in Ross-Scott v Potvin in 2014. The Court held that a person has the capacity to enter into a marriage contract only if that person has the capacity to understand the duties and obligations created by marriage and the nature of the commitment more generally.
The Court also identified the tension between balancing Mr. Hunt’s autonomy as against the possibility that he lacked the capacity to appreciate the legal and social consequences of marriage. Ultimately, the Court was satisfied that Mr. Hunt’s children had met their burden of demonstrating that their father lacked the necessary capacity to marry Ms. Worrod. The marriage was declared void ab initio, and the attendant spousal property rights that would have otherwise flowed to Ms. Worrod were lost.
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Likely to be of a surprise to most readers, Canada has a law on the books governing, among other things, policy and financing with respect to the disposal of nuclear waste. The purpose of the federal Nuclear Fuel Waste Act (the “NFWA”) is to “provide a framework to enable the Governor in Council to make […] a decision on the management of nuclear fuel waste that is based on a comprehensive, integrated, and economically sound approach for Canada.”
The intersection of trust law with the NFWA occurs with respect to how the purpose and the goals of the act are to be financed. Section 9 of the NFWA provides that every “nuclear energy corporation” must maintain a trust fund with a duly incorporated financial institution, the purposes of which are described in greater detail below. The following entities are defined as a “nuclear energy corporation” under the NFWA:
- Ontario Power Generation;
- New-Brunswick Power Corporation; and
- Atomic Energy of Canada Limited.
When the NFWA came into effect, each nuclear energy corporation was required to make a substantial initial deposit into its respective trust fund, and each must make a minimum annual deposit of a prescribed amount to the capital of the trust. To provide some context, the largest trust fund is that maintained by Ontario Power Generation. At its inception, OPG was required to make an initial contribution of $500,000,000.00 to its fund, and its minimum annual levy is $100,000,000.00.
The NFWA provides that the corporations may only make withdrawals from their respective funds for the purposes of implementing a plan selected by the Governor in Council to “[avoid or minimize] significant socio-economic effects on a community’s way of life or on its social, cultural or economic aspirations.” In layman’s terms, the nuclear energy corporations must use the capital of their respective trusts exclusively for the purposes of ensuring the nuclear waste is managed and disposed of in an efficient and comprehensive manner while minimizing the social impact.
Control and management of all aspects of nuclear power generation is top of mind in the wake of the Fukushima nuclear disaster in 2011. We may all hope the capital of the trusts established under the NFWA continue to be used for their intended purpose rather than to fund clean-up efforts in the event of a similar tragedy. However, consider that the most recent financial statements for all of the aforementioned trust funds list a total combined balance of approximately $4 billion. Now consider that some have estimated the total cost of cleaning up and containing the waste and fallout from the Fukushima disaster as exceeding $626 billion. A drop in the proverbial bucket, to be sure. Indeed, the magnitude of the Fukushima incident likely far surpassed any reasonable expectations, though it gives us pause to consider whether we are giving nuclear power the deference it deserves.
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Last week, Ian blogged on the Retirement Homes Regulatory Authority, financial abuse of the elderly, and the competency of elderly individuals to make financial decisions. As stated last week, it is unclear what the responsibilities are of a retirement home in cases where there have been loans between a resident and the licensee.
The recent Licence Appeal Tribunal decision of 2138658 Ontario Ltd. ola Seeley’s Bay Retirement Home v. Registrar, Retirement Homes Regulatory Authority is the first case to look at financial abuse in the context of the Retirement Homes Act, 2010, S.O. 2010 Chapter 11 (the “Act”). This case involved the Retirement Homes Regulatory Authority’s revocation of Seeley’s Bay Retirement Home’s licence on the basis of the alleged financial abuse of three residents, and a former resident.
The Tribunal determined that the former resident offered to grant the licensee a second mortgage, however, the resident had independent legal advice and a proper written mortgage, and as such, no financial abuse was found.
The Tribunal found financial abuse of one out of the three residents. For the first two residents, the Tribunal did not find financial abuse as they were a couple that had a long-term 25-30 year relationship with the licensee. The couple offered a loan to the licensee but he had counted the loan toward the couple’s rent and had paid off the loan at the time of the hearing. The Tribunal found that this was a trade-off, and that people who are competent to manage their own affairs ought to be allowed to make independent financial decisions, and found the loan to be “a matter of friendship and faith”.
The Tribunal found financial abuse of the third resident. Resident three lived in the home for 6 years prior to her death, and was determined to be capable. She managed her own finances and had no close family. The licensee began approaching her for money, which he applied to her rent, yet continued to borrow money beyond the amount paid of rent. There was nothing in writing, no records of the payment, and the resident had no independent legal advice. In 2016, the resident’s health began to deteriorate and she was worried that she would not be able to cover her expenses due to the amount of money she had lent to the licensee. She approached the licensee about repayment and the licensee took no action. The loans were outstanding upon the resident’s death. The Tribunal found this amounted to financial abuse as it was found to be “misappropriation” of resident money under the Act, pursuant to Regulation 166/11 and section 67.
In considering all of the claims against the residence, the Tribunal found that the loans raised concerns about the licensee’s ability to operate the home with honesty and integrity. This was exemplified due to the third resident’s dependency on the home. Moreover, the Tribunal noted that in the third case, there was harm to the resident’s peace of mind along with a risk that she would not be able to pay for her own long-term care.
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‘Tis the season of giving. ‘Tis also the season of holy days for a number of religions. For organ donation, the interplay between religion and donation can raise serious concerns for religious observers.
As it stands, it is extremely rare for an individual to become an organ donor. Even where an individual has registered their consent to donate, they must die in a hospital while on life support in order to successfully donate their organs. As such circumstances account for only a small percentage of deaths, there is nothing more tragic than when an individual’s opportunity to save a life through organ donation is missed due to a false belief that donation is prohibited by their religion.
Fortunately, in addition to speaking to your religious leader about this issue, there are a number of resources available that can assist in determining whether your religion permits organ donation. For a website on the perspectives held by most major religions on this issue, please click here.
And remember, to become an organ donor, please register at BeADonor.ca. Making this designation in your Last Will and Testament will not result in a successful organ donation due to the sensitive time constraints in which a person’s donation wishes must be known.
Thank you for reading,
Today, almost 15% of Canadians over the age of 65 are living with some form of cognitive impairment, including Alzheimer’s and other forms of dementia. It is no shock then, that dementia is similarly found to impact elderly lawyers. With a significant portion of Canada’s legal profession reaching retirement age, dementia, and all of the cognitive impairment disorders that the term encapsulates, requires a strategic response from law societies across the country.
This issue has recently come to the forefront in the legal profession throughout Canada due to a number of disciplinary hearings of lawyers suffering from dementia who, despite their decades of experience, breached their respective professional codes of conduct.
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In a recent Canadian Lawyer Magazine article entitled, ‘The ‘indious fog’, author, Luis Millan, discusses the sensitivities and complexities surrounding the impact that dementia is having on the aging legal profession. The issue requires a balance to be struck between protecting the public while treating cognitively impaired lawyers with respect and dignity.
On the one hand, the public must be protected from lawyers who are no longer of sound mind to be practicing law. This is especially difficult with sole practitioners, as there is often no one looking over the quality of their work. On the other hand, however, lawyers who have been practicing for decades, when confronted with failing cognitive functions, will likely have a difficult time coming to terms with their conditions.
Law societies across Canada approach this increasingly relevant issue differently. Some favour a more heavy-handed approach, holding that the concept of general deterrence takes precedence over cognitive impairment, and that breaches of professional codes of conduct cannot be tolerated regardless of what their cause.
Notably, the Nova Scotia Barristers’ Society has launched a program that handles complaints regarding lawyers suffering from a physical, mental or emotional incapacity through an alternative form of discipline. The program is consensual and involves a team of medical and legal practitioners working with the lawyer in question to formulate an agreement that will both protect the public and assist in addressing the incapacity. Where a lawyer’s condition, such as dementia, has no hope for recovery, the program allows for a graceful exit from the profession.
Developing initiatives and programs to adequately ensure public protection while treating cognitively impaired lawyers with dignity and respect will be a difficult feat. Creating awareness of these non-discriminatory and life altering issues, however, is a positive first step.
Thank you for reading.
Across Canada, there currently exists an ‘opt-in’ framework for organ donation. Also known as ‘express consent’, this framework is defined by the presence of an explicit mechanism (e.g. signing of a donor card or registration with a regional organ donation society) by which one makes their wishes known. Our least populated province may be the first to eschew this system.
As reported on Tuesday, Health P.E.I. is considering a shift towards an ‘opt-out’ donation program in an effort to increase the organ yield in their province. Under such a ‘presumed consent’ scheme, a person is automatically considered an organ donor upon their death, unless the deceased had registered their objection while alive. A presumed consent organ donation program is not a new idea; in France, Spain, Portugal, Greece, Luxembourg, Italy, Austria, Belgium Netherlands, Singapore and Germany, organs and tissues are essentially considered property of the state unless one actively opts out in his/her lifetime. By 2015, Wales hopes to become the first in the UK to join the opt-out trend.
Are there advantages to a presumed consent regime? Don Mills, CEO of Corporate Research Associates summed it aptly: “Most people, if you ask them directly to become an organ donor, they probably will. But if you make them work for it, they’re probably not going to pay too much attention.” A 2006 U.S. meta-analysis concluded that indeed, opt-out programs had a ‘positive and sizeable effect on organ donation rates’. Nonetheless, in 2007, the Citizens Panel on Increasing Organ and Tissue Donation rejected a presumed consent framework as a means by which donation rates in Ontario could be boosted, and referred to such a framework as ‘too passive a method to be a clear statement of an individual’s intent.’
Canada’s donation rate (14.4 donors per million population) is one of the lowest in the developing world, and a report released by the Canadian Institute for Health Information earlier this year showed that across the nation, living and deceased donor rates have stagnated since 2006. 30% of people waiting for an organ transplant in Canada die on the waiting list. Organ donation is a hot topic at present, particularly in the wake of double-lung recipient Hélène Campbell’s herculean efforts in the social media arena to engage both public discussion and personal reflection. This conversation is clearly long overdue. Will P.E.I.’s voice lead the way?
Jennifer Hartman, guest blogger
[In the spirit of full disclosure, the author’s father-in-law is a member of the Health P.E.I. Board.]
In determining whether a testamentary document is valid, one must consider whether there are any conditions found within the testamentary document that are contrary to public policy. In other words, in order to determine the validity of a condition, one must look to the beneficiary to determine whether he or she must perform an action that is contrary to the interests of society. If a condition requires such an action, it may be deemed void on public policy grounds.
Whether a condition is found to conflict with public policy seems to be a recurring theme in our blogs, one of which dealing with interfaith marriage can be found here, and another of which dealing with pets can be found here. However, an area which has received less attention is the requirement that, in order to benefit under a last will and testament, one must marry a person of the opposite sex.
A recent article in the New York Post, found here, deals with a grandfather, Frank Mandelbaum, who left in his will a requirement that, in order for any of his grandchildren to benefit under his will, his son, Robert Mandelbaum, a Manhattan (New York) Criminal Court Judge, must be married to the child’s mother within six months of the child’s birth. Frank had done this with full knowledge that his son had a partner of the same sex.
In Canada, the courts have traditionally drawn a distinction between two types of conditions. The first type imposes a general restraint on marriage and has been deemed to be contrary to public policy [see: Re Cutter (1916), 37 O.L.R. 42, 31 D.L.R. 382 (H.C.)]. The second type of condition imposes a partial restraint on marriage, and has been upheld, provided the condition is reasonable in the circumstances. Examples of the latter include conditions against remarriage, or against marriage to a named person.
It is clear that the condition imposed upon Robert is not a general restraint on marriage, as it clearly allows him to marry his child’s mother. Thus, the condition likely falls into the latter category as imposing a partial restraint on marriage. Given this, is such a condition reasonable in the circumstances? How much of our current views on same-sex marriages should affect public policy? In the UK House of Lords decision of Blathwayt v. Baron Cawley,  3 All E.R. 625 (H.L.), Lord Wilberforce states:
“…I do not doubt that conceptions of public policy should move with the times…”.
Regardless of what your stance is on the validity of Frank’s condition, from a legal perspective, it will no doubt be of interest to see how the courts balance their duty of upholding the law while promoting public policy.
Thank you for reading.
Mummies are exhumed and studied in the name of science, but should they have the right to rest in peace? Scientists are tackling the issue of whether there are ethical reasons to reconsider performing invasive procedures on ancient mummies. If studies were performed on modern tissue samples, consent would be required. But, a mummy cannot provide consent. In Canada, an autopsy requires the permission of the deceased’s family, unless the death was sudden or from unnatural causes.
On the one hand, although few religions ban autopsies, some religions place a strong emphasis on the inviolability of the human body and view anything more than cleaning the body after death as disrespectful. On the other hand, autopsies also provide a benefit to society, such as improving medical technology.
Is the ethical reason that it is acceptable to perform an autopsy on a mummy that the mummy has no family members who can grant consent? However, in Pennsylvania, a coroner was put on trial in 2008 for performing autopsies on unclaimed bodies from the county morgue when there were no family members who could grant consent.
Or perhaps a mummy is simply too old to have privacy rights. However, the Royal Commission on Aboriginal Peoples reported, "A final threat to the integrity of sacred and historical sites comes not from development or legislation but rather from archaeological endeavours. The search for historically and culturally significant objects often leads archaeologists to burial grounds. Aboriginal people have asked that these objects be left in the ground and that graves not be disturbed out of respect for the dead and in recognition that the burial grounds remain the collective property of Aboriginal people."
Where should the balance be struck between the pursuit of research and respecting the wishes and integrity of a person after death?
Parents, inherently, try to help their children. Initially the help your kids need is easy to determine; food and sleep, being the obvious requirements. As they get older, their needs change. It starts with something simple like homework, generally progresses to how to deal with the high-school break up, maybe eventually getting into the existential “What should I do with my life? What should I be?” Clearly, I’m over-simplifying. This slight hyperbole is still likely to resonate with most people, especially parents. Helping your kids is a natural inclination. Yet when a mother (a lawyer), accepted service of materials on her son’s behalf in a recent family law matter before the Ontario Superior Court, it spurred enough debate to come up on appeal and to be addressed in a recent article in Law Times.
The matter that brought this issue before the court seems to be a fairly standard family law matter. Yet, as noted, a mother agreed to accept service of materials on her son’s behalf. An interlocutory order was made, ex parte, indicating that it would not be appropriate for the mother to act as counsel, as it may be prejudicial to a determination on the matter. The judge also provided a direction that counsel should consult with the Law Society to establish an ethical basis for representation. It should be noted that the relief granted was not sought by the wife in this matter, but was a conclusion reached by the Judge on the evidence included in the motion seeking substituted service. The Order was brought before the Superior Court of Justice seeking leave to appeal and leave was so granted. A copy of Justice Boswell’s decision on this issue can be found here.
The Court’s review of lawyers obligations under Rule 2.04 in the Rules of Professional Conduct and the accompanying summary, are given thorough consideration by Justice Boswell on the motion for leave to appeal. The findings in this matter seem limited to the issue of whether a family member can act as legal representation in family court. Yet, the issue could be drawn across many legal fields, in particular Estate litigation, where families and emotions play very prominent roles. The Court’s conclusion, that a case by case analysis is required where such severe restriction on a party’s choice of counsel is considered, seems in line with the fundamental principles of ethics we all learn when preparing for the bar exam. Still, I doubt that this is the last time I’ll see this issue appear before the Courts.
Food for thought,
Nadia M. Harasymowycz – Click here for more information on Nadia Harasymowycz.