A recent decision from the Royal Court of Jersey was recently discussed here with respect to a beneficiary’s right to disclosure from a trust. This blog by lawyers from Ogier is an insightful read on this particular area of trust law.
According to the authors at Ogier, M v W Limited and Others was a case that considered a beneficiary’s broad request for documents, such as copies of all trust instruments, latest accounts, financial statements for the corporations owned by the trust, and details about all past distributions from the trust. While Court’s decision was grounded in an interpretation of the relevant Jersey legislation, some of its commentary remains instructive for those of us who practice outside of Jersey.
In M v W Limited and Others, the nature and immediacy of the beneficiary’s interest is salient to the inquiry. For example, a contingent beneficiary may not be entitled to as much disclosure as a beneficiary who is entitled to the assets of the trust at that point in time. By extension, it is also relevant to consider whether the disclosure at issue would negatively affect another class of beneficiaries as well as the proportionality of the request.
As for the law in Canada, I have blogged on a recent Supreme Court of Canada decision about a trustee’s duty to disclose the existence of a trust to the beneficiaries. Justice Brown for the majority in Valard Construction Ltd. v. Bird Construction Co., 2018 SCC 8, has stated the following at paragraph 19,
“In general, wherever “it could be said to be to the unreasonable disadvantage of the beneficiary not to be informed” of the trust’s existence,  the trustee’s fiduciary duty includes an obligation to disclose the existence of the trust.”
This notion of whether a beneficiary would be unreasonably disadvantaged by the non-disclosure is important to keep in mind because the right to disclosure is grounded in a beneficiary right to hold trustees accountable and to enforce the terms of the trust.
Practically speaking, issues of disclosure often leads to a request for the trustee to commence an application to pass accounts. While the trustee will have the benefit of a court order approving his/her administration for that period (if and when Judgment is obtained), an application to pass accounts must be served on all beneficiaries with a contingent or vested interest pursuant to Rule 74.18 of the Ontario Rules of Civil Procedure. In turn, these beneficiaries will have the right to object to the trustee’s accounts and seek relevant disclosure from the trustee in the course of this process.
Thanks for reading!
It was April 2000 and then-mayor of New York Rudy Giuliani was at his desk when he got the call. The voice on the other end of the phone was that of his urologist, who was about to deliver the results of Giuliani’s recent biopsy for prostate cancer: “The tests came back and they were positive”. Giuliani said thank you and hung up the phone with relief, believing that ‘positive’ had been used in the literal sense. In his mind, ‘positive’ meant ‘good news’. In fact, a positive test, in medical terms, indicates the presence of the parameter for which the test has been run. Giuliani had prostate cancer.
Health literacy is defined as "the degree to which individuals have the capacity to obtain, process, and understand basic health information and services needed to make appropriate health decisions". A 2006 study by the U.S. Department of Education found that 36 percent of adults are only able to understand hospital discharge instructions written at, or below, the fifth-grade level. Canadians don’t fare much better. In 2007, the Canadian Council on Learning (CCL) reported that only 40 percent of Canadians had the necessary skills to understand and act upon health information. Both the U.S. and Canadian studies revealed that poor health literacy disproportionately affects the poor, the unemployed, and recent immigrants. Statistics amongst seniors are particularly shocking; 88 percent have less than adequate health literacy skills. Even geography plays a role, as illustrated graphically in this interactive map produced by CCL as part of their report.
Solutions that bridge the gap between the medical community and the patient abound: the use of computer software to flag jargon and suggest alternatives (e.g. replace ‘hyperlipidemia’ with ‘high cholesterol’), the use of videos or handouts with lots of illustrations, the creation of opportunities for ‘teach-back’ that allow the doctor to confirm that his/her instructions were fully understood, and enhanced follow-up care after discharge to home from hospital.
Why are governments interested in health literacy? Susan Pisano, Vice President of Communications for America’s Health Insurance Plans sums it thusly: “Health literacy affects every single thing we do. The implications are mind-boggling.” Poor health literacy leads to higher rates of hospital readmission, unnecessary complications, and even death. Solid health literacy, in short, contributes to good health.
Jennifer Hartman, guest blogger
* photo courtesy of iStockphoto
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,