“No one likes to see a limitation period applied to dismiss a claim. That said, there are good reasons for limitation periods. This case is an example of why they exist.”
So says Justice Nakatsuru in the opening line of his decision of Sinclair v. Harris, 2018 ONSC 5718 (CanLII).
There, the estate trustees of the estate of Virginia Rock (“Rock”) sued Merilyn and Frederick Harris (“the Harris’s”), claiming an equitable interest in lands purchased by the Harris’s, as part of the funds for the purchase of the lands were provided by Rock.
There, the relevant time line was as follows:
July 12, 2000: Rock provides money to the Harris’s to buy a property
August 5, 2003: The Harris’s sell the property. Rock was apparently aware of this.
November 17, 2015: Rock dies
February 24, 2017: Rock’s estate trustees commence the action
Justice Nakatsuru found that the 10 year limitation period under the Real Property Limitations Act applied. He disagreed with the estate trustees’ position that no limitation period applies to a claim for resulting trust. As the claim was a claim for the recovery of land (or “money to be laid out in the purchase of land”), the limitation period in the Real Property Limitations Act applied.
The court held that the limitation period would have commenced on the date the funds were advanced. Alternatively, it would have run from the time when the Harris’s sold the property. Under either interpretation, the limitation period had passed.
The action was dismissed.
Justice Nakatsuru said that “No one likes to see a limitation period applied to dismiss a claim.” No one other than a defendant.
Footnote: Justice Nakatsuru has been called the “poetic” judge and lauded in Macleans Magazine for his “heartfelt, easy-to-read rulings”. For an excellent example of this, see his decision on a bail application in R. v. Sledz, 2017 ONCJ 151 (CanLII).
Have a great weekend.
King Pyrrhus of Epirus defeated the Romans at the Battle of Heraclea in 280 BC and the Battle of Asculum in 279 BC. He went on to lose the Pyrric War. Of the battles won by Pyrrus, Plutarch has quoted Pyrrhus as saying “If we are victorious in one more battle with the Romans, we shall be utterly ruined.”
The same observation can be made of some civil litigation.
VB was injured while running on an indoor track at McMaster University. He sued the other runner, the running club, the running coach and the university. He and his family members claimed damages of $1.1m, plus interest and costs.
After a 13 day trial, the jury found that VB and his family suffered damages totalling $104,885. The runner and the university were not found liable. The coach and the running club were found 60% liable, and VB was found 40% contributorily negligent. Thus, VB and family were to recover approximately $60,000.
Then came the decision on costs.
Offers to settle were made before trial. Collectively from the defendants, the offer totalled $180,000. The plaintiffs’ offer was said to be for $1,216,550.
The judge in his costs reasons noted that as the trial was a jury trial, he could have “blithely sat back and let the costs clock tick away”. The judge didn’t do this. Rather, the judge twice suggested that the parties agree to a midtrial pretrial with another judge, to see if the matter could be settled. The plaintiff refused. “That kind of opportunity can be fruitful as counsel have seen how the case has evolved and with a lot of things in life, how its evolution was different from that which was expected. … The continuation of the trial did not make economic sense in terms of what could be gained by the plaintiff in the face of mounting costs for all parties. By continuing the trial, the likelihood, if any, amount being awarded being a ‘Pyrrhic’ victory loomed large.”
And Pyrrhic was the victory.
The plaintiffs received a judgment of $60,000. They were awarded costs against the running club and coach of $43,108. The plaintiffs were ordered to pay costs to the university of $95,000, and to the running club and coach of $69,156.
In addition, the plaintiffs may have had to pay their own lawyers.
Costs of a proceeding must always be front of mind. Further, the impact of reasonable offers to settle must be considered: both when making offers and when considering offers from the other side.
Thank you for reading.
While digital assets constitute “property” in the sense appearing within provincial legislation, the rights of fiduciaries in respect of these assets are less clear than those relating to tangible assets. For example, in Ontario, the Substitute Decisions Act, 1992, and Estates Administration Act provide that attorneys or guardians of property and estate trustees, respectively, are authorized to manage the property of an incapable person or estate, but these pieces of legislation do not explicitly refer to digital assets.
As we have previously reported, although the Uniform Law Conference of Canada introduced the Uniform Access to Digital Assets by Fiduciaries Act in August 2016, the uniform legislation has yet to be adopted by the provinces of Canada. However, recent legislative amendment in one of Ontario’s neighbours to the west has recently enhanced the ability of estate trustees to access and administer digital assets.
In Alberta, legislation has been updated to clarify that the authority of an estate trustee extends to digital assets. Alberta’s Estate Administration Act makes specific reference to “online accounts” within the context of an estate trustee’s duty to identify estate assets and liabilities, providing clarification that digital assets are intended to be included within the scope of estate assets that a trustee is authorized to administer.
In other Canadian provinces, fiduciaries continue to face barriers in attempting to access digital assets. Until the law is updated to reflect the prevalence of technology and value, whether financial or sentimental, of information stored electronically, it may be prudent for drafting solicitors whose clients possess such assets to include specific provisions within Powers of Attorney for Property and Wills to clarify the authority of fiduciaries to deal with digital assets.
Thank you for reading.
Other blog posts that may be of interest:
Last week, the Supreme Court of Canada granted leave to appeal the judgment of the Federal Court of Appeal in the Minister of Citizenship and Immigration v Alexander Vavilov, and announced that this appeal will be heard along with the appeals of two other judicial review matters.
The Vavilov appeal concerns the decision of the Registrar of citizenship to revoke the status of a Canadian on the basis that his parents were not lawful Canadian citizens or permanent residents at the time of his birth. Though Canadian citizens, the man’s parents had been undercover spies and, under the provisions of the Citizenship Act, were considered to be “employees or representatives of a foreign government”, rather than lawful citizens of Canada whose son would be Canadian by virtue of their citizenship and the place of his birth alone. The man’s application for judicial review of the decision of the Registrar to cancel his citizenship was initially dismissed by the Federal Court on the basis that the relevant section of the Citizenship Act did not limit the meaning of representatives or employees of foreign governments. The Federal Court of Appeal reversed this decision, concluding that the decision of the Registrar was unreasonable and that the purpose of the section of the Citizenship Act in dispute was to apply only in respect of representatives of foreign governments who enjoy diplomatic immunities or other privileges.
While it is rare for the Supreme Court to release reasons granting or refusing leave to appeal beyond one sentence, the Court’s recent judgment granting leave to appeal elaborates as follows:
The Court is of the view that these appeals provide an opportunity to consider the nature and scope of judicial review of administrative action, as addressed in Dunsmuir v. New Brunswick,  1 S.C.R. 190, 2008 SCC 9, and subsequent cases. To that end, the appellant and respondent are invited to devote a substantial part of their written and oral submissions on the appeal to the question of standard of review, and shall be allowed to file and serve a factum on appeal of at most 45 pages.
Matters of judicial review are generally unrelated to estates law. However, members of our firm have assisted clients with applications for judicial review involving estate-related issues and we can appreciate the value of the clarification of the state of the law involving standards of review that may come from the Supreme Court’s reconsideration of these principles.
Thank you for reading.
Other blog entries that you might enjoy reading:
- Leave to Appeal to the Supreme Court of Canada
- Everything Your Ever Wanted to Know About the Supreme Court of Canada
Receiving an unintentionally thought-provoking and somewhat oddly titled book recently led to some internet research on the topic of the book. The old book is entitled, ” The Law of Cadavers” second edition 1950 by Percival E. Jackson and published by Prentice Hall. The second edition was apparently required after the first edition of 1936 sold out. Over 700 pages on everything from the right to burial, disinterment, to actions and proceedings respecting dead bodies before and after burial.
It resulted in some thought on how the law evolves over time and how in our time most of the practice and procedures related to the various forms of ritualistic burial are now well established. These procedures are now governed by underlying laws that have evolved over time. But, a Global News internet article published last year drew attention to a new area of concern.
There is apparently a small but growing trend of bodies being unclaimed by anyone after death. The article suggests that 361 bodies went unclaimed in Ontario in one year (2015 statistics) and that this was more than double the number only eight years earlier. A similar number and trend was reported for Quebec.
The above-noted article focussed on a Mr. Michael Geyer who died on his own at 89 years of age with no family members to claim his body. Current procedures mandate the Office of the Public Guardian and Trustee to step in, as they did in this case. However, it raises the question as to whether this is the best way to deal with this unfortunate growing trend and the role of individuals, society, or government, in providing better procedures to deal with this going forward.
Thanks for reading.
The Global Private Wealth Guide includes a chapter for nineteen different countries and features practical information regarding tax issues, succession law, the status of trusts, business and charitable planning, and the role of fiduciaries in each jurisdiction. The Guide also features a profile page for each country, in which general information related to relevant business practices is summarized.
The Private Wealth Guide is a helpful tool for lawyers assisting clients who may hold property or business interests in multiple jurisdictions. Among the interesting features of the website for the Guide is the option of comparing the treatment of each issue between two or more jurisdictions. For example, it offers the opportunity to obtain quick and reliable information regarding any differences between the treatment of marital property in Canada and the United States.
A complete electronic copy of the guide is available here. A link has also recently been added to the resources section of our website.
Thank you for reading and have a great weekend.
We have written before on the formal requirements of a will in Ontario, under the Succession Law Reform Act. One requirement is that a will is signed “by the testator or by some other person in his or her presence and by his or her direction” (s4(1)(a)). This section indicates that a will may be signed by an agent, or a signature by amanuensis. It also raises the important question: in what circumstances would it be appropriate to have a third party sign a will on behalf
of the testator?
Signing a will via amanuensis is most appropriate where the testator lacks physical capacity to sign on his or her
own behalf. This is not to be confused with mental capacity:
a testator must always have the capacity to consider the extent and nature of his or her property and to consider the claims of potential beneficiaries. Moreover, the testator must be able to see and be mentally aware of his or her amanuensis (see: Peden v. Abraham,  3 WWR 265).
A person who does not have the physical capacity to write his or her name may also be unable to hold or read their will. In that case, the will must be read aloud so the testator can have knowledge of its contents and approve them. In the case of a very feeble person, it may be a good idea to keep the will as short as possible, so the testator can remain alert while it is read in its entirety.
If the testator is mentally capable but feeble, in pain, or otherwise unable to sign the document, an amanuensis may be used. In Clark, In the Goods of (1839), 2 Curt 329, the testator was too ill to hold a pen, so the will was signed on his behalf by the parish vicar and the will was held to be valid. A will signed by amanuensis was also allowed in a case where the testator did not know how to write (Re Deeley & Green,  1 DLR 603). In the case of a testator with low literacy, the testator may also make a mark of some kind, such as the classic X.
Thank you for reading.
On February 6, 2015, the Supreme Court of Canada (“SCC”) released its decision in Carter v. Canada (Attorney General), declaring that ss. 241(b) and 14 of the Criminal Code violated the s. 7 Charter rights of competent adults suffering from intolerable and irremediable medical conditions. Parliament was given a one-year deadline to create and adopt an appropriate remedy, if any. With the one-year deadline set to expire, the Attorney General of Canada applied for a six-month extension of the SCC’s suspension of its declaration.
On January 15, 2016, the SCC unanimously granted the Federal government an extension of four months instead of the six months sought. The extension was granted on the basis that the legislative work required to remedy the Charter infringement was reasonably delayed in light of Parliament being dissolved in mid-2015 for the federal election.
In granting the four-month extension, the SCC (in a split decision) held that the extension should not serve to unfairly prolong the suffering of individuals who clearly meet the criteria set out in paragraph 127 of the Carter decision. Accordingly, during the four-month extension period, any competent adult person who: (i) consents to the termination of life and has a grievous and (ii) irremediable medical condition that causes enduring suffering that is intolerable to that person may apply to the Superior Court of Justice in their jurisdiction for an exemption.
The Attorney General of Quebec also sought an exemption from the four-month extension in light of the enactment of the Act Respecting End of Life Care (the “ARELC”), which came into force in Quebec on December 10, 2015. The Court granted the exemption with a caveat that its decision should not be taken as commenting on the validity of the ARELC.
The take away from this recent decision is that physician-assisted death in Canada is legal in all Canadian jurisdictions, outside of Quebec, with the prior approval of a Superior Court Judge.
Here is a link to the SCC’s decision
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Certain types of assets, such as life insurance proceeds or RRSPs, may be designated to be paid out directly to a beneficiary upon the death of the owner. In such a case, the asset does not pass through the estate and Estate Administration Tax is not paid on the value of the asset. It is not strictly required that they be referred to in a will, as the beneficiary designation in the plan itself is sufficient to gift the asset on death. However, it is possible, as per section 51(1) of the Succession Law Reform Act, RSO 1990, c S.26 (“SLRA”), to refer to a plan in a will, either to confirm the designation in the plan itself, or to make the designation.
However, an issue may arise if there is a beneficiary designated in both the plan and the will, but the named beneficiary is not the same. It is then necessary to determine which designation will prevail.
Section 52(1) of the SLRA states that a “revocation in a will is effective to revoke a designation made by instrument only if the revocation relates expressly to the designation, either generally or specifically.” Accordingly, if there is a conflict between the will and the plan with respect to the designated beneficiary, as long as the will expressly refers to the plan designation, the will should govern the ultimate beneficiary of the plan. Moreover, it may be possible to determine which designation will prevail by looking at which was made most recently. As per section 52(2) of the SLRA, a later designation revokes an earlier designation, to the extent of any inconsistency.
There is also case law to support overriding a plan designation based on the clear intention of the testator. In McConomy-Wood v McConomy, 2009 CanLII 7174 (ONSC), the testator designated one of her three children, Lisa, as the beneficiary of her RRIF a few weeks prior to her death. However, throughout her life, it was the testator’s consistent intention, frequently expressed to her children, that they would all be treated equally and that all of her assets would be divided equally amongst the three of them.
The will did not expressly refer to the designation, but it named Lisa as the sole estate trustee to hold the assets of the estate in trust for all three siblings equally. The judge in McConomy-Wood v McConomy therefore found that the intention of the testator with respect to the RRIF designation was that her daughter hold the proceeds of the RRIF on the same terms as the estate.
The most prudent way of dealing with potential conflicts is to be aware of beneficiary designations in the plans themselves. If you choose to also refer to the designation in your will, take the time to verify who the named beneficiary is and to be consistent between the will and the plan, in order to avoid any conflicts or confusion.
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Today on Hull on Estates, Jonathon Kappy and Doreen So discuss The Advocates Society’s Best Practices for Civil Trials and the resources on our new Hull & Hull website.
Should you have any questions, please email us at firstname.lastname@example.org, or leave a comment on our blog below.