With the enactment of Rule 75.1 of the Rules of Civil Procedure, those involved in disputes relating to an estate, trust or substitute decision-making matter in Toronto, Ottawa or the County of Essex are referred to mediation unless there is a court order exempting it under Rule 75.1.04.
As lawyers, “mediation” is a term we are familiar with. However it may not be as familiar to clients. Many of them may have never heard of “mediation” before. As such, if you or a client have an upcoming mediation, it is important to prepare early to avoid being caught off guard during the mediation.
What is Mediation?
Mediation is a form of alternative dispute resolution where people can settle their disputes outside of court. It is a voluntary process in which the parties meet with a neutral third-party (referred to as the “mediator”) who provides them with assistance in negotiating a settlement. The mediator does not impose a judgment as the process is led by the parties.
Mediation vs. Litigation
The big “pull factor” to mediation is that it vastly differs from litigation. The major differences include:
- Decision-Making: With mediation, the parties decide the outcome but with litigation, a judge imposes his or her decision upon the parties
- Private vs. Public Process: Mediation is a private and confidential process, whereas litigation is a public process
- Costs: The costs of mediation are typically lower than that of litigation
- Time: The mediation process tends to be faster than litigation
- Adversarial vs. Non-Adversarial: Mediation is viewed as a non-adversarial process, whereas litigation is viewed as an adversarial process
Preparation for Mediation
Preparation for mediation should start well in advance of the mediation date.
Preparing the Client
Start by explaining to the client what mediation is and how the process works. Assure the client that the mediator will be a neutral facilitator and that abusive behaviour by the other party will not be tolerated.
As part of discussing the mediation process with the client, let the client know about the time commitment that mediation entails. The mediation could last the entire day or even multiple days.
Determine the client’s interests and goals for the mediation. Are they looking to settle the case at mediation or are they prepared to go to trial? What types of offers would they be willing to accept?
Preparation for the Lawyer
Know the mediator’s background and approach beforehand. Is the mediator someone who has a background in estates law? Are they a lawyer? Are they a former judge? Knowing the answers to these questions can help the lawyer determine what approach would be the most beneficial to employ during mediation.
Prepare a comprehensive mediation brief and send it to the opposing counsel and mediator well in advance of the hearing date. A comprehensive mediation brief can maximize a lawyer’s presentation at the mediation. It is helpful to include copies of all relevant documents, such as the wills in question, within the brief. Additionally, it might be helpful to include a chronology of events as a schedule to the mediation brief.
If the mediation results in a settlement, ensure that the terms of the settlement are formally documented and that each client has signed the document. In some cases, however, a “cooling-off period” of one or two days from the proposed settlement might be necessary.
At the end of the day, the best approach a lawyer can take in preparing for mediation is to know the mediator, prepare their documents ahead of time and provide the client with as much information about the mediation process as possible. The more prepared the lawyer and the client are, the smoother the mediation will go.
For more information on preparing your client for an estate mediation, visit this link.
Thanks for reading,
Ian Hull & Celine Dookie
When we last blogged here on the issue of electronic devices at borders, a Toronto lawyer, Nick Wright, had had his phone and laptop seized by custom officials after he refused to provide password access because solicitor-client privileged information was on the devices.
The authority under which such searches are taking place is the Customs Act, by which courts have previously interpreted “goods” as including cellphones. However, the case law is dated, and there has yet to be a constitutional ruling on the issue.
This may soon change, as Mr. Wright has, together with another lawyer, taken the matter further by applying to the Federal Court seeking a result that would reportedly include declarations that (i) searches on electronic devices without probable cause or search warrant are a breach of the Canadian Charter of Rights and Freedoms, and (ii) searching lawyer-client privileged material similarly constitutes a Charter breach.
The significance of the issue is stressed in the following reported statement of Mr. Wright:
“Solicitor-client privilege is . . . of the utmost importance in the free and democratic society and a fundamental principle of justice, and it’s for the benefit of clients, so individuals,” he says. “In an adversarial system like we have, it’s important that the public be able to consult with their lawyers, in order to participate in the legal process and to have the federal government thieving solicitor-client privilege information undermines our legal system and undermines the adversarial process.”
Until the case is determined, lawyers should assume that information covered by solicitor-client privilege is not protected from search at a border. Accordingly, further to the suggestion of the Canadian Bar Association, using cloud technology and erasing all privileged information from devices is the safest course of action.
We will be keeping an eye on this litigation, and hope to see an updated and meaningful pronouncement on the issue of a reasonable expectation of privacy for lawyers at the border.
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It is not uncommon for the lawyer who drafted a testator’s will or codicil to subsequently be retained by the Estate Trustees after the testator’s death to assist with the administration of the estate. The rationale behind the drafting lawyer being retained to assist with the administration of the estate appears fairly self-evident, for as the drafting lawyer likely has an intimate knowledge of the testator’s estate plan and assets they may be in a better position than most to assist with the administration of the estate.
While retaining the drafting lawyer to assist with the administration of the estate is fairly uncontroversial in most situations, circumstances could become more complicated if there has been a challenge to the validity of the testamentary document prepared by the drafting lawyer. If a proceeding has been commenced challenging the validity of the testamentary document, there is an extremely high likelihood that the drafting lawyer’s notes and records will be produced as evidence, and that the drafting lawyer will be called as a non-party witness as part of the discovery process. If the matter should proceed all the way to trial, there is also an extremely high likelihood that the drafting lawyer would be called as a witness at trial. As the drafting lawyer would personally have a role to play in any court process challenging the validity of the will, questions emerge regarding whether it would be proper for the drafting lawyer to continue to represent any party in the will challenge, or would doing so place the drafting lawyer in a conflict of interest?
Rule 3.4-1 of the Law Society of Ontario’s Rules of Professional Conduct provides that a lawyer shall not act or continue to act where there is a conflict of interest. In the case of a drafting lawyer representing a party in a will challenge for a will that they prepared, an argument could be raised that the drafting lawyer is in an inherent position of conflict, as the drafting lawyer may be unable to look out for the best interests of their client while at the same time looking out for their own interests when being called as a witness or producing their file. There is also the potentially awkward situation of the drafting lawyer having to call themselves as a witness, and the associated logistical quagmire of how the lawyer would put questions to themselves.
The issue of whether a drafting lawyer would be in a conflict of interest in representing a party in a will challenge was dealt with in Dale v. Prentice, 2015 ONSC 1611. In such a decision, the party challenging the validity of the will brought a motion to remove the drafting lawyer as the lawyer of record for the propounder of the will, alleging they were in a conflict of interest. The court ultimately agreed that the drafting lawyer was in a conflict of interest, and ordered that the drafting lawyer be removed as the lawyer of record. In coming to such a conclusion, the court states:
“There is a significant likelihood of a real conflict arising. Counsel for the estate is propounding a Will prepared by his office. The preparation and execution of Wills are legal services, reserved to those who are properly licensed to practise law. Counsel’s ability to objectively and independently assess the evidence will necessarily be affected by his interest in having his firm’s legal services found to have been properly provided.” [emphasis added]
Decisions such as Dale v. Prentice suggest that a lawyer may be unable to represent any party in a will challenge for a will that was prepared by their office as they may be in a conflict of interest. Should the circumstance arise where the drafting lawyer is retained to assist with the administration of the estate, and subsequent to being retained someone challenges the validity of the Will, it may be in the best interest of all parties for the drafting lawyer to indicate that they are no longer able to act in the matter due to the potential conflict, and suggest to their clients that they retain a new lawyer to represent them in the will challenge.
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Effective January 1, 2019, new rules apply to a motion by a lawyer for removal as lawyer of record.
Under Rule 15.04 of the Rules of Civil Procedure, a lawyer may bring a motion to have him or herself removed as lawyer of record. The old Rule was silent on whether other parties to the litigation, other than the client, had to be served. Under the recent amendments, it is now clear that such a motion must be brought on notice to every other party. However, a motion record need not be served on every other party: just the notice of motion.
The new Rule goes on to provide that the lawyer making the motion shall ensure that any information in the notice of motion or motion record that is subject to solicitor-client privilege, or that may be prejudicial to the client, including the grounds for the motion, is redacted or omitted from the notice of motion that is served on the other parties, and from the motion record that is filed with the court. At the hearing, the lawyer is to provide the presiding judge with a complete and unredacted version of the notice of motion and motion record. This is to be returned to the lawyer after the hearing, and does not form part of the court file.
Under the new Rule, it is likely that the court will require greater detail as to the precise reason for the removal, rather than a general statement such as “breakdown in the solicitor-client relationship”. The new Rule allows the lawyer to set out the precise reason for the removal, without disclosing those reasons, at least to the other parties to the litigation.
A question, however, remains as to whether the lawyer can disclose solicitor-client communications, if only to the judge. Arguably, information subject to solicitor-client privilege should not be divulged to a judge, even in the context of a motion by a lawyer for removal
The amendment was the subject of comment in the decision of Solutions Construction Management v. 1971538 Ontario Inc., 2019 ONSC 503 (CanLII). There, the plaintiff brought a motion for summary judgment. The defendant’s lawyer had recently brought a motion to remove him or herself as lawyer of record, and the defendant therefore sought an adjournment. The adjournment was granted. The plaintiff had been served with the defendant’s lawyer’s motion. However, they did not attend at that motion or advise the court of the pending motion for summary judgment. The summary judgment judge, in adjourning the motion, stated that:
This matter is a cautionary tale as to the significance of the recent amendment to r. 15.04 of the Rules of Civil Procedure. It may, in some circumstances, be necessary for litigants to respond to or, at a minimum, attend on the return of a motion by an opposing party’s lawyer for an order for removal from the record. That step may be necessary to ensure that the court is (a) fully informed of the status of the litigation, and (b) given an opportunity to consider the potential prejudice to other parties if counsel for one party is removed as lawyer of record.
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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.
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The notes and records of the lawyer who assisted the deceased with their estate planning can play an important role in any estate litigation. As a result, it is not uncommon for a drafting lawyer to receive a request from individuals involved in estate litigation to provide them with a copy of their notes and files relating to the deceased’s estate planning. But can the lawyer comply with such a request?
The central concern involved for the lawyer is the duty of confidentiality which they owe to the deceased. This duty of confidentiality is codified by rule 3.3-1 of the Law Society of Ontario’s Rules of Professional Conduct, which provides:
“A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless expressly or impliedly authorized by the client or required by law to do so.”
The duty of confidentiality and privilege which is owed to the deceased by the lawyer survives the deceased’s death. This was confirmed by the court in Hicks Estate v. Hicks,  O.J. No. 1426, where, in citing the English authority of Bullivant v. A.G. Victoria,  A.C. 196, it was confirmed that privilege and the duty of confidentiality survive death, and continues to be owed from the lawyer to the deceased. With respect to the question of who may waive privilege on behalf of the deceased following their death, Hicks Estate v. Hicks confirmed that such a power falls to the Estate Trustee under normal circumstances, stating:
“It is clear, therefore, that privilege reposes in the personal representative of the deceased client who in this case is the plaintiff, the administrator of the estate of Mildred Hicks. The plaintiff can waive the privilege and call for disclosure of any material that the client, if living, would have been entitled to from the two solicitors.”
Simply put, the Estate Trustee may step into the shoes of the deceased individual and compel the release of the lawyer’s file to the same extent that the deceased individual could have during their lifetime.
In circumstances in which the validity of the Will has been challenged, the authority of the Estate Trustee is also being challenged by implication, as their authority to act as Estate Trustee is derived from the Will itself. In such circumstances, the named Estate Trustee may arguably no longer waive privilege and/or the duty of confidentiality on behalf of the deceased individual. Should the notes and/or records of the drafting lawyer still be required, a court order is often required waiving privilege and/or the duty of confidentiality before they may be produced.
Whether or not a lawyer can release their file following the death of a client will depend on the nature of the dispute in which such a request is being made, and who is making the request. If there is a challenge to the validity of the Will or the Estate Trustee’s authority, it is likely that a court Order will be required before the lawyer may produce their file regardless of who is requesting the file. If the dispute does not question the Estate Trustee’s authority, such as an Application for support under Part V of the Succession Law Reform Act, the lawyer should comply with the request to release their file so long as the requesting party is the Estate Trustee. If the requesting party is not the Estate Trustee, and the Estate Trustee should refuse to provide the lawyer with their authorization to release the file, matters become more complicated, and may require a court Order before the lawyer may release their file.
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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.
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