My last blog this week examines the application of our favourite Rule 57.07 – Liability of Solicitor for Costs – in the context of affidavits. We (and our clients) have all suffered through The Angry Affidavit. In Manitoba, which has comparable legislative provisions authorizing and governing cost awards, drafting such an affidavit can be expensive for the drafting lawyer.
In Eblie v. Yankowski,  M.J. No. 145, the court awarded costs against the solicitor personally where an affidavit contained irrelevant, scandalous, vexatious and frivolous. It was not enough to simply type what the client wanted to say. The solicitor was responsible for drafting and presenting the affidavit material, and had caused costs to be incurred without reasonable cause. In this case, the costs incurred included a motion to expunge the impugned material.
Further, the court made the interesting comment: "It is difficult to accept that these materials were not prepared and filed for an improper purpose, namely to prejudice the mind of the court against the opposite party. If their inclusion in the affidavit filed by the Petitioner was intended to gain undue advantage and to defeat the course of justice costs against counsel personally are clearly warranted."
For those interested, section 96 of Manitoba’s Court of Queen’s Bench Act is nearly identical to section 131 of Ontario’s Courts of Justice Act in creating jurisdiction to make discretionary cost awards. Manitoba’s Rule 57.01(1) is similar in all relevant ways to Ontario’s Rule 57.01(1), and Manitoba’s Rule 57.07 similarly imposes potential personal liabilty on solicitors.
Enjoy your weekend,
Listen to Assets and Liabilities
This week on Hull on Estate and Succession planning, Ian and Suzana expand on last week’s discussion about determining value. They also discuss taking an inventory of an estate’s assets and liabilities.
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In considering causes of estate litigation sometimes you need not look further than to your extended family if the relationships within the extended family are acrimonious.
An extended family can include a spouse, former spouse whether legal or common-law, children and their respective spouses (and former spouses), grandchildren and their spouses (and former spouses), siblings, nieces and nephews, extra-marital partners and other dependents, whether related to you or not. It is possible that any one of the above-noted people might bring a claim against the estate, or raise a dispute. Jealousy amongst family members and/or the anticipation or expectation that they are to or will receive all or a portion of the estate, however unwarranted, may lead to family members taking unreasonable positions with respect to claims they feel they have against the estate.
In making an estate plan then, it is critical to have any and all agreements that may affect your estate plan prepared before you die. These agreements could include separation, marriage, co-habitation, partnership, employment and shareholders agreements depending on the nature and make up of your estate.
While the secrets one has from a family may be extremely touchy, emotional or just difficult to disclose or deal with, their disclosure following death may lead to demands against the estate. An extra-marital relationship, an illness of whatever kind not known to the family, a relationship with a caregiver or promises made to caregivers regarding their compensation can be examples of such secrets. For instance, a friend or family member may be assisting with one’s errands or day to day care. If promises are made to the family friend or relative that they will be “looked after” upon one’s death, then they may make a claim against your estate following your death if their relationship with you and/or compensation is not clearly known.