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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Last night, 500 Miles for Parkinson’s celebrated the completion of 500 miles by its participants. The party featured surprise guests and old friends with the proceeds contributing to the charity’s fundraising goal.
Three days ago, Harry McMurtry, Sue Thompson and Ross Sugar concluded their trek on foot to Toronto from New York. Each of them suffers from Parkinson’s disease. The event, known as 500 Miles for Parkinson’s, began on May 7th and ended on June 20th. They seek to promote awareness of the illness.
Their aim was to raise $500,000 for research which would be divided by three charities: The Michael J. Fox Foundation for Parkinson’s Research, Morton and Gloria Shulman Movement Disorders Centre and The Edmond J. Safra Program in Parkinson’s Disease at the Toronto Western Hospital (led by Dr. Anthony Lang) and Mount Sinai Beth Israel Movement Disorders Center in New York (led by Dr. Susan Bressman).
Parkinson’s disease affects the brain’s ability to produce dopamine. This interferes with the body’s ability to move normally.
If you wish to make a donation you can visit 500 Miles for Parkinson’s.
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The Canadian government, after receiving a four month extension for passage of Bill C-14, which enables medically assisted suicide, will not meet today’s deadline set out by the Supreme Court of Canada. The Bill has passed its second reading in the Senate and has obtained agreement in principle. Yet, after this vote, the Senate adjourned its hearing until June 7th. As previously blogged, the Bill is a result of the Supreme Court of Canada’s decision in Carter v. Canada (Attorney General) 2015 SCC 5, where the Supreme Court ruled that the blanket criminal code provisions prohibiting physician assisted suicide were unconstitutional. The federal government was initially given a year’s time to put in place remedial legislation, and recently received a four month extension to this deadline. In granting the extension, the majority of the Court stated that it would be unfair to those who already qualify based on Carter to delay the legislation any longer.
Despite this, as of the end of today, physicians and patients will be left in legal limbo. While guidelines have been provided to doctors across the provinces, these could be the cause of significant variation in medical practice.
There are already concerns about the constitutional validity of the proposed legislation. The Alberta Court of Appeal in Canada (Attorney General) v. F. (E.), 2016 ABCA 155 considered the Supreme Court’s guidance in Carter and found that Carter did not limit applications for physician assisted suicide to only those who were terminally ill. It rejected the Attorney General for Canada’s argument that these limits could be inferred from the language in the Carter decision.
The Alberta Court of Appeal found that any attempt to read restrictions into the Carter decision would have to take into account the balance of values struck in Carter: autonomy and dignity of the applicant on one hand, and the sanctity of life and protection of the vulnerable on the other. The Court found that because of these important interests, it would be inappropriate to exclude, by inference, those who meet the criteria in Carter, and were never expressly excluded by the Supreme Court’s decision. The Court of Appeal also found that the Supreme Court did not exclude mental illnesses as the basis for application.
The Bill, as it is currently written, appears only to allow those who are terminally ill to apply. It will be interesting to see whether at this late hour any revisions will be made to the legislation to avoid the obvious challenge to its constitutional validity. Any such revisions will only increase the delay and uncertainty that will exist as of the end of today.
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Following the theme of my last blog, a very colourful Endorsement was recently rendered by the Honourable Justice Skarica, in a matter unrelated to estates, in which the opening sentence of was as follows,
“This is a costs order that is essentially meaningless”.
Ms. De Cruz Lee was the Applicant in De Cruz Lee v. Lee. Ms. De Cruz Lee was at one time married to the Respondent Mr. Lee. Ms. De Cruz Lee went through two different lawyers before representing herself at trial. Although the trial was originally scheduled for 1-2 days, it went on for 9 days in total. The claims at issue before Justice Skarica were so extreme that this case was even covered by the Toronto Star here.
Ultimately, Justice Skarica concluded that he could not find any evidence to substantiate Ms. De Cruz Lee’s allegations of fraud, conspiracy and human trafficking against Mr. Lee and he was awarded with $53,000.00 from the proceeds of the sale of the home that he shared with the Applicant.
Notwithstanding the fact that Ms. De Cruz Lee was judgment proof, Justice Skarica ordered full indemnity costs against the Applicant in the amount of $34,674.05. According to Justice Skarica, this was a case for full indemnity costs because of Ms. De Cruz Lee’s unsubstantiated allegations of dishonesty, illegality and conspiracy which were advanced without merit.
In particular, Justice Skarica was passionate about the role of costs in civil proceedings,
“Self-represented litigants whose aim it is to protract court proceedings to force the other side to expend significant resources on legal costs due to scurrilous allegations that are without any evidentiary foundation and are entirely irrelevant to the issue before the Court will meet the hammer of a cost’s award. In our resource strapped court system, there must be deterrence against such conduct that not only penalises the opposing party but also penalises those litigants who have genuine claims to bring before a court but must have their justice delayed due to Court time being spent on this type of litigation.”
Have a great day everyone and thanks for reading!
Serving on a jury is one of our most fundamental civic duties. It can, however, pose hardships on those individuals summoned to the jury box, particularly when one considers the financial impact of giving up your income while acting as a juror.
Despite the financial hardship associated with jury duty, it is a serious undertaking and should be seen as such. As a juror, you are required to play an active role in the administration of justice and, together with other citizens, you will be required render a verdict of guilt or innocence in a criminal matter.
A recent article in the Globe & Mail with the above captioned-title underscores the importance of taking jury duty seriously.
A Michigan woman, summoned to be a juror, posted on her Facebook page that it was “Gonna be fun to tell the defendant they’re GUILTY”
Alarmingly, her post was found by the defence team BEFORE it had even started its case.
The next day, the juror found herself removed from the jury. Judge Druzinski told the Michigan woman that it did not matter whether she used Facebook to express an opinion or simply spoke to a friend about the case.
“You violated your oath. … You had decided she was already guilty without hearing the other side”
By October, 1, 2010, the Michigan woman must submit an essay about the 6th Amendment to the U.S. Constitution and pay a $250 fine.
Have a great weekend!
Kathryn Pilkington – Click here for more information on Kathryn Pilkington.
The United State’s federal estate tax, more commonly known as the “Death Tax” is a tax applied to the transfer of a person’s assets at death. It is defined by the U.S. Internal Revenue Service as “a tax on your right to transfer property at your death.”
The Death Tax is paid by the recipients of an inheritance and is due within 9 months of the decedent’s death. If there is not sufficient cash in the estate, personal property and business assets must be sold to pay the tax.
As noted in one of our prior blogs, due to changes made by Congress during the George Bush administration back in 2001, the Death Tax was due to fall from 45% to 0% on January 1, 2010. Many thought this loophole would be addressed before the start of the year. However, due to a Congressional tax standoff, no action was taken in time and the Death Tax has been repealed. However, the repeal is not permanent and the Death Tax is scheduled to be resurrected on January 1, 2010, at a rate of 55% on all assets above $1 million (the current exemption amount).
It remains to be seen which way the political winds will blow, as Congress will likely address the issue this year. In the interim, estate planners in the U.S. are in uncharted territory, as no one can predict whether/when the Death Tax will be resurrected and if so, whether Congress will make it retroactive to the beginning of the year. This may ultimately be a matter for the courts to decide. Stay tuned!
Bianca La Neve
Bianca V. la Neve – Click here for more information on Bianca La Neve.
An article from mental_floss magazine has showcased ten things a body can do after death. My particular favourites are:
- Get Married! In China, ghost marriages —the practice of setting up deceased relatives with suitable spouses, dead or alive— is on the rise. The marriages serve a religious function by making the deceased happier in the afterlife.
- Go Green! Cremation uses up a lot of energy and nonrenewable resources. In Europe, some crematoriums have ‘gone green’. These crematoriums have found a way to replace conventional boilers by harnessing the heat produced in their fires. Beginning in 1997, the Swedish city of Helsingborg has used local crematoriums to supply 10 percent of the heat for its homes.
- Stand Trial! In 897 CE, Pope Stephen VI accused former Pope Formosus (who had died nine months earlier!) of perjury and violation of church canon. Pope Stephen VI proceeded to exhume the dead pope’s body, and put the corpse on trial and subject it to a full cross-examination – the so-called "Cadaver Synod". The following year, Formosus’ conviction was overturned and his body was reburied with full honours.
For the complete list, check out the article at http://www.mentalfloss.com/blogs/archives/24833.
Have a great weekend!
Bianca La Neve
Bianca La Neve – Click here for more information on Bianca La Neve.
A good friend of mine recently reminded me that death is not just about dividing up the spoils (a common theme in estate litigation), but also about remembering the lasting contributions made by a person during their lifetime. I was reminded of this in reading about the recent deaths of two well-known figures, Donald Marshall and Eunice Kennedy Shriver.
Donald Marshall passed away last week in Sydney, Nova Scotia. In 1971, when he was just seventeen years old, Mr. Marshall was wrongfully convicted of a crime he did not commit and jailed for eleven years. He subsequently challenged the legal system and blazed a trail for other wrongfully convicted Canadians to fight to have their convictions overturned. His case led to a Royal Commission in 1990, which produced a slew of recommendations that fundamentally changed the criminal justice system in Nova Scotia. In 1993, Mr. Marshall again reluctantly stepped into the spotlight, when he was arrested and eventually convicted of various fishing violations. Mr. Marshall fought his convictions all the way to the Supreme Court of Canada, winning acquittals and a significant victory for the native treaty rights of his people, the Mi’kmaq Nation.
This week, Eunice Kennedy Shriver (President John F. Kennedy’s sister) passed away. Eunice Kennedy Shriver was a champion for the rights of the mentally disabled and founded the Special Olympics, which has grown into a truly global event. President Obama noted in a statement that Mrs. Shriver will be remembered as "as a champion for people with intellectual disabilities, and as an extraordinary woman who, as much as anyone, taught our nation — and our world — that no physical or mental barrier can restrain the power of the human spirit".
Thanks for reading,
Bianca La Neve
Bianca La Neve – Click here for more information on Bianca La Neve.