Tag: supreme court

20 Feb

New SCC Decision on Duty to Disclose Trust to Beneficiaries

Doreen So Continuing Legal Education, Estate & Trust, Executors and Trustees, Passing of Accounts, Trustees, Uncategorized Tags: , , , , , 0 Comments

The Supreme Court of Canada released a decision last Thursday that is a must read for estates and trusts practitioners.  Interestingly enough, Valard Construction Ltd. v. Bird Construction Co., 2018 SCC 8, arose from a commercial matter.

Bird was a general contractor for a construction project.  When Bird subcontracted with Langford, Langford was required to obtain a labour and material payment bond which named Bird as trustee of the bond.  If Langford was delinquent in paying its contractors, the bond would permit the contractor to sue and recover from Langford’s surety on the condition that notice of the claim must be made within 120 days of the last date in which work was provided to Langford.  Langford became insolvent and some of Valard’s invoices went unpaid.  Unfortunately, Valard was not notified of the existence of the bond and did not inquire about whether there was a bond in place until after the 120 day notice period.  The surety denied Valard’s claim and Valard sued Bird for breach of trust.  This matter was dismissed at first instance by the Alberta Queen’s Bench, dismissed again by the Alberta Court of Appeal, and finally reversed by the Supreme Court of Canada (with a dissent from Justice Karakatsanis).

Justice Brown for the majority (per McLachlin C.J., as she then was, Abella, Moldaver and Rowe J.J.) found that Bird had a fiduciary duty to disclose the terms of the trust, i.e. the bond, to Valard notwithstanding the fact that the express terms of the bond did not stipulate this requirement.  Justice Brown was clear that “While the ‘main source’ of a trustee’s duties is the trust instrument, the ‘general law’ which sets out a trustee’s duties, rights and obligations continues to govern where the trust instrument is silent” (para.15).  Justice Brown then went on to say that a beneficiary’s right to enforce the terms of the trust is precisely what keeps the trustee from holding the “beneficial as well as legal ownership of the trust property” (para. 18).  Otherwise, no one would have an interest in giving effect to the trust.

With this logic in mind, Justice Brown developed the following framework 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,[17] the trustee’s fiduciary duty includes an obligation to disclose the existence of the trust. Whether a particular disadvantage is unreasonable must be considered in light of the nature and terms of the trust and the social or business environment in which it operates,[18] and in light of the beneficiary’s entitlement thereunder. For example, where the enforcement of the trust requires that the beneficiary receive notice of the trust’s existence, and the beneficiary would not otherwise have such knowledge, a duty to disclose will arise.[19] On the other hand, “where the interest of the beneficiary is remote in the sense that vesting is most unlikely, or the opportunity for the power or discretion to be exercised is equally unlikely”,[20] it would be rare to find that the beneficiary could be said to suffer unreasonable disadvantage if uninformed of the trust’s existence.”

Thanks for reading and more to follow later this week on Valard Construction Ltd. v. Bird Construction Co.

Doreen So

28 Nov

Supreme Court Advocacy

David M Smith Continuing Legal Education, Estate & Trust, Estate Planning, General Interest, Litigation, Wills Tags: , , , , , 0 Comments

I was able to attend a recent CPD program by the Advocate’s Society titled “Supreme Court of Canada Advocacy.”

A powerful keynote address was presented by the Honourable Madam Justice Suzanne Côté of the Supreme Court of Canada. Justice Côté’s remarks included an inside look at what lies behind the Supreme Court of Canada’s “big mahogany doors,” as she so eloquently phrased it. The Honourable Marshall Rothstein, Q.C., then spoke about the unwritten rules to getting leave to appeal.

Debate was had over the need for a script. Most panelists supported coming prepared with a script but cautioned against being married to it. When it comes to answering questions, advocates should see this as an opportunity to get off their script and engage in a dialogue with the bench. As Justice Côté points out, an oral argument is not supposed to be a monolog.

After discussion on the power of oral advocacy, the discussion shifted to the importance of the written argument. Although the factum is a critical component of any appeal, parties are under no obligation to reach the maximum page length. It was suggested that some of the most successful arguments can be made in 25 pages or less.

In addition to the factum, the Condensed Book can be a vital tool for advocates appearing before the Supreme Court. Under the Supreme Court rules, the Condensed Book may contain a two page outline of the oral argument. Preparing the this two page outlines forces advocates to truly narrow down their key points.

The panelists also spoke about the important role interveners can have in a case. Within the confines of a 10 page factum, and 5 minutes of oral argument, an intervenor can illustrate why a matter is of public interest, and provide supplemental answers to questions posed to the parties by the Justices. Interveners can play a critical role, and should not be overlooked.

Finally, the panel highlighted the power of a moot. Practice moots are one of the most valuable tools an advocate can use to prepare their case. The Supreme Court Advocacy Institute offers moot sessions where participants have the opportunity to moot their case before a panel of experienced litigators and retired justices.

Thanks for reading,

David Morgan Smith

24 Jan

Seeking Assistance from the Court to Fund Litigation

Nick Esterbauer Estate & Trust, Litigation Tags: , , , , , , , 0 Comments

Typically, costs awards are not made until the conclusion of litigation.  However, in rare circumstances, courts may order that costs are paid to a party at an earlier point during the litigation to assist them with the funding of the litigation itself, even if it is not yet known which of the party or parties will ultimately be successful at trial.

In what circumstances will a court order the payment of legal fees on an interim basis?  The Supreme Court of Canada outlined the test for granting an order for interim costs to fund litigation in British Columbia (Minister of Forests) v. Okanagan Indian Band.  The Court summarized the test as follows:

  1. the party seeking the order must be impecunious to the extent that, without such an order, that party would be deprived of the opportunity to proceed with the case;
  2. the claimant must establish a prima facie case of sufficient merit to warrant pursuit; and
  3. there must be special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate.

In the Okanagan Indian Band decision, the Supreme Court considered family law disputes as one of the few unique exceptions to the general rule that the costs of an action or application only be awarded at the conclusion of litigation.  One factor that the Court refers to as making interim costs awards suitable in family law matters is the presumption that the property in dispute is to be shared by the parties in some way.  Ontario courts have acknowledged this presumption to be the basis of allowing interim payments to fund ongoing legal costs in estate litigation, suggesting that the payment of costs to fund the litigation can be accounted for in the final decision.  However, a party to family or estate proceedings still needs to satisfy the above test before an interim costs award will normally be made.

In estate litigation, it is not uncommon for the Court to direct the payment of funds for use toward one or more party’s legal fees out of the assets of the estate while litigation is ongoing.  Most often, the party to whom interim costs are paid will be entitled to a share of the assets of the estate whether he or she is successful in the litigation or not.  The interim costs award can be deducted from the distributions that are ultimately made to that party.  While rarely made within contexts other than family and estate litigation, interim costs orders can allow a party that may otherwise be unable to fund litigation to advance or respond to legal proceedings that affect his or her entitlements as the beneficiary of an estate.

Thank you for reading.

Nick Esterbauer

 

Other posts that you might be interested in reading:

Hull on Estates #490 – Costs on a Will Challenge

A Reminder Regarding the Costs of Estate Litigation

Creative Costs Arrangements

Once again, costs are hard to order where a winner isn’t clear.

 

03 Mar

Seeking Exemptions to the Prohibition Against Physician-Assisted Death

Nick Esterbauer Ethical Issues, In the News Tags: , , , , , 0 Comments

Our blog has previously covered updates regarding the historic decision of the Supreme Court of Canada in Carter v. Canada (Attorney General), which declared the prohibition against physician-assisted death unconstitutional, the subsequent extension of four months of the of the declaration of the invalidity of the terms of the Criminal Code of Canada that prohibit physician-assisted death, and the practice advisory guidelines recently released by the Ontario Superior Court of Justice in this regard.

A woman from Alberta, whose identity is protected under a publication ban, was granted a legal exemption for physician-assisted death by the Alberta Court of Queen’s Bench and died in Vancouver on Monday.

In HS (Re), 2016 ABQB 121, the Court considered the criteria to be met in order to qualify for an exemption for physician-assisted death, as outlined within the Carter decisions in determining that the Applicant would have access to the relief that she sought:

  • The applicant is a competent adult;
  • The applicant clearly consents to the termination of life;
  • The applicant has a grievous and irremediable medical condition;
  • The condition of the applicant causes enduring, intolerable suffering; and
  • The suffering of the applicant cannot be alleviated by any treatment acceptable to the applicant.

The Applicant suffered from amyotrophic lateral sclerosis (ALS) and was in the final stages of the disease when her life was ended earlier this week.  The Applicant had previously enjoyed an active lifestyle, which had been compromised by the progression of the disease, which had rendered her “almost completely paralyzed.”  The Court accepted that the Applicant had no more than six months to live and was in severe pain.  In its decision released on February 29, 2016, the Court used the Applicant’s own words to describe the reasons behind her request for physician-assisted death:

I am not suffering from anxiety or depression or fear of death. I would like to pass away peacefully and am hoping to have physician-assisted death soon. I do not wish to have continued suffering and to die of this illness by choking. I feel that my time has come to go in peace.

Until the extension of the invalidity of the Criminal Code expires on June 6, 2016, individuals like the Applicant in Re HS can apply to the superior court of the relevant jurisdiction to be considered for physician-assisted death prior to the enactment of new legislation.

Thank you for reading.

Nick Esterbauer

05 Oct

Supreme Court: UK Edition

Hull & Hull LLP In the News Tags: , , , , , , , 0 Comments

October 1, 2009 was a historical day in U.K.’s judicial history, as the Supreme Court of the United Kingdom was established.

Prior to last week, the House of Lords held the judicial function as the court of last resort.
A Committee of legally qualified lords who sat in the House of Lords, known as the Law Lords, heard final appeals of court decisions.  Even though they rarely took part in political debates or voted on legislation, the Law Lords were peers of the House of Lords.

Prompted by concern and possible criticism by the European Union, due to the appearance of a conflict of interest as the officials who execute laws were those testing those laws, there was a movement to create visibly distinct legislative, judicial, and executive powers.

In 2003, then Prime Minister Tony Blair announced the creation of a judicial body to act as a Supreme Court. The Constitutional Reform Act, 2005 provides that the Supreme Court take over the judicial functions from the House of Lords. Now the Supreme Court has their own building, identity separate from the House of Lords, and blog.

The Supreme Court is the court of the last resort in all civil matters in the U.K. and criminal matters in England, Wales and Northern Ireland.

There are 12 Law Lords (with one current vacancy) who will hear appeals, with up to nine judges hearing an appeal. It will be interesting to see if the appointment of the Law Lords becomes politicized as in the United States or if this move merely re-brands the system that was already in place.

Thanks for reading,

Diane Vieira

Diane A. Vieira – Click here for more information on Diane Vieira.

 

17 May

Rebutting the Presumption of Resulting Trust

Hull & Hull LLP Archived BLOG POSTS - Hull on Estates Tags: , , , 0 Comments

I recently blogged on the Supreme Court of Canada’s decisions in Madsen Estate v. Saylor and Pecore v. Pecore.

Specifically, I discussed the ruling that funds in accounts jointly held between parents and adult children will be presumed to form part of the parent’s estate if the parent dies; i.e., there will be a presumption of a resulting trust.

The adult child must then prove that the deceased parent intended to gift the funds to him or her by naming him or her as a joint owner.

In Pecore, the Supreme Court addresses the evidence that may be used to defeat the presumption and prove that the parent intended to gift the funds in the account, including the following considerations: 

  •  Whether the banking documents pertaining to the account show the parent’s intent; 
  •  Who controlled and used the funds prior to the parent’s death? 
  •  Whether the deceased parent had a power of attorney. If so, this would suggest that the account may not have been held jointly for banking purposes; and 
  • Who paid the taxes on the account prior to the parent’s death?

The Supreme Court points out that these considerations are fact-sensitive and that the trial judge must consider the totality of the evidence and the weight to be placed on any particular factor.

Thanks for reading,

Jason Allan

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