Ontario has officially declared a state of emergency amid the COVID-19 pandemic, and efforts to quell the spread of the coronavirus are now stronger than ever. Indeed, the Federal Government is urging everyone to engage in social distancing, and the courts are no exception.
On March 15, 2020, the Superior Court of Justice published a Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings (the “Notice”), wherein it announced the suspension of Superior Court of Justice regular operations.
Specifically, the Notice states that all criminal, family and civil matters scheduled to be heard on or after March 17, 2020 are adjourned except for urgent and emergency matters. Matters considered to be “urgent” are set out in the Notice and include motions and applications related to public health and safety and COVID-19; the safety of a child or parent; and time-sensitive civil motions with significant financial repercussions if not heard, among others.
To bring an urgent matter, the motion and application materials can be filed with the court by email. Notably, where it is not possible to email a sworn affidavit, an unsworn affidavit can be delivered as long as the affiant participates in any telephone or videoconference hearing to swear or affirm the affidavit. Urgent matters may be heard and determined in writing, by teleconference or videoconference, unless the court determines that an in-person hearing is necessary and safe.
Although people are being advised to avoid unnecessary attendances at Court, they nevertheless remain open and parties can continue to process “regular filings”. However, the flexible procedures that have been put in place for urgent matters do not extend to regular filings, which remain subject to the Rules of Civil Procedure.
The court’s response to COVID-19 is a prime example of how the legal system as a whole is being forced to lean on technology in these unusual and uncertain times. While many legal professionals have already adopted digital practices, the courts continue to be behind the times. The Auditor General’s latest audit of Ontario’s court system found that “the Ministry’s pace in modernizing the court system remained slow, and the system is still heavily paper-based, making it inefficient and therefore keeping it from realizing potential cost savings”. Perhaps this period will give the much-needed impetus for courts to modernize their operations by using electronic service, filing, hearings, and document management more routinely. This would likely be a welcome change for all.
Thanks for reading and stay safe!
Our readers will all be familiar of the issue of elder abuse, and the various forms that it can take. It is also well-known that elder abuse if underreported, giving rise to challenges in determining just how common it is and how incidence rates may be fluctuating within the context of our aging population.
A new study by Comparitech explores the issue of the underreporting of elder abuse and extrapolates reported incidents and studies regarding underreporting to gain an appreciation of how commonly it is actually occurring in the United States. Comparitech estimates that at least 5 million cases of financial elder abuse occur every year in the United States alone. While damages of $1.17 billion are reported, it is believed that the actual losses to seniors total $27.4 billion.
Technology also appears to be playing a role in increasing rates of elder abuse. Comparitech found that 1 in 10 seniors were victims of elder abuse and that the use of debit cards have become the most common tool in defrauding them of their funds. With phone and email scams on the rise in recent years, underreporting is anticipated to become a growing problem while incidence rates continue to increase without any way to determine exactly how many seniors are affected.
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The use of artificial intelligence (“AI”) is saturating all facets of life and death. While we might often think of AI as some future product of a technologically advanced society, it is already in common use. Think of Apple’s Siri and Google Translate; both require AI in order to function.
Earlier this year, my colleague, Garrett Horrocks, blogged on a study showing the promising use of AI in detecting Alzheimer’s. This month, a recent study out from the University of Nottingham explores the use of AI in predicting premature death of middle-aged persons. The study shows promising results.
AI and Bias
While many reports are optimistic in how such predictive models can improve preventative health care, others are more cautious. A recent article from Wired raises the issue of potential bias in such AI models. The article delves into the concerns of scholars that AI might adopt and even promote bias as a result of implicit biases that already exist. Take, for example, the Amazon AI recruitment tool which was designed to review resumes of job applicants and pick the top candidates. Amazon abandoned the project after experiencing several issues, including the program explicitly discriminating against women. The program did so by penalizing candidates who graduated from women’s colleges or had the word “women’s” in their resume (e.g. “women’s chess club”).
The Wired article also raises concerns about existing biases in health care services, such as how patients of different ethnics groups are treated differently for pain with studies in the US finding that racial and ethnic minorities tend to be undertreated for pain, compared to non-Hispanic white persons. While the Wired article raises concerns about the potential biases that can be adopted and/or promoted by AI, the article also notes the potential for AI to reduce bias by focusing on objective factors affecting a person’s health.
AI and the Law
Many say that the law and lawyers are resistant to change (who still relies on faxes?). Despite any such resistance, the legal system, like everyone else, is being dragged into the world of AI, whether ready or not. Just as AI is revolutionizing health care, legal products implementing AI are being developed, with some estimating that over 100,000 jobs in the legal sector will be automated by 2036.
More importantly, however, is the ongoing need for the law to adapt to the changing world of AI. The implementation of AI in our everyday life has significant ramifications from the products recommended to us while online shopping to whether or not we might receive proper preventative health care. With the potential for ethical abuses and unintended consequences (such as discrimination), it will be interesting to see how (or if) laws and regulations develop to address these new advances in AI.
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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.
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An Attorney for Personal Care and a Guardian of the Person is statutorily mandated under section 66(3) the Substitute Decisions Act, 1992 (the “SDA“) to make certain decisions in the incapable person’s best interests if the incapable person’s wishes and instructions are unknown or if it is impossible to act in accordance with those wishes and instructions.
A component of the best interests analysis, as set out in section 66(4), includes considering whether the guardian’s decision is likely to,
“i. improve the quality of the person’s life,
ii. prevent the quality of the person’s life from deteriorating, or
iii. reduce the extent to which, or the rate at which, the quality of the person’s life is likely to deteriorate.”
Given that improving the quality of a person’s life and preventing their quality of life from deteriorating are two sides of the same coin, there is exciting and heart-warming new technology which uses Google Street View to treat Alzheimer’s patients.
This new technology is a prototype called BikeAround. BikeAround is essentially a stationary bike that stimulates the experience of, literally, biking down memory lane for an Alzheimer’s patient. The patient is placed on a stationary bike which faces a projection of his/her familiar hometown streets from Google Street View. The experience is intended to prevent memory loss by bringing to mind locations that are associated with the patient’s memories. The simultaneous physical stimulation from the act of biking is also considered to be a crucial component of the benefits from this new technology.
Anne-Christine Hertz is the biomechanical engineer who developed BikeAround.
This video on Hertz’s research is not to be missed.
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Our firm attended the OBA Professional Development Dinner With Your Honourable Estates List Judges on April 5, 2017. The topic of the new practice advisory on video conferencing, and its intended use, was one of the topics that were discussed that evening.
This particular practice advisory is applicable only to 9:30 scheduling appointments on the Toronto Estates List and it was made in accordance with Rule 1.08 of the Rules of Civil Procedure. The new practice advisory is clear that, unless otherwise directed by the court, video conferencing is available in consent matters, unopposed matters, and scheduling matters. Parties or counsel who chose to appear by video conference must make their own arrangements and they may use CourtCall without prior Court approval. An appearance by CourtCall should be communicated to the Court in either the request or confirmation form filed for the appearance. As a matter of convenience, the Order, once issue and entered, will be sent to you by CourtCall.
For those who are interested, further details with respect to what CourtCall is and how it works are available on their website, https://courtcall.com.
Any other arrangements with alternative technologies for this purpose will require prior Court approval.
According to the Honourable Estates List Judges who were present during the Dinner, regardless of whether a matter is on consent or unopposed, video conference may still be less than ideal in situations where substantive relief is sought, such as an unopposed guardianship application.
For future OBA Trusts and Estates Law events like the Dinner, please check out the section group here.
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Later this week, House Bill 432 will come into effect in Ohio to update state estate and trust administration law. One of the most notable updates is the adoption of the Revised Uniform Fiduciary Access to Digital Assets Act, along with corresponding updates to Ohio’s Power of Attorney Act.
The American Revised Uniform Fiduciary Access to Digital Assets Act is intended to formalize the authority of attorneys for property and estate trustees to obtain access to digital assets for deceased or incapable users. Prior to its implementation in American states (and in other jurisdictions in which comparable legislation has not yet been introduced), the intervention of the courts has often been required to grant fiduciaries with access to information and assets stored electronically. There continues to be some debate as to whether an attorney for property or estate trustee, authorized to administer tangible property, also has the authority to manage digital assets without legislation and/or terms of the Power of Attorney or Will explicitly extending this authority.
Interestingly, the Revised Uniform Act has been endorsed by Google and by Facebook, both platforms on which a great deal of the world’s digital assets are stored. In 2016, 13 states introduced the Revised Uniform Fiduciary Access to Digital Assets Act. With the introduction or enactment of the Revised Act in another 24 states since the beginning of 2017 alone, it is clear that state legislatures and online service providers alike agree that amendments to the law in recognition of the growth of technology is required to clarify the state of the law of digital assets and fiduciaries.
The Uniform Law Conference of Canada introduced the Uniform Access to Digital Assets by Fiduciaries Act (2016) this past summer. While the uniform acts of Canada and the United States share a number of similarities, there are several important distinctions, which will be highlighted in Thursday’s blog post.
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As society is becoming more and more digitized, there is an increased need for individuals to consider their online accounts in their estate planning. Today, computers and cellphones can store a wealth of important information about an individual through applications such as Facebook, Twitter and online banking websites. Furthermore, there are many other online platforms such as online gaming websites that individuals can win money or put real money into.
In January 2016, CBC profiled a widow, Peggy Bush, in Canada who had lost her spouse, and a setback in dealing with his property was access to his Apple account. We previously wrote a blog post surrounding this case and online password access here. In Canada, there is currently no legislation or case law that deals with access to online accounts after the account holder is deceased.
To expand further on the accessibility of accounts, it is important to focus on the profitability of such accounts. With the expansive opportunity to play poker online, and put money into things such as betting websites, an issue may be raised in regard to who gets access to those funds upon death. While one may be able to make a small fortune in online activity, there is the chance it may be forgotten in the process of estate planning. This argument can go one step further. With the new craze surrounding games such as World of Warcraft or Pokemon Go, accounts have been selling on websites such as Kijiji for around $400.00. With the ability of individuals to make money off selling gaming accounts, the question becomes whether there is an obligation on an Estate Trustee or administrator to take these potential assets of value into account in distributing an estate. If one has accounts of value online, whether on a poker or betting website or another platform that may result in a profit for the individual, it may be worth considering planning for the distribution of the account.
When conducting your individual estate planning, it is becoming an increasingly important consideration to put in precautions or safeguards for your online accounts. This will ensure that your beneficiaries and estate trustees can access your valuable information or assets. Some options for individuals would be to store their passwords in an online service that would provide the information to selected trustees once the account owner passes away, or to attach a memorandum with a will, or put a provision in one’s will containing all of the individual’s online passwords. Furthermore, if one was an avid online poker player or had a particularly valuable account in the online gaming world worth money, it would be prudent to make a plan to cash out or sell the account.
With society moving in a more digital direction, and many aspects of people’s personal and business lives being increasingly stored or managed online, it is becoming necessary for individuals to consider their digital assets and account access upon the event of their death.
Previously, I podcasted with Sharon Davis on the topic of courts authorizing service via social media. The courts appear to be, to a certain extent, embracing the electronic media, and bringing the administration of the courts into the 21st century.
I recently came across the decision in Meaford v. Grist, 2011 ONSC 895 (CanLII) which provides further evidence that the courts are opening up their processes to adopt modern technologies.
There, the matter involved several hundred parties. In the course of submissions, it was suggested that a website be established to facilitate service of materials for use on various pending motions. The court accepted this suggestion, and ordered that service of any subsequent materials may be effected by the electronic downloading and posting of such materials in accordance with the protocol of the law firm establishing the website. The parties and the judge are to be advised of the website and the protocol, with instructions as to how to access the site and how to download and post materials relating to the pending motions.
Unfortunately, paper copies any documents must continue to be filed with the court, with appropriate proof of service.
As noted by Brown J. in Pershadsingh v. Thompson, 2010 ONSC 4932 (CanLII), it is time for the court to establish a system for the electronic filing of court documents, for the convenience of the parties and judges. In that decision, Brown J. noted that the words of the Constitution are not frozen in their 1867 sense, but must receive a progressive interpretation to address the realities of modern life. “So, too, the provincial obligation to maintain courts is not frozen at the level of support that existed at Confederation”. Brown J. laments that other than replacing ribbon-tied bundles of papers for cirlox-bound bundles of paper, and other minor changes, the document and file management systems maintained by the Courts have not really changed much since 1867.
As seen in Meaford v. Grist, the tide may be shifting, albeit slightly and slowly.
Thank you for reading.
Paul E. Trudelle – Click here for more information on Paul Trudelle.
Moving towards being more technologically inclined appears to be a theme that isn’t only of interest to me. I can’t imagine a world where a computer wasn’t available to make last minute changes to a factum or where everay letter I sent required several days of ‘snail mail’ to arrive. That said, the touch screens of the Starship Enterprise were science fiction only several decades ago, and now the IPhone has made such technology common. The world is changing rapidly at a pace almost impossible to keep up with, and any advice to stay up to date, and which benefits my practice, is appreciated.
I was recently flipping through both “Briefly Speaking” and the “National” and each featured a different article on how to advance your practice with the use of gadgets. The National had recently discussed the use of Smartphones, but took the opportunity this month to deal with Blackberries and the new applications available help make your legal practice run smoothly. Blacktrack was the app that I found most useful, as it aims to help you docket the time spent on client emails by recording the amount of time, and the name of the recipients and subject line in a handy chart format which can be easily used to docket time spent while on the go. Although I can best see the usefulness of this application, all 10 for legal practitioners certainly have their niche uses.
Briefly Speaking took a slightly more broad approach to the use of technology in legal practice and discussed the TECHSHOW hosted by the American Bar Association every year in Chicago. The show hosted many visitors from all areas of the legal profession with a focus this year on social network marketing and smart phones. The show hosts sessions where the presenters are not vendors, but legal professionals who are particularly interested in technological solutions for everyday practice, which makes the information accessible and surely not too biased. April 2011 celebrates the 25th consecutive ABA TECHSHOW and although only a year away, I’m sure there will be many new and useful technological advancements to hear about.
Nadia M. Harasymowycz – Click here for more information on Nadia Harasymowycz.