Just over a week ago I had the privilege to attend the OBA’s annual evening with the judges of the Toronto Estates List. Unfortunately, due to the pandemic, the event was held virtually this year, but it was nonetheless very interesting and informative and I’m sure everyone appreciated the judges sharing their time. I take this opportunity to mention a few of the topics discussed.
- New Technology Implemented by the Court
The Estates List judges shared with event attendees that the new technology that has recently been adopted by the Court is here to stay. It was suggested that counsel invest the time to learn how the CaseLines system works and get comfortable with it, as it is intended that CaseLines will be in use going forward. The use of sync.com is already being phased out, and mainly CaseLines will be used in the future. This is expected to be the case even when we are able to return to in-person hearings.
- New Model Orders
We have previously blogged about the model orders that have recently been added to the Estates List Practice Direction. At the event, the judges emphasized that the model orders are an excellent resource and should be used going forward.
- Availability of Case Conferences
The Estates List judges clarified that case conferences continue to be available. It was suggested that before parties take steps to gear up for a contested motion, if they are not able to solve the matter on their own, they should consider scheduling a 30 minute case conference, and try to work it out with the assistance of one of the members of the Estates List Bench. This may allow matters to be resolved more quickly, thus freeing up court resources for other matters, and in a way that is more cost-effective for the parties.
- The Court’s Workload
Between January and March of this year, the Estates List heard between 400-500 matters, which is close to the number of matters that would be heard in a regular year. The number of matters being heard in writing has almost doubled from the norm, with the Estates list having heard almost 900 matters in writing so far this year, compared with around 1500 in a whole year in normal times. It is clear that the Estates List continues to operate effectively notwithstanding the lack of in-person attendances.
I understand that the event was recorded and will be available for later viewing. I encourage anyone who missed the event to check out the recording and take advantage of the advice and tips from the Bench.
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Recent discussion of proposed amendments to the Succession Law Reform Act under Bill 245 has raised questions of whether corresponding changes will be made to the Substitute Decisions Act, 1992. In particular, some estate lawyers are wondering whether a new validation section may be added to the Substitute Decisions Act to address the issue of court validation of powers of attorney (like the new section 21.1 of the Succession Law Reform Act has been proposed to allow courts to validate improperly-executed wills) and/or whether remote execution options may soon be made permanent for powers of attorney as well as wills.
The Substitute Decisions Act already contains curative provisions that allow the court to validate incapacity planning documents in circumstances where the documents are not executed in strict compliance with formal requirements.
Subsection 10(4) of the Substitute Decisions Act reads as follows with respect to the validation of Continuing Powers of Attorney for Property:
(4) A continuing power of attorney that does not comply with subsections (1) and (2) is not effective, but the court may, on any person’s application, declare the continuing power of attorney to be effective if the court is satisfied that it is in the interests of the grantor or his or her dependants to do so.
Subsection 48(4) of the Substitute Decisions Act reads as follows with respect to the validation of Powers of Attorney for Personal Care:
(4) A power of attorney for personal care that does not comply with subsections (1) and (2) is not effective, but the court may, on any person’s application, declare the power of attorney for personal care to be effective if the court is satisfied that it is in the grantor’s interests to do so.
Remote Execution of Documents in Counterpart
While the focus of discussions among estate lawyers regarding Bill 245 may be the proposed updates to the Succession Law Reform Act and, in terms of formal will execution, the amendment of section 4 as it relates to the requirements for the witnessing of wills, Bill 245 also includes proposed changes to the Substitute Decisions Act under Schedule 8.
A new section 3.1 of the Substitute Decisions Act is being proposed to add specific references to the use of audio-visual communication technology and counterpart signing options in the execution and witnessing of Continuing Powers of Attorney for Property and Powers of Attorney for Personal Care. Accordingly, if Bill 245 is passed, the remote and counterpart execution options made available during the pandemic will be made permanent for wills and powers of attorney alike.
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Technology is often considered as a tool more common among younger generations, with older individuals less likely to have embraced the internet and smartphones that, for many of us, have become important parts of our lives.
As lawyers know, the court system and legal profession have embraced technology in a number of new ways over the past year. From Zoom hearings to probate applications filed by email, we have had to adapt to better use technology in the practice of law. Recent news articles also suggest that the pandemic appears to be increasing the use of technology among older adults. In particular, the last ten months are noted to have seen:
- Acceptance of applications typically used primarily by millennials seeking convenience by other groups;
- For many, home delivery has become a “necessity”;
- Video chat has become a “lifeline for older adults”, who may otherwise be totally isolated;
- Increased accessibility to telemedicine and virtual caregiving support; and
- Online education for individuals of all ages, whether geared to enhance career potential or otherwise.
Many of these trends have the potential to assist seniors in aging in place during the COVID-19 pandemic, which no doubt has become an increasingly attractive option in light of the tragic situation at many long-term care facilities. Increased technology use by seniors is noted to be a positive that has emerged as a result of COVID to make independent living more comfortable and safer. There are also a number of online resources available with recommendations for seniors wishing to safely age in place, including this review of possible Home Modifications available through Family Assets, a resource for senior care.
It will be interesting to see how our use of technology continues to evolve to assist individuals at all stages of life during the pandemic and beyond.
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Attending a Virtual Conference: Insights from the Family Dispute Resolution Institute of Ontario Conference
On November 16, 2020, the Family Dispute Resolution Institute of Ontario (“FDRIO”) held its annual Conference. Hull & Hull LLP was proud to once again sponsor this excellent event. Due to social distancing requirements the Conference was completely virtual, including presentations, break-out sessions, and wellness breaks.
Although the Conference is geared toward family lawyers and professionals working in the field of family dispute resolution, estates matters are often impacted by family tension and disagreement. Consequently, family dispute resolution strategies and insights are valuable tools for any estates practitioner and particularly for estates litigators.
Addressing Anti-Black Racism and Confronting Unconscious Bias
This year’s keynote speaker was Moya Teklu, a member of Legal Aid Ontario’s General Counsel’s Office and Adjunct Professor at the University of Toronto – Faculty of Law. Ms. Teklu delivered an impactful presentation entitled “Addressing Anti-Black Racism” and provided tips for approaching discussions about race, racism, privilege, and marginalization.
Unconscious bias refers to the rapid judgements about other people and situations that a person makes without awareness of their own thought process. These judgements are formed based on a person’s lived experience, cultural context, and personal background. Legal professionals have a responsibility to develop cultural competencies and awareness of unconscious biases to prevent their interference with the lawyer-client relationship and advocacy. Ms. Teklu’s presentation incorporated many interactive exercises to teach legal professionals how to critically confront and to reduce their unconscious biases in order to combat anti-Black racism within our profession, the legal system, and the community at large.
Best Practices for Technology in the Time of COVID-19
Legal technology has become a hot topic over the past nine months as legal professionals have adapted to the challenges posed by the COVID-19 pandemic. While technology has allowed legal professionals to carry on work during these unprecedented times, many of the tools we use every day can increase law firms’ susceptibility to cybersecurity threats.
Speakers Colm Brannigan, Mauro Gris, Steven Bradley, and Vicky Ringuette addressed these concerns directly in their presentation entitled “A Brave New Techy World – Advanced Options for Your Practice.” The Presenters touched on product guidance when using platforms including Google Hangouts, Zoom, and Cisco WebEx in order to create safe meeting environments for practitioners and their clients. Some security tips for video conferences include avoiding taking screenshots, using secure passwords, and regularly updating software.
Hull & Hull LLP congratulates FDRIO on yet another informative Conference. For more information on the Conference, visit FDRIO’s website.
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While remote communication has become the norm for many, there continues to be resistance to using technology in the legal sphere. A recent decision by Justice Myers of the Ontario Superior Court of Justice suggests that, in 2020, the court will not easily acquiesce to such resistance.
In Arconti v. Smith, the plaintiffs sued their former lawyer and his partner for negligence, breaches of duty, and other causes of action in connection with the lawyer’s representation of the plaintiffs in a securities fraud case. In January 2020, Justice Myers ruled that a focused mini-trial was required to determine if summary judgment ought to be granted with respect to one of the issues. In a later case conference, he agreed with the plaintiffs that they should be entitled to further examination for discovery of the defendants prior to the mini-trial. An examination of one of the defendants was then scheduled for May 6, 2020.
However, at a case conference held on May 1, 2020, counsel for the plaintiffs advised that his clients did not want the examination of the defendant to proceed by video conference. He argued that because in-person examination is not possible due to the implementation of social distancing in response to the pandemic, the proceedings should be delayed until the requirement for social distancing is ended. The plaintiffs objected to a videoconference examination on the bases that:
- they need to be with their counsel to assist with documents and facts during the examination;
- it is more difficult to assess a witness’s demeanour remotely;
- the lack of physical presence in a neutral setting deprives the occasion of solemnity and a morally persuasive environment; and
- the plaintiffs do not trust the defendants not to engage in sleight of hand to abuse the process.
In his case conference endorsement, 2020 ONSC 2782 (the “Decision”), Justice Myers dealt with the issue of whether the plaintiffs ought to be required to conduct an examination out-of-court by video conference rather than in person. He ultimately held that if the plaintiffs wish to take advantage of the opportunity to examine the defendant out-of-court, before the upcoming mini-trial, they must do so remotely by video conference. The general sentiment of Justice Myer’s reasons is captured in paragraph 19 of the Decision:
“In my view, the simplest answer to this issue is, “It’s 2020”. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.”
Justice Myers further explained that the use of readily available technology is a necessary component of a civil litigator’s basic skillset. Like other tools at a lawyer’s disposal, technology does not produce perfection and parties ought to remain vigilant to the risks and shortcomings associated with remote processes. However, one’s own unfamiliarity with the technology is not a good basis to decline to use available technology, particularly where remote processes can help move a proceeding forward more efficiently and affordably.
As the Decision suggests, justice will not be served by sitting and waiting for the pandemic to pass. We must learn to accept our circumstances and adapt to the new normal. As Max McKeown wrote, “adaptability is about the powerful difference between adapting to cope and adapting to win.” It is becoming increasingly evident that in today’s legal system, adopting technological processes is adapting to win.
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The COVID-19 pandemic has forced the legal profession to alter the ways in which we practice. The need to keep litigation moving forward has brought to the forefront alternative processes and the importance of technology. Files are continuing to move forward during the pandemic via virtual proceedings, such as virtual courtrooms and virtual mediations. While some are embracing these platforms, others are more wary. In Arctoni v. Smith, 2020 ONSC 2782, Justice Myers considered whether an examination for discovery should proceed by videoconference, or if the plaintiffs were allowed to wait until the physical distancing restrictions are lifted and conduct the examination in-person.
The plaintiffs objected to a videoconference examination because they maintained that:
- They needed to be with their counsel to assist with documents and facts during the examination;
- It is more difficult to assess a witness’s demeanour remotely;
- The lack of physical presence in a neutral setting deprives the occasion of solemnity and a morally persuasive environment; and
- They did not trust the defendants not to engage in sleight of hand to abuse the process.
Justice Myers noted that the simplest answer to this issue is that “It’s 2020”. He went on to say that “we now have the technological ability to communicate remotely effectively. Using these technological methods is more efficient and less costly than personal attendance and we should not be going back.”
While the court endorsed the use of technology, it acknowledged that legitimate concerns exist. One of which is that technology can be abused. It was noted, however, that the possibility of abuse may still exist even if parties are in the same room. While it is important to remain vigilant against the risk of fraud and abuse, a vague risk of abuse is not a good basis to decline the use of technology.
Furthermore, the suggestion that the use of videoconferencing creates “due process” concerns was rejected as the court noted that all parties have the same opportunity to participate and to be heard. All parties also have the same ability to put all of the relevant evidence before the court and to challenge the evidence adduced by the other side.
With regards to the plaintiffs concern that they needed to be with counsel to assist with the documents and facts, Justice Myers stated that there are other ways in which counsel can convey information to their colleagues during an examination. For instance, Zoom offers “breakout rooms” in which counsel can privately meet with their colleagues and clients.
Case law depicts that there are many fears associated with assessing the credibility of a witness via video technology but these fears, by those who have never actually used the technology stated Justice Myers, may not be as significant as they seem. While solemnity and personal chemistry may be lost in remote proceedings, it is not yet known whether, over time, solutions to these shortcomings will be developed as familiarity with these processes grows.
Justice Myers emphasized that, in 2020, the use of readily available technology is “part of the basic skillset required of civil litigators and courts.” He went on to say that those who are uncomfortable with technology should obtain necessary training and education.
The court concluded that proceeding remotely does have its shortcomings; however, in this case, the benefits of doing so outweighed the risks. The plaintiffs main concerns could be resolved by creative alternatives or by increased familiarity with technology. By proceeding remotely, the litigation, which had been going on for years, would not have to be delayed. Consequently, Justice Myers ordered that, unless the plaintiffs chose to waive their opportunity to conduct the examination for discovery, the examination should proceed by videoconference.
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Ian Hull and Celine Dookie
As the province of Ontario slowly emerges from the strict measures in place to prevent the spread of Covid-19, businesses and organizations alike are considering what workplaces will look like moving forward. Modernizing technology in workplaces is a fundamental aspect of these considerations, and Ontario courtrooms are no exception.
On Thursday, May 28, 2020, Chief Justice Geoffrey Morawetz, Senior Family Justice Suzanne Stevenson and Regional Senior Justice Michelle Fuerst answered questions posed by members of the legal profession on the Superior Court’s response to the Covid-19 pandemic and the future of the courtroom as we know it. The overarching message conveyed by Chief Justice Morawetz was that the courts have acknowledged the need to modernize and that great efforts are being made to adapt to new technologies and integrate those technologies into our justice system.
I will briefly highlight some of the key takeaways from the Ontario Bar Association’s (OBA) webinar, although I encourage all those who are interested to watch the full webinar, which is free and accessible to the public on the OBA website. To watch the webinar, click here.
- Currently, the Superior Court of Justice has suspended in-person hearings until July 6, 2020, at the earliest. It is expected that the next phase of modernization will see a hybrid of both in-person and video or telephone conferencing. Courts will likely not return to “normal” operations (i.e. in-person hearings of all matters) until a vaccine is widely available.
- It was acknowledged that the courts moved quickly to allow for remote hearings of matters that were easily suited to a virtual hearing, such as matters that were unopposed, on consent, or in writing. Over the course of the pandemic, the courts have twice expanded the scope of matters it will hear. Moving forward, it is expected that the courts will continue to expand the virtual courtroom to be able to hear contentious matters that require oral advocacy.
- In conjunction with the Minister of the Attorney General’s office, the courts are aiming to increase availability to video conferencing across all regions.
- Given that the courts have not been operating at their full capacity since mid-March, and the backlog that existed prior to Covid-19, it is expected that there will be a significant backlog of matters that will have to be heard. In an effort to resolve this issue, judges from different regions will likely hear matters virtually in order to bring the court system back up to speed.
- We can expect to see an expansion of matters that that are being overseen by a case management judge.
- It is expected that eventually, there will be electronic scheduling platforms in place that will allow counsel to schedule attendances online.
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My last blog discussed recent steps taken by the legislature to modernize the administrative side of the practice of law in Ontario. The practical side has also seen a number of developments that have emerged as a direct result of the ongoing pandemic. Some of these efforts have been spearheaded by the courts directly, while others, such as the Estate Arbitration and Litigation Management initiative, have been developed by members of the Bar an in effort to continue moving matters towards a resolution despite limited court access.
A recent decision of the Superior Court of Justice provides some important commentary on the judiciary’s expectations of parties and counsel to adapt to the current reality using these tools and others so that files can continue to progress.
In Arconti v Smith, Justice Myers grappled with the competing views of the parties as to whether an examination for discovery ought to proceed by way of a videoconference. The defendant, who was to submit to examination, proposed that the examination proceed by way of videoconference given the social distancing guidelines in place.
The plaintiff objected on several grounds. Among other objections, the plaintiff argued that the defendant and their counsel ought to be in each other’s presence to ensure the process proceeded smoothly. Alternatively, the plaintiff argued that the fact of conducting an examination remotely would “[deprive] the occasion of solemnity” and would otherwise make it more difficult to assess the defendant’s demeanour as a witness. The plaintiff argued that the examination ought to be deferred until social distancing guidelines were lifted.
Justice Myers’ initial response to the plaintiff’s position was simple, yet persuasive: “It’s 2020.” He held that the parties have technological tools at their disposal to conduct examinations and other litigation steps remotely, and that the use of such tools was especially salient in the context of the social distancing guidelines. Although Justice Myers advised that the concerns raised by the plaintiff might be relevant in different circumstances, they were not at issue there.
Ultimately, Justice Myers held that the use of readily available technology should be part of the skillset required both of litigators and the courts, and that the need to use such tools was merely amplified, not created, by the pandemic. The plaintiff was ordered either to conduct the examination of the defendant by videoconference, or to waive their entitlement to conduct the examination altogether.
This decision provides a glimpse into the court’s expectations of litigants and counsel to move matters forward in spite of the social distancing guidelines and court closures. While the current directives and legislation cannot be used to compel a party to perform a particular litigation step by audiovisual means, one may read Arconti as suggesting that the courts will nonetheless expect the parties to consider the entirety of their skillset to move matters along so that they do not languish in litigation purgatory as a result of social distancing guidelines.
Once social distancing guidelines have been lifted, it will likely be some time before the courts have dealt with the matters that were adjourned between March and June and are in a position to hear new matters. Parties who are willing to use the tools at their disposal to move matters forward and avoid contributing to this delay may find themselves commended by the judiciary. Those who are resistant to adapt, on the other hand, may expose themselves to commentary from a judge, or possibly cost consequences for their client, depending on the circumstances.
If you are interested in learning more about litigation procedure and estate planning best practices in the time of COVID-19, please consult our information guide.
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Video conferencing has been around for about forty years. It has been used in criminal court bail hearings and on applications to the Supreme Court of Canada for more than thirty years in some parts of the country. There are many good reasons to now expand the use of video and other technology in the law of wills and estates. The technology “Genie” is now out of the legislative bottle it has been kept in for too long, and it is not likely to be put back in when this pandemic fully ends.
The changes made in the last month to how a will can be validly signed in Ontario have been made far more quickly than anyone expected. The substance of these changes has been dealt with in other Hull and Hull blogs. The Emergency Management and Civil Protection legislation in Ontario, and the Orders made pursuant to that legislation beginning on Tuesday March 17, 2020 have effectively amended past practice to such a degree that the usual caution of the legal profession has been surrendered. Wills can now be signed and witnessed over the internet. Counterpart signed wills are now allowed. Affidavits can be commissioned by video conference now. These and other changes have been made and implemented quickly, with effect to the core of basic principles. The legal profession in Ontario has not seen changes like this in the past one hundred years!
The changes are brought on by the circumstances of the current pandemic emergency and are necessary. It has been impressive to watch these changes being made so quickly. Immense credit is due to those involved. Led by the Attorney General of Ontario, Doug Downey, and with the Deputy Minister, lawyers at the Ministry, members of the Estate Bar, and others, they have all truly done monumental work. On Monday May 4, 2020 a notice was posted on the Ontario Court of Justice website that included the following statement that the Court would be, “…working closely with its justice partners, including the Ministry of the Attorney General, to adopt technology that will increase participants’ ability to access the Court’s services using remote means, such as by the electronic filing of court material, remote scheduling processes, and remote hearings.”
It is interesting to ask however, while changes were happening incrementally in other areas of the law over many years, why was there no progress in the area of execution of wills? It is important to also ask what further changes should be made at this time. For many lawyers the recent storm of events and the subsequent changes are anxiety making. Nevertheless, this is the time further permanent changes should be considered. What should be of interest now is how technology can be used to benefit all going forward. Before the timing of the window for change closes this should become an important discussion among estate lawyers.
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These blog posts on the subject may also be of interest:
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!