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WEL NEWSLETTER May 2024, Vol. 14, No. 2

Dear Kenneth,


Happy May & Happy Summer!! Happy belated Mother’s Day to all the moms!

 

This month we have been busy with our usual practice-related presentations. We have also been very busy with clients, court, & contentious matters.

 

On the news front, I joined Academicians at the International Academy of Estate and Trust law Annual Meeting & Conference in Cancun to keep apprised of International Developments in the realm of Estates & Trusts. The weather is a dream, and it has been great to catch up with colleagues from around the globe.

 

At WEL, we had a firm event, all trekking down to the stadium to watch the Blue Jays. We are hoping for a great season from our Jays! FYI- the renovations and updates are fantastic- if you have not already checked them out, do so.


Sammi is in London writing her dissertation, strange to not have her around in the Summer! I am going to see her in June for her belated, long awaited birthday gift to see Taylor Swift at Wembley.

 

Ollie, our student ran the Toronto half-marathon, and I was out to cheer him on! I felt a little envious since historically I had run a half every year for the longest time, but not since covid. I will have to contemplate the next one!

 

I had house guests from England for a week. Recall, I lived and worked in the U.K. for 10 years. It was nice to catch up with good people. Paul and Nikki were dream guests. I met Paul O’Brien in Exeter while at law school, years ago now, and at the time he was doing a PHD in AI-which no one even ever talked about or heard of back then. He then had an entire career in AI and research for British Telecom-amazing! I remember teasing him then saying there was no such thing, and he was doing a fictitious PHD!

 

Our WEL Partners practice books designed for our clients have been updated to e-books, and our much-anticipated book, long in the making, Whaley Estate Litigation Partners on Will & Estate Challenges is finally ready and will be released in hard-copy at the June STEP Conference, available at the WEL Partners booth to the first 200 who visit us. Thereafter, the new book and our updated titles will all be available for download or as an e-book. Full info on our website from June 2: https://welpartners.com/resources/books

 

Our colleagues in the practice of elder law will miss Judith Wahl who recently became ill and died on Wednesday, May 15, 2024, I say more about Judith below. Judith was always a great resource, she always spoke her mind - the good, the bad, and the ugly! She was genuine and had a very strong sense of right and wrong. Our practice area, our practitioners, and our seniors will forever be enriched from her endless and lasting contributions. It was moving visiting her in hospital and watching her in action, fighting for patient rights and consent to the end. On a personal note, I will miss her, and I am sad that she had to suffer before she left us. On an up note, Judith will receive the Award of Excellence in Elder Law from the OBA this year and that couldn’t make me happier. Judith was told by her colleagues and family of this tremendous achievement before she passed, and I hope she was able to hear us, absorb it, and take some small comfort in this recognition by her peers.

 

See you next month. Enjoy the Read,

Kim

I. WEL NEWS

1. ONTARIO POLICE COLLEGE COURSE, INVESTIGATIONS INVOLVING OLDER ADULTS, APRIL 16, 2024

WEL Partners is proud to announce our continued commitment to presenting at the Ontario Police College on the topics of elder abuse and neglect.

 

On April 16, 2024, Evan Pernica and Oliver O’Brien presented before an impressive class of officers-in-training to review the salient criminal and civil remedies that are available in the face of common abuses being committed against elderly members of society.

 

While the concept of “elder abuse” in and of itself is not a crime or cause of action, the purpose of our presentation sought to provide an educational overview of the most common forms of abuse that seniors are being subjected to, and the remedies and aggravating factors that should be considered in response.

In this respect, our topics of discussion included, amongst other things:


  • Financial abuse and misappropriation;
  • Misuse of powers of attorney;
  • Fraud and forgery;
  • Undue influence;
  • Domestic abuse;
  • Isolation;
  • Predatory marriages; and,
  • Cyber-crimes and scams.


In light of these abuses and crimes being committed against elderly members of society at an ever increasing rate, we are proud to have had the opportunity to support and educate our front line responders who provide an incomparable and invaluable level of protection and support to victims.

2. OSGOODE INTENSIVE PROGRAM IN WILLS & ESTATES; POWER OF ATTORNEY AND GUARDIANSHIP: CONTENTIOUS AND NON-CONTENTIOUS MATTERS, APRIL 22, 2024

Kimberly Whaley presented on Contentious Guardianship Applications and Removals of Attorneys and Guardians at the Osgoode POA and Guardianship program on April 22, 2024, Co-Chairs: Ian Hull, Marni Pernica and Suzana Popovic-Montag.


Link to paper: https://welpartners.com/resources/WEL-Contentious-Guardianships-Osgoode-2024.pdf

 

Bryan Gilmartin presented on Incapacity Planning and Powers of Attorney at the Osgoode POA and Guardianship program on April 22, 2024.

 

Link to paper: https://welpartners.com/resources/WEL-Incapacity-Planning-and-POAs-Osgoode-2024.pdf

3. LAWYER INTERNATIONAL LEGAL 100 - 2024 AWARD

Kimberly Whaley, Estate Litigation Lawyer of the Year, in the Lawyer International Legal 100-2024 Awards.

4. OBA ELDER LAW DAY, JUNE 20, 2024

Kimberly Whaley will be presenting on “Capacity to Instruct and Retain Counsel and Taking Instructions in Capacity Proceedings,” at the OBA Elder Law Day on June 20, 2024


See link below for details:

https://www.cbapd.org/details_en.aspx?id=on_on24eld03c&_ga=2.194778093.1975118441.1716404863-1084024728.1716404863

5. CANADIAN LAWYER MAGAZINE - COURTS IN CANADA LACK TOOLS TO FIGHT PREDATORY MARRIAGE

Kimberly Whaley & Albert Oosterhoff were quoted in thre Canadian Lawyer Magazine and Law Times article, "Courts in Canada Lack Tools to Fight Predatory Marriage" which was published on-line May 15, 2024.


View article (note: CL+ subscription required)

II. SHOUT OUTS 

IN MEMORIAM: JUDITH WAHL, ELDER LAW PIONEER

Sadly, Judith Wahl passed away on May 15, 2024. Her passing is a tremendous loss for the legal and elder community. Our condolences to Judith’s friends, her family, her ACE family and to all of those whose hearts and lives she touched and made better through her relentless passion and advocacy of the rights of older adults. Judith will be sadly missed by her friends at WEL Partners.


In 1984, a new legal clinic, the Advocacy Centre for the Elderly “ACE”, with a Toronto address, was established and Judith Wahl became its founding Executive Director. She held that position for nearly 33 years, until 2017, when she retired from ACE and established her elder consulting firm, Wahl Elder Consulting.


Judith graduated from the University of Toronto (B.A. Honours English, 1974) and from Osgoode Hall Law School (LL.B., 1977) and was called to the bar of Ontario in 1979. Judith was in private practice for approximately 6 years before joining and leading ACE.


Judith has been widely recognized throughout Ontario, Canada and internationally, for her exceptional achievements, distinguished service, and significant contributions in serving older adults in Ontario through law and legal services, advocacy, teaching, writing, speaking, legislative reform initiatives, mentoring, volunteering, and pro bono work.


When ACE was established, elder law was an unknown field of practice in Ontario. In every way, Judith Wahl blazed the trail for countless elder law practitioners who would follow in her footsteps. Judith was always prepared to take on individuals in positions of power who did not recognize the rights of seniors, and the value of elder law work as a legitimate area of practice. Judith, of necessity, was born into the nascent field of elder law as a warrior who had to establish her ground and the rights of her older-adult clients every step of the way. She was a fierce advocate for the rights of seniors.


Judith very quickly oversaw and guided the development of ACE to a staff of five lawyers and three support staff, which very nearly equals its full staff complement now, more than 37 years later. More importantly, she quickly laid the groundwork for the practice of elder law as a discrete discipline, with expertise in the areas of elder abuse, federal income-security pensions (OAS, GIS, GAINS and CPP), retirement homes, long-term care homes, consent, capacity, and substitute decision-making, health care consent and treatment decision-making, and other areas of elder law. Judith Wahl was instrumental in breaking ground and paving the way in each of these areas of practice from the perspective of lawyers representing the older adult whose rights are in issue.


Judith was appointed to the Attorney General’s Committee on Substitute Decision-Making for Mentally Incapable Persons [the Fram Committee], which from 1985-88 held discussions that developed the initial form and content of what is now the Substitute Decisions Act [SDA]. The Fram Committee Report formed the basis of the SDA, the Consent to Treatment Act (which is the predecessor to the Health Care Consent Act) and some elements of the Advocacy Act (which has since been repealed). This was the first of many occasions when Judith would become actively and constructively involved in law reform to advance the interests of older people in Ontario.


In 1987, Judith was appointed as a member of the O’Sullivan Committee for the Review of Advocacy for Vulnerable Adults in Ontario. The O’Sullivan Committee Report, You’ve Got a Friend, supplied much of the initiative for the enactment of the Advocacy Act and the creation of the Advocacy Commission, which was later disbanded, before it became operational after a 1995 change of government.


When the SDA was enacted in 1992, it had a three-year implementation period before it came into effect in 1995. From 1992-95, Judith was appointed by the Attorney General to be the chair of the Interim Advisory Committee for the Implementation of the Substitute Decisions Act at the Office of the Public Guardian and Trustee. This was an immense responsibility. The statutory rights of personal autonomy balanced with substitute decision-making were not yet within the public consciousness nor within the knowledge and expertise of the Ontario bar.


Judith led the Interim Advisory Committee as it oversaw the reorganization and transformation of the office of the former Public Trustee into the new Office of the Public Guardian and Trustee. She worked closely with a broad group of representatives from advocacy organizations, service providers, the professions and government to shape the development of policies for how the Public Guardian and Trustee would apply the law and act in accordance with its new responsibilities. The Interim Advisory Committee also provided important advice about the development of the guidelines for capacity assessments. In the words of one government advisor who worked closely with Judith in those years, the work of the Committee was challenging and demanding of one’s time, and Judith chaired the Interim Advisory Committee diligently, with fairness and diplomacy, ensuring that all members’ voices were heard, and input was valued. Judith’s work within this Committee could be seen as among the first of her many achievements in the practice of elder law in Ontario.


Throughout this same period, Judith led test-case litigation that strongly influenced the recognition and enforcement of the rights of retirement home residents as tenants, and specifically under what are now the care home provisions of the Residential Tenancies Act. New legislation had been enacted that required the provision of a Care Home Information Package [CHIP] for retirement home tenants, and imposed requirements on the landlord’s ability to increase the costs of meals and care services. Large institutional landlords denied that they were subject to the new legislation, until under Judith’s leadership ACE initiated test-case litigation that settled the principle that the retirement homes were tenancies. Until then, there had been much uncertainty in the application of the law, to the detriment of older-adult retirement home tenants.


Under Judith’s leadership, ACE established an institutional advocacy position by hiring a lawyer to work as an Institutional Advocate on behalf of long-term care home residents and other institutionalized seniors. Due to the foresight of Judith ACE is the leader in the advancement of rights for long-term care home residents and other institutionalized seniors, where there are now two institutional advocate lawyers due to the volume of work.


In connection with this work, Judith initiated and managed the development and publication by ACE of Long-Term Care Homes in Ontario: The Advocates Manual, which was widely used as a comprehensive reference guide in the absence of other comparable materials prior to the enactment of the Long-Term Care Homes Act. At that time, long-term care homes were governed by divergent and sometimes conflicting legislation found in three separate statutes: the Nursing Homes Act, the Homes for the Aged and Rest Homes Act and the Charitable Institutions Act. Ontario was completely bereft of any user guides or educational materials that were remotely intelligible to the legal profession, let alone the public, until ACE published the manual.

Judith appeared before the Supreme Court of Canada on behalf of ACE, intervening in a successful appeal from the Nova Scotia Court of Appeal under the Adult Protection Act in Nova Scotia (Minister of Health) v. J.J., 2005 SCC 12 (CanLII), [2005] 1 SCR 177.


Judith was the co-chair, organizer and facilitator of the First National Conference on Elder Abuse and Crime, co-sponsored by ACE and Ryerson Polytechnic Institute (as it then was) with the participation of the Government of Canada in 1990. Policy and educational work on elder abuse in Canada was virtually unknown at that time.


Judith has held a long-standing relationship with law enforcement agencies, including the Toronto Police Service, where she taught a regular course on Elder Abuse in the Policing and Diversity program at the Toronto Police College for nearly a decade; with the Ontario Police College at Aylmer, where she was an organizer, facilitator and a keynote speaker at Elder Abuse Awareness and Prevention Conferences for police forces from throughout Ontario, and which was then an entirely new initiative for law enforcement agencies; and as an organizer and regular participant in LEAPS — Law Enforcement Agencies Protecting Seniors — which is an informal working group of law enforcement agencies interested in the prevention of elder abuse.


Judith, along with her colleague Jane Meadus (the ACE Institutional Advocate), poured countless hours into the review and analysis of documents, the preparation of submissions and meetings with Ontario Ministry of Health and other policymakers concerning the development of the Long-Term Care Homes Act and related regulations. At the time this legislation was developed, and perhaps since then, there has been no more knowledgeable, dedicated, and experienced advocates for the rights of long-term care home residents in Ontario than Judith Wahl and Jane Meadus, who were always united and inseparable in this work.


Judith has been widely recognized in other venues for her spectacular achievements in elder law. She is a Distinguished Fellow of the Canadian Centre for Elder Law at the British Columbia Law Institute [BCLI]. She is a recipient of the Osgoode Hall Law School Gold Key Award for Public Service (2006); of the Ontario Bar Association Award for Distinguished Service (2008); and of the Queen Elizabeth II Diamond Jubilee Medal (2013).


Judith is a Senior Fellow of the National Institute on Aging and was a member of the Geriatric and Long-Term Care Review Committee of the Office of the Chief Corner of Ontario. Judith has a long record of distinguished service to the Canadian Bar Association and the Ontario Bar Association. She was a member of the CBA National Elder Law section executive from 2007-15 and twice the section chair — from 2007-09 and 2014-15. Judith was elected a member at large of the OBA Health Law section executive from 1996-98, 2004-06 and 2020-21. She was also elected as a member at large of the OBA Elder Law section in 2020-21.


Judith has demonstrated extraordinary commitment to the community at large, outside of her work with the CBA and the OBA. She was a member of the Board of Directors of the Ontario Gerontology Association [OGA] from 1998-2001, and she has regularly presented on gerontological issues at the OGA annual conferences. She was a Vice-Chair, and a member of the founding Board of the National Initiative for the Care of the Elderly [NICE] network from 2006-10. She was a creator of a Consent and Capacity Tool produced by NICE for distribution to health practitioners, their patients, and the public. She has been a member of the Mental Health Legal Committee — an informal coalition of lawyers advocating for the rights of persons with mental health and psychiatric disabilities — from the time it was formed in 2000 to this date. She organized and helped develop elder abuse Community Response Networks under a program funded by the Ontario Trillium foundation in urban, rural, and indigenous communities throughout Ontario, which successfully led to the foundation and funding of Elder Abuse Ontario [now Elder Abuse Prevention Ontario].


Judith has been a teacher and mentor to her many students at McMaster University and the University of Toronto, where she taught elder law courses to MSW students in the school of social work, and to the many law students and volunteer lawyers who under her leadership served with ACE.


On behalf of the legal community, we wish to thank Judith for all her endless commitment, service and innumerate initiatives and for being a fearless advocate for those who are vulnerable. Thank you to Graham Webb, and Jane Meadus for the historical information compiled on Judith. Our heartfelt condolences.


Impressively, Judith is the 2024 Award Recipient of the Ontario Bar Association, Award of Excellence in Elder Law!

III. BOOK REVIEW – LET’S TALK ABOUT AGING PARENTS, LAURA TAMBLYN WATTS

By Oliver O'Brien


This May, Laura Tamblyn Watts released her new book, Let’s Talk About Ageing Parents: A Real-Life Guide to Solving Problems with 27 Essential Conversations. This book is dedicated to helping children and loved ones approach the challenges of caring for elderly parents. Laura Tamblyn Watts is the founder and CEO of CanAge, a Canadian non-profit organisation dedicated to the betterment of elderly people’s legal rights and education and policy research on elder law issues. 


Caring for elderly parents can be an immense task. As we grow older, we begin to see the challenges associated with ageing and the increasing vulnerability with our own parents. Issues often occur when parents begin experiencing health issues or issues with capacity, such as dementia. As people begin to lose their capacity and abilities, it can be difficult for children to help elderly parents who insist on their own independence. 


This book aims to address some of these complex issues and is split into four parts, namely: the home & long-term care, mental capacity & powers of attorney, love, loss & grieving, and health issues. Each section then delves into the 27 essential conversations one should have with their elderly parent. For example, ‘does my parent require assistance around the house?’, ‘is it time for my parent to stop driving?’ or ‘how should I care for my parent who has dementia?’. There is also discussion on more specific topics such as divorce amongst elderly parents, scams against the elderly and litigation issues like power of attorney disputes. 


Each topic is approached in a delicate and easy to understand manner. Those previously unaware of the often-complex subjects such as mental capacity, power of attorney or elder abuse will be better informed and mindful of these topics. Likewise, those who struggle to approach more emotionally nuanced topics with their elderly parent such as moving into long-term care, substitute decision-making, or substance abuse will find great assistance here. 


Lets Talk About Ageing Parents is an excellent guide and educational tool to approaching the difficulties faced by Canada’s elderly. This book is helpful to those with elderly parents, those who have elderly people in their lives and even those with younger parents. For elder law practitioners, it provides further nuance and depth to the issues faced by elderly people and how we can better understand, empathise and assist in what are often challenging and complicated circumstances. 


Thank you, Laura.

https://www.indigo.ca/en-ca/lets-talk-about-aging-parents-a-real-life-guide-to-solving-problems-with-27-essential-conversations/9781615198023.html

IV. LAW REVIEW

(i) SOLICITOR-CLIENT PRIVILEGE ENCORE

By Albert H. Oosterhoff


1. Introduction


Parties raise the issue of solicitor-client privilege regularly in litigation, also in cases in which one of the parties is an executor and is or may be in litigation with one or more of the beneficiaries. I have written about this issue in the past.[1] The issue arose again in the recent British Columbia case, Barbieri Estate v White.[2] In it Blake J. reviews the law on the issue extensively and therefore it is useful to consider the issue again.


2. Facts


The testator died in 2018, predeceased by her husband and survived by her three children, Rick, Teresa, and Steven. She named Rick and Teresa her executors and directed that the residue of her estate be distributed equally among the three children. Rick and Teresa were granted probate in 2019, but a few months later Rick applied for an order removing Teresa as executor, leaving him as the sole executor. In October 2019 the parties agreed to a consent order (the ‘Consent Order’). It removed Teresa as executor and trustee, named Rick as sole executor and trustee, and provided that Rick would provide Teresa and Steven with an up-to-date accounting of the estate every second month, beginning in October 2019. Rick did make the bi-monthly accounting from October to 2019 to May 2022.


However, in September 2019, 17 days after the Consent Order, Rick brought an action as executor of the estate against Teresa, and then, in June 2022, he brought an application in which he stated that he and his lawyers inadvertently disclosed 40 privileged documents during that period.

These consisted of invoices rendered by the lawyers to the estate, copies of cheques made payable to the lawyers, and other documents indicating payments made to the lawyers by the estate. Rick sought a number of orders that would, inter alia, prevent Teresa and her lawyers from making use of the documents, direct the return of the documents, disqualify Teresa’s lawyers from participating in this proceeding, and permanently expunging the documents from the court file. Rick’s counsel also took the position that the court should not review the privileged documents before it determined the application.


In December 2020 Teresa filed an application in the probate proceeding for an order, inter alia removing Rick as executor. In a supporting affidavit the affiant attached documents received from Rick in the course of the estate accounting, including some privileged documents. At no time between the entering of the Consent Order and the filing of his January 2021 application response to Teresa’s application did Rick or his lawyers claim privilege over any document provided to Teresa in the course of the estate accounting. Then, in April 2021 Rick’s wife emailed the estate accounting for the previous two months to Teresa’s lawyer and it included invoices rendered by Rick’s lawyers to the estate. Rick’s lawyers then contacted Teresa’s lawyer asking that the privileged documents be destroyed.


Teresa’s new lawyer then sought disclosure of the estate solicitor’s file, which request was refused. In fact, in subsequent bi-monthly accounts, there was further disclosure of invoices. The parties also commenced further proceedings.


3. Analysis and Judgment


Justice Blake began her analysis by agreeing with Rick that reviewing privileged information is a discretionary decision that should be exercised sparingly. The court should only review documents for which privilege is claimed if evidence or legal argument shows that review is necessary to decide the issue fairly. She reserved the right to review the privileged documents but concluded that it was appropriate to determine the application on the basis of the blanket solicitor-client privilege Rich claimed over the documents.


Thus, the main issue was whether, in all the circumstances, the privileged documents were protected by the blanket protection of solicitor-client privilege. If they were, the question arose whether Rick had expressly or implicitly waived that privilege. If he had not, the court had to determine the appropriate remedy in the circumstances raised in the case.


Justice Blake noted that the circumstances were highly unusual because Rick failed to disclose whether he engaged separate lawyers to act for him as executor and as beneficiary. Nor did he disclose whether the work done by his lawyers was part of the ongoing administration of the estate or was done to pursue or defend the ongoing adversarial litigation. Rather, he relied on the 2019 action to support his assertion that he was in an adversarial position toward Teresa and that, as such, he has blanket solicitor-client privilege over the whole of the estate file, despite his agreement to provide bi-monthly accounting.


Moreover, the disclosure was not a one-time accidental discloser of privileged information. Rather, it was a protracted disclosure of alleged privileged information that was made repeatedly by Rick, his wife, and his lawyer over a two-and-a-half-year period. Further, the disclosure continued even after the inadvertent disclosure was discovered.


Justice Blake was satisfied that by entering into the Consent Order and agreeing to provide the bi-monthly accounting Rick waived his right to claim solicitor-client privilege, at least to the extent of accounting for the expenses, including legal fees, he was paying from the estate. However, because of the lengthy arguments on the point, she did address the issue whether the privileged documents were covered by a blanket protection of solicitor-client privilege.


She took the view that issues of solicitor-client privilege are not the same across all civil and criminal matters. The jurisprudence holds that the amount of legal fees is presumptively privileged because it arises out of the solicitor-client relationship and while the presumption can be displaced, the onus rests on the party seeking to displace it.[3] However, she went on to note that the relationship of an executor and beneficiary is unique because the office of executor is a fiduciary one and imposes fiduciary obligations toward the beneficiaries. Thus the latter have some entitlement to information from the executor about the ongoing administration of the estate.


Justice Blake then went on to discuss the three theories about the entitlement of discretionary beneficiaries to information from executors or trustees:


(a) the proprietary right theory;

(b) the joint interest or common interest theory; and

(c) the modern theory.


She noted that the old proprietary right theory, which is based on the idea that a beneficiary is seeking access to documents that are her own,[4] led to difficulties as estates and trusts became more complex. Hence, it was replaced by the joint interest or common interest theory. Under it, beneficiaries are entitled to trust and estate information because: (a) trustees are required to act in the best interests of the beneficiaries; and (b) trust instruments are created for the purpose of administering the trust. This theory is based on the idea that since trustees or executors and beneficiaries have a shared or common interest in the administration of the estate, documents created to further that common interest should be made accessible to both.[5] Consequently, in those circumstances trustees and executors cannot assert a general claim of solicitor-client privilege.[6]


The modern theory was developed by the Privy Council in Schmidt v Rosewood Trust Limited.[7] In it Lord Walker also rejected the strict proprietary approach and based disclosure not on a joint or common interest but on the court’s inherent jurisdiction to supervise the administration of trusts (and by implication, the administration of estates). He noted that the court should focus on balancing the competing interests of the parties under the trust and in doing so, it should consider following factors:


(a) whether a discretionary beneficiary (or some other beneficiary with only a remote or wholly defeasible interest) should be granted relief at all;[8]

(b) what class of documents should be disclosed, either completely or in redacted form; and

(c) what safeguards should be imposed to limit the use which may be made of documents or information disclosed.


Justice Ballard noted that the analysis of whether the privileged documents were subject to the blanket presumption of solicitor-client privilege, and therefore whether the documents would not have been disclosable and would neither have been ordered to be disclosed by a court, is a hypothetical exercise, since they were already disclosed pursuant to the Consent Order. But the hypothetical analysis led her to conclude that Rick’s position was untenable.


Since Ballard has been followed widely in Canada, Justice Blake thought it appropriate to apply the joint interest theory to her analysis, but she also accepted that the court has the inherent jurisdiction to supervise the administration of trusts and estates.


Applying both theories to her analysis but bearing in mind that she was engaging in a hypothetical exercise, she concluded that Teresa might have been successful in obtaining disclosure in the unique circumstances of the case. In other words, a court might have concluded that the beneficiaries were entitled to be informed of the total amount of the legal fees paid by the executor. She held that the Consent Order was binding on Rick and that the fact that he had agreed to provide bi-monthly accounting and then went on to begin adversarial proceedings against Teresa, did not shield him from the court-ordered obligation to account to the beneficiaries. The fact that they are now in an adversarial relationship did not change or terminate the Consent Order.


Assuming for the purpose of the judgment that the privileged documents were subject to solicitor-client privilege, Justice Blake then went on to consider whether Rick expressly or implicitly waived the privilege. She noted that a waiver of solicitor-client privilege must be clear and unambiguous, whether it is express or implicit. Rick did expressly waive privilege when he entered into the Consent Order for which he was represented by legal counsel. And it contained no exceptions. As executor of the estate, he was bound by the Order, and the duty to account includes the duty to provide detailed information of all legal fees paid by the executor. And thus, Rick also implicitly waived his right to solicitor-client privilege over the legal fees he had been paying from the estate.

However, while Justice Blake held that Rick had waived the right to solicitor-client privilege over the amount of the legal fees he paid from the estate, she was not satisfied that he had waived privilege over any legal advice he received in pursuing litigation in the name of the estate against Teresa. She noted that such advice may not have been properly redacted.


Justice Blake then went on to comment on the accusations made by Rick’s lawyer against Teresa’s lawyer. She concluded that the legal test to disqualify Teresa’s lawyer had not been met.


---

[1] See, e.g., http://welpartners.com/blog/2020/08/what-information-must-a-trustee-disclose-to-beneficiaries/, a blog on Whitell v Whitell, 2020 ONSC 2310.

[2] 2023 BCSC 1176.

[3] British Columbia (Attorney General) v Canadian Constitution Foundation, 2020 BCCA 238, paras 60-61.

[4] See O’Rourke v Darbishire, [1920] AC 581 at 626-27, [1920] All ER Rep 1, per Lord Wrenbury.

[5] See Ontario (Attorney General) v Ballard Estate (1994), 119 DLR (4th) 750 (Ont Gen Div) the leading Canadian case on this theory.

[6] See ibid., pp 755-56, per Lederman J.

[7] [2003] UKPC 26, [2003] 2 AC 709 (Isle of Man).

[8] The appellant in the case held only a prospective right to be appointed under a power of appointment. The Privy Council did not decide whether he was successful but remitted the case to High Court of the Isle of Man for that decision. However, it provided guidance to the High Court on their views of the appellant’s case and in it they made it clear that, in the particular circumstances, he had a powerful case for the fullest disclosure.

(ii) ANOTHER PRESUMED RESULTING TRUST CASE: WIFFEN v LAU 

By Albert H. Oosterhoff 


Wiffen v Lau https://canlii.ca/t/k258g

 

1. Introduction


Litigation about the consequences of a gratuitous transfer in joint tenancy of the title to property is now commonplace, which raises a presumption of resulting trust if made in favour of an adult child.[1] The litigation is sometimes commenced by the transferor himself but more often it is brought by other beneficiaries of the grantor’s estate. The transfer is almost universally made to avoid the imposition of estate administration tax on the transferor’s estate under the Estate Administration Tax Act, 1998.[2] But in fact the cost of the ensuing litigation is likely to be much higher than the cost of the tax. Lawyers acting for putative transferors need to caution them about this danger and advise against such a transfer. A transferor can perhaps avoid subsequent litigation by completing a document contemporaneous with the transfer that expresses her intention that either (a) upon the transferor’s death the transferee will hold the property in trust for the estate, or (b) that by making the transfer she intends to make a gift to the transferee. In the recent case, Wiffen v Lau,[3] the parties had to engage in litigation to determine the effect of a couple of transfers. The transferor also sought to limit the effect of the transfers by severing the joint tenancies.

 

2. Facts


The testator, Albert, was predeceased by his first wife, Louise in 2005. He was survived by his only child, Sharon, who is married to Tom. After Louise’s death, Albert named Sharon his executor and sole beneficiary. Albert and Louise owned a property in Kitchener, 125 Whitney Place (‘Whitney’) and Albert also owned the adjacent property at 115 Whitney Place where his business, Ed Lau Ironworks was located. Tom and Sharon took over operation of the business after Albert retired. Albert also owned a property at 37 Reid’s Point Road in the Bruce Peninsula (‘Reid’s’), and Sharon paid all the funds to buy property adjacent to it with the intention to have the two properties merge so that title would be held jointly by all the parties, which is what happened. Tom and Sharon also built an apartment at Whitney at their own cost, and they lived in it for more than 20 years while they operated the business. Between 1993 and 2003 Albert and Louise added first Sharon and later Tom to the title to Whitney and Reid’s for no consideration.


Albert married his second wife, Liza in 2019 without telling Sharon and Tom. After Albert married Liza, he changed his will a couple of times. The second time he made Liza his sole beneficiary and removed Sharon as beneficiary of his estate. In 2019, three months after Albert married Liza, he severed the joint tenancy of Reid’s, so that he then held a one-third interest in that property as tenant in common with Sharon and Tom. In 2020 Albert also severed the joint tenancy of Whitney, so that he then held a one-third interest in that property as tenant in common with Sharon and Tom. Albert did not tell Sharon and Tom about the severances. The three owners then sold Whitney and the proceeds of sale are being held in trust.


Albert then brought this action against Sharon and Tom for a declaration that they held the properties upon a resulting trust for Albert because they had been added to the title for no consideration. Sharon and Tom asked the court to direct payment to them of two-thirds of the net proceeds of sale of Whitney and to declare that they are the legal and beneficial owners of a two-thirds interest in Reid’s. Albert died during the proceedings, which were continued by his executor. Liza survives him.


3. Analysis and Judgment


Justice Antoniani reviewed the by now well-known law that when a parent transfers title to real property into the joint name of himself and an adult child for no consideration, equity raises a presumption of resulting trust in favour of the transferor. The onus is then on the transferee to rebut the presumption. The law regards the transfer to be inter vivos in nature and therefore the rights of survivorship, both legal and equitable, vest when the transfer takes effect. And, if the transferee rebuts the presumption, the transfer confers a complete inter vivos gift. To determine whether the transfer results in a gift the court looks only to the transferor’s intention at the time of the transfer.


Although her Honour discusses the transfers of title of Reid to Sharon and later also to Tom separately, and then also the transfer of Whitney to Sharon and Tom, it is convenient to consider the transfers together in this blog, since her Honour finds that Albert intended an inter vivos gift to Sharon and Tom in each case. She concluded that the changes Albert made in his will and in unilaterally severing the joint tenancies were evidence of his regret at having earlier made gifts to Sharon and Tom. There was no reason for Albert (and Louise) to have made the transfers other than to make a gift to their only child, and they, together with Tom, all worked together in the family business. Further, Albert testified in his cross-examination that he made Sharon and Tom joint tenants to save taxes, i.e., estate administration tax, and that intention supports a rebuttal of resulting trust.[4] Thus, her Honour concluded that Sharon and Tom had rebutted the presumption of resulting trust with respect to all the properties. This meant that, as joint tenants of Reid’s, Sharon and Tom each had a legal and beneficial one-third interest in that property and no further order was necessary. Further, Sharon and Tom were each entitled to one-third of the net proceeds of sale of Whitney. Sharon and Tom had made an alternative claim for a constructive trust in their favour for labour and financial contributions made by them to the properties, but it was not necessary to address that argument, since her Honour found that they have a legal and beneficial interest in Reid’s and were entitled to two-thirds of the net proceeds of sale of Whitney.


--

[1] Pecore v Pecore, 2007 SCC 17; Fuller v Fuller Estate, 2010 BCCA 421, para 53.

[2] SO 1998, c 34, Sched.

[3] 2024 ONSC 224.

[4] See Holtby v Draper, 2017 ONCA 932, para 69; Zacher v Zacher, 2019 ONSC 1450, para 87.

(iii) HOLOGRAPH WILL: ALBERTA COURT’S LATEST DECISION - BALWIN v VAN HOUT

By Fabiana Araujo Da Silva Kennedy


Balwin v Van Hout, 2024 ABKB 220 - https://canlii.ca/t/k432g

 

In a recent decision of the Court of King’s Bench of Alberta, Balwin v Van Hout, 2024 ABKB 220, the Honourable Justice R. W. Armstrong discussed the three conditions to validate a holograph will.


Background


Arla Baldwin (the “Deceased”) died on January 21, 2021. She left two notebooks containing handwritten instructions regarding her estate: one was written in 2016 (“2016 Document”) and the other in 2020 (“2020 Document”)[1], together the “Documents”.


The Deceased was predeceased by her daughter, Collen Buchinski (“Collen”), and survived by her four children Claire Van Hout (“Claire”), the Respondent in this matter, Aaron Baldwin (“Aaron”), the Applicant in this matter, Robin Baldwin (“Robin”) and Allan Baldwin (“Allan”). Jessica and Stephen Buchinski (“Jessica” and “ Stephen”) are the children of Collen. They are all named beneficiaries in the documents. Claire and Aaron are the personal representatives of the estate.


A dispute arose over the interpretation of the 2016 and 2020 testamentary documents. The parties did not agree on whether the 2016 document was the Deceased’s last will and testament, or whether the 2020 document was the last will and testament or whether together, the 2016 and 2020 documents comprised the Deceased’s last will and testament[2].


More specifically, the dispute focused on whether the Deceased intended to give Aaron an option to purchase three sections of land owned by the Deceased. Aaron’s position was that the documents were valid holographic wills that did grant him an option to purchase the lands in question for a price he had previously offered to the Deceased. On the other hand, Claire’s position was that the documents were not valid holographic wills since they did not comply with the legislative requirements for a valid will. According to Claire, the Deceased’s estate should be distributed as though the Deceased died intestate[3].


Law


Requirements of a valid will


Section 14 of the Wills and Succession Act, SA 2010, c W-12.2 (the “WSA”) sets out the requirements of a valid will. To be valid, a will must be in writing, it must be signed by the testator so that it is apparent on the face of the document that the testator intended to give effect to the document as the testator’s will and it must be made in accordance with sections 1516 or 17 of the WSA.


Formal will


Section 15 of the WSA provides for a will to be signed by the testator in the presence of two witnesses who are both present at the same time who each also sign the will in the presence of the testator.


Holograph will


Section 16 of the WSA explicitly permits the creation of a Will that is entirely handwritten by the testator and exclusively signed by the testator, without the necessity of witnesses or other formalities.


Issues


The issues for determination were:


  1. Were the 2016 and 2020 Documents prepared by the Deceased valid wills? If they were both valid wills, did the 2020 will revoke the 2016 will?
  2. If the 2016 Document was a valid will, did it give Aaron Baldwin an option to purchase three sections of land or a right of first refusal with respect to those lands?
  3. Were Claire and Robin each the beneficiary of a subdivided parcel of ten-acres of land?
  4. What was the Deceased’s testamentary intent with regard to two leases on her lands?


1.  The 2016 Document

 

The 2016 Document was written in a red Hilroy exercise book. On the cover, the Deceased had written: “Last Will and Testament of Arla K. Baldwin”. It was written entirely in the handwriting of the Deceased and signed in the presence of two witnesses. The 2016 Document was dated November 15, 2016[4].


The Court considered the requirements of a valid will set out in the WSA and found that the 2016 Document met all the formal requirements of a valid will.


2.  The 2020 Document

 

The 2020 Document was written in a red Hilroy steno book. On the cover were the names of the Deceased’s four children: Robin, Aaron, Clair and Allan[5]. It consisted of several entries over 20 pages which most of them were in the handwriting of the Deceased.


The Court analyzed the 2020 Document to determine if it was a formal will pursuant to s. 15 of the WSA. Firstly, the Deceased did not refer to it as her last will and testament[6]. Secondly, the 2020 Document did not expressly revoke all former wills and testamentary dispositions[7].


Thirdly, the 2020 Document did not name a personal representative[8]. Fourthly, the 2020 Document did not dispose of all the Deceased’s property. There were no residual beneficiaries named[9]. Fifth, the 2020 Document referred to the 2016 Document as the Deceased’s Will[10].


As a result, the Court concluded that the 2020 Document did not meet the requirements of a formal will and that, the 2020 Document did not meet the requirements to be a valid holograph will.


The Court clarified that it is possible to find a valid holographic will within a larger document that is not necessarily, when considered as a whole, a valid testamentary document[11]. Three conditions must be met before a handwritten portion of a larger document may be admitted for probate as a valid holographic will.


There were two portions of the 2020 Document that the Court concluded met the test to establish a valid holographic will.


The First was where the Deceased stated, in part, signed and dated the entry:


“Robin, Aaron, Allen, Claire

I give ten acres to Claire from the old gas well to the east. Please help her sub divide this. Cost of survey coming out of money in Bank. This is on quarter with old gas well.”


The Court was satisfied that the gift of ten acres of land to Claire did not conflict with any of the provisions of the 2016 last will and testament and could be read harmoniously with that document, therefore was a valid testamentary gift, subject to the ability of the designated land to be subdivided[12].


The Second was a dispositive intent with respect to a gift of ten acres of land to Robin. The pages were signed by the Deceased and dated June 3, 2020. There was a clear intent demonstrated in the plain words of the entries to gift a ten-acre parcel of land, adjoining Robin’s acreage, to Robin.

The Court was satisfied that the gift of ten acres of land to Robin was a valid testamentary gift, subject to the ability of the designated land to be subdivided.


There were other portions of the 2020 document that used dispositive language that did not, however, constitute valid testamentary dispositions. The Deceased’s handwritten entry of August 5 and the offer to purchase typed by Aaron did not result in a valid testamentary document. The reference in the 2020 document to land being sold to Aaron Baldwin for the amount that he offered to purchase the land for had no testamentary effect. The words were at best precatory, but they were not binding on the Estate’s representatives[13].


3.  Does the 2016 Document Grant a Right of First Refusal or an Option to Purchase Land

 

Having the Court determined that the 2016 Document was a valid will, the nature of the interest in farmland given to Aaron had to be ascertained. The Court concluded that the testator’s intentions with respect to the three identified pieces of land to Aaron at fair market value were not ambiguous[14].


In addition, there was a consistent intention expressed by the Deceased in her 2016 last will and testament that the land she owned remained in the family[15]. That was consistent with her granting an option to purchase land to Aaron.


4.  The Leases on the Land

 

There were two leases on the Deceased’s lands: Canadian Natural Resources Limited (CNRL) leave of 5 years with an annual income of $3,500.00. and with Rogers Communications Inc. (Rogers) a lease until the year 2054 with an annual income of $9,800.00.


The Court determined that given the clarity of the Deceased’s intention with respect to the Rogers lease and the CNRL lease to be divided equally amongst her children, with Collen’s share to be divided between Jessica and Stephen, it was incumbent on the estate to attempt to carry out those wishes by seeking the appropriate assignments of the leases[16].


Concluding Comments


As a result, the Court determined that the 2016 Document was a valid testamentary document. That document plus the two testamentary entries in the 2020 handwritten document bequeathing ten-acre parcels of land to Robin and Claire, comprise the Deceased’s last will and testament[17].

Holographic Wills are recognized in Canada except in the Provinces of Prince Edward Island and British Colombia. Holographic wills can potentially lead to claims of intestacy or legal challenges from family members and/or other beneficiaries. It is important to understand that there are risks associated with choosing to plan in this manner.


---

[1] Baldwin v Van Hout, 2024 ABKB 220 (CanLII) para 1

[2] Ibid para 3

[3] Ibid para 4

[4] Ibid para 6

[5] Ibid para 16

[6] Ibid para 21

[7] Ibid para 22

[8] Ibid para 23

[9] Ibid para 24

[10] Ibid para 25

[11] Ibid para 28

[12] Ibid para 31

[13] Ibid para 45

[14] Ibid para 62

[15] Ibid para 64

[16] Ibid para 73

[17] Ibid para 74

(iv) ONTARIO COURT RECTIFIES A WILL WITNESSED BY A SINGLE BENEFICIARY WHO DID NOT ATTEST THE DOCUMENT

By Evan Pernica



O’Neill Estate, 2024 ONSC 2228 (CanLII)      

 

In the recent decision of Re: O’Neill Estate[1], the Ontario Superior Court validated and enforced a last will & testament (the “Will”) under sections 21.1 and 12(3) of the Succession Law Reform Act[2] (“SLRA”) despite the Will being witnessed by a single beneficiary who did not attest the Will but did provide oral evidence relating to the execution.


Background


The deceased prepared her Will only two months before her death. The Will was later signed by two witnesses who were not present for the execution and did not attest at the same time that the Testator signed. 


Accordingly, the Will failed to comply with the formalities of s.4(2) of the SLRA[3] that require a will to be executed in the presence of two attesting witnesses who subscribe the will in the testator’s presence at the same time.


In response, the deceased’s brother, a beneficiary under the Will, brought an application to validate the Will under s.21.1 of the SLRA[4] on the basis of affidavit evidence that he witnessed the deceased execute the impugned Will.


Issue #1 - Validating the Will Under s.21.1 of the SLRA


S.21.1 of the SLRA empowers the court to order that a testamentary document or writing is a valid last will & testament despite failing to comply with formal requirements of execution where the court is satisfied that the document sets out the testamentary intentions of a deceased.[5]


Relying on the brother’s uncorroborated and uncontested evidence, the court accepted that the brother had witnessed the deceased execute the Will but avoided attesting his signature because of his conflicting status as a beneficiary.


Issue #2 – The Effects of a Beneficiary Acting as a Witness under s.12 of the SLRA


In accepting the brother’s evidence that the Deceased executed the Will, the further issue arose that any bequest or disposition to a witness is presumptively void under s.12(1) of the SLRA.[6]


This issue was then disposed of by the court under s.12(3) of the SLRA[7] which authorizes the upholding of bequests to a witness where the court is satisfied that no undue influence was exerted on the testator.


Concluding Comments



As a result, the court validated the Will under s.21.1 by relying on the brother’s uncontested evidence relating to execution, and upheld the disposition provided to the brother under the exception provided by s.12(3) of the SLRA despite his status as the only witness.


---

[1] Re: O’Neill Estate, 2024 ONSC 2228.

[2] Succession Law Reform Act, RSO 1990, c S.26.

[3] Ibid at s.4(2).

[4] Ibid at s.21.1.

[5] Ibid; Re: O’Neill Estate, 2024 ONSC 2228, at para 2.

[6] Succession Law Reform Act, RSO 1990, c S.26, s 12(1).

[7] Succession Law Reform Act, RSO 1990, c S.26, s 12(3).

(v) HEROLD ESTATE v. CURVE LAKE FIRST NATION: COST CONSEQUENCES FOR ESTATE TRUSTEE SELF-DEALING WITH ESTATE PROPERTY   

By Oliver O'Brien


In the recent decision of Herold Estate v. Curve Lake First Nation,[1] (“Herold Estate”) the Ontario Court of Appeal found an estate trustee personally liable for the costs of an application due to his self-dealing with estate property.

 

Background

 

Herold Estate follows the decisions of the Ontario Court of Appeal in Estate of William Albin Herold, deceased v. Attorney General of Canada, et. al.[2]

 

The Estate of William Albin Herold (the “Estate”) commenced an application asserting that it owned three islands in the Trent-Severn Waterway. The appointed Estate Trustee of the Estate was Jeffrey Herold (“Mr. Herold”). A dispute arose between the Estate and the Curve Lake First Nation (the “First Nations”). The Estate was the owner of property neighbouring the islands (“Lot 35”), and its position was that the islands were intended to be an extension of this property when it was conveyed by the Crown in 1868. The First Nations did not dispute ownership of Lot 35, but that it did not include ownership of the three islands. The Estate succeeded in the Ontario Superior Court, and the First Nations appealed.

 

At the Ontario Court of Appeal, the court found in favour of the First Nations, finding that neither the Estate’s predecessor in title as part of the 1868 conveyance, nor, the Estate had acquired ownership of the islands. Accordingly, the Court of Appeal issued a costs order against the Estate in the amount of $190,000 (the “Costs Decision”).

 

Unbeknownst to the court and the First Nations, at the time the original application was commenced, Mr. Herold had transferred title to Lot 35 from the Estate to himself in his capacity as Estate Trustee. The transfer occurred more than four years before the litigation was decided and the ownership of Lot 35 was never disclosed by the Estate during the litigation.

 

Decision

 

Following the Costs Decision, the Estate was without the means to pay the First Nations. As such, they sought an order to vary Costs Decision such that Mr. Herold be jointly and severally liable to pay the cost award against the Estate. This was granted, with the Court of Appeal stating that:

 

It would be contrary to the interests of justice to allow Mr. Herold to use the principle of finality to escape the costs consequences of the litigation because he carried it on in the name of the Estate, of which he was the sole representative, without disclosing the transfer of ownership that meant he personally was the real litigant. This unusual circumstance warrants a departure from the principle of finality.[3]


The Court of Appeal found that Mr. Herold could not avoid personal cost exposure because he litigated in the name of the Estate. While he was not personally named as a party, he alone commenced and litigated the application, even after the transfer of Lot 35.


Courts have statutory jurisdiction to determine “by whom” the “costs of and incidental to a proceeding” shall be paid under s. 131(1) of the Courts of Justice Act.[4] This includes jurisdiction to order a non-party to pay costs, provided that the “person of straw” test is met. This test is satisfied when:


  1. the non-party had status to bring the action;
  2. the named party was not the true litigant; and
  3. the named party was a “person of straw” put forward to protect the true litigant from liability for costs.[5]


The Court of Appeal found each of these elements present in this matter. First, Mr. Herold had status to bring the action, and was required to continue it given his ownership of Lot 35. Second, the named party, the Estate, was not the true litigant following the transfer and third, the Estate was put forward to fight the litigation to protect Mr. Herold from cost liabilities.


Concluding Comments


The Court of Appeal granted the First Nations’ appeal and varied the Costs Decision such that their costs be payable by the Estate and Mr. Herold, jointly and severally. It stated that Given Mr. Herold’s close connection to the Estate, the litigation and the transfer, “it would be unjust for him to be free of the cost consequences of the litigation”.[6]



This case provides a reminder that an estate trustee should not transfer or otherwise deal with estate property that is the subject of a dispute while litigation is ongoing. Moreover, an estate trustee may be exposed to personal cost consequences when it commences and continues litigation on behalf of an estate to avoid personal cost liabilities. When it does occur, the court does take this lightly and as this case demonstrates, is prepared to make cost orders against the infringing estate trustee personally.


---

[1] Herold Estate v. Curve Lake First Nation, 2024 ONCA 299

[2] Estate of William Albin Herold, deceased v. Attorney General of Canada, et. al., 2021 ONCA 883.

[3] Supra note 1, at para 7.

[4] Courts of Justice Act, R.S.O. 1990, c. C.43

[5] 1318847 Ontario Ltd. v. Laval Tool & Mould Ltd., 2017 ONCA 184, 134 O.R. (3d) 641, at paras. 22-23, 59.

[6] Supra note 1, at para 30.

(vi) THE ONUS OF DISCHARGING A CERTIFICATE OF PENDING LITIGATION AND MOTION TO DISMISS FOR DELAY: ESTATE OF ANGELA SEBANC v. PETER SEBANC  

By Gabriella Banhara


Estate of Angela Sebanc v. Peter Sebanc - https://canlii.ca/t/k4hxk


In the decision of Estate of Angela Sebanc v. Peter Sebanc[1], the Deceased’s child, Peter and his wife (the “Defendants”) moved for an order dismissing the action for delay and discharging a certificate of pending litigation (“CPL”).[2] The Deceased’s other child, Victor (the “Respondent”) was the executor of the Deceased’s estate.


What is a Certificate of Pending Litigation


A CPL is a “court-imposed notice that is registered on title and provides notice to the public that a property is subject to a legal dispute”.[3] This notice puts a hold on any transactions or dealings with the property until the certificate is discharged. 


Please find Oliver O’Brien’s article “What is a Certificate of Pending Litigation” for more information on this litigation tool.


Facts


The Deceased was the mother of the Respondent and the Defendant. In April, 30 2018, the Defendant sought an accounting of the Deceased’s estate, and a declaration that the Deceased’s primary residence (the “property”) reverted “by reason of a resulting or constructive trust” to her estate.[4] Additionally, the Defendant was looking for “damages by reason of misappropriation of assets belonging to the [Deceased] or her estate.”[5] A CPL was issued on the property in June of 19, 2028.


The court outlined a multitude of reasons why litigation was delayed. This included Covid-19 pandemic delays, the party’s inability to settle at mediation, “maternity leaves in the office of the lawyers for the Plaintiff”, the party’s failure to respond to scheduling demands, and the fact that discovery was not rescheduled for 8 months.[6]


Motion to Dismiss for Delay


The Defendants brought their motion to dismiss for delay under Rule 24.01. The relevant parts of this rule are outlined as the following:


24.01 (1) A defendant who is not in default under these rules or an order of the court may move to have an action dismissed for delay where the plaintiff has failed,

(a) to serve the statement of claim on all the defendants within the  prescribed time;

(b) to have noted in default any defendant who has failed to deliver a statement of defence, within thirty days after the default;

(c) to set the action down for trial within six months after the close of pleadings; or

(2) The court shall, subject to subrule 24.02 (2), dismiss an action for delay if either of the circumstances described in paragraphs 1 and 2 of subrule 48.14 (1) applies to the action, unless the plaintiff demonstrates that dismissal of the action would be unjust. O. Reg. 259/14, s. 6.


Alongside the rules, the court discussed the writings of authors, Perell and Morden, The Law of Civil Procedure in Ontario (the “text”) which stated that the courts employ a restrictive approach to dismissing an action without a hearing, and the following must be demonstrated:[7]


(a) be shown to have been intentional and contumelious; or (b) inexcusable and prejudicial to the defendant’s right to have a fair trial of the action. For the delay to be intentional and contumelious, the plaintiff must have deliberately contravened a peremptory order of the court. Where the delay is not contumelious, the party moving for dismissal must show that: (a) the delay was inordinate or unreasonable; (b) the delay was inexcusable; and (c) the delay would give rise to a substantial risk that a fair trial of the issues in the litigation would not be possible.[8]


The text went on to state that “prejudice” is described as when a party fails “to prosecute an action in a timely way and offers no satisfactory explanation for the delay”.[9]


The court dismissed the Defendants motion to dismiss the action for delay on the basis that the Defendants did not sufficiently prove that that such order was warranted. The court stated that although the plaintiffs could have been proceeded more efficiently, the plaintiff’s delay was not “intentional or contumelious”.[10] Additionally, the court compared the Defendant’s own contributions to the litigations delay to support the assertion that the plaintiff’s delays were not unreasonable. [11]

 

CPL


The motion to discharge the CPL was brought under s. 103 (6)(a)(iii) of the Courts of Justice Act which states:


(6) The court may make an order discharging a certificate,

(a) where the party at whose instance it was issued,

...

(iii) does not prosecute the proceeding with reasonable diligence;


The court dismissed this motion on the same basis as the motion to dismiss for delay. The court asserted once again that the Defendants did not discharge their onus to "prove that the Plaintiff did not prosecute the proceeding with reasonable diligence”.[12]


Estate of Angela Sebanc v. Peter Sebanc provides insight into the high onus that must be demonstrated by a party to discharge a CPL and a motion to dismiss for delay.


---

[1] Estate of Angela Sebanc v. Peter Sebanc, 2024 ONSC 2652 (CanLII)

[2] Ibid at para 1.

[3] Oliver O’Brien, “What is a Certificate of Pending Litigation and how does it work?” at https://welpartners.com/blog/2023/11/what-is-a-certificate-of-pending-litigation-and-how-does-it-work/

[4] Ibid at para 5.

[5] Ibid at para 4.

[6] Ibid at para 17.

[7] Ibid at para 26.

[8] Ibid at para 26.

[9] Ibid at para 26.

[10] Ibid at para 30.

[11] Ibid at para 30.

[12] Ibid at para 33.

V. UPCOMING PROGRAMS

OBA Elder Law Day, Serving the Baby Boomer Generation: Your Aging Client Base

June 20, 2024 

Speaker: Kimberly Whaley

https://www.cbapd.org/details_en.aspx?id=ON_ON24ELD05C


ACFI Conference – Association of Certified Forensic Investigators of Canada 

September 9-10, 2024, ACFI Fraud Conference

Fraud & Scams in Wills, Estates and POA’s 

Speakers: Kimberly Whaley and Bryan Gilmartin 

https://www.acficonference.ca/spring 

VI. WEL FEATURE SERIES

Check out our recent Feature Series which are posted on our Blog:


1 WEL PARTNERS - SENIORS’ SERIES


2 WEL PARTNERS ON POWERS OF ATTORNEY: POA Weekly


3 WEL PARTNERS ON GUARDIANSHIP: Guardianship Weekly


4 WEL PARTNERS – DIGITIZING THE BUSINESS OF WILLS


5 WEL PARTNERS – ELDER LAW SERIES


6 WEL PARTNERS ON SOLICITOR'S NEGLIGENCE


7 WEL ON THE STREET by Daniel Paperny


8 WHAT REMAINS by Bryan Gilmartin


9 USING ENGLISH PROPERLY by Albert H. Oosterhoff


10 WEL ON CHARITIES SERIES by Oliver O'Brien

VII. IN CASE YOU MISSED IT - RECENT BLOG POSTS

Automatic Vesting of Real Property


Toronto Life: The Professor, The Caregiver and the Missing $30 Million


Partition or Sale of Land in Ontario


Pets and Estates: The Recent Decision of Carvalho v. Verma


The Distinction Between a Void and Voidable Marriage in Hong Kong


Breach of Fiduciary Duty by Executor


Rectification of Instrument that Did Not Accurately Reflect Parties’ Agreement


Partition and Sale: Key Principles and Terms to be Incorporated by Court Order


Reardon v. Reardon: Can an Estate Trustee Claim Solicitor & Client Privilege Against a Beneficiary Over Estate Documents?

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WEL NEWSLETTER May 2024, Vol. 14, No. 2