Capacity Litigation - Hull on Estates #201
Listen to: Capacity Litigation - Hull on Estates #201
This week on Hull on Estates, Sharon Davis and Chris Graham discuss some recent capacity litigation cases.
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Capacity Litigation - Hull on Estates- Episode #201
Chris Graham: Hello and welcome to Hull on Estates. You’re listening to episode #201 for Tuesday, March 9, 2010.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of
Sharon Davis: Hi and welcome to another episode of Hull on Estates. I’m Sharon Davis.
Chris Graham: And I’m Chris Graham.
Sharon Davis: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. E-mail us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.
Hi Chris, how you doing today?
Chris Graham: Oh I’m absolutely fabulous. How are you Sharon?
Sharon Davis: I’m great, thanks. And you know, little bit of reading lately. We have got a couple of good cases that we can talk about today and like to share with our audience. The first case that we’d like to talk about is Abrams and Abrams and I’m just wondering, I would imagine that a lot of the Estate Bar has already heard about Abrams by now. It was in the Globe last week. And it’s a recent Case Management endorsement by Justice Brown. Another capacity litigation case in which siblings attempt to litigate their rivalry and disagreements, really at the expense of the best interests of a parent.
Chris Graham: Yeah, and as is typical with a lot of contested guardianship applications, the litigants brought a lot of family history into the litigation with them. Why don’t you tell us a little about the facts, Sharon, before we get to the issues and the resolution?
Sharon Davis: I will indeed. And , you know, it’s very true. I think it’s taking that past history and dynamic into the Courtroom in a place that it doesn’t really belong. In this case, we had 87 year old Ida and 92 year old Phillip and they had three children and their names were Steven, Elizabeth and Judith. The family actually got along reasonably well until 2005 when they had a major dispute about what the parents should actually leave to their children. The pleadings indicate that the fall-out saw Steven and his sister, Elizabeth, estranged from their parents and their sister Judith.
So Steven was the applicant in this case and really all the parties agreed that Ida was incapable. In 2007 she executed a Continuing Power of Attorney for Property and Personal Care naming Phillip, her husband, as attorney with Judith as an alternate. She had subsequently signed a number of other Powers of Attorney but on January 29th, 2008, Steven commenced the application under the Substitute Decisions Act, basically seeking declarations that his mother was incapable in respect of property and personal care and he wanted to be appointed as her guardian. Well Phillip and Judith were respondents, of course and numerous ancillary Orders were also requested asking for, you know, the usual production of documents, financial information and that kind of thing.
The litigation went on for 2 years and there were no less than 24 endorsements in that period of time. That’s a lot of litigation.
Chris Graham: Yeah, so you can imagine that for whatever reason there was simply a parade back and forth to Court to litigate matters, obtain Orders and finally what happened?
Sharon Davis: Well what happened was, in a strongly worded endorsement, the Court really made the point that such behaviour in litigation by litigants and their counsel actually won’t be tolerated. I mean, that’s an average of being in Court once a month during the whole course of the litigation. Basically what comes out of this case is the fact that you really do have to work with the other side. I mean, a constant parade into Court is in no one’s best interests.
Chris Graham: Exactly.
Sharon Davis: Least of all…
Chris Graham: And there was one specific point on working together with the other parties which related to scheduling matters. Apparently there had been some difficulty in scheduling matters at mutually convenient times and the decision severely criticized…he was very critical of the failure of the parties’ solicitors to take control of this aspect. Can you speak a little more to that?
Sharon Davis: Yeah, well in fact, I guess, no one was really getting along. And the Court was really speaking not only to the litigants but also to the lawyers who were acting for them and the point was, I mean, you have to get together and you have to agree on the time tables and to move the litigation along in a more, you know, expeditious manner. And if you don’t do that, you know, it’s your responsibility also as a lawyer. It’s not just the client’s responsibility.
Chris Graham: Exactly and there’s the additional risk here of the decision pointing out that if this was not done, the solicitors might pay costs personally. So no doubt about it, the implication here is that the lawyer’s job is to take the air out of the proceeding and make sure that non-contentious matters such as scheduling are dealt with, working together with the other party or perhaps are dealt with in a way that the record reflects you working together with the other party…
Sharon Davis: That’s right.
Chris Graham: If it just isn’t possible.
Sharon Davis: Yeah, I mean, you know there are times when it really is, for some reason or another, impossible but not through 24 full months of litigation. I mean, I think counsel working together on any case, it’s something that unfortunately, you know, if you take things to the extreme, you know you can find yourself in a difficult situation so just a lesson really out there for the lawyers too.
Chris Graham: Yeah and there’s another important practice point in this case and that has to do with the nature of guardianships and how they should be litigated themselves. Can we speak a little to that one please, Sharon?
Sharon Davis: Well I mean guardianships…really the whole point of a guardianship and the Court’s only concern is the best interest of the person who’s incapable. And everything is going to be viewed in that light. And so really, if you’re dealing with property of an incapable person you can’t take forever to deal with it. The property is going to deteriorate, it’s gonna be basically to the detriment of the person whose interest the Court is trying to protect.
Chris Graham: Exactly and if there’s delay and fighting and endless series of motions, and many of which may be justified in certain circumstances, but if it drags on, the Court is going to look at the applicant and say, you know, you’re the one who brought this application, applicant. You’re the one who’s looking for a declaration that this person is incapable, you can only do that because you think they are incapable. And if they are incapable of managing their own property, how has this dragged on for two years? Not that I’m speaking to this particular case, the facts in this case. I’m sure there’s a long history but that’s what the Court said that applies to guardianships generally. If you bring a guardianship case, you have to bring it because you think there’s an incapable person. And if there’s an incapable person, they need…their property needs to be managed and it needs to be managed sooner rather than later. So these cases should not be allowed to drag on to the extent counsel can prevent that from happening.
Sharon Davis: That’s right. And you know it just goes toward…we see a lot of this in the Courts these days too. There was a recent costs decision too in Fiacco and Lombardi and there Justice Brown says, you know they’re not going to let siblings fund their sibling rivalry in the Courts at the expense of the parent anymore and this is just really sort of more along the same lines and so capacity litigation can tend to get quite contentious and really it’s all at the expense of the incapable person.
Chris Graham: Exactly. And that’s almost the flip side of the same practice point. If you’re in this type of contentious litigation, either you’re taking the air out of things and moving them along or you want to be seen as, you know, if that’s just impossible you want to be seen as trying to do that as much as possible, in order to avoid not only prejudice to your client but personal prejudice…potential prejudice to yourself. I guess we should probably move on to the second case. I could talk about that one all day, it’s a fascinating area for me and I think it is for you too.
Sharon Davis: Yeah, absolutely. I guess the second case, New Solutions Extrusion Corp. v. Gauthier.
Chris Graham: Yeah that’s an interesting case. It’s a general practice case under the new Rule 20 with the amendments to the summary judgment provisions. So it’s New Solutions Extrusion Corp. and Gauthier. And you can get that on CanLii, it’s a 2000 case of the Superior Court obviously. And it’s one of the first cases applying the new Rule 20 in a great way. And I say great way not because it matters to me who won and who lost but the Court really seems to have given teeth to the Rule 20 amendments which was what was intended all along, of course. The judge…the story is interesting. The plaintiff had bought a machine and taken possession of the machine and set it up on the plaintiff’s premises but a contract dispute arose and ultimately the defendant instructed its solicitor to repossess the machine so the solicitor got a sheriff to go onto the property and disable the machine which is something you do under the PPSA if you have a security interest. There are all kinds of remedies. So the defendant…this outraged the defendant…sorry the plaintiff and the plaintiff sued everybody involved including the solicitors. And the claim against the solicitors was grounded in conspiracy among other things. And the defendant’s solicitors being sued wanted to get out and brought a motion under Rule 20.
Sharon Davis: Yeah and Rule 20, the new summary judgment, it’s one of the more significant changes in the new Rules and certainly we’re all gonna be watching that to see what happens. And you know Rule 20, the differences now are what the Court can do when a summary judgment application comes before them. And it used to be that there was really no deciding on the merits. And I think that now that they’ve got the power to look a little further into the facts and decide on some of the merits, certainly will mean much more expeditious dealing with a lot of litigation that comes up.
Chris Graham: Exactly. The Court said…and this is key…the Court granted the motion and dismissed the claim as against the solicitors. And this is what the judges says: “the change in the Rules from no genuine issue for trial to no genuine issue requiring a trial, together with the explicit powers of the motion judge to make evidentiary determinations, permits a more meaningful, analytical review of the paper record and expressly overrules jurisprudence that restricted motions judges from making evidentiary determinations.” And then the Court goes on to say: “the test for summary judgment has not changed, however the cases that restricted a motions judge in assessing credibility, weighing evidence and drawing factual inferences have been superseded by the powers set out in the new Rule.”
So the bottom line here is that this change…the changes in the Rule wipe out the old case law that really, I guess there was a feeling in the Bar that the old case law really did tie the hands of judges and everybody was afraid to bring motions under Rule 20 in all but the most absolutely opened and closed slam-dunk cases if such a thing exists.
Sharon Davis: That’s right. Well now, of course, that’s not the case at all and, you know, the new body of case law has been started up with this new case. We’ll see how it gets applied in the Courts.
Chris Graham: Yeah it’s great. This is a great Rule. Based on this case, Rule 20 is now something that we are going to have to take seriously in a lot of cases. You know the old…not to say frivolous but you know the kind of shake down cases, for instance. Of course this is only one case and we’re gonna have to watch carefully to see how the jurisprudence applies this Rule.
Sharon Davis: And we’ll be here reporting to you as soon as they come out. I think that probably about clues up our episode for today.
Chris Graham: It does indeed clue up our episode for today. Thanks for listening and thanks for joining me today, Sharon.
Sharon Davis: It was a pleasure. I look forward to podcasting with you again soon.
Chris Graham: And we look forward to hearing from our listeners. You can send us an e-mail at hull.lawyers@gmail.com. Be sure to visit our blog which is absolutely excellent at estatelaw.hullandhull.com where you’ll find more information and discussion on today’s practice of Estate law and a lot more on the topics we were just talking about. We hope that you enjoyed the show. I’m Chris Graham.
Sharon Davis: And I’m Sharon Davis. Till next week, so long.
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