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I recently attended the production of ‘Rent’ at the Lower Ossington Theatre.  The musical has been a favourite of mine for years.  I know the words to almost all of the songs, albeit if I have to sing them, it is fairly off key.  One of the songs in the musical (which gained some popularity at the time the musical was originally on Broadway in 1996) is called Seasons of Love.  It contemplates how you measure someone’s life and posits, "is it…

in daylights, in sunsets, in midnights,
in cups of coffee? 
In inches, in miles, in laughter, in strife?

In five hundred twenty-five thousand
six hundred minutes
How do you measure
A year in the life?

How about Love?..."

This song has always made me think, and since delving into the world of estate litigation, even more so.  As part of our jobs, we routinely focus on specific facts.  When was he born? When did he marry? When were his children born?  When did he make a Will?  How long did he spend in hospital?  When did he die?  These can all be placed neatly into a chart, that gets turned into a report, that gets turned into an affidavit, that gets turned into a factum, that gets turned into oral argument.  All based on pure facts.  Yet, I saw this photo yesterday and I was reminded again of the lyrics recited above. 

We are so often focused on the tidbits of information that make up a legal argument, that we can forget that the facts are parts of someone’s life.  If you knew your life was going to be measured, how would you want that story told?  Would it change how you spend the next 525,600 minutes?

Something to think about,

Nadia M. Harasymowycz 

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About 90,000 people die in Ontario every year. Of those, about 16,000 are reported to the Coroner’s Office (or roughly 17%). According to the Office of the Chief Coroner Report for 2009-2011, in 2010, there were 16,415 coroner’s investigations. 

Many people do not want to be autopsied – whether it is because of religious beliefs or other personal wishes. However, in Ontario the range of cases which are supposed to be reported to the Coroner are quite broad.

Under the s. 10 of the Coroner’s Act, anyone who is aware that person died of the following causes is required to report that death to the Coroner’s Office:

 (i) violence,

(ii) misadventure,

(iii) negligence,

(iv) misconduct, or

(v) malpractice;

(b) by unfair means;

(c) during pregnancy or following pregnancy in circumstances that might  reasonably be attributable thereto;

(d) suddenly and unexpectedly;

(e) from disease or sickness for which he or she was not treated by a legally qualified medical practitioner;

(f) from any cause other than disease; or

(g) under such circumstances as may require investigation.

In addition, there are a number of other situations where autopsies are actually prescribed by legislation – including when a woman dies as a result of pregnancy or childbirth, when a person dies while in custody, if a person dies in hospital and a medical mistake is suspected, or when an employee dies on the job as a result of a workplace accident. 

Once a death is reported, the coroner will then decide, usually by phone, whether to attend at the scene in order to look at the body and determine if an autopsy should be performed. 

The Ontario Coroner’s Code of Ethics does provide that consideration should be given to the beliefs or religious views of the deceased, but ultimately it is always up to the Coroner to make the call:

Coroners in the exercise of their duties, shall respect the beliefs and/or religious views of the deceased, and where an investigation is for reason only that the deceased person has not had medical attendance prior to the hour of death, shall recognize that the exercise of this free choice is not in itself reason for further investigation or autopsy, unless there is evidence of other conditions stipulated in section 10 of the Coroners Act, 1990.

In California, the State of California Government Code Section 27491.43 goes further and provides that unless foul-play or a contagious disease are suspected as the cause of death, if a person has prepared a “certificate of religious beliefs” stating that they oppose autopsies – which must be signed by the Deceased and witnessed by two people – the Coroner shall not perform the autopsy.  

In Ontario it is always a matter of balancing the public interest with the private wishes of the individual. Like California, in cases where foul-play or a contagious disease is suspected, it would be very unlikely that an autopsy could be avoided.   

For those who have an objection to being autopsied, the best advice is to make your wishes known to your next-of-kin. You might also consider preparing a document similar to the Certificate of Religious Beliefs, stating that you object to being autopsied. While there is no guarantee that it will be effective in preventing an autopsy, it may influence the Coroner in their exercise of discretion.

Thanks for Reading!

Moira Visoiu

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When a person dies, one of the first tasks that is often attended to is writing their obituary. The task of summarizing a person’s life in a few short words can often be a difficult and stressful job for those involved. When it comes to writing the obituaries for famous individuals, the difficulty involved can often be multiplied.

In a recent article published by the BBC, the author details the difficult balancing act that publications must do when writing obituaries for famous individuals. As the author points out, publications must on the one hand be respectful of the individual who died, while at the same time attempt to write an interesting story for the public.

At the center of the story is the recent controversy surrounding the obituary published by the New York Times for the prominent scientist Yvonne Brill. As the story points out, many people took issue with the paper beginning the obituary by writing “(s)he made a mean beef stroganoff, followed her husband from job to job and took eight years off from work to raise three children”, saying that the obituary undervalued Brill’s scientific work by placing so much emphasis on her domestic life. The controversy was enough for the paper to re-publish the obituary with a revised introduction.

Obituaries for famous individuals need not always be a serious affair however. When the UK’s largest freshwater fish, Benson (who was famously caught over 60 times), died in 2009, the Guardian published his obituary. The obituary summarizes the fish’s famous reputation, and finishes with the following encapsulation of a life well lived:

“Benson, carp, born 1984, died 2009. Leaves behind numerous widows, thousands of offspring and 60-odd lovelorn captors.”

Have a great weekend.

Stuart Clark 

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I recently came across an article on CNN, found here, which discussed how a painting, once thought to be painted by one of Rembrandt’s pupils, was found to be painted by the famed Dutch master himself.  As such, the painting is now worth more than $30 million dollars.

This article made me consider the implications, not only of the increased value such findings can create, but also the technique employed to ascertain who actually painted the picture.  The article notes that x-rays, an analysis of the techniques used, as well as circumstantial evidence, had all been employed to determine the painter.

According to s. 4(1)(a) of the Succession Law Reform Act, amongst other requirements, a Will is not valid unless, “at its end it is signed by the testator or by some other person in his or her presence and by his or her direction”.  Will challenges often arise on the basis that the testator’s signature is not their own.  In other words, individuals challenging a Will, claim that the testator’s signature was forged. 

When such a claim arises, handwriting experts can be retained to determine the validity of a testator’s signature.  Although it is commonly understood that the handwriting analyst uses subjective criteria, the fact is that technological advances, can be even more adept at determining the authenticity of a testator’s signature. 

Not to be confused with Vincent Van Gogh, this is not a crazy idea.  In fact, as discussed in one of our prior blogs dating back to 2010, discussion arose as to the use of this technology in the estates field.  It will be interesting to see how advances in this technology can assist with the pursuit of justice.

Noah Weisberg

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I was recently watching an episode of Jeopardy. I generally tune in for pure entertainment, with an added bonus of possibly learning. This time, I was shocked to see a professional angle as well. 

Prudential sponsored Jeopardy’s ‘Tournament of Champions’, and has created an online game that addresses financial issues largely related to retirement and life planning for an aging population. If you think you are a master at trivia, try your hand at the game here.  What I learned by playing this game is how many of the issues we see facing those planning for a longer or more satisfying retirement can lead to a greater estate and potentially more litigation.

It is no secret that as a society we are living longer. We are bombarded on a daily basis with advice to prepare for that inevitability. What did surprise me was the variety of issues that are presented in Prudential’s online game that can have an effect on estate planning. For instance, according to Prudential;

·         56% of workers have reported that neither they nor their spouse have calculated how much is needed for retirement;

·         33% of newborns born today are expected to live to 100;

·         The average American who lives to 100 will spend $3.5 million dollars over their lifetime;

·         74 million baby boomers are set to retire in the US alone over the next 20 years; and

·         Experts recommend saving enough for retirement, so that you can live to 100.

With so many considerations to take into account when planning for life, it may come as a shock that there is any money left for after death planning. Is it fair to expect that the more information available to us about retirement and estate planning, the better decisions we will make?  Or is too much information crippling?

Until Tomorrow,

Nadia M. Harasymowycz

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Receiving one last message from a loved one who has passed can provide comfort and closure.  People used to leave these last letters, video, or audio messages with a friend, family member, or estates lawyer. 

CNN reported recently that there are companies that enable you to send messages through social media tools after you die.  DeadSocial is a free service that has several options available to allow you to send out your final words.  You can send out one final message, or a series of messages on specific dates, such as an anniversary or a birthday.  It can also release unseen videos or audio messages.  For now, all DeadSocial messages that are released are public, but the company plans to provide an option for sending private messages.  As you would when you write a will, you must select an Executor.  The Executor advises the company when you have died, so your messages can start to be released. 

Another company, _LivesOn, is developing a service that tweets for you after you die.  The Twitter tool monitors your specific habits and syntax and replicates your style and voice.  The creator of the service is an advertising agency, called the Lean Mean Fighting Machine. 

To those who think that these uses for social media are strange, a partner at Lean Mean Fighting Machine has this to say:  “the afterlife is not a new idea, it’s been around for quite a long time with all the different versions of heaven and hell.  To me this isn’t any stranger than any of those.  In fact, it might be less strange.”

Holly LeValliant

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While looking through the news recently one story in particular caught my attention. As reported by the Telegraph, a pet tortoise was recently found alive in a locked store room in Brazil more than 30 years after going missing. According to the article, the owners of the tortoise had assumed that the tortoise had run away 30 years ago after the door was left open. It was only after their father died recently that the children began to clear out a room full of old electrical items that was always kept locked. While emptying out the room, the tortoise was found alive and well. It is believed that the tortoise stayed alive by eating termites found in the wooden floor.

But how, you ask, does this story in any way relate to estates? Is this not just an interesting story that you wanted to share? To this I would say, fair comment. Through the power of the hypothetical however this story can be related back to estates.

And here is the hypothetical: what if this tortoise had the same legal rights as a human being, was an Ontario tortoise, and was left a bequest 29 years ago under Grandma Tortoise’s will? Would these funds still be available for our tortoise to enjoy after all of these years?

Assuming that this tortoise’s loved ones had not gone through the process of declaring the tortoise dead in accordance with the Declarations of Death Act, and this was only ever a “missing tortoise”, a prudent Estate Trustee in administering Grandma Tortoise’s Estate would have paid the bequest left to the tortoise into court.

Rule 72 of the Rules of Civil Procedure is the rule that governs the payment of money into court. Luckily for our tortoise, had the Estate Trustee paid the bequest into court, these funds would likely have incurred interest for all of these years and our tortoise could be a rich tortoise.

Unfortunately for our tortoise, had the Estate Trustee not paid these funds into court, and Grandma Tortoise’s Estate no longer had any assets left to satisfy the bequest, our tortoise may be out of luck. It is arguable that as a result of the Limitations Act, 2002, and the 15 year ultimate limitation period established by s. 15(2), any claim that our tortoise may have had against the Estate Trustee for not paying the funds into court may now be statute barred.

Should this happen, our tortoise may have to get creative in their legal argument. Section 15(4)(a) of the Limitations Act, 2002 provides that the 15 year ultimate limitation period does not run against a person who is incapable to commence the proceeding as a result of their physical condition. Maybe our tortoise can equate being locked in a store room for 30 years with being physically unable to commence a claim.

Have a great weekend.

Stuart Clark 

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A recent article in The Washington Times, found here, discusses the use of an Autopen by President Obama to sign the most recent fiscal cliff bill while on vacation in Hawaii. 

According to the CBC, an Autopen is a desk-sized contraption that is capable of copying a person’s signature.  Used by MP’s, a piece of paper must be placed under the pen, a gas pedal must be stepped on, and the Autopen replicates the signature.  This is all done in the absence of the actual person signing the document.

According to s. 4(1) of the Succession Law Reform Act (“SLRA”), a will may not be valid unless: (a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction; (b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and (c) two or more of the attesting witnesses subscribe the will in the presence of the testator.

Thus, the question worth considering is whether an Autopen, or any similarly advanced piece of technology, could ever be used to meet the requirements under the SLRA?  One obvious deficiency is that the testator is clearly not present when signing the document, hence the whole purpose of the Autopen.  But what if camera’s were installed in the same room as the Autopen such that the testator was virtually present?  A bit far-fetched, I admit.  A second deficiency is that the testator does not actually sign the will, as technically that is done by the Autopen.  However, consider the following.

In Clarke Estate (Re) at issue was whether a paraplegic, using a stamp to sign his will, constituted the act of signing the will under the SLRA.  Justice D.M. Brown held that the paraplegic testator complied with the requirements under the SLRA.  Relying on Re Bradshaw Estate, [1988] N.B.J. No. 709 (P.C.), a decision based on the New Brunswick Wills Act, the applicable test applied was as follows: (i) were the markings on the will made by the testator, and (ii) were they intended as his signature and to represent the best that the testator could do by way of writing his name under his physical circumstances?

The circumstances surrounding the inability of the testator in Clarke Estate (Re) are significantly different than those of President Obama.  Clearly the law has to be able to accommodate the former situation.  However, it is interesting to consider in what further circumstances could the New Brunswick test be applied in Ontario.  Specifically, could the Autopen ever be used to represent the best that the testator could do by way of writing his name under his physical circumstances?

Noah Weisberg

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Yesterday, I read in the Toronto Star about a couple that resolved last year to make the year a year of “firsts”. They resolved to learn, make or experience 365 new things in 365 days. They blogged about their progress in knocking items off of their bucket list at http://www.365thingsin365days.com/. 

Inspired by their story, yesterday I went indoor rock climbing with my two teenaged sons at True North Climbing at Downsview Park. We had a blast, and were very proud of our achievements. We tried a new adventure that took us out of our comfort zone. We had a great time, got a little exercise, and bonded over what is a combination of a personal challenge, and a trust exercise. (Sort of like that exercise where you fall backwards, hoping to be caught by the group.    Only in this case, the fall is from 10 metres, with your young son at the bottom, controlling (or not) your fall.)

In our Hull and Hull blogs this year, we hope to do something like the couple reported on in the Star did. We want to expose our readers (and ourselves) to new things every day: new lessons to learn, new ways of looking at old issues, new cases, new approaches to difficult estates and trusts issues.

We value you feedback. Please comment on what you read, or what you would like to read. 

Please stay tuned. It is going to be a great year.

Until tomorrow,

Paul Trudelle

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On occasion, I am asked to act as a private arbitrator in the area of estates, trusts and capacity disputes through Hull Estate Mediation. Arbitration is similar to litigation in that it is an adversarial dispute resolution process overseen by a neutral third party. However, in arbitration, the trier of fact is the arbitrator instead of a judge. The parties also have a lot more control over the process and are granted the opportunity to choose who will arbitrate the dispute. For certain disputes, arbitration can be a preferred alternative to litigation and provide for efficient and timely resolutions.

In Ontario, arbitrations are regulated by the Arbitration Act (the “Act”). The Act provides a framework for the arbitration process, including the choosing of tribunals, the conduct of arbitrations, awards, terminations and remedies. The Act is somewhat unique, as it allows for the “contracting out” of almost all of its provisions though an arbitration agreement, defined as “an agreement by which two or more persons agree to submit to arbitration a dispute that has arisen or may arise between them.” These agreements are powerful and demand careful drafting, as they set out the provisions that bind the parties and the arbitrator.

Unless the arbitration agreement provides for a multi-member tribunal, the tribunal is made up of a single arbitrator. For multi-member tribunals, a chair is appointed whose decision is deferred to in the absence of a majority decision.

One of the most appealing aspects of arbitration is the freedom to pick and choose the appropriate procedures and protocols. Subject to some exceptions laid out in the act, the parties have the opportunity to decide on the format of the arbitration themselves. As arbitration allows for the formality of the court process to be avoided, it is often a more cost-effective and less time consuming endeavor than litigation.

The arbitrator or multi-member tribunal has the authority to make interim orders and deliver a final decision. The Act makes arbitration decisions (called “awards”) legally enforceable and subject to a limited right of appeal, which can be contracted out of as well.

Arbitration is also a more private process than litigation. Court proceedings and judicial decisions are generally open to the public while arbitration agreements often contain provisions that allow for the proceedings and award to remain confidential.

Thanks for reading.

Ian M. Hull

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Planning and preparation are constant refrains in the world of estate law. I often find myself preaching the importance of having well-drafted and up to date testamentary documents as a means of avoiding the expensive and stressful litigation process that can arise from inadequate planning. I recently watched a television program, however, that leads me to believe that there is such a thing as too much planning: National Geographic Channel’s Doomsday Preppers.

The show focuses on the efforts of members of the “prepper” movement: those who are dedicated to preparing for the end of civilization. Each person showcased believes in some form of impending apocalypse brought on by economic collapse, terrorist attack, or natural disaster. In order to ensure survival in the post-apocalyptic world, they obsessively stockpile supplies, train themselves and their families, and build incredibly elaborate shelters.

While the people on the show have taken things to the extreme, being prepared for severe storms and power outages is obviously a good idea. The Government of Canada has an extremely in-depth and helpful website dedicated to emergency planning that can help you make your own less extreme preparations.

As one person on Doomsday Preppers noted, some people believe that the world is set to end later this month, as predicted by the ancient Mayan calendar. Despite this, I think I will use this blog post as another reminder to make sure your estate plan is up to date and properly conveys your intentions. A recent article in the Globe and Mail offered some very good and concise advice: “get professional help, set realistic goals, create an achievable plan, try to maximize returns (and minimize tax) and make sure all the necessary paperwork … is complete.”

You know, in case we’re still here on December 22.

Ian M. Hull 

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American elections are quite an exciting spectacle. Campaigns run for months or even years before election day. Television and print advertising sensationalize candidates and smear opponents. They provide endless fuel for late night talk shows and parody news programs, as candidates zip around their voting jurisdictions promoting themselves and their platforms and attending public events. The 2012 election was no exception.

Politicians are at their liveliest in the months leading up to the election. However, for two winning candidates, liveliness was not part of their winning strategies. In fact, they were not alive at all.

Earl K. Wood, a 96-year-old Florida Democrat running for his 12^th term as Orange County tax collector, died on October 16^th, roughly three weeks before the November 6^th election day. Despite this slight disadvantage, he managed to defeat his Republican opponent and win the position, claiming 56 percent of the vote. 

In Alabama, Charles Beasley, a Republican, won his seat on the Bibb County Commission, winning 52% of the vote and defeating the incumbent, Democrat Walter Sansing. The 77-year-old Beasley passed away on October 12^th. 

To replace Wood, Democrat Scott Randolph was selected by his party to step in and receive the votes on Wood's behalf. 

To replace Beasley, the Governor of Alabama will have to appoint a new commissioner to fill Beasley's shoes. 

For more information on the late Wood and Beasley, see Viola James's column in the November 19, 2012 issue of the Law Times. 

This is not the first time our friends south of the border have elected a dead candidate to office. In 2000, Jim Carnahan was elected to represent Missouri in the Senate. He had died in a plane crash shortly before the election. He had been the Governor of Missouri as well. The Acting Governor declared that if he should win the election, his wife, Jean Carnahan, would be appointed to fill his seat. She became the senator from January 2001 to November 2002.

I was unable to find a Canadian official elected posthumously to the halls of power. However, notable Canadian Tim Horton was posthumously voted in to the Hockey Hall of Fame in 1977.

Thanks for reading!

Suzana Popovic-Montag

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Stuart Clark blogged last week on the subject of J.R.R. Tolkien’s estate seeking to assert rights in his creations. This blog is about the opposite problem. What happens when someone wants to use the works of a deceased creator, and nobody knows who owns the rights? These abandoned products of human creativity become orphan works. 

The orphan works issue received much attention over the past several years when Google attempted to scan the contents of the shelves of some academic institutions in order to make them available through their Google Books service. Litigation was started by groups representing authors and publishers respecting the copyright in the books. A settlement agreement between the parties was rejected by U.S. Courts because, amongst other things, it would have given Google the right to use orphan works sitting on the shelves of libraries. 

The number of orphan works is staggering. For example, one estimate by the British Library (the national library of the United Kingdom) pegs the number at 40% of the books in their collection. This is an astonishing amount of human knowledge that is frozen out of the public domain, solely because the copyright persists and the rightsholders cannot be located.

Canada has crafted an innovative response to this problem. Our own Copyright Act, at section 77, grants the Copyright Board of Canada the power to grant license to these works, provided the prospective licensee can show that they have made reasonable efforts to locate the authors. 

Nearly everyone has copyright in something.  If you’ve ever written an article, essay story or poem, authored a computer program, done a painting or a sketch, or even taken a photograph, you probably own the copyright. 

Copyright persists for the lifetime of the author, plus 50 years in Canada. If an author fails to deal with his or her copyright by way of will, it will be subject to the rules of intestacy. The problem, however, is not the allocation of the rights as between the author’s heirs, but notice of the assignment of these rights so that the author’s creative, academic or literary legacy is not lost to the public at large. 

Although most intellectual property will not be as valuable as the works of Tolkien, it should be something to consider when preparing your will and planning your estate. You never know when someone will want to turn your blog post into a major motion picture.

Ian M. Hull

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Unless you have been recently living under a rock, you likely have seen advertisements for the upcoming film adaptation of J.R.R. Tolkien’s The Hobbit. The Hobbit, of course, is the prequel to the wildly successful Lord of the Rings film trilogy that was released several years back, and based on the much loved book of the same name.

As anyone who has been in a toy store recently can attest, the Lord of the Rings and Hobbit brands have become big business. As a result, it should come as a surprise to no one that a dispute has arisen between the Tolkien Estate and Warner Brothers (the producers of the film) regarding the revenue that is derived from the brand.

A recent article in Wired outlines a lawsuit recently launched by the Tolkien Estate against Warner Brothers for $80 million, for what the Tolkien Estate alleges is unauthorized merchandizing of the brand. The suit claims that the unauthorized merchandizing includes the creation of Lord of the Rings slot machines, hotels, restaurants, and amusement parks, which the Tolkien Estate all claim all fall outside of Warner Brothers’ agreement. As the article points out, the Tolkien Estate alleges that Warner Brothers is trying to convert a limited right to use J.R.R. Tolkien’s intellectual property into an unlimited right to use the Lord of the Rings and its characters as they see fit.

The article brings up an interesting topic for consideration. How long can the estates of famous individuals control their works after the famous individual has died?

In Canada, section 6 of the Copyright Act provides that the term of a copyright shall be “the life of the author, the remainder of the calendar year in which the author dies, and a period of fifty years following the end of that calendar year”. J.R.R. Tolkien died in 1973. As a result, the copyright on Tolkien’s works (in Canada at least) will run out in 2024.

Copyrights are not designed to last forever. While the estates of famous individuals may be able to control their legacies for many years after the famous individual’s death, eventually their copyrights will run out, and the famous individual’s works will become part of the public domain.

Thank you for reading.

Stuart Clark 

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This past Sunday was Remembrance Day: a day when we pause to remember those who made tremendous sacrifices for our freedom.

Of particular note are the sacrifices made by Corporal Leo Clarke, Sergeant-Major Frederick William Hall and Lieutenant Robert Shankland. All three men fought and gave their lives during World War I. All three men received the Victoria Cross for acts of bravery. All three men lived on one block of Pine Street in Winnipeg, Manitoba.

On September 9, 1916, Corporal Clarke was involved in a battle that wiped out his entire section. 20 enemy soldiers counter-attacked, and Clarke defended the position. He single-handedly killed 19 enemy soldiers, and captured one. Corporal Clarke was later seriously injured in battle on October 11, 1916, and died on October 19,1916 at the age of 23.

Sergeant-Major Frederick William Hall died in battle on April 24, 1915 at the age of 30. During a battle in Belgium, Hall left his position of shelter and ventured onto the battle field to recover wounded soldiers. He brought two wounded soldiers back to safety, but lost his life will trying to save a third.

Lieutenant Robert Shankland fought in both World War I and II. He was awarded the Victoria Cross for his acts of bravery while a Sergeant in World War I. On October 26, 1917, Shankland led a platoon and captured a position at Passchendaele, Belgium. The position was exposed and under heavy attack, and was at risk of being lost.   Shankland turned over command to another officer, and fended his way through mud and enemy shelling to return to battalion headquarters, where he was able to report on the situation, obtain reinforcements, and plan a counterattack. He returned to the front to lead the counterattack. Shankland rejoined the military for World War II. Lieutenant Shankland died in 1968,

What united the three men, apart from their extraordinary valour, was the fact that they all lived, and one point, on Pine Street, Winnipeg. In 1925, Pine Street was renamed Valour Road. in honour of these wonderful gentlemen.

Shankland’s medal was purchased by the Canadian War Museum in 2009 for $240,000 from, it is believed, Shankland’s family. Shankland’s Victoria Cross, along with those of Hall and Clarke are now displayed at the Canadian War Museum in Ottawa.

Thank you for reading,

Paul Trudelle - Click here for more information on Paul Trudelle. 

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The Human Fertilisation and Embryology Authority (HFEA) in Britain has launched a public consultation to ask whether controversial “three-parent” fertility treatments should be available to families hoping to avoid passing on incurable diseases.  The treatments involve implanting genetically modified embryos into women for the first time but they are only at the research stage in labs in Britain and the United States.

This has been referred to as three-parent in vitro fertilisation because the offspring would have genes from a mother, father and a female donor.  The treatments are geared towards families with “mitochondrial diseases” – incurable conditions passed down by the mother.  Faulty mitochondrial DNA is removed and replaced with tissue from a donor female.

Britain has been leading the way in research in this area although scientists in the United States are also working on similar techniques.

Among the questions the HFEA is posing to the public are:

• how a child born from this sort of technique might feel?
• whether their sense of identity might be affected?
• what the rights of the female donor might be?
• whether the donation of mitochondrial DNA should be viewed as similar to egg or sperm donation, or more like blood or tissue donation?
• and who should decide who can access the treatments?

The HFEA has pointed out that some critics may worry that this could be the first step towards the creation of “designer babies”, whose genes could be modified to ensure the baby is born with the preferred height or hair colour.  Read the Globe and Mail article here.

As an estate litigator, I think that the idea of having more than two parents is fascinating in theory, but probably rather dull in reality.  Any concerns about who the parents ‘really are’ – at least from a legal perspective - will likely be resolved in the same way as with surrogates and sperm and egg donors. 

Thanks for reading!

Moira Visoiu - Click here for more information on Moira Visoiu. 

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Dalton McGuinty’s decision to prorogue the provincial legislature as a result of his resignation has been widely criticized by members of the opposition parties.  The reasons offered for proroguing parliament have included giving the Liberals an opportunity to select a new leader and giving the government and unions an opportunity to negotiate the public sector wage freeze, but among the opposition, the prevailing theory is that it was done to avoid further investigations into the cancelled gas plants scandal.  

It appears that the decision to prorogue parliament has come as more of a surprise and upset than McGuinty’s resignation itself.  Commentators have called it “inappropriate” and an “affront to democracy”.  But what are the consequences of proroguing parliament? 

Technically, prorogation occurs several times in each parliament and can occur whenever a sitting is ended – for Christmas break for example.  Prorogation happens when all matters on the legislative agenda have been dealt with.  However, when it is done prior to such time, and for other reasons, it is always controversial.  Prorogation of parliament means that the current session is ended and all operations of Parliament are suspended until reconvened.  The result is that all unfinished business dies and committees cease to function.  Thus, all government bills will ‘die’ but they can be reinstated in the next session if the House takes a decision to that effect.  While there is some chance that any such bills will ultimately be lost if new agendas should arise, in most cases the bills will likely be reinstated in the next session. 

How long will it last? 

McGuinty’s wish is that his successor will make that decision, and according to Liberal party rules, a new leader will have to be chosen within six months. 

As one article pointed out there is no reason why legislature could not have continued in the face of the resignation of the Premier, as happened when Mike Harris resigned in 2001.  Some critics are suggesting that the real reason behind the move is to limit further investigation of the circumstances surrounding the cancellation of contracts to build new gas plants in Mississauga and Oakville.  It’s unlikely however that either opposition party will simply let the matter drop when the government is back up and running, so the real effect of prorogation on this issue is debatable.

For more information on prorogation in general, check out this article. 

Thanks for reading!

Moira Visoiu

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When recently trying to cancel my cell phone contract, I was advised that I would have to pay $20 per month left on my contract - which came to about $460.00 - plus the monthly fee for the next 30 days, even though I would not be using the phone line. 

While researching the various ways I could avoid paying this hefty fee, I came across a 2007 Washington Post article which reported that a man faked his own death to get out of paying a $175 cancellation fee to get out of his cell phone contract early. 

Indeed, most Canadian telecommunications companies will not charge a cancellation fee if the contract holder has passed away.  The Estate Trustee would have to send in the death certificate along with the relevant account information to the company and ask that the contract be cancelled.  This step should be taken as quickly as possible, as any outstanding monthly charges will be a liability of the estate.

Since faking my own death seemed a little extreme (not to mention fraudulent), my only other option was to find someone to take over the contract. 

I placed an ad on Craig’s List seeking an individual willing to take over my contract.  In exchange, I offered my old BlackBerry Torch free of charge, along with some cash.  I actually had little trouble finding a willing taker – but it may not be that easy for those who don’t have a relatively new device in good condition to offer.  It also took a bit of time and effort to arrange for the transfer and to meet the person and give them the phone.  Many people may not feel comfortable making these sorts of arrangements with strangers.

A recent Bill introduced by the Ontario government may help limit such cancellation fees and prevent the need for consumers to go through such hassles simply to cancel a cell phone contract.

In May, the Ontario Minister of Consumer Services introduced the Wireless Services Agreements Act, 2012.  It is fashioned upon legislation in Quebec and seeks to increase protection for consumers.  Part of the Bill includes limits on cancellation fees based on prorating the economic incentives (such as the discount on devices or handsets) over the term of the contract.  Currently, the standard practice is to charge $20 for every month left on the contract – regardless of the value of the phone you got in the bargain.  To read more about the Bill, check out this article.  The Bill applies to contracts with consumers only, and will not apply to contracts entered into prior to the date the legislation comes into force. 

Those people with existing contracts will continue to be limited to either paying the standard cancellation fee or finding someone willing to take over their account.

Thanks for reading!

Moira Visoiu

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Across Canada, there currently exists an ‘opt-in’ framework for organ donation. Also known as ‘express consent’, this framework is defined by the presence of an explicit mechanism (e.g. signing of a donor card or registration with a regional organ donation society) by which one makes their wishes known. Our least populated province may be the first to eschew this system.

As reported on Tuesday, Health P.E.I. is considering a shift towards an ‘opt-out’ donation program in an effort to increase the organ yield in their province. Under such a ‘presumed consent’ scheme, a person is automatically considered an organ donor upon their death, unless the deceased had registered their objection while alive. A presumed consent organ donation program is not a new idea; in France, Spain, Portugal, Greece, Luxembourg, Italy, Austria, Belgium Netherlands, Singapore and Germany, organs and tissues are essentially considered property of the state unless one actively opts out in his/her lifetime. By 2015, Wales hopes to become the first in the UK to join the opt-out trend.  

Are there advantages to a presumed consent regime? Don Mills, CEO of Corporate Research Associates summed it aptly: “Most people, if you ask them directly to become an organ donor, they probably will. But if you make them work for it, they’re probably not going to pay too much attention.”  A 2006 U.S. meta-analysis concluded that indeed, opt-out programs had a ‘positive and sizeable effect on organ donation rates’.  Nonetheless, in 2007, the Citizens Panel on Increasing Organ and Tissue Donation rejected a presumed consent framework as a means by which donation rates in Ontario could be boosted, and referred to such a framework as ‘too passive a method to be a clear statement of an individual’s intent.’

Canada’s donation rate (14.4 donors per million population) is one of the lowest in the developing world, and a report released by the Canadian Institute for Health Information earlier this year showed that across the nation, living and deceased donor rates have stagnated since 2006.  30% of people waiting for an organ transplant in Canada die on the waiting list.  Organ donation is a hot topic at present, particularly in the wake of double-lung recipient Hélène Campbell’s herculean efforts in the social media arena to engage both public discussion and personal reflection. This conversation is clearly long overdue.  Will P.E.I.'s voice lead the way?

Jennifer Hartman, guest blogger

[In the spirit of full disclosure, the author's father-in-law is a member of the Health P.E.I. Board.]

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 We all know the old adage that “two heads are better than one”.  It was not until reading The 3^rdAlternative by Stephen R. Covey, however, that I truly began to appreciate the wisdom behind this statement.  In the 3^rd Alternative, Mr. Covey details the advantages that come when people work together toward a common goal.  Put simply, when two or more people work together towards a common goal, the results are more than the sum of its parts.

Many of us are familiar with the classic layout of a law office.  Lawyers sit in their own offices spread around the perimeter of the building, staff in the middle and, with the closing of a door, lawyers are able to exist in their own solitary bubble.  Not exactly the most conducive environment for interaction and working together.  But why does it have to be this way?  Why can’t lawyers work together, bounce ideas off of each other and work towards a common goal? By changing the layout of a traditional law office, would it be possible to improve the ultimate work product?

At Hull & Hull LLP, we have been experimenting with what we have dubbed our “Synergy Rooms” since January 2012, and have been thrilled with the results.  The Synergy Room concept is fairly straightforward.  Each of the partners have given up their own individual offices, and have moved into larger rooms with two partners in each room.  Within these rooms there are then stations set up for associates and articling students who, on a rotation and drop-in basis, work together in the same space.  Ideas are bounced off each other, access to lawyers improved, and young lawyers are able to learn from example, seeing first-hand how more senior lawyers manage their clients and their files.

While at first thought the idea seems daunting (giving up your own office after all seems like a big first step), the results we have experienced more than make up for any early concerns.  While there were some “kinks” that we had to work out, such as giving those in the Synergy Rooms access to private rooms for personal phone calls, these kinks were easily worked out and we have no intention of going back to the “classic” office layout.  Two heads really are better than one.  By working together in a “Synergy Room” environment, you can see the results first hand.

Thank you for reading.

Suzana Popovic-Montag