This week on Hull on Estates, Chris and Justin discuss the Ontario Civil Justice Reform Project and the steps being taken by Mr. Justice Colter Osbourne and Attorney General Michael Bryant.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

The Ontario Civil Justice Reform Project - Hull on Estates Podcast #97

Posted on February 12^th, 2008 by Hull & Hull LLP

Hello and welcome to Hull on Estates. You’re listening to Episode #97 on Tuesday, February 12^th, 2008.

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 Hull & Hull, the podcast will touch on some key considerations when planning estates and Wills.  Now, here are today’s hosts.

Chris Graham: Hi and welcome to another episode on Hull on Estates. I’m Chris Graham.

Justin de Vries: And I’m Justin de Vries. Chris, this is the first time that you and I have podcasted together, so that’s always fun. And after much debate, we decided that we were going to look at the Ontario Civil Justice Reform Project which was a project that started in, I believe, 2006 and Mr. Justice Colter Osbourne was appointed by then- Attorney-General Michael Bryant to look at reforming or at least improving the civil justice system. And I thought it was worthwhile spending some time just talking about the system.  And I know, Chris, that you were recently out of the country for a long period of time but are now back and deep into the system and it’s interesting to know what your impressions are of the current problems or access to the system for those people who can’t afford it.

Chris Graham: Yeah, absolutely. Spending some time outside of a place governed by rule of law does give you a special perspective and appreciation for a judicial system. And when I look at all of these recommendations, I’m struck by two things: first, many of them are excellent and; second, many of them are also maybe, a little conservative in a sense.

Justin de Vries: Well let’s get there. Let’s… I think what inspired the report is the fact that anybody who is in the system, be it counsel or a party, know how expensive litigation has become. And unfortunately, the sad result is that cases often settle, which is not bad in and of itself, but they settle because of cost. The economics of litigation begin to drive the costs. I would think that a fairly standard estate matter that had to go in front of Court, be it a Will interpretation or a Will challenge would be well over a $100,000.00 by the time you put in a hotly contested one. And those are things that, not only in the estate world, but in the civil context, the larger civil context, are a problem. So access to justice, what people listening to this who went to law school will know, was always a big deal, was a problem that needed to be looked at. And Mr. Justice Colter Osbourne is well respected in the province. He’s currently the province’s Integrity Commissioner which means he works for the provincial government and they put to him certain questions dealing with a member’s integrity of the Parliament or of the Legislature in Ontario. And he’s a former Justice of the Court of Appeal. So I was never in front of him, but I’ve mediated with him and again, a very capable judge. What are some of the reforms, Chris, that caught your fancy in all of this?

Chris Graham: Okay, one of the most exciting reforms is the recommendation that the jurisdiction for the Small Claims Court should be increased to $25,000. I just think that’s fantastic. Small Claims Court is a great way for people to get some justice without spending more on lawyers than they may get back. And right now, the maximum is…

Justin de Vries: $15,000.

Chris Graham:  $15,000, yeah.

Justin de Vries: I think it started originally at 5, moved up to 10 and now it’s 15. What’s also interesting in that recommendation is that you cannot appeal from judgments of less than $1,500. What may be interesting, and I don’t know what Justice Osbourne found out but… some Small Claims Court judges may be less than happy with that because you’re going to have a lot of self-represented litigants dealing with some of their problems. But it’s probably better, as you say, Chris, to have it there than in front of the Superior Court.

Now coupled with that is an increase or a recommendation that the monetary limit for Simplified Procedure actions be increased from $50,000 to $100,000. The $50,000 Simplified Procedure Rules probably came in now about 5, 6 years ago and the idea was you really remove the discovery process from Simplified actions. They were simplified because they were $50,000 or less. No discovery. You could have a summary judgment motion and the Rules in respect of that were somewhat eased, so it was easier for the Court to grant summary judgment motion. And you could also have a simplified trial which really relied on witness statements and a limited cross-examination. So that increase would be to $100,000, which I think is great as well. As part of a Simplified Procedure, you get a pre-trial which is always a good way to settle a case. And there’s no indication that that would fall by the wayside. So Chris, what else did you see that you liked?

Chris Graham: Well, when it comes to Simplified Procedure, there’s a recommendation that there can be 10 minutes for a statement, a general statement of any party whose sworn an Affidavit for the summary trial. Or 10 minutes for an examination-in-chief. And I think that’s a fantastic way of bringing a very small amount of useful procedure into the trial aspect. Again, it’s limited to 10 minutes and that will preserve… I think it’s a fantastic way of preserving the simplified aspect of the trial, while getting a little bit of evidence before the Court and allowing the judge to do what judges do really well, which is evaluate credibility and weigh evidence.

Justin de Vries: Well, speaking of that, what caught my attention was the recommendation to amend Rule 20 to allow the Court to weigh evidence, evaluate credibility and draw any reasonable inference from the evidence. However, what Mr. Justice Osbourne indicates is that that power ought not to be exercised where the interests of justice require that the issue be determined at trial. And this is really picking up from the fact that when summary judgment rules about 10 years ago, there was a series of cases where trial judges were doing exactly that.  While there was no genuine issue for trial, there was an issue of credibility. Judges were nevertheless granting summary judgment in the right circumstances. The Court of Appeal shut that down like there was no tomorrow and really put a chill on the Rule and it became much less effective because the Court of Appeal at the time said if there’s credibility involved, there should be a trial. You can’t make a conclusion based on a paper record which is what summary judgment is. And what Mr. Justice Osbourne has picked up and said now hold on, let’s go back to what was then a common sensical approach.  Where it’s appropriate, allow summary judgment to be granted by weighing the evidence and drawing reasonable inferences. But as a protection to the public or to parties, if the interests of justice are against that kind of finding, then push it on to a trial. So I’m glad to see that because I think that makes a lot of sense.

The other one, Chris, what do you think about this one? It caught my attention was Mr. Justice Osbourne wanted lawyers to be encouraged, I suppose through their various societies that they belong to and organizations, to consider new and innovative billing methods that would promote access to justice for litigants with civil litigation issues who can’t afford counsel. You know, the hourly rates are so high in many instances, I always thought block billing was an interesting way to approach things.

Chris Graham: Yeah… in the olden days, rules against champerty and maintenance prevented a lot of well…prevented almost any innovation when it came to billing and really did force lawyers to stick to hourly billing, which makes unaffordable a lot of matters which otherwise would be dealt with. This looks great and block billing can really work in some areas, areas where services are highly standardized and lawyers do the same thing over and over again, it’s fantastic for everybody. In other areas, I guess I mean the danger which the lawyer will have to deal with is that if you block bill, some clients will sort of take that as a free ride.  And you have to have some type of protection against clients adopting unreasonable stances. But it’s great if anybody can figure out a way to make it viable.

Justin de Vries: One of the problems we have as litigators, of course, is that you never know your inputs when you make up a budget. It’s not as if you’re making a widget. You don’t know how the other side is going to react. You don’t know what kind of blowback you’re going to get, what kind of motions you face and therefore it becomes very difficult to estimate your costs. Plus I find there’s a little bit that, to some extent, the Courts suck and blow on it because they go after you if your bills are too high, but then they’re also upset if you provide them with product that is not terribly impressive. So it’s a little bit hard. The other thing, though, that we do have in the estate world which provides us some flexibility is really to bill a client at the end of the piece, when they come into, if they’re a beneficiary, payment out of the estate, or to look to the estate itself to pay. Even though the rules of costs have changed a bit, that gives us some flexibility.

I think the last one that I thought we could talk about, Chris, was this idea of limiting discoveries, that one of the recommendations was to amend Rule 31, which is the rule that deals with examinations, so that each party has up to 1 day, that is, 7 hours, to examine parties adverse and interests subject to agreement otherwise or a Court Order. So what Mr. Justice Colter Osbourne is recommending is just making the discovery process, which can be endless, down to 1 day. But I’m not quite sure how I feel about that one. Part of me says that’s a great idea, but discovery’s such a powerful tool… you know, are you often going to be running off to Court to get an Order and justify more questions because the other side simply won’t agree?

Chris Graham: Yeah exactly. There are some very good arguments for limiting discoveries. On the other hand, sometimes you discover your evidence in discoveries, you don’t necessarily go in knowing exactly what you’re going to find and sometimes what you find requires yet more discovery. And if you only get 7 hours, well, one long discovery or 2 average discoveries, can easily eat that up. And then what are you left with? Well, if you have to get a motion, that means you’ll have to draft motion materials, you’ll have to negotiate with the other side, it’ll be more delays. At least in our little slice of the world, most matters will require at least easily 3-5 witnesses and 7 hours’ of discovery probably won’t cut it in a lot of situations. I can’t speak for areas outside of estates litigation, though. Maybe it would be just fantastic in contract litigation. But I am skeptical on that one.

Justin de Vries: Well, finally, there is one more I want to talk about and we’ll just touch upon it and that is… the Law Reform Commission of Ontario which was recently re-established after being disbanded under the Harris government, should review the role of the Divisional Court as a Court of intermediate appellant jurisdiction. It’s my understanding that Ontario is the only province that has this intermediate appellant jurisdiction and so, as such, it would be worthwhile to see if that’s necessary.  Because you’re really having Ontario Superior Court judges, albeit a panel of three, looking at what their colleague did in the first instance.  And you wonder whether or not…though in general, I think the Divisional Court is quite good…but you wonder whether or not it’s as unbiased as it could be and whether you should just get in front of the Court of Appeal.

Chris Graham: Yeah.  I would add one thing to that and this seems like nitpicking, but it doesn’t always feel like nitpicking when you’re the one doing it. Because there’s this Divisional Court out there, it means that every time you’re considering launching an appeal of a decision, you have to confirm which Court you appeal to. And it does sound simple, but it doesn’t end up being simple and it can add half an hour, an hour, an hour and a half of work to any file. And regardless of the good reputation of the Divisional Court or any other questions, personally, I’m in favour of anything that eliminates the amount of work that you have to do to get to the end result, the natural result of the file. So I mean, I am the one that does that research. So, of course, I’d be in favour of just, well, eliminating it altogether because it would mean one hour less on every file where there’s an appeal being considered.

Justin de Vries: Well I think that brings us to the end of this week’s discussion. Thanks for listening and for joining me today, along with Chris, of course.

Chris Graham: It was a pleasure, Justin. I look forward to podcasting with you again soon. And we look forward to hearing from our listeners. You can send us an e-mail at hull.lawyers@gmail.com or just pick up the phone and leave us a message on our comment line at 206-350-6636. Be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estate law. We hope you enjoyed the show. I’m Chris Graham.

Justin de Vries: And I’m Justin de Vries. Thanks for listening.

This has been Hull on Estates with the lawyers of Hull & Hull.  The podcast you have been listening to has been provided as an information service.  It is a summary of current legal issues in estates and estate planning.  It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid  and is courtesy of the Podsafe Music Network.

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Posted on August 21^st, 2007 by Hull & Hull LLP

Paul Trudelle: Hi and welcome to Hull on Estates. You’re listening to Episode #73 on Tuesday, August 21, 2007.

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 Hull & Hull, the podcast will touch on some key considerations when planning estates and Wills. Now, here are today’s hosts.

Paul Trudelle: Good morning Craig.

Craig Vander Zee: Good morning Paul.  It’s a pleasure to be able to podcast with you.

Paul Trudelle: Yes, this is our first time together and I hope it goes well.

Craig Vander Zee: Yes, I wish…I also wish Bianca well as she’ll be leaving on maternity leave for a period of time at the end of August.  And she was my podcast mate, so I wish her well and I look forward to podcasting with you.

Paul Trudelle: You too Craig, and I wish her well.  And I wish Sean well.  We’ve separated as a podcasting team, no artistic differences.  Just went off to pursue our own projects, so I’m with you now Craig, so let’s…

Craig Vander Zee: Sounds like the break up of Wayne Gretzky and Jari Kurri.

Paul Trudelle: I was thinking more like a Simon and Garfunkel.  But yeah, I like yours too. Today we thought we’d talk about a series of decisions relating to the Dickie and Dickie matter, which I think a very important concept comes out that we should touch on today regarding contempt.

Craig Vander Zee: Yeah, the case Paul, as you know, deals with really the use of contempt orders.  And that’s Rule 60.11 specifically of the Rules of Civil Procedure to enforce orders of payment.  And the Court of Appeal has long held that you can’t use that rule to enforce payments of money. But the Dickie decision is interesting because it was dealt with at the lower courts in Ontario, the Ontario Court of Appeal and the Supreme Court of Canada.  And dealt with that very issue and in consideration as to whether a line of credit and security for costs securing spousal support was tantamount to a payment of money. So it’s an interesting case to take a review of.

Paul Trudelle: No, I agree.  I like the way this…the courts dealt with the issue and how they seem to grapple with whether posting a letter of credit or security for costs was a payment of money and whether the individual could be found in contempt for failing to do that.  Maybe we should look at the facts briefly.

Craig Vander Zee: Rather than referring to, you know, respondent or applicants because there’s different levels of appeal, Paul, I think what I’m just going to refer to is Mr. Dickie and Ms. Dickie because I think that’s the easiest way to deal with it. They were living together since 1976 and married in ’79.  They had three children together and then separated unfortunately in 1991, getting divorced in 1994. I guess Mr. Dickie was a successful plastic surgeon and Ms. Dickie was a registered nurse. But getting to, I guess, more the heart of the matter, in 1991 Mr. Dickie was apparently earning about $915,000 per annum and pursuant to the Order of Justice Kiteley of the Ontario Court of 2001, he was ordered to pay child support which included about $9,000 per month and interim spousal support of $2,500.

Paul Trudelle: Right and I think it’s after that point that things start to heat up significantly. After that point, Mr. Dickie decided that he would move to the Bahamas.  He sold his properties, cashed out his RRSP’s and went to the Bahamas to start a practice there.

Craig Vander Zee: And then, as we know Paul, the Bahamas is a jurisdiction that doesn’t have the reciprocal enforcement of judgments legislation to enforce child and spousal support.  And so that’s where, in part, it became a bit tricky with the enforcement of these Orders. 

Paul Trudelle: Right and the different courts note that important point and they say that it’s no coincidence that Mr. Dickie went to the Bahamas, where there was no reciprocal enforcement provisions.

Craig Vander Zee: And because of his move, there was a proceeding before Justice Greer of the Ontario Court in December of 2002.  And she ordered that Mr. Dickie provide an irrevocable letter of credit in the amount of $150,000 to secure his child and spousal support obligations pursuant to Justice Kiteley’s Order, and then also ordered that he provide security for costs in the amount of $100,000, which monies were supposed to be paid to his law firm. 

Paul Trudelle: I think that’s a very important Order there.  The prior Order was that he pay support directly to Ms. Dickie. This Order changes the complexion of who the payments are to made and the courts will pick that up later and we’ll talk about that.  But at that point, rather than paying money to Ms. Dickie, what he was required to do was to post security for costs and post a letter of credit to secure any future support orders.

Craig Vander Zee: And where Mr. Dickie had some problems then was meeting the obligations of the Orders, that is to both actually pay the child and spousal support and then again to post the letter of credit and to pay the security for costs. And as a result of that in this litigation history, Justice Stewart then of the Ontario Court held on February 26, 2004 that Mr. Dickie be held in contempt for failing to comply. 

Paul Trudelle: That’s right.  And the failure to comply was with the Order of Madame Justice Greer to post the security for costs and the letter of credit. He was found in contempt and he was ordered to serve forty-five days in jail, which seems harsh but maybe not so harsh, depending on how you’re looking at it. He did serve the time and it was only after that that he decided that he would appeal the contempt order.

Craig Vander Zee: And that’s where we find it at the level of the Court of Appeal and that was heard in 2006.  And we’ll get into the Court of Appeal decision.  But just to complete the litigation history, the Court of Appeal, on a majority to minority decision, held that he ought not to have been found in contempt.  And then he appealed to the Supreme Court of Canada.  He was granted leave and the Supreme Court of Canada overturned the Ontario Court of Appeal’s decision, finding with the minority of the Ontario Court of Appeal who was Justice Laskin. So perhaps Paul, what we’ll do now is go back to the Ontario Court of Appeal’s decision and chat about that for a minute.

Paul Trudelle: Great.  Now in the Court of Appeal there were two issues; the first issue was whether Mr. Dickie could…should be allowed to proceed with the appeal because he was found in contempt of the court.  The argument was that because he was in contempt, he shouldn’t be allowed to rely on the process of the court until he purged his contempt in order to proceed with the appeal. The court also dealt with the appeal itself as to whether the Order finding him in contempt for failure to post security for costs and to post the letter of credit was an Order that could result in a finding of contempt. The problem there being that, as we said earlier, you can’t be found in contempt for the non-payment of money. And the court had to deal with whether Madame Justice Greer’s Order was an Order for a payment of money which could lead to a contempt finding.

Craig Vander Zee: And interestingly, Mr. Dickie argued at the Ontario Court of Appeal level on the first point you raised, Paul, that where the issue before the Ontario Court of Appeal is the actual jurisdiction of the lower court to make an Order. In this case, to make an Order of contempt, that the Court of Appeal is obligated to deal with it because whether he ought to purge the contempt is dependant on whether the court had the jurisdiction to make that Order to begin with. And the Court of Appeal on that point, the majority held that it would hear the appeal. Interestingly on this point again, Justice Laskin said he would have held that the court not hear it, that it stay the appeal until the contempt had been purged.

Paul Trudelle: That’s right.  And I guess it’s a bit of which comes first.  If you’re in contempt, you can’t go back to court to appeal that.  But if you’re appealing it to find that you’re not in contempt, then you should be able to at least have the audience of the court to make those submissions.

Craig Vander Zee: Well, and I think, I dare say, that I think the majority of the Ontario Court of Appeal would have sided with Laskin on that initial issue if the issue before it wasn’t the jurisdiction of the lower court. If it was simply the appealing of the finding of contempt and not the ability of the court to have made that order for contempt, I think that they wouldn’t have heard it. I think that Laskin’s view would have carried the day on that point.  But I think because, according to the Court of Appeal’s decision, the majority felt that it was going to the jurisdiction, that that seemed to sway them.

Paul Trudelle: I think that’s right.  So before the Court of Appeal then, Mr. Dickie was allowed to appeal.  The court felt that it would hear his appeal.  They went then to consider whether the contempt Order was proper or not.  And the starting premise is that you can’t be found in contempt for the non-payment of money. The issue therefore became whether the Order of Madame Justice Greer called for the payment of money such that he couldn’t be found in contempt if he didn’t pay the money.

Craig Vander Zee: So on that point, Paul, the majority held simply that a letter of credit and a security for cost Order was tantamount to a payment of money, and equivalent to a payment of money.  And thus held that a contempt Order was inappropriate for that kind of circumstance and ought not to have been awarded. And obviously, from what we’ve been discussing and from the decision, Laskin found otherwise.  He found that they weren’t tantamount to a payment of money and specifically found that the obligation to pay the monies was not to the debtor. So the creditor was not ordered to make a payment of funds to the debtor.  Rather, this was a payment into court.  Or he even found that if there was a functional equivalent, being a payment or a requirement for a letter of credit or security for costs to be dealt with by way of a solicitor, that again not the end debtor, that that’s not the same as a payment of money.

Paul Trudelle: Yeah, I think Mr. Justice Laskin picked up a very fine and detailed argument.  It may, however, just shock our sense of logic. A payment of money is a payment of money, whether it’s to a third party or not.  Mr. Justice Laskin found that it wasn’t a debt per se and therefore a finding of contempt could be made. I think the problem, though, is that it does, in a sense, lead us back to debtor’s prison.  If you don’t have the money to pay the Order, be it to the debtor, which is what Laskin felt could lead to contempt or to the court or to a third party. I think that is just splitting hairs but that’s what Mr. Justice Laskin did and the Supreme Court of Canada picked that one up as well.

Craig Vander Zee: I think that takes us Paul to the Supreme Court of Canada’s decision where they reversed the majority decision of the Court of Appeal, substantially finding in favour of Laskin’s reasoning at the Court of Appeal level.

Paul Trudelle: That’s right.  So I guess at the end of the day what we have the Supreme Court of Canada saying is that a payment of money to another party, if you fail to make that payment, that cannot lead to a finding of contempt. However, if the payment is a payment into court or the posting of a letter of security or payments to a third party, in this case, it was a solicitor’s trust account, and if you fail to make those payments, that could lead to a finding of contempt.

Craig Vander Zee: So it puts an interesting spin on what might evolve in an estates’ context because there’s also situations that arise in an estate context where people could be ordered to pay monies. For example, there could be a dependent support claim under Part 5 of the Succession Law Reform Act and it could be that monies are ordered to be paid by others back into the estate, such as joint bank accounts which weren’t really joint bank accounts, monies received from insurance.  And if those funds aren’t paid back, it might be a strategy of counsel to have some sort of security backing the required payment, so that in the event that that isn’t made, that a contempt order is a possibility. 

Paul Trudelle: That’s right.  I think that’s a very useful tool and something we should consider when pursuing support claims for individuals. If money needs to be repaid, we may want to seek an Order that it be paid into court or secured by a letter of credit. If the payment is not made in that case, then there is the remedy of contempt available to the parties.

Craig Vander Zee: Paul, before we leave today’s topic, I think it’s interesting to note too that the Supreme Court of Canada also found with Laskin that the Ontario Court of Appeal had the discretion not to hear the appeal and that if the Ontario Court Of Appeal had decided not to hear it, that is, stay it while the contempt was being purged, that they wouldn’t have quarrelled with that decision.

Paul Trudelle: That is a surprising finding and I’m a little surprised by that, that you can’t go back to court to argue that the Order finding you in contempt is improper. The other thing that I find interesting is the extent that Laskin went to in order to find that this was a proper Order and that contempt could be found as against Mr. Dickie.   I think a big part of that might be just the facts of the case.  Mr. Dickie was a very affluent individual, he pulled out of Canada without telling Ms. Dickie, despite an agreement that he would do so. There was some evidence in the different court decisions as to his almost…the fact that he was just snubbing his nose at the court.  There was evidence about his lavish lifestyle while in the Bahamas.  They refer to his Visa bills where he goes to bars and restaurants all the time. He bought a Sea-Doo, rented a second boat.  And I think that those facts helped the court in coming to the finding that it did and ordering that he make the payments that he did and also supporting the contempt Order.

Well I think that touches on the case of Dickie and Dickie and the various decisions.  A very interesting case. There is actually a footnote to that as well; Mr. Dickie went back to court afterwards in order to vary the support that he was paying. He didn’t have much better luck there either.  But that’s maybe for another day or for another topic.

Craig Vander Zee: I think so Paul.

Paul Trudelle:    Okay, thanks a lot Craig.

Craig Vander Zee: Thanks a lot Paul and I really enjoyed today.

Paul Trudelle: Thank you.

This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid  and is courtesy of the Podsafe Music Network.