Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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My last blog this week examines the application of our favourite Rule 57.07 - Liability of Solicitor for Costs - in the context of affidavits.  We (and our clients) have all suffered through The Angry Affidavit.  In Manitoba, which has comparable legislative provisions authorizing and governing cost awards, drafting such an affidavit can be expensive for the drafting lawyer.   

In Eblie v. Yankowski, [2007] M.J. No. 145, the court awarded costs against the solicitor personally where an affidavit contained irrelevant, scandalous, vexatious and frivolous.  It was not enough to simply type what the client wanted to say.  The solicitor was responsible for drafting and presenting the affidavit material, and had caused costs to be incurred without reasonable cause.  In this case, the costs incurred included a motion to expunge the impugned material. 

Further, the court made the interesting comment: "It is difficult to accept that these materials were not prepared and filed for an improper purpose, namely to prejudice the mind of the court against the opposite party. If their inclusion in the affidavit filed by the Petitioner was intended to gain undue advantage and to defeat the course of justice costs against counsel personally are clearly warranted."  

For those interested, section 96 of Manitoba's Court of Queen's Bench Act is nearly identical to section 131 of Ontario's Courts of Justice Act in creating jurisdiction to make discretionary cost awards.   Manitoba's Rule 57.01(1) is similar in all relevant ways to Ontario's Rule 57.01(1), and Manitoba's Rule 57.07 similarly imposes potential personal liabilty on solicitors.

Enjoy your weekend,

Chris Graham

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There seems to be a rule for every situation in estates litigation.  Consider the oft-ignored Rule 74.14(2), the short-cut to probate rule.

Probate applications are refused where the application material raises legal issues.  Normally, the next step is to bring a motion for directions to have a judge rule on the legal issues raised by the application.  There is arguably no such thing as a "simple will"; even a modest estate can give rise to issues of the highest level of complexity.  Preparing motion materials for interpretation of a "simple will" can therefore be disproportionately expensive.

Can Rule 74.14(2) can apply to avoid the need for drafting motion materials?  Rule 74.14(2) states:

"Where, in the opinion of the registrar, the application and accompanying material are not complete or contain information on which the registrar has a doubt, the application shall be referred to a judge for determination."

The qualifying conditions for referral to a judge can be interpreted quite broadly.  The key to this provision is the absence of any requirement to bring a motion.  It would seem that a letter to the registrar is sufficient, citing this rule and requesting the matter be referred to a judge.  Of course, unanimity among the parties to the probate application is probably required, though not explicitly stated in the rule.  It probably also helps to be polite, since the language of Rule 74.14(2) is discretionary.

This useful rule is unlikely to be the subject of substantial litigation, since where an estate can bear litigation expenses, the usual course of a Rule 74.15 motion for an Order for assistance, or a motion or application for directions under Rule 75.06 will be preferred.   

Have a great day,

Chris Graham

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Imagine that one day, you were told you had to get a job.  You were told to go make a living, and that hard work was good.  Not only that, you would have to work FOR THE REST OF YOUR LIFE. 

According to virtually every news source in the British Isles, that's exactly what Sir Sean Connery is being accused of doing to his only son, Jason.  This shocking revelation appears to have been exposed by a former wife of the former 007 star, Diane Cilento.  The root cause may be Sean Connery's experience with really, really hard work reportedly as a barrow-pusher in Edinburgh's industrial sector (back when Edinburgh had an industrial sector), as a milkman, and other tough jobs prior to superstardom.  Sean Connery reportedly wanted Jason to develop a work ethic. 

Sean Connery's fortune is estimated at 85,000,000 pounds - about USD$170,000,000 - and his son Jason allegedly won't see any of it, according to Cilento, because Sean Connery has left him out of his Will.  Apparently, after a tough go of it in the 1980's, Jason works and even earns a successful living as an actor and film director in his own right. 

Perhaps the most interesting thing about this story is that a hugely wealthy and successful father forcing his son to get a job is a newsworthy story.         

Have a great day at work,

Chris Graham

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When an irresistable force meets an immovable object, we appeal to the Supreme Court of Canada. 

In Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, the force is the Personal Information Protection of Electronic Documents Act ("PIPEDA") and the object is solicitor-client privilege.  Section 12 of PIPEDA grants the Privacy Commissioner express statutory power to compel a person to produce any records that the Privacy Commissioner considers necessary to investigate a complaint “in the same manner and to the same extent as a superior court of record”.  The issue in Blood Tribe was whether this conferred a right of access to documents protected by solicitor-client privilege.  The Court held unanimously that the broad grant did not contain the requisite specific express authority to override privilege.

The Court stated the rule that "general words of a statutory grant of authority to an office holder such as an ombudsperson or a regulator do not confer a right to access solicitor-client documents, even for the limited purpose of determining whether the privilege is properly claimed.  That role is reserved to the courts.  Express words are necessary to permit a regulator or other statutory official to “pierce” the privilege." 

The Court also noted that "while the solicitor-client privilege may have started life as a rule of evidence, it is now unquestionably a rule of substance applicable to all interactions between a client and his or her lawyer when the lawyer is engaged in providing legal advice or otherwise acting as a lawyer rather than as a business counsellor or in some other non-legal capacity."

Speaking of the Supreme Court of Canada, the law you're looking for just might be in the "unreported judgments" section of the Supreme Court's user-friendly website.  How does a Supreme Court decision go unreported?

Have a great day,

Chris Graham

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Speaking of risky U.S. investments...

Public administrators of estate monies appear to have lost around $20,000,000.  The place?  The Bronx, NY.  When a New York resident dies intestate (without a will), his or her assets are managed by these public administrators until there is a court-approved settlement.  This is roughly the equivalent of monies paid into Court in Ontario.  The investments are even overseen by a judge.  

Similar to Ontario, the monies ought to be invested in low-risk investments like Treasury bills.  But apparently that principle was ignored by the public administrators, who instead bought auction-rate securities, the market for which collapsed in February.   

The lesson?  First, nothing happens on a small scale in New York, not even in the Bronx.  Second, a "risky" investment means that one might lose money.  A tough concept to grasp?  Third, someone else always gets paid: see page 2 of the article.  Where there are investments to be made, there are fees to be paid. 

Luckily for the beneficiaries, it appears that ultimately the city (ie, the taxpayers) will pay, not the various estates' beneficiaries. 

Thanks for reading,

Chris Graham

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"Some day, a wise person in a position of authority will realize that a court of law is not the best forum for deciding custody and access disputes, where principles of common sense masquerade as principles of law." - Mr. Justice Joseph Quinn as quoted in the Globe and Mail.

Until that day, the fighting parents who appeared before Mr. Justice Quinn have been barred from court unless they obtain special leave.  Looking at the context, it's hard to argue they did not earn it: 25 court orders from 12 different judges over 7 years, three contempt motions, one suspended sentence, 12 different lawyers, 2000 pages of court filings. 

An apparent lack of respect for the rulings of the Court by both litigants was a factor in this extraordinary Order.   As Mr. Justice Quinn is quoted, "[b]oth sides have shown an inability to abide by court orders such that their access to this court should be restricted by the requirement to obtain leave." 

Mr. Justice Quinn is further quoted as saying "[t]he parties have gorged on court resources as if the legal system were their private banquet table. It must not happen again,".  It is easy to forget that courts are very expensive operations: rent, upkeep and salaries.  An hour before a judge in court is not cheap for society, whether or not the litigants are represented by lawyers.  As a purely editorial comment, it is heartening to see principled recognition of this fact.

The father, perhaps unsurprisingly given the reported facts, is apparently considering an appeal.

Enjoy the weekend,

Chris Graham

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The contemporary attitude is that we live in a young country.  True in some respects.  Yet we own the oldest contiguous institutions.  Trusts are one aspect of this venerable inheritance: the trust is as old as the Common Law.  Actually, a little older in some respects: the English trust finds its roots in the 12th century.  

It all started when a few knights returned from their crusades to find that the "friends" to whom they had entrusted management of their feudal lands refused to return said lands.  There was no mechanism at law to force the new untrustworthy owners to return the land so the law courts could do nothing. 

Naturally, the irate knights went to the Lord Chancellor and "asked" for justice.  One can imagine the scene: the silk-gowned Lord Chancellor looking down at the length of his shoe, then up at a selection of battle-worn armored thugs with gauntlets tapping hilts on chipped swords, over at the foppish, yawning new land-holder, then down again at the length of his shoe.  Unsurprisingly, the knights who had nothing else to live for continually won in the Courts of the Chancellory and the concept of trustees and beneficiaries was born.  I wager that trial by ordeal would have reached similar results so this must have been fate at work.

Tomorrow some interesting case law, I promise. 

Chris Graham

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Who can forget the sad case of Terry Schiavo, the poor lady who suffered catastrophic brain damage in 1990 and was kept alive in a vegetative state on a feeding tube for 15 years?  Readers will remember the anguish involved when her husband was forced to litigate against her parents in order to get the tube removed so Terry could die in peace.  This became a powerful argument in favour of a "Living Will", which is basically a document in which individuals outline their "personal choices" regarding end-of-life treatments.  Living Wills became a feel-good legal product, a perceived solution to the heart-rending situations like Terry's.

Too bad the research shows that Living Wills may not live up to the hype.  According to a recent study by two University of California Irvine researchers, Professors Peter Ditto and Elizabeth Loftus, Living Wills appear to have serious defects.  One problem is that patient preferences change over time.  For instance, one tends to be more inclined against end-of-life treatments immediately after a hospital stay, but this changes with time.  Also, positive treatment results of family members make a patient more inclined to end-of-life treatment.  Many people who make Living Wills change their preferences but forget about their Living Will, or misidentify those preferences in the Living Will. 

Perhaps the most glaring weakness is that Living Wills do not appear to provide guidance  to surrogates who have read them.  According to the study, the accuracy of a surrogate who has read a Living Will in prediciting a loved one's treatment preferences is no higher than that of a surrogate who has not read the Living Will.  So a Living Will can be totally inconsistent with the patient's most recent intentions.   

Having a Living Will apparently makes both the patients and the surrogates feel better, so it's not all bad news. 

Have a safe day,

Chris Graham

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How does one prove a negative?  This is a challenge facing many estates: after a person dies, individuals spring forth requesting compensation for services rendered on a quantum meruit basis or alleging that promises were made by the deceased.  A common example is a claim that one provided domestic services such as cleaning, shopping or laundry. 

The riddle of proving a negative is quite relevant to estates litigation because the star witness for the estate is usually, by definition, dead.  Fortunately, since estate trustees can't prove negatives, they don't have to.  Section 13 of the Evidence Act specifically addresses this scenario, requiring independent corroboration of evidence in claims against estates.   The provision is designed to prevent claims that consist of mere allegations, which are easy to make, difficult to refute and expensive to litigate.  There is a great deal of case law on what constitutes corroboration, the standard of proof and so forth but the provision is a great deterrent to frivolous claims.

It seems trite to say but the Act is worth a review, even for non-litigators.  It's full of counter-intuitive gems that are easily forgotten: for instance, section 9 the Evidence Act states that witnesses are not excused from answering questions tending to criminate them under any Act of the Legislature.   

Have a great day,

Chris Graham

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What happens when the Bill a legislature votes for is different than the Bill the Head of State signs?

A fascinating story is playing out down south: the U.S. Congress voted for a highway funding bill, which the President later signed into law.  But someone altered an "earmark" provision after Congress voted, so the bill the President signed was slightly different than the bill Congress voted on.   Specifically, a $10 million earmark was changed to redirect funds to upgrading an apparently useless stretch of road.  It turns out the locals don't even want the road built.

The Senate is seeking a federal inquiry  and Congress may seek a criminal probe.  Hopefully the constitutional aspect gets some consideration before (righteous) outrage drowns out the interesting constitutional aspect.  Is this rogue Bill a law?  Is what the President signed legally different than what the Congress approved?  What would the result be here in Canada, if a section of a regulation, for instance, was altered after a Parliamentary vote? 

One thing is certain: our friends down south will spend far more than $10 million getting to the bottom of this.

Enjoy your week,

Chris Graham