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

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As both litigant and counsel know, the cost of litigation is often prohibitive and institutional delays are not uncommon (there never seems to be enough judges to go around). I therefore took some time to read the long-awaited Report of the Ontario Civil Justice Reform Project, which was released in November 2007. Coulter Osborne was appointed in 2006 to lead the Project. Mr. Osborne is a widely respected, retired judge of the Court of Appeal and the Province's Integrity Commissioner. The Report can be found on-line at http://www.attorneygeneral.jus.gov.on.ca/ 

Mr. Osborne reviewed potential areas of reform and made recommendations to make the civil justice system more accessible and affordable. A variety of organizations and individuals made submissions, including the OBA. Some of Mr. Osborne's recommendations are bold and certainly worth considering:

• Additional Superior Court judicial resources in Brampton, Hamilton, Newmarket and Toronto and more judges generally;
• Increase the monetary jurisdiction of the Small Claims Court to $25,000 with no right of appeal from a judgment of less than $1,500;
• Increase the monetary jurisdiction for Simplified Procedural actions to $100,000;
• Amend Rule 20 to allow the court to weigh evidence, evaluate credibility and draw any reasonable inference from the evidence. This power, however, ought not to be exercised where the interests of justice require that the issue be determined at trial;
• Encouraged lawyers to consider new and innovative billing methods that promote access to justice for litigants with civil litigation issues who wouldn't otherwise be able to afford counsel;
• Amend Rule 31 to provide that each party has up to a maximum of one day (7 hours) to examine parties adverse in interest subject to agreement otherwise or a court order;
• Law Commission of Ontario to review of the role of the Divisional Court as a court of intermediate appellant jurisdiction and make recommendations regarding the Court's future role in jurisdiction.

It will be interesting to see how the Report fares and what recommendations are implemented.

Thanks for reading, Justin

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Welcome to my week of blogs.  I hope you enjoy the eclectic mix of topics and issues that I will blog on this week.

I recently came across a case that considered the doctrine of abuse of process. While it was a family law dispute, the case nevertheless caught my attention as abuse of process cuts across all areas of the law, including estate litigation.

The Supreme Court of Canada had this to say about abuse of process:

The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel.

As can be seen from the above passage, the focus of the abuse of process doctrine is on the integrity of the judicial process and not on the motive, however dishonourable, or status of the parties. 

In the context of estate litigation, where emotions are often raw and grievances long held, a party to an action cannot be blinded by perceived motives when considering whether to strike a claim as an abuse of process. 

The best way to approach abuse of process is to consider claims that the court has held to be an abuse of process. A good example is where a party re-litigates a claim, however disguised, solely to achieve a more favourable judicial result or harass the other side.  Such a case is both manifestly unfair to the defendant as well as bringing the administration of justice into disrepute.  

The real attraction of the doctrine of abuse of process is its flexibility and the latitude it provides the court in its application. However, as with all procedural or early motions, it is often a difficult case to meet. The facts must be clear in order to successfully argue that a claim should be struck as an abuse of process. 

Justin

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In Hughes v Miller, the female plaintiff and the male defendant were never married but lived together in a spousal-type relationship for about 12 years. They originally lived on the defendant’s boat until 1993 before moving to an island. The agreement and expectation of the parties was that they would be equal owners of the island property. While the purchase money for the island property was put up by the plaintiff and her mother, the defendant’s contribution was to be in the way of material and expertise in building a permanent home on the property. However, the defendant only built a very basic cabin. 

In 1995, the defendant inherited property from his aunt. The plaintiff helped pay property taxes on the inherited property. Furthermore, as the defendant became ill in 1999, he ultimately contributed less to the parties’ expenses. 

The plaintiff sought a declaration of a constructive trust over the inherited property based on unjust enrichment. The plaintiff claimed she supported the defendant over the course of many years and that her financial contribution to the defendant enabled him, among other things, to pay taxes on the inherited property. Alternatively, she sought monetary compensation for the defendant’s enrichment. 

The defining feature of the case is that the inherited property came to the defendant by way of an inheritance. As noted by the British Columbia Court of Appeal, the case was different from the majority of cases where the parties lived together and jointly built up assets over many years. If, in fact, the plaintiff was entitled to any trust claim to the inherited property, such a claim would derive from what she did after the defendant inherited it.

However, the court found that it would not be appropriate to award the plaintiff a constructive trust remedy over the inherited property, having regard to her relatively sparse direct contributions to maintaining or improving the property after the defendant inherited it. A constructive trust is the appropriate remedy for unjust enrichment only where a monetary award is insufficient and where there has been a direct contribution to the property by the party seeking such a remedy. 

According to the court, spouse-like care and assistance, some personal and some financial, entitled the plaintiff to a monetary award based on unjust enrichment. In the circumstances, the court felt that an award to the plaintiff of one-third of the value of the property accruing to the defendant was fair.

Justin