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In one of my blogs earlier this summer, I discussed the new Rule 20 of the Rules of Civil Procedure with respect to summary judgment and the two approaches to its interpretation. One takes a narrow view that the test has not changed much, and the other, more expansive view, is that the new rule significantly expands the powers of the motion judge. 

Pursuant to an order of the Honourable Associate Chief Justice for Ontario, the Ontario Bar Association (“OBA”) was appointed as Amicus Curiae to render assistance to the Court on the meaning and scope of Rule 20 in the group of five appeals heard by the Ontario Court of Appeal this summer. The Court’s decision will interpret Rule 20 and provide some guidance regarding the scope of the new powers and the implications for the rest of the proceeding.

In its factum, the OBA does not comment on the merits of the individual appeals but does address the following issues:

1.      Whether the test for summary judgment has changed in that once a motion judge has exercised the powers under Rule 20.04 (2.1) & (2.2), is there any limitation on his or her ability to find facts and to grant or refuse judgment that would not apply to a judge who has conducted a full trial?

2.      When is it appropriate for the motion judge to weigh evidence, evaluate and draw reasonable inferences in order to grant or refuse summary judgment under Rule 20.04(2.1)?

3.      When is it appropriate to hear evidence under Rule 20.04(2.0)?

4.      What are the principles to be considered in issuing orders under Rule 24.05?

For the answers to these questions and more, see the factum for yourself here.

We will be looking forward to hearing from the Court of Appeal itself on these issues. Stay tuned.

Sharon Davis - Click here for more information on Sharon Davis. 

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Medical Records are one of the most important categories of evidence available to the estate litigator. In most cases, medical records from health care providers who treated a testator in and about the time a Will was made will be seen as the most persuasive evidence available because the author of such records will be seen as both (i) possessing some degree of expertise related to the assessment of capacity and (ii) exhibiting complete objectivity as a witness (unlike the family members who may be contesting capacity).

In Ontario, the College of Physicians & Surgeons of Ontario (“CPSO”) has posted a policy on its website providing the public with information concerning medical records and what they are required to contain. Not surprisingly, security and privacy of medical records is one of the foremost concerns. Of particular interest is the fact that one of the “principles” of good record keeping as mandated by the CPSO is to maintain “information essential to others for a wide variety of purposes…including legal proceedings”

For its part, the Ministry of Health and Long-Term Care has stringent requirements for the production of Claims Reference Files providing details of all health care providers who have provided services to a deceased client. Typically, a Certificate of Appointment of Estate trustee With a Will or a Court order will be required to obtain a Claims Reference File for a Deceased.

David Smith

David M. Smith - Click here for more information on David Smith.
 

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The Rules of Civil Procedure are the the Barrister’s Bible. While we may not keep them on our bedside tables, they can be found on every good litigator’s desk as well as scattered throughout the office in strategic locations. 

As lawyers, we generally have good memories for anything logical or analytical –  case names can be remarkably pulled out of a hat at a moment’s notice. Not quite so for the Rules. Why? Because they aren’t always self evident or logical, especially when they work in tandem with other legislation that qualifies or expands on them. For example, did you know that a person who is “incapable” can, nonetheless, be “competent”?

Under Rule 31.03 (5)(b) a person who has been declared incapable of looking after their property or personal care pursuant to the Substitute Decisions Act may be examined if he or she is competent to give evidence. 

There is a prima facie right to examine an adverse party pursuant to Rule 31.03(1). All persons are presumed competent to give evidence pursuant to section 18 (1) of the Evidence Act. This presumption is rebuttable by sufficient evidence to the contrary. The onus rests on the party alleging incompetence to establish that the witness has no capacity to perceive, recollect and communicate evidence in the proceeding. (See R. v. Caron, 1994CanLII 8735 (ON CA) The evidence required for a determination of incompetence is medical evidence from a person qualified to speak with authority on the subject.   

In Trypis v. Lavigne, 2008 CanLII 26266 the Ontario Superior Court sets out the general principles applicable to the issue of competency of a party to give evidence. Trypis is twist in the other direction whereby a person who was “capable”, in that there had not yet been a finding of incapacity under the SDA, was found “incompetent” to testify.

If you’d like to see more on the subject, see Natalia Angelini’s blog, The Right to Examine Incapable Persons and Minors.  

Have a super weekend and thanks for reading this week.

Sharon Davis

Sharon Davis - Click here for more information on Sharon Davis.

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Given the nature of estate litigation, a party to the dispute, and/or a witness that is to testify at trial, are at times elderly, in poor health, incapable of testifying or out of the jurisdiction, such that it is appropriate for their evidence to be given out of court in advance of the trial date. Rule 36 of the Rules of Civil Procedure regulates taking of evidence before trial. 

A person may be examined under this Rule either by consent of the parties or with leave of the court. The court is to take into account several factors when determining whether to grant leave to order an examination before trial, which are particularized in Rule 36. These include the convenience of the witness and saving of costs. This permits the court to take a more broad approach, since previously these orders were limited to situations where it was established that the witness will likely be out of the jurisdiction or incapable of testifying.  

Moreover, previously, leave of the court was necessary before the examination of a witness could be used at trial. Now, the transcript or videotape of the examination of a witness who is not a party may be used “unless the court orders otherwise”, and the witness shall not be called to give evidence at trial except with leave of the court. In contrast, the transcript or videotape of the examination of a witness who is a party may not be used except with leave of the court or the agreement of the parties.

While it seems to me that live testimony will likely have more impact then a transcript or videotape, if the circumstances warrant it, this is a handy tool to avoid difficulties and complications in attempting to get witnesses and/or parties on the stand when the trial date arrives, and ensures the evidence is preserved and gets before the court.  

Have a great day,

Natalia Angelini

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Listen to Taking Evidence Before Trial

This week on Hull on Estates Bianca La Neve and Natalia Angelini discuss taking evidence before trial. They talk about the procedure for witnesses who may not be available at trial, which involves preserving their evidence beforehand so it is available prior to the trial. 

If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.

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Listen to A Review of Dependant Support Claims

This week on Hull on Estates, David Smith and Jonathan Morse review some of the recent podcasts and hone in on some of the evidentiary requirements of a common-law spousal relationship as it relates to dependant support claims under the Succession Law Reform Act. They look at some recent case law and some of the requirements under the Ontario statute.

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.
 

A Review of Dependant Support Claims - Hull on Estates Podcast #130

Posted on September 30^th, 2008 by Hull & Hull LLP

David Smith: Hello and welcome to Hull on Estates. You’re listening to Episode #130 on Tuesday, September 30^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.

Jonathan Morse: Hi and welcome to another episode on Hull on Estates. I’m Jonathan Morse.

David Smith: And I’m David Smith.

Jonathan Morse: If you want to be heard on Hull on Estates you can participate in our discussion by leaving a comment. Give us a call at 206-350-6636. The number is in the show notes along with our e-mail address, hull.lawyers@gmail.com, or you can visit our blog at estatelaw.hullandhull.com.

David Smith: Good morning, Jonathan.

Jonathan Morse: Good morning, David. As I am a relatively new associate at Hull and Hull, I thought I would review several of the recent podcasts to see if I could identify a topic that has not been covered in depth for some time.

David Smith: Well that was quite an undertaking, Jonathan. How did you make out?

Jonathan Morse: Well, I enjoyed myself, to start.

David Smith: There’s certainly a lot of material, isn’t there?

Jonathan Morse: There sure is. I focused on podcasts so far in 2008, and with the blogs I went back a bit further. I honed in on the topic of dependant support claims, and particularly, the evidence required to make a successful claim by dependants.  And to hone in even more, I realized that Section 57 of the SLRA, that’s the Succession Law Reform Act defines dependant. One of the categories of dependant is spouse, and I thought it would be helpful, certainly for me anyway, and I thought for listeners, to delve into the evidentiary requirements for spouse, particularly some of the elements of common-law spouse required under the SLRA.

David Smith: You know that’s a great topic, Jonathan, and what I’d say about that topic, specifically, is that nine times out of ten, when you go in front of a judge on a support claim when you’re contemplating a claim, either defending the claim or advancing the claim, I find that the biggest growth area right now is where people are trying to push the envelope as to who is a spouse, and whether there’s been cohabitation for a sufficient period of time. So a good topic and a lot of interesting stuff on that.

Jonathan Morse: Thank you. Before we delve too far into that distinction, I guess I’d like to remind listeners of some recent podcasts on this topic, to provide some context for today’s discussion of dependant support claims, and particularly the evidence required to prove a common-law relationship.

David Smith: Okay, thanks, Jonathan. You know the topic of today is fitting, especially when you see by looking at yesterday’s blog by Bianca La Neve. It’s a situation where a widow there applied for support from the deceased’s estate.  And in that case, McDougall and McDougall Estate, a 2008 Ontario Superior Court decision, that was a second marriage and not a common-law situation.  But you know, it does highlight the point that support claims are more and more common as I said at the outset. And here in this case, the widow’s claim was denied because it was not driven by need but rather her wish to live the lifestyle she had enjoyed with the deceased prior to a period long before he became ill. And an important point to remember is that the Court looks at support and dependency immediately before death. While there is some case law that suggests, that can be a bit fuzzy on that point, that was an important point to highlight for sure.

Jonathan Morse: I guess following that, a classic example of a common-law situation is when the children of the first marriage hope to deny that their parent had a common-law relationship with the person claiming that he or she was a common-law spouse. Looking further in my review of our recent material, more than two years ago, Suzana Popovic-Montag wrote in her blog, several entries in a series that asked the question, is there support after death? In Part 3 of that, she answered the question of who is a dependant, and that was on June 28, 2006. More recently, on May 20, 2008, Rick Bickhram and Sean Graham discussed evidence issues in estates, when a main party is deceased. In particular, they focused on Section 13 of the Evidence Act and the requirement for corroborative evidence.

David Smith: And let’s just touch on that a little bit more and just explain that requirement. The key witness in any of these claims, Jonathan, is deceased, right? I mean we’ve got a situation where the person who could best tell whether the claimant was, in fact, being supported by the deceased, obviously is deceased. Section 13 speaks to that, it says you’ve got to have corroboration, you’ve got to have material evidence that touches on the issue. The kind of corroboration you want may be in the manner of, if there’s a challenge to whether the two were living together, you’re going to want perhaps bills that were mailed to the address showing both names of both people who were living there together, you’re going to want some witnesses who can attest to the nature of the relationship, that sort of thing, so a very important point. And as I understand it Jonathan, you also found another podcast that touched on this issue.

Jonathan Morse: That’s right, thank you David. I refer listeners to July 1, 2008, just at the beginning of the summer.  The podcast by Natalia Angelini and Craig Vander Zee, and they discussed dependant relief and again, the Succession Law Reform Act. In particular, they focused on recent case law, including the line of cases culminating in Cummings and Cummings, decided by the Supreme Court. They left off their discussion by citing two other cases, Reid and Reid, that’s R E I D and Reid, a 2005 Ontario Superior Court of Justice case and Parelli and Foley Estate, a 2006 decision by the Ontario Superior Court of Justice.

David Smith: Right, and just one clarification there or comment, Jonathan, is that, of course, Cummings was a Court of Appeal decision.  But I understand that Reid and Parelli, it’s expanded upon some of that and why don’t you tell me a little bit about those.

Jonathan Morse: Sure. In Reid and Reid, it was useful because of Justice Snowie’s analysis of the particular evidence. It’s not necessarily on point with this discussion regarding common-law spouses, but I’ll be brief. Reid and Reid involved the daughter and two grandchildren of the testator, and the three claimants were claiming that they were dependant on the testator. The estate was about $200,000. The son of the testator, so the brother of one of the claimants, did not agree that his sister and niece and nephew were dependants.  The Court found they were dependants and that a testator’s support need not be direct financial support.

David Smith: I think that’s an important point, and you know, that’s an important clarification of the blog that we referenced that Bianca did, where, in that case, the Court was critical of the fact that there was no need. Certainly coming out of Cummings we have a regime which clearly says that you do not have to be in need, in financial need and in dependency in a financial sense to be eligible for support. Cummings has expanded the need and the concept of support beyond simply financial need.

Jonathan Morse: Thanks, David. The next case, Parelli and Foley Estate, that was decided in 2006 and it’s certainly more on point with today’s discussion.  And in this case, James Foley separated from his wife and subsequently moved to Niagara Falls, and that was in 1988, to a home that he purchased. His girlfriend at the time, a woman named Paula Parelli, gave up her apartment in Toronto that same year and moved to live with Foley. Foley relied on his income from investments while Parelli, she continued to work. Their incomes were comparable, according to the findings by the Court, and in the range of about $25,000. They each contributed to the upkeep, maintenance and operation of the household in Niagara Falls. Foley cooked, did the yard work, washed the kitchen floor, while Parelli cleaned up after dinner, did the laundry and cleaned the house generally. So in 1998, Foley developed Alzheimer’s and in 2000 Parelli quit her job to look after Foley. Then Foley, unfortunately died in 2003. 

So in this instance, the estate, including the value of the home, was about $510,000. There were bequests to family members and allowance for Parelli to stay in the home five months after Foley’s death. In this case, Parelli claimed a constructive trust, which the Court allowed, but only for the period during which she had to give up her job to care for Foley, so that was from the period of 2000 to 2003. The Court did not find there was a nexus to the property though, so the dependant’s support claim for the common-law spouse succeeded by increasing the amount of money left to her on top of the money left to her in the Will.

David Smith: You know, that’s a good illustration, Jonathan, of the interplay between a constructive trust claim and a support claim.  And it helps also advise counsel as to creative lateral thinking, because there the Court considered the fact that Section 62 provides that housekeeping and domestic services provided by the spouse can be factored into any calculation of a support claim. So an interesting way, and it shows the power of Part 5 of the Succession Law Reform Act, and the degree to which it allows the support claimant to realize an entitlement that they couldn’t realize from a constructive trust claim. Really good point.

Jonathan Morse: Just to hone in on a definition for a moment, David, the SLRA defines spouse, does it not?

David Smith: That’s right. A spouse is either of two persons who are not married to each other, and who have either cohabited continuously for a period of not less than three years, or in a relationship of some permanence, if they are natural or adoptive parents of a child.  So it’s a looser definition of spouse than under the FLA, for example.

Jonathan Morse: And I guess I’m envisioning that in sort of the world of different relationships that arise, that trying to determine whether a relationship is actually common-law or not, can be quite tricky sometimes.  And I think the definition leaves room for debate because there seem to be so many unique facts, or different fact scenarios. I guess I point to a case, and it was an earlier case in 1999, in Saskatchewan, which provides insight into the evidentiary issues that arise in determining whether or not a common-law spousal relationship exists.  And I think the same factors would apply in Ontario, and maybe you can speak to that, David.

David Smith: Yeah, one thing I would say is generally across Canada, the support regimes are very similar, there’s very little difference among any of them.  And, you know, a lot of the cases from one province can be used and applied in another, subject to any minor discrepancies in wording. But you know, Jonathan, looking at the time, I see that we’re actually getting close to our limit here in terms of having to wrap this up, and I know that there’s an awful lot we can talk about here.  But maybe just in summarizing, can you just give me a sense of what you gleaned in a sort of summary way from your review of the blogs and podcasts?

Jonathan Morse: From the review of the blogs, well we certainly have, we provided a lot of material and I think, certainly for a new lawyer in this area, it can be somewhat overwhelming because there is a large amount of information.  But it’s helpful information as well and provides good direction, a good resource to certainly dig into cases and I think texts, in some respects, to provide good guidance with respect to these different issues including that of common-law relationships and what constitutes the common-law relationship.

David Smith: And tell me, Jonathan, just as a lawyer newly specializing in this are of law, were you surprised by the power and breadth of the Succession Law Reform Act as it relates to the dependency claims?

Jonathan Morse: I think I am, yes, because it’s a powerful tool, and certainly clients are recognizing its power and certainly in this time when there’s a lot of wealth transfer happening, individuals are certainly looking to, when an estate arises, they’re looking to how they might resolve situations that have arisen within their family context and coming to us to look at their options under the Succession Law Reform Act.

David Smith: Right, and you know on a final point, I think it highlights the obligation that there should be upon a drafting solicitor who’s making a Will, to ensure that the testator is aware that dependants or people who might qualify as dependants could make claims against the estate and effectively undermine what the testator might think is his last Will. So it’s always a good point for a drafting solicitor to consider. Well, look, Jonathan, lots of fun. I really enjoyed podcasting with you, and I think that brings us to the end of this week’s discussion. Thanks for listening, and thanks for joining us today.

Jonathan Morse: It was a pleasure, David. I look forward to podcasting with you again soon.

David Smith: And that’s right, and you know, Jonathan, we look forward to hearing from our listeners. You can send us an e-mail at hull.lawyers@gmail.com, as we said at the outset, or just pick up the phone and leave us a message on our comment line at 206-350-6636. And 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 Dave Smith.

Jonathan Morse: And I’m Jonathan Morse. Until next week, so long.

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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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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Listen to Developments in Will Changes.

This week on Hull on Estates, Ian and Suzana discuss developments in will changes. They reference cases from Key Developments in Estates and Trusts Law in Ontario ed. 2008.

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.

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Evidence issues in estates when a main party is deceased - Hull on Estates Podcast #111

Posted on May 20^th, 2008 by Hull & Hull LLP

Sean Graham: Hello and welcome to Hull on Estates. You’re listening to Episode #111 on Tuesday, May 20^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.

Rick Bickhram:  Hi and welcome to another episode of Hull on Estates. I’m Rick Bickhram.

Sean Graham: And I’m Sean Graham.

Rick Bickhram: And today, we’re going to be touching on one of the statutes, specifically the Evidence Act and we’re going to be looking at Section 13 of the Evidence Act.

Sean Graham: Yeah, and in a more general sense, we’re going to be discussing how evidence issues or at least some of the concepts dealing with evidence issues and estates, given that one of the main parties that would normally be a party is deceased.  And so some of the direct evidence that might normally be available is not available to the Court and how the Court struggles with that problem. So, Rick, maybe you can frame the problem with respect to claims by or against an estate.

Rick Bickhram: Well, Sean, I’m looking at Section 13 of the Evidence Act and under Section 13 it states, “in an action by or against the heirs, next-of-kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence”.

Sean Graham: And the way I read that Section is basically that it’s not enough for someone claiming against an estate to show up after the death of the deceased and say, “I had a contract with the deceased. I was going to provide services and the deceased was going to pay me $100,000, and I provided those services.  I mowed the lawn of the deceased and I kept the house clean and so forth, and I fulfilled my side of the bargain, and now I want my $100,000”. If you want to bring a claim like that, you need to have some sort of corroborative evidence because otherwise it’s your word against the deceased’s, and of course, the deceased is not able to speak for him or herself.

Rick Bickhram: Before we touch on what type of evidence, I guess, we can use to corroborate such a claim, Sean, I’d just like to get what you think about the public policy reasons behind the Evidence Act. I’m guessing that the reason why this statute exists pretty much is because any evidence that is not corroborated by some type of external evidence other than testimony or viva voce evidence, is probably because it would constitute hearsay evidence.

Sean Graham: Well I’m not sure about, I mean a lot of the evidence that would be relied on would be purportedly direct evidence because the claimant would say, “No, the deceased told me this, I heard the deceased say this”, so that’s direct evidence. The issue I would have is that you can’t test that evidence, you can’t weigh the credibility of that evidence against what the deceased might say because, of course, you don’t know what the deceased might say. And so it’s an added hurdle to someone who shows up after the death and says, “Well I have all these entitlements because of this arrangement with the deceased or that arrangement with the deceased, and you can trust me because I’m telling the truth”. Well the Court, you know, holds people to a higher standard than that. 

And another comment I would make is that in many cases where somebody brings a suit against the estate, the facts that might give rise to that suit might have been present while the deceased was still alive and so there might be…another public policy aspect to this is, “Hey, if you didn’t start the lawsuit while they were alive and could defend themselves, you’d better have some pretty good evidence after that”, or not pretty good evidence but you’d better have some evidence to corroborate what you’re saying because otherwise, we’re going to assume that you might not be telling the truth and we’re not going to give your evidence any weight and you can’t bring your claim. So you need some corroboration to be able to bring it.

Rick Bickhram: Now, touching on the evidence, the corroborating evidence that would necessarily be used to prove such a claim, there’s a vast amount of case law out there which touches on this, such as, corroborating evidence can be the course of conduct of the parties, it can be an existing contract in place, it possibly could be witnesses who’ve heard the deceased mentioned or some form of verbal contract. And I’ll let Sean, I guess, discuss more specifically any case laws that may come to mind.

Sean Graham: Oh sure, and I think that when you talk about sort of broad categories of evidence that might be applicable and helpful to corroborate and meet the standard under Section 13, when you have broad categories like that then almost inevitably it seems to me the Court is bound to treat these matters on a case-by-case basis. So I don’t think there is likely to be any hard and fast rules where, you know, if you can check off box 1, 2 and 3 on a checklist well then you meet the standard under Section 13 and you’re good to go ahead with the litigation. I think that in each case, you know, you’re never going to be really sure because the Court is going to look at whatever evidence is purported to be pursuant to Section 13, and look at it in the circumstances of that particular case before deciding whether you meet the standard. But maybe, I think it’s worth mentioning at least one case, and if we’re going to mention one case, I guess it should be the Burns Estate and Mellon case.  That’s Burns is B-U-R-N-S and Mellon is M-E-L-L-O-N. This is a Court of Appeal case from the year 2000 and you can find it at 34 Estates and Trusts Reports, 2^nd. ed., page 175. 

In this case the personal representative of an estate was the one bringing the claim.  So you can either sue the estate or the estate can sue you, but in either case, you need Section 13 evidence. In this case it was the estate doing the suing and the estate brought an action against a person who received a large transfer from the deceased about two years before death.  And so the issues dealt with by the Court of Appeal were how exactly do you corroborate the claim and what standard did the estate have to meet and was the standard met in this case? Now the Court of Appeal held that if you are assessing Section 13 evidence, of course, it’s the civil standard, meaning the balance of probabilities. So if the Court feels that on a 51% basis you’ve proven that you have corroborative evidence, that’s good enough and on you go with the lawsuit. But if you’re at the 48%, in theory anyway, then its full-stop and you don’t meet the standard.

In this case, there were several pieces of evidence and each piece of evidence on its own was not necessarily strong evidence.  But again, in all the facts of the case, and I think this is the exercise we have to do, in all the facts of that particular case it was good enough, when you add it altogether to provide the necessary corroboration.  And I think it’s important to note that the Court of Appeal did, in fact, state that if each separate piece of purported corroborative evidence wasn’t particularly strong and it was only when you cumulatively looked at them in a cumulative sense that they were enough to get the estate over the standard threshold.

Rick Bickhram: And looking at the facts and the reasonings of the Court, it makes complete sense.  What the Court came out here pretty much, I’m guessing it did, and said here was that based on each individual piece of evidence, it wouldn’t probably be enough to sway a Court to say on the balance of probabilities, there’s enough corroborating evidence to verify the claim.  However, the Courts addressed that issue by saying they’ve looked at the totality of the circumstances here and in light of that, it was enough to validate the claim.

Sean Graham: Yeah, and I think that’s a pretty good example of just to what extent these matters are going to be treated with on a case-by-case basis by the Court.  And just a comment on clients and advising on this point. I find very often clients are very surprised when they come in and want to discuss a claim against an estate and you ask them, “well, okay, but what evidence do you have supporting that claim?” and they say, ”well, what do you mean? The deceased told me X, Y and Z, and that’s all the evidence I need, that’s the claim”. Well, no.  And that can be an uncomfortable discussion because, you know, parties, when someone is often elderly and often in ill health, the last thing most of them want to do is start collecting evidence to be able to sue their estate down the road and often the deceased is in the exact same position. The last thing they want to worry about if they’re maybe in ill health and declining is setting up a bunch of lawsuits for their personal representatives to bring on their estate’s behalf after their death. So, very often there may have well been a very good claim, except that nobody, the priority during life was not to create a bunch of evidence or to collect a bunch of evidence to be able to sue someone after the fact. And clients often, you know, they’re sort of kicking themselves in the foot because they weren’t thinking about this.  But, of course, to me it seems perfectly natural not to be thinking about that.

Rick Bickhram: I agree, Sean, and that definitely can lead to some uncomfortable discussions.

Sean Graham: I think that brings us to the end of this week’s discussion. Thanks to everyone for listening and thanks for joining us today.  And Rick, thanks so much.

Rick Bickhram: It was a pleasure to podcast with you today, Sean, and I look forward to podcasting with you again soon.

Sean Graham: And we always look forward to hearing from our listeners.  If you care to comment, you can send us an e-mail at hull.lawyers@gmail.com or you can just pick up the phone and leave us a message on our comment line, that’s 206-350-6636. We love to get constructive criticism and comments whenever anyone is kind enough to provide it. Be sure to visit our blog at estatelaw.hullandhull.com. You’ll find lots of information, lots of discussion on estate litigation and capacity litigation. We hope you enjoyed today’s show.  Again, I’m Sean Graham.

Rick Bickhram: And I’m Rick Bickhram. Until next week, so long.

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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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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Listen to Expert Witnesses and Expert Reports (The Cross Examination).

This week on Hull on Estates, Diane and Craig discuss what to consider when dealing with experts and expert reports in cross examination.

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.

Expert Witnesses and Expert Reports (The Cross Examination) - Hull on Estates Podcast #106

Posted on April 15^th, 2008 by Hull & Hull LLP

Diane Vieira: Hello and welcome to Hull on Estates. You’re listening to Episode #106 on Tuesday, April 15^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.

Diane Vieira: Hi and welcome to another episode of Hull on Estates. I’m Diane Vieira.

Craig Vander Zee: And I’m Craig Vander Zee. Good morning Diane.

Diane Vieira: Good morning Craig, how are you?

Craig Vander Zee: Very good, we’ve got a nice sunny day. We’re kind of out of the wintry weather I hope. The snow’s gone so that’s a good thing.

Diane Vieira: Yes, I hope –

Craig Vander Zee: Having enjoyed it for the winter. I think it’s a good thing that it’s gone now so that we can enjoy the summer.

Diane Vieira: Yes. So today we’re going to talk about, we’re going to continue on something we’ve previously talked about which is expert witnesses and expert reports.

Craig Vander Zee: Well in our past podcast that I’ve dealt with this subject and then the last one was with you Diane as you will recall, we talked about the requirements of the Rules of Civil Procedure with expert reports and the timing of expert reports. We’ve dealt with having experts in the context of dealing with the rules regarding Examinations for Discovery amongst other things. And we’ve also talked about what you might consider in selecting an expert and then the report itself. What might you consider when you’re having an expert prepare the report and upon having received the report, what are some considerations that you would have and then also of the opposing side expert report. So I think the focus of today will be on what we might consider in dealing with a cross- examination, that is, in terms of preparing your cross-examination of an expert witness in an estate context.

Diane Vieira: I gather it’s important when you prepare for a cross-examination of an expert witness, you’re looking at a few things. One thing I expect you would look at is the qualifications of the expert witness.

Craig Vander Zee: Well that’s right, I mean certainly when you’re selecting your own witness it’s of primary importance to ensure that if there’s any professional certification or qualification that’s needed by an expert to give the opinion that they’re going to give, that your expert has it.  Likewise, when you consider the opposing side’s expert, you look at that criteria as well and does the expert meet it?  Often times, the expert will meet it. So it doesn’t necessarily become an issue, but if it is an issue, you certainly want to canvass it and deal with it in your examination.

Certainly if you have objections to the testimony on the basis that your expert or the opposing expert that is, is not qualified, you would deal with that up front with the opposing experts. You may even, in fact, deal with it prior to the expert being examined in direct. But if the judge allows the examination and then you’re dealing with it on cross-examination, then you would want to cross-examine on the qualifications. It may be that you’re not prepared to accept or admit that the individual is an expert in the area. More times than not, the expert is an expert in the area. It may just be that experts are disagreeing, but the fact of the matter may be that he is or she is a recognized expert in the area and that the qualifications themselves aren’t really at issue. But the other thing that you want to focus on with respect to qualifications is, are there qualifications specific, their credentials and their expertise, specific to what they’re actually opining on. They may be an expert in a certain area but what they are opining on during the examination may not actually match up with their actual expertise. It could be that there’s hypotheticals put by the – or questions that are asked in direct by opposing counsel to their own expert and you may want to address that if you don’t feel that the expert has the credentials to deal with that kind of issue.

Diane Vieira: Let’s look at the report itself.  This is the basis of your cross-examination. Now one of the requirements is that the report has to be signed. Is this done to verify if the work in the report is actually the work of the witness that you’re cross-examining?

Craig Vander Zee: Well it’s a very important point, certainly when it comes to experts that are doing mathematical calculations or opining on the market value of things. You want to ensure at the outset of the cross-examination that indeed the expert who’s giving the evidence was the one who did the work. And maybe it’s the case that juniors or associates of the expert really did all the work and they haven’t done the homework, that is, crunch the numbers that needed to be crunched and you may want to bring that out if it appears that the expert – well, you may want to bring it out period.  But certainly if the expert hasn’t signed the report or the name on the expert report is different than the actual expert giving the evidence, you certainly want to highlight that. That will perhaps give you an opening if it’s not the expert who did the actual work, to test the underlying assumptions and the number crunching that went on with that expert, because he or she may not be familiar with the details of the report, but rather the overall opinion of the report. So that should not be overlooked in first of all reviewing the expert report that you get from the other side and developing your strategy for your cross-examination.

Diane Vieira: Just to backtrack a bit, I had mentioned the report as being the basis of the cross-examination, but do you always want to use the report for cross-examining a witness?

Craig Vander Zee: Well again, there’s differing views on whether the report should be filed with the Court. Counsel may agree that expert reports may be filed with the Court to be of assistance with the judge. But it is the expert giving the evidence itself and not simply purporting to read the report. But if it can be of assistance to the Court, especially if the report contains errors and it is being filed with the Court, you may want to highlight those errors. It could be that they’re just mathematical calculations that are completely inadvertent, innocent but still significant. And it could be that if you follow the logic of if this is an expert who is providing mathematical calculations in terms of opinion evidence, it could be that if there is an error up front, that even if you follow the logic of the expert, that could very well reduce the end number of that mathematical calculation. So you may want the expert report in front of the expert, knowing that there is an inaccuracy in it and then the expert would be left, presumably as long as it’s clear that it’s a mistake, having to concede that.

Diane Vieira: Let’s move on to discussing the foundation of the report or the testimony of the expert witness. What things are you looking for?

Craig Vander Zee: Well certainly at the report, the final opinion is clearly and obviously significant. But what is also perhaps equally as important is the underlying assumptions and the facts that were relied upon to get to that opinion. It could very well be that if the facts are not proven in Court that were relied on by the expert or the assumptions are incorrect assumptions based on evidence before the Court, that the expert might actually agree or concede even if in part, that his opinion isn’t valid if the assumptions and the underlying foundation is clearly differently. So it may very well be that the opinion is dependent – it’s obviously going to be dependent on the assumptions and the underlying foundation, but if you can prove through other witnesses that those aren’t the cases set out in the report or as relied upon, you may be able to get the expert to make a concession that the opinion is strictly tied to those assumptions and to those facts.

Diane Vieira: How can you provide evidence that the expert is offering contradictory evidence?

Craig Vander Zee: Well one, there’s the report itself. Maybe the expert is providing evidence which is not consistent with the report. Maybe it’s the case that there was a mistake in the report and you would certainly want to consider highlighting that.   It doesn’t mean that you will address that, it could just be that you’re emphasizing a point you don’t want emphasized. But it could very well be that you use the report itself to show that this is contradictory evidence. You can also go to articles which may have been written by this expert, where similar assumptions and underlying foundation and facts to your scenario has been written about by the expert and maybe the expert in an article has agreed with you. And it could very well be that on the specific circumstances of the case, the expert is not agreeing with your expert or with your case, but that in other circumstances, he or she would.  And then you’re left to proving those other circumstances. So certainly you can look at other articles. It may be that the expert testified under, in previous litigation, to a different opinion on the same facts. And that may be something that you will want to address. Again, you can attack the underlying assumptions and hypotheticals that are out there, either in the report or that come across on the examination in chief, as a way to undermining the credibility of the opinion because the foundation is incorrect.

Diane Vieira: When you’re preparing for a cross-examination, how can your own expert witness help you?

Craig Vander Zee: Certainly I would want to have my expert witness involved. First and foremost, once you get the report from the opposing expert, you’ll want to do some sort of response, or at least consider the response.  And so you may wish to retain an expert even if the expert’s not going to provide a report or give evidence, to at least look at and evaluate the report for you. And then you can base your decision as to whether you want to file the responding report on that, and then at the cross-examination itself, if it’s very technical in terms of mathematical calculations or determining frankly opinions that depend on numbers, that you’ll want your expert there to hear the evidence because if the evidence in direct isn’t correct, you have the opportunity to speak to the expert and you can address those issues on your cross-examination. And so it can be a very strategic advantage for you to have an expert there, the one that is giving the contrary opinion to the expert in the box, in certain circumstances.

Diane Vieira: Is anything else to think of when you’re preparing for a cross-examination?

Craig Vander Zee: Well, there’s many different things and we’ve only discussed some of them today obviously. There’s one thing that you can keep in the background of your mind, at least I do, is it may be a very well respected expert and the report may be done quite well. It could just be that you have two experts that are recognized in the area that are coming to a different conclusion or a different opinion. In that particular case, you have to evaluate whether you’re going to be able to get really a concession from the expert. That is to say, will the expert just simply capitulate and agree with your opinion. The likelihood of that is extremely small. If it’s a well experienced and well recognized expert who’s given expert evidence before. So what you can do is what I call ‘going for the grey’, is to try and slowly move the expert off of their position, maybe not all the way to agreeing with your case, but as far along that path as you can so that you can in some way differentiate the expert reports when you’re dealing with the trier of fact, that is, the judge and you want to highlight the differences in the report. You may be able to say, well he didn’t agree or she didn’t agree with our experts report, and as they conceded their position would change if this, this and this were different. You may be able to highlight those kinds of differences and I call that ‘shooting for the grey’ because you’re not hitting a home run in terms of the response, but you’re trying to work your way towards getting and improving your position.

Diane Vieira: I think that ends our podcast for today. Thank you for listening. It was a pleasure, Craig.

Craig Vander Zee: Always a pleasure, Diane.

Diane Vieira: And we look forward to hearing from our listeners. You can send us an e-mail at hull.lawyers@gmail.com or give us a call at 206-350-6636. Be sure to visit our blog at estate.hullandhull.com where you’ll find even more information. Thank you for listening and have a great day!

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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The Deemed Undertaking Rule - Hull on Estates Podcast #102

Posted on March 18^th, 2008 by Hull & Hull LLP

Paul Trudelle: Hello and welcome to Hull on Estates. You’re listening to Episode #102 on Tuesday, March 18^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.

Paul Trudelle:  Hi, I’m Paul Trudelle.

Allan Socken: Hi, and I’m Allan Socken.

Paul Trudelle:  Hi Allen, how are you today?

Allan Socken:  I’m good, thank you. How are you Paul?

Paul Trudelle: Good, withstanding the winter?

Allan Socken: Yeah, hopefully it’s close to an end.

Paul Trudelle:  The end is in sight, we’re almost there. With respect to our podcast today and we’re now up into the triple digits, we thought we’d talk a bit about the deemed undertaking rule. The deemed undertaking rule is a rule that applies in litigation, it’s a common law rule, that talks about the use of evidence, and it’s now codified in the Rules of Civil Procedure.

Allan Socken:  I think it’s also just important to make mention that while this appears to be standard practice in all jurisdictions in Canada, it’s interesting to note that only P.E.I. and Ontario have this codified within our Rules of Practice.

Paul Trudelle:  Yeah, that is a bit strange, but we have it codified in Ontario and that’s the system that we’re working under, so we’re going to talk a bit about the rule as it applies in Ontario.  However, it should be noted that it probably applies to the same effect in other jurisdictions as well, being a common law rule that is now codified.

With respect to the purpose of the rule, it basically… the rule is set to limit the use that one can make use of when obtaining evidence in the litigation process.  And there’s a very good quote from the Ontario Court of Appeal decision of Goodman v. Rosi that talks about the basis upon which the rule exists or why it exists.

Allan Socken:  It basically says the principle is based on recognition of the general right of privacy which a person has with respect to his or her documents. The discovery process represents an intrusion on this right under the compulsory processes of the Court. The necessary corollary is that this intrusion should not be allowed for any purpose, other than that of securing justice in the proceeding in which the discovery takes place.

Paul Trudelle:  Right, and I think that’s a great quote and I think it summarizes the purpose of the rule quite well and quite succinctly … I guess, put another way or restated, if you’re going to be forced to the litigation table by someone and you’re forced to disclose your documents, the documents only need to be disclosed for that limited purpose and they shouldn’t be disclosed for the whole world to see or they shouldn’t be used in some other proceeding and come back to bite you that way.

Allan Socken:  I think also to point out, I think the purpose of the deemed undertaking rule as is set out in Rule 30.1.01 sub 1, is that you can only use evidentiary documents that relate to the discovery and inspection of property, medical examination and the like. That’s what the rule tries to capture. So, for example, if you are in Court and there’s evidence given, then that probably isn’t captured under the deemed undertaking rule.

Paul Trudelle:  That’s right. The principle of the rule is if you’re forced to disclose information in the litigation process before it gets to open Court, it’s that information that’s going to be protected by the deemed undertaking rule. And the rule sets out that the rule applies to evidence obtained under the rules relating to documentary discovery, Examination for Discovery, that’s of the parties and of witnesses as well, inspection of property, medical examination, written interrogatories if they are used, and even as far as examinations in aid of execution after judgment is obtained. So it is of limited application, however, in the context of litigation, it seems to protect most evidence that you are able to obtain from the other party or from the witnesses.

Allan Socken:  For example, for Will challenges, a lot of the time, it’s very standard to ask for complete disclosure of medical, financial and legal information.  And especially in the case of legal materials, when you do a Will challenge, it may be necessary or it may be an option for the client subsequent to the Will challenge or during the Will challenge, to want to pursue a negligence claim against the solicitor in certain circumstances.

Paul Trudelle:  That’s right, Allen. And I think that that’s very important from an estate point of view. The only way we are able to obtain evidence, usually from medical practitioners, and perhaps more importantly from solicitors, is through the litigation process. If that evidence is protected by the deemed undertaking rule, that’s going to have a significant impact on the rights of the parties to pursue those types of claims, and we’ll talk about that in a minute.

The substance of the rule, I think we should mention briefly, we talked about what evidence it applies to. With respect to the substance, that’s set out in the rule itself.  And the rule states that all parties and their counsel are deemed to undertake not to use evidence or information to which the rule applies, and we talked about that, for any purposes other than those of the proceeding in which the evidence was obtained. So that’s very limiting.  You can’t use it for any other purpose other than the purpose of the very litigation that’s before the Court. And that’s quite restrictive. Having said that, there are exceptions to that rule and perhaps we can talk about some of the exceptions that are set out in the rule itself.

Allan Socken:  Sure. Some of the exceptions are that the deemed undertaking rule does not apply to evidence that is filed with the Court. Similarly, it doesn’t apply to evidence that is given or referred to during the hearing, as well as information obtained from evidence regarding the evidence filed within the Court, or evidence that is given or referred to in the hearing.

Paul Trudelle:  That’s right. So once the material is aired in an open Court, then its open game and the parties are able to … the protection no longer applies. Similarly, if you obtain some information and it’s disclosed in open Court that leads to other information, that information isn’t protected either. There’s another exception that deals with using evidence to which the parties consent. So if you get the consent of the person with respect to the evidence that’s disclosed, then it can be used for another purpose.  Although if you’re going to be suing that person, it’s probably not likely you’re going to be getting their consent.

Allan Socken:  And I think another exception is the deemed undertaking rule doesn’t apply when the interests of justice outweigh the prejudices of the parties. I think that’s kind of an interesting exception, simply because it’s such a broad exception and it could probably capture a number of situations.

Paul Trudelle:  That’s right.  And to deal with that exception, you’d need to get an order of the Court allowing you to use that evidence for the ulterior purpose or for the purpose of the other proceeding. What you would need to do is show the Court that, just as the rule states, that the interests of justice outweigh any prejudice that would result to a party. That is often a sort of a way of saving yourself or allowing you to proceed with the action after the fact. If you obtain evidence through the examination process or the discovery process and there is no other way to get that, you may be able to argue that you have a legitimate interest in using that evidence for the purpose of the subsequent proceeding.

Allan Socken:  From your experience, Paul, is it easy to get that kind of order?

Paul Trudelle:  I think that that’s a very tough thing to do because I think that we have to look at the overriding purpose and the intrusive nature of the disclosure process. People are dragged to the table and forced to disclose their evidence, their documents.  And to allow that sort of fishing expedition to be used to commence another proceeding against another party, I think, is something that the Courts are not going to do lightly. Having said that, if there was no other way to get that evidence, or it’s clear that the evidence ought not to be protected, then the Court, I think, will make that type of an order and allow it to proceed. I think that’s still a very tough order to get, though.

Allan Socken:  Absolutely. I mean, because, I think, in most matters, certainly a Court would be very careful before it goes ahead and grants a rule or grants an order which basically prejudices a party in a certain way.

Paul Trudelle:  That’s right. With respect to the exceptions, there’s another exception.  You can use that evidence to impeach someone’s testimony in another proceeding. So the evidence, if it’s... documents are given in one proceeding, they can be used in another proceeding to impeach testimony. And that’s another exception as set out in the rules.

We were talking, or you mentioned before, the estates context and I think that’s what we should maybe touch on before we wrap up. In the estates context, we usually get an order in a Will challenge, that would allow the parties to obtain evidence on examination or through witnesses. That may be, for example, the evidence of a solicitor who prepared the Will and the instructions that were given to that solicitor. That information may be protected by the rule and it may preclude a party from bringing an action as against a solicitor. There was a case back in 1998 that’s an unreported decision of Giamanco and Zahora that dealt with that very issue. And there, the Court was faced with a motion to consolidate proceedings. There was a Will challenge, there was an action against a solicitor and there was a motion to consolidate.  The solicitor resisted that, as did the parties to the other lawsuit, on the basis that the deemed undertaking rule was breached.  And the Court there dealt with the issue of the deemed undertaking rule.

Allan Socken:  And what’s also interesting about that case was, it cited a decision known as Orfis Realty and D.J. Jewellery of Canada Ltd., which basically says that if you try to use evidence from one proceeding to another, notwithstanding the deemed undertaking rule, that a contempt order can be issued against the party who tries to do that. And notwithstanding that ruling, Justice Mossep in the Giamanco decision did not proceed to make a contempt order in the Giamanco decision.  But the Justice did make mention of the fact that the solicitor, the defendant, could go ahead and try to stay the proceedings. But what’s interesting about it is Justice Mossep didn’t, on its on volition, try to stay the proceeding.

Paul Trudelle:  That’s right.  I think she left it open to the party to bring the appropriate motion in the second proceeding to have it stayed. And I think that’s maybe something we can touch on before we wrap up, which is the remedies where there is a breach of the deemed undertaking rule. You mentioned that contempt was one of them.  And the other was a motion or a staying of the second proceeding or perhaps even a dismissal of that. You think that might be a fair conclusion?

Allan Socken:  Absolutely.

Paul Trudelle:  Okay.  Now how do we, as parties to a litigation, when we’re going to be getting evidence from solicitors, how do we protect the right to pursue an action, if one is advisable, as against the third parties or those people who are giving evidence?

Allan Socken:  Well generally, when we do a Will challenge, in that kind of situation, when we proceed with the order giving direction, which basically sets out the procedure for the litigation, we’ll specifically ask the Court within that order to ensure that this rule, the deemed undertaking rule, doesn’t apply for that litigation.

Paul Trudelle:  And the Court can make an order that the deemed undertaking rule doesn’t apply. Often, in estate matters, we seek that in the order giving directions, usually on the basis that there’s no other way to get that information. The solicitor is…the information that he has can only be produced on a Court order in this proceeding because the person who gave the instructions is deceased. In effect, the parties are stepping into the shoes of that deceased person to get the information.  And on that reasoning, we would argue that the deemed undertaking rule shouldn’t apply and that evidence shouldn’t be protected from an action, if it turns out that such an action is warranted.

Okay, well I think that’s a good, initial discussion with respect to the deemed undertaking rule, and when it can be invoked and the considerations to be taken into account. Thank you very much, Allan.

Allan Socken:  Thanks Paul.

Paul Trudelle:  And just before we go, we welcome your comments and we ask for your comments. You can send us an e-mail at hull.lawyers@gmail.com and send in any comments, your questions or suggestions that you might have.

Allan Socken:  And 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.

Paul Trudelle:  And we also have a comment line.  You can call us at 206-350-6636, and give us your comments and you might even end up on the air, on our podcast, if you leave a comment.

Well, thanks a lot Allan, that was very good.  It was a pleasure blogging with you this week.

Allan Socken:  Likewise, Paul.

Paul Trudelle:  Podcasting with you, and I look forward to doing this again, thank you.

Allan Socken:  Thanks.

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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Experts in Estate Matters - Hull on Estates Podcast #94

Posted on January 22^nd, 2008 by Hull & Hull LLP

Sarah Fitzpatrick:  Hi and welcome to Hull on Estates.  You are listening to Episode #94 of our podcast on Tuesday, January 22^nd, 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.

Craig Vander Zee:  How are you today Sarah?

Sarah Fitzpatrick:  I’m fine, thanks Craig. How are you?

Craig Vander Zee:  Good. It’s Craig Vander Zee and Sarah Fitzpatrick is with me today. As you well know, I’ve been podcasting with Paul Trudelle the last couple of times, but it is my pleasure, today, to be podcasting with Sarah.

Sarah Fitzpatrick:  It’s nice to be here, Craig.

Craig Vander Zee:  Have you had a happy new year so far?

Sarah Fitzpatrick:  I’ve had a great new year, it’s been busy.

Craig Vander Zee:  Yeah?

 Sarah Fitzpatrick:  But very nice, how about you?

Craig Vander Zee:  Yeah it’s been good. Of course, with hockey and my little guys’ playoffs coming up, it gets a bit busy but it’s fantastic to watch them play.

Sarah Fitzpatrick:  Excellent.

Craig Vander Zee:  Sarah, today I thought that we would touch upon the topic of expert evidence in the context of an estate proceeding. And there is certainly a bunch of topics that you can deal with. I think for today we won’t touch upon selecting an expert or the expert report itself or perhaps an examination-in-chief or the cross examination of the expert. Maybe today we can focus on issues dealing with perhaps the different kind of experts and the discovery and the timing for the provision of the expert report.

Sarah Fitzpatrick:  That’s right, and I think perhaps we could start by talking about the circumstances when you would consider using expert evidence.

Craig Vander Zee:  Certainly there are a number of different kinds of experts that could be used in an estate context, and again, you know, we’re dealing with different types of claims. They could be passing of accounts in the context of a trust, it could be in the context of an estate, it could be a dependant support claim, it could be a will challenge or other types of estate and trust related proceedings. It could be a guardianship application and there’s medical experts that are required. So there are a number and wide range of experts that you could have. But perhaps we could comment on a couple of them in the context of focusing on assets. And certainly you might have someone assess whether investments in an estate or trust were handled prudently, assess the performance of an investment portfolio, the management of assets in general, evaluation of a current asset. Or perhaps you’re unravelling a family company that was used as a family bank, again in the context of an estate passing of accounts. And there are certainly others.

Sarah Fitzpatrick:  Right.  That’s right Craig. Some others as well might be the income potential of an asset, the invested rate of return of specific assets. There can be tax issues as well as forensic accounting issues to consider.

Craig Vander Zee:  And again, we’re not leaving out the need in certain types of proceedings such as a will challenge, where capacity is in dispute, of medical experts, or psychiatric experts, to deal with the issues in those cases.

Sarah Fitzpatrick:  That’s right.

Craig Vander Zee:  Now when you do have an expert, it’s critical that you consider the timing for retaining the expert. And part of the reason for that being a factor in your proceeding is that you have to be mindful as to the disclosure requirements at an Examination for Discovery, if there’s going to be Examinations for Discovery in your particular proceeding. And Rule 31.06 of the Rules of Civil Procedure deals with that very aspect.

Sarah Fitzpatrick:  They have been defined, Craig, as the findings, opinions and conclusions. It includes such things as notes, data, research, calculations and documents that can be used by the experts to prepare the report.

Craig Vander Zee:  Right and when you’re considering that, sort of going back to what the disclosure could be, it’s the findings,  opinions and conclusions of that expert engaged by or on behalf of your client that relate to the issue, okay.  And knowing what findings, opinions and conclusions might mean, you would want to know whether it’s going to be an obligation that you provide those to the other side. Because if you have an expert report that you don’t intend to rely on, you don’t want to disclose that to the other side. So the Rules…if you can help it at all, and certainly within the confines of the rules. So the Rules also allow you not to disclose the information, that is, not to disclose findings, opinions and conclusions, where the findings, opinions and conclusions of the expert were formed in preparation of contemplated litigation or pending litigation and…and that’s the key part…and you undertake not to call the witness at trial. So, practically speaking, your client is getting examined, and as counsel, you would be there with them at the examination and you’re being asked these questions regarding the expert. And typically, and certainly it’s my practice, that the client would not be answering questions on the expert evidence, that I would be dealing with those questions. And if there was an expert report that we were relying on and we were bound by the Rules to give the findings, opinions and conclusions, then we would deal with that appropriately. But if we weren’t, that’s when we would also have to undertake not to call that witness at trial.

Sarah Fitzpatrick:  That’s right Craig.

Craig Vander Zee:  Having considered how the expert’s findings, opinions and conclusions might be dealt with at a discovery, and how you might be able to avoid, within the confines of the Rules, of having to reveal or disclose those findings, opinions and conclusions if you don’t have any intention of calling them as a witness, it’s important to consider the service requirements for an expert report because it’s critical that they be delivered in the time provided by the Rules.

Sarah Fitzpatrick:  That’s right. So when thinking about service requirements, it is Rule 53 of the Rules of Civil Procedure that deals with this. And specifically, that Rule provides that you have 90 days before the commencement of trial for the person serving the report to serve that on the other side. And there are other time restrictions as well. The person responding to that expert report then has 60 days before the commencement of trial to serve on the other party their expert report.

Craig Vander Zee:  Essentially it breaks down into really three critical time periods, as you’ve mentioned, Sarah. And really the first one is 90 days before the commencement of a trial, if you’re serving your report. And then there’s the responding report, as you mentioned, 60 days, at least, before.

Sarah Fitzpatrick:  That’s right.

Craig Vander Zee:  And then 30 days if you’re doing a reply report. And where it’s critical is that if you miss these time periods as a matter of right, you may find yourself not being in a position of controlling whether the expert report gets in. And by that, I mean if you miss these time periods, the Rules indicate that, subject to another Rule, that is, that grants leave to allow the report to be filed, you may not file that report. So you move from a situation where you have a right and can file the report, assuming that it’s a proper report. You go from a situation where you had a right to enter it, to a situation where you’re not allowed to enter it, unless the Court gives you leave or the other side consents. And if the other side were to consent then that would…then certainly the report would be able to go in. But if you find yourself in a situation where you’ve not complied with the Rules with respect to the service of the report, there is still hope. Rule 53.08 allows for the service of the report in situations where the Court grants leave. And the leave shall be granted on such terms as are just with an adjournment unless, and here’s the key, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial. So in most cases, those last two hurdles can be jumped. But in certain circumstances, perhaps if it was on the eve of trial or during trial that you wanted to have an expert report, you may find a situation where the judge is not prepared to do that. The one caveat with all of that is that the phrase “on terms that are just” usually means cost consequences. And so…but if you file an expert report outside of the time periods allowed, you may find that if the other party isn’t going to consent to it being admitted and filed with the Court…sorry, to allowing the expert report to be received and then having the expert called to trial, you may find yourself facing a cost award that would have to be explained to the client. And so that would obviously…is a situation you want to avoid in every circumstance, if possible.

Sarah Fitzpatrick:  The practical matter you should also bear in mind when serving the expert report there are a few key considerations to include. You need to include the CV of the expert. The report should be signed by the expert and needs to include the experts name and address and well as his or her base of qualifications.

Craig Vander Zee:  So now that we know when to serve the report and we know how it’s going to be dealt with in examination for discovery at least in terms of the scope, we should be mindful as to the number of experts at a trial.

Sarah Fitzpatrick:  Right and they are actually limited to 3 on each side. If the party intends to call more than 3 it’s important to give notice of one’s intention to call more than those 3 that are allowed.

Craig Vander Zee:  Well that’s right and in section 12 of the Ontario Evidence Act covers that off, Sarah. And having said that though, there is some debate whether the limitation of 3 witnesses is in respect of 3 experts on the same issue, or 3 experts in total on each side. But as you said, to ensure that you, at least, can address the issue, you put the other side on notice.  And if you’re certainly within the time periods, that is, if you’re delivering 3 reports and they are 6 months in advance of the trial, there is a better chance of being able to deal with the issue and trying to work it out, or at least have the issue dealt with before trial, so that you know what your situation is going into the trial, rather than leaving it to a time period when it’s perhaps not as practical to deal with the issues or may have cost consequences.

Sarah Fitzpatrick:  Good point, Craig. One last thing that we would like to touch on today is the issue of the Court appointed expert.

Craig Vander Zee:  Well, here’s a situation where the Court actually does the appointing of the expert, as the name to the Rule would indicate. It’s really 52.03 of the Rules of Civil Procedure. And what this Rule allows is on motion, or on the judge’s…motion by a party, or on the judge’s own initiative, the Court appoints an expert report in the situation. And it could be that each side has an expert on a matter, both seem to be equally qualified, perhaps even equal in terms of their experience and credibility, but have completely different findings.  And maybe the Court wants another expert to come in and deal with it. It could very well be that the expert reports in a particular case are unsatisfactory. Maybe they don’t address all the issues and the judge feels rather than having the parties go out and agree to get further expert reports, that it’s just easier for the Court to take charge of the issue. And what the Court would typically do is make an order that would deal with the content of that report in a sense of what the issue is going to be. But it would also include how the expert is going to get paid, you know, with respect to the preparation of the report, the daily attendance in Court for that expert, who should bear the cost of the report itself and would also touch upon typically directions regarding the delivery of the report to the parties, and the potential cross-examination of that expert by those parties. And so the order wouldn’t be in a vacuum, it would be in a situation that would have directions with it so that there is a clear understanding as to what that expert is supposed to do, what he or she is to be paid and the availability of that expert for cross- examination by the parties so they have ample opportunity before going into trial of testing the evidence of that expert.

And I think with that, we’ve ended our discussion today, Sarah. I think next time we’ll touch upon, as I mentioned at the beginning of the podcast today, what you might consider in selecting an expert, the report itself, and if we have time during that podcast, items that you might consider when cross-examining or doing an examination-in-chief of the expert. I can say that it has been a real pleasure podcasting with you today. I wouldn’t know it, that this was your very first podcast. And I look forward to our next.

Sarah Fitzpatrick:  Well thanks Craig, I look forward to our next one as well.

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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Listen to Karkus v. Cotroneo 2007

This week on Hull on Estates, Paul Trudelle and Diane Vieira discuss the case of Karkus v. Cotroneo 2007. The case addresses many of the issues that estate lawyers face on a daily basis, such as: proving or disproving gifts, slander of title and the importance of corroborative evidence.

Karkus v. Cotroneo 2007 - Hull on Estates Podcast #93

Posted on January 15^th, 2008 by Hull & Hull LLP

Paul Trudelle: Hi and welcome to Hull on Estates.  You’re listening to Episode 93 on Tuesday, January 15^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.

Paul Trudelle: I’m Paul Trudelle.

Diane Vieira:  I’m Diana Vieira.

Paul Trudelle:  Hi Diane.  How are you?

Diane Vieira:  I’m good.  How are you?

Paul Trudelle:  Very good.  This is our first podcast together and our first podcast of 2008, so I wish everyone a Happy New Year.  And why don’t we get into what we thought we would talk about today.

Diane Vieira:  Sure.  This is an interesting case that deals with a lot of things that we deal with in our practice.

Paul Trudelle:  Yeah, the case is Karkus and Cotroneo.  It’s a 2007 case, April 19, 2007, out of the Ontario Superior Court of Justice.  It’s a decision of the Honourable Mr. Justice Sheppard.  And I thought that it would be great to talk about this case because it deals with a number of issues that we deal with day in and day out.  It deals with issues such as gifts, proving a gift or disproving a gift, corroborative evidence required, remedies where there is a finding that there was no gift.  It talks about resulting trusts, set-offs, slander of title, costs regarding Certificates of Pending Litigation when those are resorted to early in the litigation, and also costs of the litigation.  So there’s a lot in this relatively short case…11 pages…but I thought we would spend a little time going through some of those issues.   Perhaps we can talk a bit about the background or the facts of the case.

Diane Vieira:  Oh, sure.  This is a case where the deceased died without a Will and her daughter was appointed the estate trustee.  The deceased was a business woman and near the end of her life, her business had been failing so there was a number of creditors.  And her daughter, the estate trustee, who is the plaintiff in this action, was looking through her mother’s financial records and an entry in her bank book showed a $65,000 transfer from her mother to her mother’s boyfriend, who’s the defendant in this case.

Paul Trudelle:  Right.  And I think just before we go on, I think the fact that the deceased was in some financial difficulty in her business, is an important factor that the Court relies on later on, so that’s important to note.

Diane Vieira:  Later on, the defendant admits that he received the $65,000.  His position is that this was a gift.  The daughter’s position is that this represents money that the defendant was holding on behalf of his mother.  A little more explanation to that was that the $65,000 the defendant used to purchase a property.  And then on that property, the defendant’s name is listed alone, but the property is listed as registered as being in trust.

Paul Trudelle:  That’s right.  And I think that’s important as well.  The Court deals with the resulting trust claim and looks at that factor, and we’ll talk about that briefly in a second.  So in essence the claim was by the estate for the return of the $65,000 and for a claim that the defendant held a property on a resulting trust and the estate had an interest in that property.  The Court looked at the evidence with respect to the gift and before doing that, set out the test that is required and what the estate must argue or try to establish in order to show that there was a debt or resulting trust and what the defendant needs to show in order to prove that there was in fact a gift.

Diane Vieira:  I just wanted to…another point of fact is where the $65,000 came from and when it was transferred.  The deceased had sold her house and she was moving in…she moved in with her boyfriend, who is the defendant.  And the $65,000 represents the proceeds of the estate…the proceeds of the sale of the house, excuse me.  And the money wasn’t gifted or transferred to the defendant until six or seven months later on, which is something that the Court reflected on.

Paul Trudelle:  That’s right. They looked at the fact that the parties had moved in together, the $65,000 was used to, in part, to purchase this house and make renovations that the plaintiff wanted.  The Court considered the fact that the onus is on the defendant to prove, or the recipient to prove that this was a gift, there was no presumption that would work in his favour.  And in fact, the presumptions which aren’t really referred to, would be the opposite, that there was a resulting trust or the money was owed back to the estate.  And the Court found ultimately that the defendant wasn’t successful in proving that this was a gift.  His evidence was that the money was used…was given to him to help with the purchase of the house and to pay for expenses and that was contrary to a finding of a gift.  Just another point on that - the Court refers to the evidence required in order to establish a claim by or against an estate and dealt with the issue of corroborative evidence.  Perhaps we can talk a bit about what corroborative evidence is required and what the rule is there.

Diana Vieira:  With respect to corroborative evidence, Section 13 of the Evidence Act requires that there be some corroboration of the material evidence.  And the onus is the civil litigation onus, but with corroboration.  And in this case, the judge and the Court had problems with the defendant and the plaintiff’s evidence.  He called that evidence unreliable.

Paul Trudelle:  Right.  He felt that the evidence of the parties was of questionable credibility and in the absence of any corroborative evidence, he wasn’t able to find that there was in fact a gift.  And as you mentioned, the Court referred to the burden on the defendant to prove it but said that there was also what he said was a healthy scepticism in addition to that.  Now there’s other cases that talk about whether there’s a higher burden on a party.  The burden is still the civil burden but the Courts will look at these claims with some scepticism.

So the result of the defendant’s failure to prove that it was a gift meant that money was owing to the estate.  The Court went on to deal with the issue of whether the estate had a trust claim against the defendant.  And the Court dismissed the trust claim for a number of reasons.  The first reason, or one of the reasons was that in establishing a trust, there is case law to the effect that evidence of an illegal scheme will not be received to support a resulting trust.  And the illegal scheme that the Court referred to here was the fact that the monies were transferred by the deceased to the plaintiff probably for the purpose of avoiding creditors.  And as a result, they had…the Court had a difficult time in finding that the estate could rely on the doctrine of resulting trust in these circumstances.   So how did the Court deal with the money owing to the estate then?

Diane Vieira:  The Court goes on to find that the defendant does owe money to the estate.  It’s a debt to the estate.  And he then goes on to discuss the concept of unjust enrichment.

Paul Trudelle:  Yeah, and the Court found that the money was owing to the estate and I guess the defendant had assets here.  The Court felt that it wasn’t necessary, in fact, to rely on the concept of trust or impose a trust over the property owned by the defendant.  A judgment, a monetary judgment, was sufficient.  You mentioned the unjust enrichment part of it and the Court talked a bit there about when they will find unjust enrichment in order to bring in the equitable remedy.

Diane Vieira:  Yes, the Court refers to the Supreme Court of Canada case, Peter vs. Bellow and the three steps that are needed for a finding of unjust enrichment.  And all three were here in this case.  There was an enrichment on behalf of the defendant receiving the $65,000 and a corresponding deprivation to the deceased, now the estate of the deceased, and then an absence for the reason of this enrichment.

Paul Trudelle:  Yeah, but having found all of those circumstances present, the Court still goes on to say that they won’t impose the equitable remedy of a constructive trust.  The Court refers to that Supreme Court of Canada decision and extracts a point to the effect that a monetary award would be the appropriate remedy in many cases, and that was the case here.  And the Court concludes that a monetary award is appropriate and makes an Order that the defendant pay back the $65,000 to the estate.  However, he doesn’t end there.

Diane Vieira:  No, it’s…the Court goes on to find that the estate is not entitled to that full $65,000 because the defendant did provide something in the excess of $20,000 in renovations to the house.  And if the deceased’s $65,000 was in a gift to the defendant, then the money that he contributed to the relationship was also not a gift. 

Paul Trudelle:  That’s right.  So in effect, they awarded the defendant…they made an award in favour of the defendant with respect to his Counterclaim for money that he said he spent on behalf of the plaintiff, and that reduced the recovery by the estate.  There is also the issue of a claim by the defendant for slander of title.  The defendant alleged that a Certificate of Pending Litigation put on his property was slander of title, and the Court dealt with that in very short order.

Diane Vieira:  Yes, the Court found that the plaintiffs did not…didn’t have a credible position to have had that Certificate of Pending Litigation registered.  And consequently they awarded the money that the defendant had spent on removing that Certificate, credited back to the defendant.

Paul Trudelle:  That’s right.  And finally, on the issue of costs of the action itself, the Court considered the fact that the plaintiff had some success, made recovery for the estate.  However, it didn’t establish its claim for resulting trust.  The Court also felt that the evidence of the witnesses was unreliable to a certain extent and in fact in some parts the judge said that in some parts, the evidence was fabricated.  And as a consequence of that he ordered that there be no order as to costs, and each party had to bear its own costs.

Well, I think that’s an interesting case on a number of grounds.  We’ve touched on a few of the points that the case deals with.  I recommend the case highly to anyone dealing with those types of situations where there are gifts, where you’re considering a claim for a resulting trust, an interesting counterclaim where you’re faced with a claim for the return of a gift or money advanced on the basis of benefits provided to the deceased, and also considerations for dealing with Certificates of Pending Litigation and the costs that may be involved in that.

Well thank you very much, Diane.

Diane Vieira:  Thanks Paul.

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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Listen to Proprietary Estoppel

This week on Hull on Estates, David Smith and Rick Bickhram discuss proprietary estoppel.

Proprietary Estoppel - Hull on Estates Podcast #92

Posted on January 8^th, 2008 by Hull & Hull LLP

David Smith:  Hello and welcome to Hull on Estates.  You’re listening to Episode #92 of our continuing podcast series on Tuesday, January 8^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.

David Smith:  Good morning Rick.

Rick Bickhram:  Good morning Dave.

David Smith:  My name is David Smith.  I’m one of the partners at Hull & Hull.  And I’m here today with my associate, Rick Bickhram.  And today, Rick, we thought we’d talk about an interesting equitable concept which is gaining considerable traction in a lot of the cases that we look at, and certainly is an established concept in the British estates Bar.  And that, of course, is this whole issue of proprietary estoppel and when it can be used.  Rick, just generally speaking, what is proprietary estoppel?

Rick Bickhram:  Good question, Dave.  The doctrine of proprietary estoppel is primarily used by a claimant who has been promised all or part of an estate and has acted to his or her detriment in reliance on that promise.

David Smith:  So that’s really a classic equitable concept, isn’t it?  It’s where the Court is looking to fashion a remedy based on principles of fairness, when you boil it down, and principles of equity, to correct a situation which it would be unjust to leave as is.  And, of course, in the estate context, we’re always looking initially at the Will.  And I assume, Rick, that the situation where this arises is where someone’s been promised an inheritance in an estate by a testator and then subsequently discovers that they’re not receiving that inheritance?

Rick Bickhram:  That is correct, Dave.

David Smith:  Now Rick, this…I want to flesh this whole concept out a little bit more.  How does it differ from promissory estoppel, which is a term that we encounter in other areas of civil litigation?

Rick Bickhram:  Great question, Dave.  A promissory estoppel is pretty similar to the definition of proprietary estoppel.  If we look at the textbook definition of promissory estoppel, a claimant can rely on promissory estoppel where there is a clear promise by the deceased, and that promise affected their legal relationship and the promisee or representee acted to his or her detriment.  The difference between proprietary estoppel and promissory estoppel is that proprietary estoppel can be used as a sword and shield.  Proprietary estoppel can give rise to a cause of action.  Whereas promissory estoppel cannot give rise to a cause of action.

David Smith:  Okay.  And that’s really critical, isn’t it, for us, as litigation lawyers, isn’t it, Rick?  I mean, we’re always looking for opportunities to advance claims and defend or advance our clients’ interests.  And I think in a situation where…the classic example is someone’s cut out of a Will.  Well, were they relatives?  Were they…did they have an expectation of receiving a benefit?  The first thing we always tend to look at is, is there a Will challenge here, and is there a benefit to challenging a Will?  But in a lot of these cases where proprietary estoppel is useful, there’s a couple of points.  One is, the Will may not be one that can be challenged in any event because it may be a perfectly valid Will.  And the other problem may be that the person who rendered services to the deceased may not be a beneficiary under a prior Will, in which case, there’s no benefit to advancing a Will challenge in any event.  And so when we go through the flow chart of decisions or possible remedies available to any client, and we come to the conclusion that a Will challenge is not a viable option, in these circumstances we then look to other options.  And certainly, you know, proprietary estoppel is related to the concepts of quantum meruit, constructive trust, all of those other kinds of remedies that are a little better known in the Ontario Court system.  Proprietary estoppel is simply another means by which we can rely on the Court of equity to correct an injustice.  And that’s it at its highest.  But if we boil it down to its various components, Rick, what’s the first and most pivotal element of a proprietary estoppel claim?

Rick Bickhram:  Well, the first element of a proprietary estoppel claim is that the claimant must have incurred an expenditure or otherwise have prejudiced himself or herself or has acted to his or her detriment.

David Smith:  What’s an example of that, Rick?

Rick Bickhram:  Well, for instance, if the deceased represented to the claimant that if the claimant had built a road, she would leave them one third of her estate.  The claimant then built the road in reliance on that representation and the claimant is able to verify or back that up with corroborating evidence, then I think that satisfies the first element that he acted to his detriment by building that road and prejudiced himself as a result of the deceased’s representations.

David Smith:  And let’s pick up on this acting to your detriment or prejudicing yourself concept.  I mean, to my mind, any time you act to your detriment or prejudice yourself, you’re basically saying look, I spent time doing something for you, mister testator, that ate into time that I could otherwise spend doing something else.  So instead of investing in the stock market in my spare time as a day trader, I spent my time working for you because I understood that you were going to give me an entitlement.  I relied upon that to my detriment.  And my reliance was reasonable, right Rick?  Isn’t that a pretty key component of this?

Rick Bickhram:  Oh, that’s very important, and a good point, Dave.  And I guess as a general rule of thumb, your expectation should always have some type of benchmark where it can be considered reasonable from an objective point of view.

David Smith:  And so, of course, that brings us to the question of proof which we’ll talk about in a minute.  But if we think about, again, the equitable concept here.  On the one hand, you’ve got the innocent, naïve if you will, worker bee doing all of this work for the benefit of the testator.  And on the other hand, there’s a bit of a value judgment about the testator in the sense that if the person doing the services relies…reasonably relies…on representations made, and if the testator breaches the arrangement, then really it’s a bit of a damning indictment, isn’t it, of the testator who leads the promisee to expect an entitlement which he or she doesn’t receive.

Rick Bickhram:  And I guess that’s why it’s sort of an equitable remedy.  There is no formal contract.  It sounds like a contract, but there is no actual written document.  And that’s why we ask that the Court of equity step in here and correct the injustice that has been done by the testator’s breach.

David Smith:  As I understand it, too, Rick, the third component that we think about is that we have to obviously deal with proving this.  We have to prove that the testator encouraged the promisee to do the work which was done, and the testator must have known of the work incurred or the expenditure incurred, and consciously made a decision not to honour the equitable obligation to provide a benefit.

Rick Bickhram:  Absolutely, Dave.  And it’s interesting that you say that, because there is a case, a 2006 decision by the Nova Scotia Supreme Court, wherein the claimant here had built a causeway across an island that was owned by the deceased.  The deceased had promised the claimant here, the son, that he would receive an interest in that island if he had built the causeway. Now, during the deceased’s lifetime, she attended her solicitor’s office.  While at her solicitor’s office, she put the deed, or put an interest of the island into her two other children’s.  So not the claimant.  She put it into her daughter’s name and to her other son’s name.  The Courts, in the situation…well the claimant brought an action on the grounds of proprietary estoppel.  And the Courts here dismissed Ronald’s claim.  And the reason for dismissing Ronald’s claim was because there was insufficient evidence.  Ronald, who was the deceased’s son, the claimant here, he was unable to demonstrate that the deceased had promised him the island and he had built the causeway because of that promise.  Primarily what he was…or the evidence that the Court was looking for…was some form of corroboration of the alleged promise.  And the only evidence that the claimant, Ronald, had in this situation, was his own evidence.

David Smith:  And let’s finish up the podcast, Rick, by talking about evidence.  You know, Section 13 of the Evidence Act, requires corroboration in claims made against estates, for the very good reason that unless there is corroboration, it’s open to unscrupulous plaintiffs to advance claims which may be completely without merit.  Of course, there’s lots of good claims where regrettably there is no corroborating evidence.  And it would seem, given the rigidity of Section 13 of the Evidence Act, that those are unfortunately situations where the Court quite likely will be compelled to reject the claim if there’s no corroborative evidence.

In terms of the kind of corroboration we look for, obviously paper is the best thing we can have.  If there’s any kind of paper which evidences the nature of the arrangement between the plaintiff and the defendant, it’s really good to have something of that nature.  I might point out also that there’s other cases that you can have where you might be able to argue proprietary estoppel.  A case that comes to mind is one in which a deceased, during his lifetime, befriends a woman late in life.  She’s younger in age, she comes in and agrees to live with him as husband and wife.  He buys her an engagement ring, although he never actually marries her.  And when he dies, leaves her out of the Will.  Now, of course, other remedies would be available to someone in that case.  She’d be able to advance, presumably, a support claim under Part V of the Succession Law Reform Act.  Although consider a case where she lived in a relationship with him as a common-law spouse for less than 3 years.  In that case, she couldn’t make a claim as a spouse, she wouldn’t get a benefit under the Will or on an intestacy rather, because she’s not married to him.  And so this would be an interesting instance where proprietary estoppel would be an attractive remedy because the argument would be that she acted to her detriment in reliance upon a promise, the promise being that he would marry her.  And by not marrying her, she lost any entitlement that she would otherwise have on an intestacy.  And so there, from an evidentiary point of view, you can see that the engagement ring, evidence of friends as to how he treated her and whether he introduced her as his wife to others.  Those witnesses would obviously be relevant and would corroborate the intention to provide her with some benefit.

Rick Bickhram:  That’s a great point, Dave.

David Smith:  One other point from an evidentiary point of view, just to wrap it up, Rick, is an issue where there may be a prior Will that’s unsigned, which benefits the person who then renders the services.  That Will is of no value on a Will challenge, but it’s very valuable evidence to corroborate the later intention to benefit the person who renders the services.

Rick, do you have any other thoughts before we wrap up in terms of the kind of evidence we’d want to look for?

Rick Bickhram:  As you said earlier on, paper evidence is absolutely great.  We could always use that, or lawyers in general could use that, in demonstrating the testator’s intent at one point.  Also it would be helpful if there was some type of witness, if there were witnesses that were unbiased, who could give or account for a promise or an assurance that the testator once…or that the testator had put out for the person who was using proprietary estoppel.

David Smith:  All good points, Rick.  And certainly I think we’ve touched on this topic.  It’s an interesting topic.  There’s lots more we can say about it obviously but it’s been a lot of fun and we’ll look forward to podcasting again, Rick.

Rick Bickhram:  Thank you, David.

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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