At issue was a painting by the American artist, Charles Russell, "Pirates of the Plains", which had been in the Webster family since 1931. Mr. Russell, who died in 1926, is apparently well known for his paintings of the "Old American West". The painting was very special to Mr. Webster who saw it as a link to his father who had originally acquired the painting. 

On September 29, 1982, Mr. Webster's mother sold the painting to Mr. Thomson, without Mr. Webster's knowledge, for $150,000. Mr. Webster asked Mr. Thomson if he could re-acquire the painting. Mr. Thomson proposed that if Mr. Webster sold him a painting he owned by Cornelius Krieghoff, Mr. Thomson would give Mr. Webster the opportunity to purchase the Russell painting after he died at the painting’s appraised market value. This proposal was contained in a letter that Mr. Thomson wrote to Mr. Webster. Mr. Webster accepted.

On August 25, 2003, Mr. Thomson sold the Russell painting for U.S. $5,600,000 without apparent regard to his agreement with Mr. Webster. In 2004, Mr. Webster commenced a legal proceeding against Mr. Thomson. Mr. Webster's claimed damages for breach of contract in the amount of $4,000,000 and punitive damages in the amount of $10,000,000. After Mr. Thomson died in June 2006, the action was continued against his estate.

The motions judge granted the summary judgment motion on the grounds that Mr. Webster had not proved his damages because he had provided no evidence that he could raise the many millions necessary to purchase the Russell painting. 

However, the Court of Appeal held that the amount of damages was not a proper consideration on a Rule 20 motion. There was no need, as the motion judge thought, for Mr. Webster to prove his damages at this stage of the proceeding. In the court’s view, the motion judge assumed the role of a trial judge which was not proper. 

The court further held that it was a fundamental principle that a person could not benefit from his/her breach of contract. In this case, Mr. Thomson breached an enforceable contract. He could not perform the contract as a result of its breach. As such, Mr. Thomson could not benefit from his breach, which he apparently did based on the motion judge's findings. This was still another reason why summary judgment was set aside. Everyone is indeed equal before the law. 

Thanks for reading and enjoy the weekend.

Justin

The applicant wished to issue a guardianship application under sections 22 and 55 of the SDA in the Toronto Region Estates Office. The guardianship application was in respect of her son who was injured in a car accident in 1997. The applicant and her son lived together in Bradford, Ontario. The applicant’s counsel wrote to Brown J. asking for directions as to whether the application could be commenced in Toronto.

In his Endorsement [not yet reported], Brown, J. noted that an informal policy existed in the Toronto Region Estates Office that it would only accept applications under the SDA where the supposed incapable person resided in Toronto notwithstanding the fact that no statute or rule imposed such a limitation. In fact, Rule 13.1.01 of the Rules of Civil Procedure provides that a “proceeding may be commenced in any court office in any county named in the originating process” unless a “statue or rule requires the proceeding to be commenced, brought, tried or heard in a particular county.”

Brown, J. noted that neither the SDA nor any statute or rule specified the place of commencement for an application under the SDA. Brown, J. therefore held that the applicant was permitted to commence her guardianship application in Toronto and directed the Toronto Region Estates Office to accept her application for issuance.

With this decision in hand, it is now possible for counsel to commence a guardianship application where they see fit and as appropriate. This is good news indeed.

Justin

However, there is an additional or complicating factor worth considering. What happens when the testator regrettably looses his/her mental capacity to make, change, or revoke a will? In these circumstances, where a party alleges that the will was revoked by being destroyed by the testator when of sound mind, the burden of proof rests on the party alleging the revocation. The presumption of revocation does not apply. The party alleging revocation must satisfy the court that it is more probable than not that, while of sound mind, the testator revoked the will by destruction. 

Rebutting the presumption of revocation or proving that the testator revoked his/her will by destruction where testamentary capacity is an issue can be difficult. It is obvious that proof of a lost or destroyed will is fact driven. No matter what position a party may advance in court, they will have to ensure that the proper evidentiary base is established to carry the day.

Thanks for reading.

Justin

Charles Dubin was from a different era where great advocates seemed to tower over the profession (there were also a lot less lawyers and it was most definitely a closed shop). As with many of his generation, he represented both civil and criminal clients. Charles Dubin represented prime ministers and football players, bookies and major corporations. He was counsel to The Toronto Telegram and represented The Toronto Firefighters as well as Ontario Hydro's employees. He also defended 15 capital murder trials before capital punishment was abolished (a daunting brief). 

Charles Dubin was called to the Bar in 1944. In 1973, he was appointed to the Ontario Court of Appeal. In 1983, he released a report on improving procedures at The Hospital for Sick Children after nurse Susan Nelles was cleared of killing four babies. He is perhaps most famous for his inquiry into the use of drugs in Canadian amateur sport following the disgrace of Ben Johnson at the Olympic Games in Seoul. In 1990, he became the Chief Justice of Ontario. He retired in 1996 and returned to private practice – a true champion of the law to the very end.

Charles Dubin will be missed by the profession.

Justin

The perennial problem of a lost or destroyed will is not new. Much law has been written and effort spent on the subject. I am also counsel in a lost will proceeding that is a real bugaboo. I therefore thought that it would be worthwhile to cover off the basics.

In terms of procedure, Rule 75.01 states that the validity and contents of a will that has been lost or destroyed may be proven on an application by affidavit evidence, without appearance, where all persons who have a financial interest in the estate consent to the proof. Where consent proves fleeting, the court may give directions under Rule 75.06. Rule 75.06 states that any person who appears to have a financial interest in an estate may apply for directions as to the procedure for bringing any matter before the court (including proving a lost or destroyed will).

With respect to the substantive law, when a will has been shown to be last in the custody of the testator and cannot be found at his/her death, a presumption arises automatically that the testator destroyed the will with the intention of revoking it (animo revocandi). The presumption can be rebutted on sufficient evidence. Suspicions alone are not enough to rebut the presumption; the presumption must be rebutted by facts. 

The presumption will be more or less strong according to the control the testator had over the will, the character of the testator and his relation to the beneficiaries, the contents of the testamentary document, and the possibility of its loss being accounted for otherwise than by intentional destruction on the part of the testator. Only in very strong cases have the courts permitted the presumption to be rebutted. The courts have emphasized that the burden on the person who is trying to rebut the presumption is "very heavy". For a good summary of the law, see Wagenhoffer v. Wagenhoffer Estate, [1986] S.J. No. 8 (Sask. C.A.) [link not available].

Justin

What is the origin of Canadian Thanksgiving? Like so much in Canada, we borrowed the tradition from our American cousins in the mid 1800s. However, at the time, Protestant church leaders in Ontario wanted to set the right moralistic tone when it came giving thanks for the harvest. As such, Thanksgiving started off as a decidedly religious, white Anglo-Saxon Protestant, pro-British and anti-American affair. Catholics were certainly not welcome nor were visible or religious minorities. The first national Thanksgiving was held in 1859 on a Thursday. Over time, the Protestant churches lost control of the holiday and it became more secular and less exclusive. Parliament eventually declared that Thanksgiving should fall on the second Monday of October partly due to pressure from transport companies who hoped that a holiday on a Monday would increase holiday traffic. 

Canadian Thanksgiving therefore had nothing to do with harvesting of crops or the arrival of fall colours. But Canadian Thanksgiving is nevertheless typically Canadian: it sprang from a parochial and prejudiced mindset heavily influenced by the politics and values of the day not to mention the colossus to the south. The world of commerce also had a say and got its way when it came to a fixed date. However, as Canada grew and matured as a country, Thanksgiving become more widespread and inclusive. Today, Thanksgiving is a time for all Canadians to give thanks for the bounty of the land and the freedoms we enjoy.  Vive le Canada and Happy Thanksgiving!!

Thanks for reading my blogs this week. 

Justin

The court recognized that the position of section 3 counsel is “potentially one of considerable difficulty”. However, the court did not believe that section 3 counsel was in the position of a litigation guardian with authority to make decisions in the incapable person’s interest. According to the court, counsel must take instructions from his/her client and “must not act if satisfied that capacity to give instructions is lacking”. A very high degree of professionalism may be required in borderline cases where it is possible the incapable person’s wishes may be in conflict with his/her best interests and counsel’s duty to the court. The phrase offers precious little guidance to section 3 counsel, but does sound a cautionary note. In the circumstances, perhaps the best advice is for section 3 counsel to fully explain the situation to the court and ask the court’s advice and direction. 

Finally, as an aside, the Ontario Government has now introduced legislation that would allow people to apologize with impunity. In other words, an apology will not be held against you in court. The hope is that “The Apology Act” will go a long way to defusing a contentious situation before litigation results. Sorry may, in fact, go a long way.

As always, thanks for reading.

Justin

Where a capacity assessment has already been obtained, the court will be reluctant to order a further capacity assessment of an individual, unless the court has, for example, concerns about the lack of detail or objectivity within the assessment that has already been obtained. 

In Forgione v. Forgione, the court was concerned about the adequacy of the assessment carried out by a medical doctor. The court did not know what background information the doctor had or what, if any, influence anyone other than one family member may have had on the process. The report was very brief and consisted largely of conclusions without analysis. There were a number of facts and conflicting versions of facts which, in the court’s view, warranted further examination because they raised questions about the capacity and vulnerability of the incapable. A second assessment was ordered.

While Greer, J. was aware that an assessment could cause the incapable some anguish, she was of the view that it was essential to have a second assessment in order that there be full and fair medical and neurological data before the court when the issues were determined.

Justin.

Like most “great men”, Nobel was a bundle of contradictions. He was a successful Swedish business who is best remembered for inventing dynamite. However, he was a committed pacifist who wrote plays and novels - none of which are particularly remarkable. It was the world’s good fortune that a newspaper mistakenly printed Nobel’s obituary calling him the “merchant of death”. Nobel was horrified and turned his mind to creating a lasting legacy of peace. When he died in 1896, 94 percent of his substantial fortune went to fund an award for those whose work “conferred the greatest benefit to mankind” in physics, chemistry, medicine, literature, and peacemaking. In 1969, economics was added as a separate category. 

Not surprisingly, Nobel’s relatives were not happy. The vague wording of his will gave them the opportunity to tie up Nobel’s estate for years in the Swedish courts. However, on the fifth anniversary of his death, the first Nobel Prizes were presented by the King of Sweden. At the time, the monetary award that accompanied the Nobel Prizes was a vast sum ($42,000). The prize is now worth close to a million dollars today. Nobel laureates are highly regarded and many are household names. It is no exaggeration to boast that the Nobel Prize is the most prestigious award in the world and a lasting legacy from the man who invented dynamite.

Justin

The Substitute Decisions Act is silent when it comes to the issue of compensation for personal care guardians. Section 40 of the SDA addresses compensation for property guardians, but there is no corresponding provision for personal care guardians (though regard can be had to section 68(4) of the SDA). 

I was recently before Brown, J. in Toronto Estates Court in respect of a request for compensation by a personal care guardian (the decision is not yet reported). The property guardian, who I represented, supported the request for compensation, but the PGT questioned the amount requested and wondered whatever happened to “natural love and affection”.

In coming to his decision, Brown, J. applied the analysis set out in Cheney v. Bryrne, which he found was applicable to claims for compensation by personal care guardians. Brown, J. also applied, by analogy, the approach applied by the court to claims for compensation by property guardians. The test regarding the reasonableness of compensation claims was set out in Re: Brown (1999), 31 E.T.R. (2d) 164 (link not available). 

According to Brown, J., the evidence before him clearly demonstrated that the incapable needed the services provided by the personal care guardian. He was also satisfied that the personal care guardian was providing the services to the incapable with care and devotion and that her services were of a high quality and went well beyond what was ordinarily expected. Moreover, the incapable obviously could afford to pay for the services (not an insignificant factor). In considering the level of compensation, Brown, J. was satisfied that the amount claimed was reasonable and in the best interests of the incapable. He therefore approved the compensation claimed.

Thanks for reading. 

Justin