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We invite our subscribers to read our blog on-line or via a feed reader using our blog's RSS feed and to follow us on social media.
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| 1. CONGRATULATIONS TO ALBERT OOSTERHOFF, PROFESSOR EMERITUS, A RECIPIENT OF THE OBA DISTINGUISHED SERVICE AWARD
It is with such pleasure that all of us at WEL congratulate Professor Albert Oosterhoff, our firm counsel, colleague and friend on the great achievement and honour of being one of this year's recipients for the OBA Distinguished Service Award which will be presented on April 17th. Albert's contributions to the legal profession in Ontario and across Canada through a lifetime of commitment to the law is undeniably meritorious. With over 60 years at the bar, Albert continues to contribute through his writings and consultations to the development, improvement and reform of the law in Canada for the benefit of Canadians. He is a leader who has influenced the legal education of generations of lawyers and remains extremely generous with his time, teachings, advice and mentoring.
Albert, congratulations on receiving this deserved recognition from your colleagues and friends at the bar and on the bench. Please enjoy this wonderful honour.
WEL would also like to extend our warmest congratulations to fellow 2019 recipients of the OBA Distinguished Service Award, Eva Marszewski, Founder and CEO of Peacebuilders International, and Marty Sclisizzi, Arbitrator and Mediator.
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2. UNIFORM LAW CONFERENCE OF CANADA PROJECT
Albert Oosterhoff has been invited to be a member of the Working Group of the Uniform Law Conference of Canada Project on Crowdfunding.
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3. UNIVERSITY OF WESTERN ONTARIO, MARCH 2019, ESTATE LITIGATION
Kimberly Whaley and Ian Hull are halfway through the Estates Litigation Course at the University of Western Ontario. Together with Kim and Ian, over the past 5 weeks Professor Albert Oosterhoff, Mark Handelman, John Poyser, Matthew Rendely, and Alexander Swabuk have presented topics on Estate Litigation and Probate History, Will Challenges, Dependants' Support, Capacity Related Proceedings and Inter Vivos Transactions. Ian presented this week with Suzana Popovic-Montag on Solicitor's Negligence Claims.
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4. OSGOODE PROFESSIONAL DEVELOPMENT, 2019 ELDER LAW - CERTIFICATE PROGRAM
On February 26, 2019 Kimberly Whaley participated as a panelist at the Osgoode Professional Development Certificate on Elder Law program moderated by Albert Oosterhoff. The panel discussion included Marriage Contracts; Conflicts in Blended families; Sibling Struggles; Predatory Marriages; Family Meetings. Colleagues and fellow panelists included Shawn Richard, Lenkinski Law; Angelique Moss, Casey & Moss LLP and Carol Craig, Nelligan O'Brien Payne LLP from Ottawa. The program chairs are Jane E. Meadus, Barrister & Solicitor, Institutional Advocate, Advocacy Centre for the Elderly (ACE) and
Alexander Procope, Perez Bryan Procope LLP.
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5. WEL ON DEPENDANTS' SUPPORT, 2019
Our newest publication, on Dependants' Support under the Succession Law Reform Act.
If you would like to receive a hard copy of our book, we invite you to contact Blossom Pangowish, Office Coordinator at blossom@welpartners.com.
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6. WEL PARTNERS IS NOW ON INSTAGRAM
We invite you to follow our feed on Instagram where we will be posti
ng pictures and relevant content from our various endeavours.
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(i)
#BUSTEDLITIGATION: WHEN YOUR CASE GOES DOWN... IN THE DM'S
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The introduction of social networking sites over the last two decades has resulted in a fundamental shift in human interactions and relations. Social networking websites now allow users to upload information about themselves, share similar interests with other users, post pictures and videos, and maintain connections between friends and acquaintances.
[1]
By the end of 2017, approximately 22.7 million Canadians had a social media account, a number that has grown by 300,000 annually for the past two years.[2] In Ontario, the country's most connected province, 67% of the province's 14.2 million residents have a social media account.
[3]
In a sense, social media has completely changed the way we collaborate, and discuss ours thoughts and feelings with others.
Through various social media platforms, users are able to create an "internet identity, update/change content, freely express opinion, interact with other users in the community, and exchange information in a way unparalleled to any other form of communication."[4] Most social media websites are available to all users, with some age restrictions, and are used primarily for personal and business reasons.[5] Although privacy settings allow users to restrict who can view his or her profile, as well as what content the selective group can access, a great deal of content posted on social media sites remains archived permanently by default. Complicating matters is that posted content can easily be copied and shared amongst users. Online search tools allow almost anyone to find content anywhere, at any time, as long as there is an Internet connection available. Although these advances in communication technologies have significantly enhanced efficiency and information sharing, they have also become a critical source of evidence in litigation. Generally, Canadian courts have been accepting of electronic evidence such as photographs and online messages to prove or disprove facts and, as a result, many civil litigators have discovered and developed ways that social media can be used to thrust their client's and opposing party's private lives under a microscope.
[6]
The Increasing Popularity of Social Media
" If you have something you don't want anyone to know...
maybe you shouldn't be doing it in the first place."
- Eric Schmidt, Former Google CEO
In order to truly understand the impact that social media has had on us as Canadians, it is vital to understand the way it has evolved over the past twenty-five years. The social media revolution began in the early 1990's, as broadband Internet along with powerful computers and mobile devices became readily accessible and more affordable. Websites such as SixDegrees, Friendster, ICQ and Myspace allowed users to contact other members, maintain those contacts, and share online content with their contacts.[7] Although the popularity of these websites soon faded, they paved the way for social media giants such as Facebook, Instagram, Twitter and LinkedIn to gain widespread acceptance. Today, websites such as these are viewed as being "increasingly popular vehicles for the dissemination of personal information posted on individualized profiles," and it does not appear that this trend will end anytime soon.
[8]
Facebook
is currently the largest and trendiest of all the social networking websites. Whereas other social media sites seem to target teens between the ages of 14 and 17, Facebook has been able to appeal to a variety of age groups in Canada, including users between the ages of 18 and 34 (53%) and senior citizens.[9] In fact, in 2010, Facebook accounted for 12% of all time Internet users spent online.[10] Facebook allows any person, who is at least 13 years old to become a registered user of the site, and as of November 2012 has over 1 billion users worldwide, of whom 19 million were in Canada.[11] It has unique features such as "wall posts," "status updates," "tagging" of uploaded pictures, and "friend requests" that are increasingly popular amongst users.[12] For civil litigators, this means that information that was once considered intimate and private is now "readily shared among millions with the touch of a keystroke."
[13]
Statistics from Facebook indicate that the average user "creates ninety pieces of content each month, and there are more than 30 billion pieces of content, including blog posts, photos, and news stories shared each month."[14] Facebook provides users with the instant gratification of being able to speak their mind, and has created a setting for people to reveal a substantial amount of personal information with the ease of a few mouse clicks. Consequently, the widespread adoption of Facebook as a method of communication has provided lawyers with incredible opportunities to "seek incriminating and often blatantly forthcoming evidence."[15] For example, access to one's Facebook page can instantly reveal anything from a person's location and physical condition, to their state of mind and the people they routinely associate with.
The increasing popularity of "micro blogging platforms" such as Twitter has also contributed to the proliferation of social media evidence being used by Canadian lawyers. Twitter has an estimated 517 million users worldwide, of which 10 million reside in Canada.[16] Sites such as this allow users to send and read text-based messages, and also have the option for users to post photos. Although not as extensive as Facebook, the condensed format of micro blogging platforms allows users to quickly and informally share information. Messages in the form of "tweets" are displayed on a user's profile page and can be viewed by friends on the homepage of anyone who is following their "timeline." As such, Twitter has created an environment where people can quickly broadcast information about where they are, what they are doing and how they are feeling. All of which is considered to be an "evidentiary goldmine" for lawyers.
[17]
With money and future employment prospects at the heart of a significant amount of dependant support proceedings, websites such as LinkedIn have also increased the value of social media and social networking evidence.[18] LinkedIn is widely regarded as being the world's largest professional network with over 120 million users.[19] It allows users to connect with others in order to "exchange knowledge, ideas, and opportunities" within a broad network of professionals and as such Lawyers have begun using evidence gathered on LinkedIn to demonstrate that certain individuals are cable of attaining a certain earning capacity.
[20]
Social Media as Evidence in Litigation
"Privacy is no longer a social norm."
- Mark Zuckerberg, Founder of Facebook
Thanks to the growing popularity of various forms of social media, it is easier than ever for lawyers to find damaging evidence online "in the form of status updates, late-night tweets and risqué photographs that call ones' judgment into question."[21] As a result, many civil litigators covet information that is being posted on social media sites, as they attempt to establish the deleterious conduct of their opposition.
Although the law in Canada is clear that evidence obtained from social media sources is presumptively admissible if it is relevant, there are some critics who feel that this form of evidence is hearsay in its purest form, and that evidence derived from social media is very difficult to authenticate.[22] Moreover, disagreements persist regarding the admissibility of postings found in the "private" portion of a user's profile. Maintaining a private profile has been construed by some as having an inherit "expectation of privacy," and members of the bench have struggled in balancing privacy interests while requiring the disclosure of relevant information.[23] As Paul Grimm recently noted:
The current state of the law regarding admissibility of [social media] evidence is in disarray, sending mixed and confusing messages to lawyers and judges alike and depriving them of the certainty to anticipate in advance of trial the likelihood of admission.
[24]
Members of the Canadian judiciary are still confronting the issue of how information, photos and personal details posted on an individuals' social media profile should be applied to litigation. However, over the past decade, Canadian courts have started to grant the production or limited production of social media evidence.
Although there is no legal principle associated with the use of evidence found in social networks, pursuant to Rule 30.02 of the Rules of Civil Procedure each party is required to disclose "every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party" and to produce such documents unless privilege is claimed.[25] This duty to disclose continues throughout the duration of an action, and where the court is satisfied by any evidence that a relevant document in a party's possession may have been omitted from an affidavit of documents the court may order: a cross examination on the affidavit, service of a further and better affidavit; disclosure or production of the document for inspection; or the inspection of the document to determine relevance.[26] It is important to note that pursuant to Rule 30.01 of the Rules of Civil Procedure the definition of a "document" is quite broad, and includes videotape, film, photographs, maps, plans, book of accounts as well as data and information in electronic form.
[27]
As such, over the past decade, Canadian courts have considered these obligations in relation to information found on social media sites, as well as the obligations of parties, who use social media to post and exchange information. The majority of evidence stemming from social media is categorized as being documentary evidence in the eyes of the court. As a result, lawyers representing litigants attempting to introduce this form of evidence are tasked with satisfying the rules of best evidence, authentication and hearsay. They are also obliged to present social media evidence by way of a printout or screenshot and will likely use a live witness under oath who can testify as to what the record is, and how it is capable of supporting a particular finding.
[28]
A review of recent case law demonstrates the interplay between privacy rights and disclosure obligations in relation to conversations and comments made on social media. While it is true that some Canadian courts have adopted a more nuanced and restrictive approach to the admissibility of social media evidence, it appears that members of the Canadian judiciary are open to admitting social media as evidence if it is both relevant and material to the case at bar. Evidence of this was seen in the cases of Schuster v. Royal & Sun Alliance Insurance Co. of Canada [2009]
[
29]
Kent v. Laverdiere [2009][30] and Weber v. Dyck [2007][31] as members of the judiciary went on to establish that conversations which occurred on social media sites were admissible under the "state of mind" exception to hearsay and were subject to applicable disclosure obligations.[32] As such it appears that Canadian courts are willing to balance a litigants' transparency interest with the reasonable privacy expectations held by users of social networking sites.
[33]
Given the prevalence of these social media sites and the information regularly posted to them, social media has quickly become an invaluable tool for litigators. Litigators in particular are increasingly demanding that the content of social media accounts be produced on discovery, and when used appropriately and within the confines of the Rules of Civil Procedure as well as the Rules of Professional Conduct, there is no doubt that social media can be a powerful investigative tool for counsel seeking to gather evidence. That being said, lawyers must always be diligent and consider whether relevant information might be available on their client's social media account, as well as on opposing party's social media account. If so, they should be forthwith and list any relevant documents/profiles in their affidavit of documents. To that end they should also request the production of any content from such accounts.
The use of social media as an investigative tool also raises a variety of ethical considerations, and lawyer's intent on using social media to obtain evidence "must ensure that their actions do not breach their professional obligations."[34] The mere presence of a social media account is not sufficient to require its production on discovery and the Rules of Professional Conduct provide lawyers with a variety of ethical considerations and obligations they must evaluate before using social media to gather evidence. The Rules of Professional Conduct prevent a lawyer from communicating directly to another party who is represented by a lawyer, and requires them to act in good faith in the course of their practice.[35] Although any information that can be accessed by an online search engine is widely considered to be "fair game," before utilizing social media as an investigative tool, lawyers must ensure that they are not looking past their professional obligations. Unfortunately, the Rules of Professional Conduct remain somewhat unclear in relation to social media evidence specifically, and as such lawyers in Canada should adopt a conservative approach before using it as an investigative tool. They should always keep records of their findings and operate in a transparent fashion. Furthermore, counsel should never "friend" or otherwise request access to an individual's social media account for the purpose of gathering evidence for use in litigation.[36] This is especially true when an individual is represented by counsel. In the event that one does request access to an opposing parties account, the request should never be made under false pretenses or with malicious intent.
[37]
Final Thoughts
A review of recent case law demonstrates the interplay between privacy rights and disclosure obligations in relation to conversations and comments made on social media. As such, it becomes readily apparent that various courts in Canada are still addressing the manner in which social media evidence obtained through sites such as Facebook, Twitter, Instagram and LinkedIn can be used in court.
[38]
Given the prevalence of these websites and the information regularly posted to them, social media is widely regarded to be an invaluable tool for litigators.
While the social media phenomenon has revolutionized the way humans interact, the law has been slow to catch up. By and large there are no "special" rules or procedures applicable to gathering social media before or during a lawsuit, nor are there special rules for using it at trial.[39] As such, it is vital for lawyers to remain conscious of the new and developing outlets for social media evidence, and to ethically collect that evidence. As the use of social media sites continues to permeate through our society, the potential evidence available to litigators continues to increase. Consequently, by properly applying the Rules of Civil Procedure, the Rules of Professional Conduct, as well as the Canadian Rules of Evidence, lawyers and the parties they represent should be able to benefit from the information contained in social media accounts for many years to come, both in respect to reaching reasonable settlements and as evidentiary tools at trial.
[40]
[1]
Patrick Marshall, "What You Say On Facebook May Be Used Against You In A Court Of Family Law: Analysis Of This New Form Of Electronic Evidence And Why It Should Be On Every Matrimonial Attorney's Radar" (2012), online: Alabama Law Review
[6]
Mason, Stephen (et al), Electronic Evidence, 2012, (Reed Elsevier (UK) Ltd.)(Robert J. Currie & Steve Coughlan, Chapter 9: Canada) at p. 293.
[13]
Richard Stengel, Only Connect. Mark Zuckerberg and Facebook Are Changing How We Interact-And What We Know About Each Other, TIME, Jan. 3, 2011, at 43.
[24]
Paul Grimm, "Authentication of Social Media Evidence", online: (2013) 36:433 American Journal of Trial Advocacy (link).
[27]
Rules of Civil Procedure
, RRO 1990, Reg 194.
[29]
Schuster v. Royal & SunAlliance Insurance Co. of Canada 2009 CarswellOnt 6586, [2009] O.J. No. 4518, 185 A.C.W.S. (3d) 1036, 78 C.C.L.I. (4th) 216, 83 C.P.C. (6th) 365
[30]
(2009), 78 C.P.C. (6th) 182, (Ont. Sup. Ct. J.), Master Haberman
[31]
2007 CarswellOnt 3851 (Sup. Ct. J.), Master L.A.M. Pope (WLeC).
[32]
Ronald Podolny, When Friends Become Adversaries: Litigation in the Age of Facebook, 33 Man. L.J. 391, 408 (2009).
[39]
Ronald Podolny, When Friends Become Adversaries: Litigation in the Age of Facebook, 33 Man. L.J. 391, 408 (2009)
[40]
Julia Anagnostakis, "The Proof is in the profile: Obtaining Disclosure of Plaintiffs' Facebook Information" (2011), online: Blaney McMurtry
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(ii)
CONFLICTS OF INTEREST IN MATRIMONIAL PROPERTY CLAIM BROUGHT BY ADMINISTRATOR AGAINST AN ESTATE
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By Kimberly Whaley
The Supreme Court of Newfoundland and Labrador
[1]
denied a surviving spouse's request to remain as administrator for some aspects of the administration of her husband's estate, while also being an applicant in a matrimonial property claim against the estate.
The wife applied for, and was granted, Letters of Administration for her deceased husband's estate. A few months later, the wife commenced an application requesting an order for an equal division of matrimonial property. The application was brought by the wife in her personal capacity.
The wife then brought an interlocutory application seeking an order that the Public Trustee be appointed as the administrator of the estate in relation only to her claim for division of matrimonial property. The wife wished to remain the administrator for all other aspects of the administration of the estate. The wife relied on section 71 of the Family Law Act, RSNL 1990 c F-2 which provides that:
71(1) An executor or administrator of a deceased spouse may enter into an agreement with the surviving spouse as to the ownership or division of property under this Act
(2) Where an executor or administrator of a deceased spouse is the surviving spouse, the public trustee may act in the place of the executor or administrator under subsection (1).
Justice Murphy began his analysis by noting that there were no reported cases interpreting this section of the legislation and that counsel could not find any reported cases interpreting a similar provision in other jurisdictions.
On a plain reading of section 71(1), Justice Murphy concluded that this clause merely authorizes an executor or administrator to enter into an agreement with the surviving spouse as to ownership of or division of property, and section 71(2) simply allows the Public Trustee to act in the place of the executor or administrator where that person is the surviving spouse. The question before the Court therefore was:
absence an agreement, does the section in question authorize the Public Trustee to in essence step in as Administrator of the estate for the purpose of defending the matrimonial claim or trying to negotiate a settlement of that claim while allowing [the wife] to remain Administratrix for all other purposes?
[2]
Justice Murphy concluded that section 71(2) did not extend beyond circumstances where an agreement already existed, and it would only apply in limited circumstances where the surviving spouse as administrator reached an agreement with the estate. Such situation might be where there is "no dispute or disagreement between the beneficiaries of the estate and the surviving spouse as to the ownership or division of property". The Public Trustee would then step in to the role of legal representative of the estate for the limited purpose of entering into the agreement.
However, that was not the case here. Justice Murphy went on to observe the common law rule that a trustee (which includes an administrator) can be removed where there is a "disqualifying conflict" between the personal interest of the trustee and his or her duty as a trustee. Justice Murphy noted that a conflict existed in this case that was significant enough to warrant the removal of the wife as administrator:
By claiming an ownership interest in certain assets of the estate on the basis of a claim for division of matrimonial property under the Act, she is placing herself directly in opposition to her duty to the estate beneficiaries. . . To the extent [the wife] is successful in her claim for division of matrimonial property, the amount of estate assets available for distribution will be correspondingly diminished and the daughter of [the deceased] will be correspondingly disadvantaged.
[3]
Justice Murphy concluded that he "cannot imagine a greater conflict than that which exists in this case where [the wife's] claim has put her directly in opposition to her duty as Administrator to the daughter of [the deceased]."
[4]
While Justice Murphy found the wife do be in a "disqualifying conflict of interest" he did not make an order for her removal at that time. However, he found that it would be "inappropriate for [the wife] to continue to act" and that the "appropriate course of action" was for her to resign.
An estate trustee clearly owes a duty to the estate beneficiaries. Family law claims for division of property or dependant support claims must be brought against the estate trustee or administrator of the estate (in their role as representative, not personally). Spouses who are estate trustees or administrators who also commence such claims will be in a clear conflict of interest and must step aside. See for example, the Ontario cases of Mohammed v Heera 2008 CanLII 54317,
http://canlii.ca/t/2198f and Mahon v Costa 2013 ONSC 914,
http://canlii.ca/t/fw9rc .
[1]
Chippett Estate, Re 2019 NLSC 51.
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PART III: UPCOMING EVENTS
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Islington Seniors Centre
Elder Abuse
March 29, 2019
Speakers: Kimberly Whaley and Sareh Ebrahimi
Osgoode Professional Development
Powers of Attorney and Guardianship: Non-contentious and Contentious Matters
April 9, 2019
Speaker: Kimberly Whaley
Cambridge Forum, Estate Planning and Litigation Forum
Elder Abuse - Civil and Criminal Remedies
Speaker: Kimberly Whaley
April 14-16, 2019
Law Society of Ontario CPD - Six Minute Estate Lawyer
Tips and Tools to Enhance an Estate Mediation
April 29, 2019
Speaker: Kimberly Whaley
Osgoode Professional Development
Passing of Fiduciary Accounts
April 30, 2019
Chair: Albert Oosterhoff
Speakers: Ian Hull, Professor Albert Oosterhoff and Tracey Phinnemore, Heather Hogan and Katherine Antonacopoulos
Northwind's Annual High Net Worth Forum, Langdon Hall
Digital Assets
May 1-3, 2019
Speaker: Marian Passmore
International Academy of Estate and Trust Law, IAETL Tokyo
Resolution of Trust and Estate Disputes
May 19-23, 2019
Panellist: Kimberly Whaley
STEP Premier Sponsorship Education Session
Short Case Study Presentation
May 22, 2019
Presenter: Bryan Gilmartin
Office of the Public Guardian and Trustee
Predatory Marriage and Financial Abuse of Elders
May 27, 2019
Speakers: Kimberly Whaley, Albert Oosterhoff and Sareh Ebrahimi
B'NAI BRITH CANADA
Trust Troubles - Litigation, Tax and Ethical Issues
June 4, 2019
Moderator: Kimberly Whaley
Osgoode Professional Development - The Essential Guide to Estate Dispute Mediations: Unique Challenges Creative Solutions
Best Practices at the Mediation and Documenting the Settlement Properly
June 5, 2019
Speaker: Kimberly Whaley
OBA and Toronto Public Library Law in the Library
June 6, 2019
Speaker: Matthew Rendely
Toronto Police Seminar
Elder Abuse
June, 7, 2019
Speakers: Kimberly Whaley and Sareh Ebrahimi
OBA and Toronto Public Library Law in the Library
June 27, 2019
Speaker: Marian Passmore
LSO
Administration of Estates
September 10, 2019
Chair: Kimberly Whaley and Tim Grieve
STEP Toronto
Case Law and Legal Update
September 11, 2019
Speaker: Kimberly Whaley
GTA Accountants and GTA Finance Network
Elder Abuse
October 1, 2019
Speaker: Kimberly Whaley
Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
November 1, 2019
Speaker: Matthew Rendely and Marian Passmore
CCEL BC
Access to Justice, Bridging the Gap, Elder Law for Everyone
November 14-15, 2019
Speaker: Kimberly Whaley
Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
December 6, 2019
Speaker: Alex Swabuk and Michael Marra
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PART IV: IN CASE YOU MISSED IT - RECENT BLOG POSTS
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