Hello,
Happy June!
June is Seniors Month and June 15th was World Elder Abuse Awareness Day.
One assurance beholds all humans-the certainty of ageing and death regardless of race, gender, or ethnicity. We ought to be a great deal more concerned about taking proactive steps to shape our future so as to ensure the protection of rights, dignity, and respect of our older population.
Most will agree that both ageism and age discrimination are harmful to older adults. Not all older adults fit the detrimental and often negative stereotypes of the frail and vulnerable older person. Nevertheless, it is also true that not all older adults are physically or mentally capable, independent, and autonomous. While ageism and age discrimination must be discouraged, conversations about, and the need for protections for older and vulnerable adults cannot be ignored. We need to do more than keep the discussion going, though important, we however need immediate action in almost every facet of older adult services, including protections.
Who are the “vulnerable” and in need of protection? We agree that “vulnerability” should not be automatically ascribed to an individual based on their age. There is social vulnerability which reflects an understanding that differing social conditions may make a person more, or less vulnerable. Ageism can also make older people broadly vulnerable as a class, even while individual older adults may not be, or identify as particularly vulnerable themselves.[1]
Statistics show, however, that many older adults face abuse and violence in their own homes, and in institutional and long-term care facilities. The Pandemic has revealed in a rather transparent yet shocking way, the lack of oversight and accountability in a broken system rife with neglect. This is obvious if only in reading Ontario’s Long-Term Care Covid-19 Commission Final Report in April. Older adults are also sometimes denied the right to make decisions about their personal finances, their property and health care. Protection is sometimes required to prevent financial, even sexual, and physical abuse of older adults.
Research demonstrates that abuse or financial exploitation is most often perpetrated by a trusted family member, caregiver, service provider, or other person in a position of power or trust. This makes the job of detecting and preventing issues even more complicated since it is impossible to know who the persons are who may be assisting an older adult or person of compromised capacity.
From a Canadian legal perspective, our legislation and court processes are not particularly well equipped to easily and cost effectively remedy these complex situations and related disputes for either the abused or the persons trying to help.
From a public policy perspective, the maintenance of an individual’s fundamental rights, and freedoms, autonomy, and the presumption of capacity must be delicately balanced alongside societal demands of protecting the vulnerable, meaning that: those with diminished capacity; those who are under disability; those who are frail, whether through sheer aging and/or illness; those who are dependent; and, those who require some degree of protection form predators. Getting this delicate balance right is not easy on any front.
Media, employment, gender, cultural and sexual orientation, social themes and theories contribute to ageism. Key challenges exist in the law, legislation, dissemination of knowledge, and education and awareness, concerning the individual needs of particular individuals in society, which include older adults and those suffering from illnesses, abuses, disability or who otherwise may require protection.
The question of whether protection is always ageist and whether deficiencies exist in the law, in legislation, and within the public sector that impact society’s ability to protect persons vulnerable to abuse must include consideration of available remedies, tools and resources and the establishment of a protocol or forum for resolution of capacity disputes.
WHAT IS AGEISM?
The term “ageism” was coined in 1969 by Robert N. Butler who headed the District of Columbia Advisory Committee on Aging.[2] Butler stated that ageism is a combination of prejudicial attitudes towards older people, old age, and the aging process; discriminatory practices against older people; and institutional practise and policies that perpetuate stereotypes about older people.[3] A more recent definition of ageism has been used by gerontologist Erdman Palmore, who defines it as “any prejudice or discrimination against or in favour of an age group.”[4]
The Ontario Human Rights Commission’s definition of "ageism" refers to two concepts: a socially constructed way of thinking about older persons based on negative attitudes and stereotypes about aging and a tendency to structure society based on an assumption that everyone is young, thereby failing to respond appropriately to the real needs of older persons.[5]
One of the common ways that ageism is reflected and reinforced in culture is by the use of ageist language which includes any and all stereotypes or beliefs about aging. These stereotypes can be found in media, healthcare and education systems, workplace, and even regular, everyday conversations i.e. “over the hill” or the “Grey Tsunami”.[6]
A University of Southern California study[7] examined 72 of the highest ranked TV series among U.S. viewers airing from June 2016 through May 2017. Adults 60 and older represented less than 10 per cent of speaking characters on these shows. Older adults accounted for slightly more than 8 per cent of regular characters in a series. Older men were more likely than older women to be series regulars. Of the 39 series with main older adult characters, 41 per cent included at least one ageist comment. Some examples provided: “You like the color? It’s called ‘ancient ivory’, like you,” “Things just sound creepier when you’re older” and “I need to write down all these precious moments before I forget them”.[8] Shows without a 60 plus year old writer were more likely to feature an ageist comment than shows with a 60 plus year old writer, suggesting that ageist comments stem from the work of younger writers.[9]
Other disparities also appeared in the study. None of the 72 shows evaluated depicted a single senior Asian female; only 2 of the 62 shows showed an older Latina character and only 8 out of 72 had a black senior female character on the screen. Further only, 4 of the TV shows depicted an LGBTQ older adult character. [10]
In her paper Ageism, Language and the Law, Helene Love posits that ageist language permeates written judgments from our courts. Love writes that ageism is perpetuated in written judgments using ageist language, such as the word “elderly”. Judgments that employ the term “elderly” reinforce social science research that the term is associated with victimhood, vulnerability, and weakness. Love argues that “[w]hile these negative stereotypes may sometimes result in favourable treatment of older adults by the courts, ageist language has an overall negative effect on older adults; it reinforces negative social beliefs about older adults as a group”.[11]
Ageism is not only present in the media and justice system it is also present in healthcare institutions and workplaces. Ageism takes place on both the macro level in anti-aging beauty campaigns but also in the micro level in every-day language with derogatory comments about older people.[12]
So, why do we succumb to these ageist and stereotypical beliefs? Justice L’Heureux-Dube observed in the case of Dickason v. University of Alberta:
Because, in our society, old age tends to be less associated with wisdom and tranquility and more with infirmity and dependence, we fear it. We may be more likely to discriminate against elderly people, in a futile attempt to distance ourselves from what will inevitably occur to each one of us.[13]
The impact of ageism on older adults is serious. Older adults presented with negative images of age may display psychological issues such as depression, as well as negative physiological effects such as a decline in memory performance and a heightened cardiovascular response to stress.[14] Social sanctions against expressions of negative attitudes and beliefs about older individuals are exceedingly rare. In fact, they are socially accepted and rooted in culture and beliefs.[15]
Barbara Mikolajczyk in her paper, International Law and Ageism, notes:
The demographic trends in the age structure of the current world population are well known. The world’s population is now ageing faster than ever before, especially in the group called the “oldest old” (80+). Individuals in this age group are potentially more vulnerable to poverty, exclusion, violence, neglect, abuse and discrimination. However, younger older persons also suffer unequal treatment. They are overlooked for promotion and training, and finally, they are forced to retire against their wishes. Ageing challenges a person’s position in society and his/her belonging to family, local community and country. His/her right to choose a place and style of living become increasingly limited. Indeed, it is a widely accepted, or at least tolerated, idea that the elderly are less worthy and their human rights simply shrink.[16]
LAWS PROHIBITING AGEISM IN CANADA
All ten provinces and three territories in Canada have legislation designed to ensure the equality of its population.
Canada’s provisions prohibiting age discrimination are grounded in the Charter of Rights and Freedoms (the “Charter”),[17] which applies to all jurisdictions and governmental entities. Section 15(1) of the Charter contains an equality clause, which provides as follows:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability (emphasis added).
The federal government and all provinces and territories have anti-discriminatory measures against age. Specifically, each jurisdiction has a human rights statute which prohibits discrimination based on age.
Age discrimination is often not taken as seriously as other forms of discrimination. To fight ageism, it is necessary to raise public awareness about its existence and to dispel common stereotypes and misperceptions about ageing.[18]
The Supreme Court of Canada decision in R. v. Kapp[19] sets out the test for age discrimination in Canada and it requires that discrimination be motivated by or perpetuate stereotyping or prejudice. Pnina Alon-Shenker, in her article, “Age is Different”: Revisiting the Contemporary Understanding of Age Discrimination in the Employment Setting in the Canadian Labour and Employment Law Journal, argued that this current test has led adjudicators to fail to come to grips with wrongful ageism in the workplace. She proposes that the legal test for age discrimination should focus on wrongs done in the present, and not take account of any past or future wrong and proposes a broader view of age discrimination based on the “Dignified Lives Approach”, a theoretical framework she developed. The basic premise of this approach is that every individual must be treated with equal concern and respect at any given time, and not just over a lifetime. It requires individuals be treated in a manner that respects five substantive principles of equality: individual assessment, equal influence, sufficiency, social inclusion, and autonomy.[20] Alon-Shenker’s view focuses on comparing the treatment of young workers and senior workers, and on treating prejudice and stereotyping as the essential indicators of a discrimination, unduly limits the advancement of equality.[21]
Enforcement mechanisms against age discrimination differ depending on the jurisdiction in Canada, as some allow complaints to a Human Rights Commission (for example see Alberta, Manitoba, Nova Scotia) which will investigate the alleged incident and then decide whether to refer the complaint to an adjudicative process. In other jurisdictions (for example, Ontario and British Columbia) an individual can apply directly to the administrative tribunal which will accept, screen, mediate and adjudicate the complaint.[23]
Anyone who works for or receives services from a business or organization that is regulated by the federal government and is discriminated against can make a formal complaint to the Canadian Human Rights Commission (“CHRC”) which was established pursuant to the Canadian Human Rights Act.[24] The Canadian Human Rights Act gives the Commission the authority to research, raise awareness and speak out on any matter related to human rights in Canada. The Commission is also responsible for administering the law which protects people in Canada from discrimination when based on any of the enumerated grounds such as race, sex, disability, and age. The CHRC is also empowered under the federal Employment Equity Act.[25]
In the province of Ontario, the Ontario Human Rights Code[26] gives all people equal rights and opportunities without discrimination in specific areas such as employment, housing, and services. The Code’s goal is to prevent discrimination and harassment based on race, colour, gender identity or expression, sex, sexual orientation, creed, age and other grounds.
The Ontario Human Rights Commission (“OHRC”) was established as an arm’s length agency of the government in 1961 to prevent discrimination and to promote and advance human rights in the province of Ontario.[27] The OHRC is one arm of the human rights system in Ontario, alongside the Human Rights Tribunal of Ontario and the Human Rights Legal Support Centre. Since June 2008, the Tribunal has been tasked with hearing complaints when the Code has been violated. This includes complaints based on age discrimination.[28]
One example of case types before the tribunal dealing with age discrimination, are those that deal with mandatory retirement policies. Maximum age limits have been challenged under the Charter. Mandatory retirement at age 65 has been found justifiable by the Supreme Court of Canada. In McKinney v. University of Guelph,[29] the Supreme Court of Canada considered the constitutionality of s.10(1) of the Ontario Code, which limits protection from age discrimination in employment to persons between 18 and 65 and which permits mandatory retirement policies for those aged 65 and over. The Court found that the maximum age limit of 65 was prima facie discrimination based on age but it was a reasonable limit placed on the right and was saved by section 1 of the Charter.
A person can also allege age discrimination in the context of a civil claims. Often age discrimination is a corollary of other causes of action, however, a party can be awarded additional damages for age discrimination within the claim.
Ageism is not about age discrimination alone – ageism must also be about dignity – an aspect of dignity is security. Elder abuse, often stemming from discriminatory attitudes, denies the elderly the security they are entitled to as human beings.[30]
How can the law protect older adults and minimize abuse while still maintaining the human rights of older adults and avoid ageist actions?
Beverly McLachlin made several suggestions, including minimizing the barriers to criminal and civil prosecutions. Changes in the law and education may alleviate some of those barriers. McLachlin also suggested that lawyers and jurists work together to inform the public about the prevalence and illegality of elder abuse: “Our society once swept child abuse under the rug. It must not permit the same thing to happen in the case of elder abuse. The abuse of a vulnerable person is a moral and legal wrong, whatever the age of the victim”.[31]
Older adults not only should be free from ageism and ageist stereotypes, they should be free from financial, emotional, physical and sexual abuse. The law and society need to be vigilant in protecting those that may be vulnerable and susceptible to abuse and undue influence due to mental or physical incapacity. Beverly McLachlin observed that:
Different stages of life are characterized by different needs. The last stage of life is no exception. Among the needs that are critical at this stage are the need to be protected from discrimination, the need for security and protection from abuse, and the need for appropriate care and the need for autonomy. These are critical aspects of an elderly person’s ability to maintain his or her dignity. The law plays a vital role in meeting these needs.[32]
Beverly McLachlin concluded this speech by stating:
What should remain steadfast, however, is our commitment to the principle that every person, regardless of age, is entitled to live in dignity. This means being able to live in security, to be free from discrimination and abuse, and to be entitled to make one’s own choices to the maximum degree possible. In achieving these goals, we will need the expertise of economists, social workers, health care professionals, and many others, but the law, and the legal profession, also have an important role to play.
We can build a profession that is sensitive to needs of older people. We can pursue legal reform through legislation and litigation. And we can educate and sensitize the public and seniors themselves in the rights and needs of older demographic.[33]
Stay Safe, Enjoy the Summer, and the Read,
Kim
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[1] Vulnerable Adults and Mental Capacity in BC: Provincial Strategy Document, January 2009, BC Adult Abuse and Neglect Preventions Collaborative, online: http://www.bcli.org/sites/default/files/Vanguard_(16May09).pdf accessed on: 03.07.18.
[2] Andrew Achenbaum, The History of Ageism Since 1969, Journal of American Society on Aging, October 19, 2015. Accessed online 13.06.18: http://www.asaging.org/blog/history-ageism-1969
[3] Robert N Butler, “Ageism: A Foreword” (1980) 36:2 Journal of Social Issues 8; see also Helene Love, “Ageism, Language and the law” (2011) 31 Windsor Rev. Legal & Soc. Issues 134.
[4] Erdman Palmore, Ageism: Negative & Positive, 2d ed (New York: Springer 1999) at 89-90, as cited in Helene Love, “Ageism, Language and the Law” (2011) 31 Windsor Rev. Legal & Soc. Issues 133 [“Love”].
[5] Ontario Human Rights Commission, Ageism and age discrimination fact sheet, online: http://www.ohrc.on.ca/en/ageism-and-age-discrimination-fact-sheet
[7] Dr. Stacy L. Smith, Dr. Katherine Pieper, Marc Choueiti et al, Seniors on the Small Screen: Aging in Popular Television Content, Media Diversity & Social Change Initiative, 2017. Online: http://assets.uscannenberg.org/docs/Seniors_on_the_Small_Screen-Dr_Stacy_L_Smith_9-12-17.pdf [“Smith”].
[12] Barbara Mikolajczyk, “International Law and Ageism” 2014 Polish Yearbook of International Law, Vol. 34 pp.83-107 at p.88 [“Mikolajczyk”]
[13] Dickason v University of Alberta, [1992] 2 SCR 1103 at para 1173, 95 DLR (4th) 439.
[15] Mikolajczyk at p.89.
[16] Mikolajczyk at p. 84, citing Beverly McLachlin, “Human dignity at any age: the law’s response to an aging population”, 6 Journal of International Aging, Law & Policy 111 (2013) at p. 112
[17] Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[18] “Ageism and age discrimination (fact sheet)” Ontario Human Rights Commission, online http://www.ohrc.on.ca/en/ageism-and-age-discrimination-fact-sheet Accessed on 05.07.18.
[19] R v Kapp 2008 SCC 41.
[20] Alon-Shenker at p.44.
[21] Alon-Shenker at p.63.
[22] United Nations, The Universal Declaration of Human Rights, 1948, online: http://www.un.org/en/universal-declaration-human-rights/
[23] Mathews Dinsdale LLP, “Canada Age Discrimination Info” August 19, 2016, online http://www.agediscrimination.info/international-age-discrimination/canada Accessed on 05.07.18.
[24] Canadian Human Rights Act, RSC 1985, c H-6 online: http://laws-lois.justice.gc.ca/eng/acts/h-6/
[25] Employment Equity Act, SC 1995, c 44, online: http://laws-lois.justice.gc.ca/eng/acts/e-5.401/
[26] Human Rights Code, RSO 1990, c H 19, online: https://www.ontario.ca/laws/statute/90h19?search=e+laws
[27] Ontario Human Rights Commission, online: http://www.ohrc.on.ca/en
[28] Human Rights Tribunal of Ontario, online: http://www.sjto.gov.on.ca/hrto/
[29] McKinney v. University of Guelph, [1990] 3 SCR 229 (“McKinney”).
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1. TORONTO PUBLIC LIBRARY (TPL) & CANAGE EDUCATIONAL SPEAKER SERIES, AGING YOUR WAY: CREATING AN AGE-INCLUSIVE CANADA, TOGETHER, MAY 27, 2021 |
Kimberly Whaley presented with Laura Tamblyn Watts, CEO, CanAge, on Powers of Attorney, Capacity and the Role of an Attorney for Property and Personal Care, at the Toronto Public Library & CanAge Educational Speaker Series, on May 27, 2021.
A copy of the PPT materials can be accessed on our website:
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2. OBA, INNOVATION IN TRUSTS & ESTATES LAW, JUNE 1, 2021
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Kimberly Whaley presented on: “Social Media & Tech Implementation” at the OBA Innovation in Trusts & Estates Law Webinar on June 1, 2021, which was chaired by Jonathan Keslassy, KFG Law and Alexander Procope, PBP Lawyers
A copy of her materials can be accessed:
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3. ELDER ABUSE PREVENTION ONTARIO (EAPO), ABUSE OF POWERS OF ATTORNEY, JUNE 9, 2021
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Kimberly Whaley, Denise Hannivan (PGT) and Rebecca Redmond (PGT) co-presented and had an open discussion on: “Abuse of Powers of Attorney for Property and Personal Care” at the Elder Abuse Prevention Ontario Webinar on June 9, 2021.
The EAPO materials can be accessed on our website:
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4. LAW SOCIETY OF ONTARIO, 15TH SOLO AND SMALL FIRM CONFERENCE, THE SOLO/SMALL ADVANTAGE, JUNE 10, 2021
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Kimberly Whaley participated in a panel discussion, chaired by The Honourable Kathleen Erin Cullin, Superior Court of Justice, and Barbara Hicks, Hicks & Hicks Professional Corporation, with moderator, Joel Kadish and colleagues, Hamoody Hassan of Hassan Law, and David Whitten of Whitten & Lublin Professional Corporation, on the Solo/Small Advantage.
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5. ONTARIO POLICE, ELDER ABUSE INVESTIGATIONS 2021, JUNE 16, 2021
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Daniel Paperny and Matthew Rendely presented at the Ontario Police Elder Abuse Investigations course, June 16, 2021. They presented on Elder Abuse: Civil and Criminal Remedies.
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6. OBA ELDER LAW DAY, JUNE 21, 2021
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Kimberly Whaley will be participating in the OBA Elder Law Day and speaking on Covid-19 Impacts on Elder Abuse, on June 21, 2021 which will be chaired by Kavina Nagrani, NIKA Law LLP.
Matthew Rendely will be co-moderating the session on “What’s Really Going on Inside Long-Term Care and Retirement Homes” with Andrea McEwan of Aird & Berlis, at the OBA Elder Law Day.
Bryan Gilmartin will be presenting along with colleagues, Michelle Kang of NIKA Law LLP, Ioulia Vinogradova of Hummingbird Law and Sydney Osmar of Hull & Hull LLP, on: “Your Elder Law – Case Law Round-up” at the OBA Elder Law Day.
For more details, please check the OBA website:
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WEL congratulates the newly elected STEP Canada Chair, Chris Ireland, and the 2020 STEP Canada Award Winners who deserve their recognitions as outstanding STEP members!
Award Recipients:
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OBA ELDER LAW SECTION EXECUTIVE 2021-22 |
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Congratulations to the OBA Elder Law Section 2021-22 Executive and Members-at-Large including WEL Partners Bryan Gilmartin.
Christina Canestraro
Jennifer Corak
Richard Coutinho
Holly V. Cunliffe
Harold L. Geller
Bryan Gilmartin
Pia Hundal
Ewa A. Krajewska
Raymond G. Leclair
Giancarlo Mignardi
Sheila C. Morris
Sydney Osmar
Diane A. Vieira
Graham Webb
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(i) THE ‘SLAYER RULE’: THE BANK OF NOVA SCOTIA COMPANY V. ROGERS [1]
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By Albert H. Oosterhoff
It is a fundamental rule of public policy that crime should not pay and therefore if a person kills another feloniously, the murderer should not be allowed to keep property acquired as a result of the victim’s death. The rule is a simple one and applied without exception in many cases. The court did so in The Bank of Nova Scotia v. Rogers too. However, while denying the murderer benefits flowing from the crime, it is sometimes more difficult determining who should get those benefits. That was the main issue in Rogers.
The rule applies whenever someone receives benefits in consequence of his criminal act.[2] Thus, it applies when a beneficiary murders a testator,[3] when an heir murders a person who dies intestate,[4] when a joint tenant kills the other joint tenant,[5] when a beneficiary of an insurance policy kills the insured,[6] and when the beneficiary of social insurance benefits kills the insured.[7] The rule also applies if a person kills someone to prevent the execution of a will and who thereby benefits from the death.[8] It even applies to a person entitled to a remainder interest who kills the life tenant.[9] The killer will also lose the right to probate the victim’s will.[10]
Of course the rule does not apply if the killing was not felonious, for example if the killer was insane,[11] was not criminally responsible because of a mental disorder,[12] or if it was not intentional.[13]
When the rule does apply, in theory at least, the property may still pass to the killer, but she then holds it upon constructive trust for the persons next in line. This may be illustrated by the case of a joint tenant who kills the other tenant. The killer will still take the legal title to whole interest, but equity will impose a constructive trust on him. The killer must hold the half interest derived from the victim in trust for the persons next in line (typically the next of kin), but he holds the other half interest in trust for himself. It is not forfeited.[14]
The imposition of a constructive trust is often not mentioned in the cases, but it forms a sound theoretical basis for the non-forfeiture of interests to which the killer remains entitled and for the forfeiture of the interests of the victim.
The facts in the Rogers case were complex and that was the cause of some of the problems. Cameron Rogers was the adopted son of David and Merrill Rogers. He killed his parents in 2016, pleaded guilty to the killing in 2018, and was sentenced to two concurrent life sentences without the possibility of parole for 20 years. David had no other known relatives, but Merrill’s closest relatives were her three brothers, Stephen, Graham, and Gordon Gleddie. David and Merrill made reciprocal wills in 2014 in which they named each other estate trustees and The Bank of Nova Scotia Trust Company as alternative trustee. Apart from gifts of some personalty, they left the residue to the other person, but if the other person predeceased, then the estate trustee had to deal with the residue as follows:
1 Retain the services of a counselor for Cameron.
2 Rollover from any RSP, RIF, or LIRA to Cameron’s Registered Disability Savings Plan (‘RDSP’) to allowable contribution limits.
3 Set aside the remaining residue in trust during Cameron’s life, and the Trustee shall:
(a) in its discretion pay income and capital for Cameron’s benefit; and
(b) accumulate any income each year for 21 years and then, in consultation with Cameron, pay the income to one or more of the following:
(i) Autism Canada Foundation;
(ii) Salvation Army Ottawa Booth Centre;
(iii) An organization that treats mental health or addictions.
4 On Cameron’s death, the Trustee shall:
(a) distribute the balance of the trust fund to Cameron’s issue then living in equal shares; and
(b) if Cameron has no issue then living, to distribute the balance into three equal shares for Merrill’s three brothers, and to purchase a life annuity for each of them, with a guarantee period of not less than five years, and with the irrevocable beneficiary of each annuity to be the Autism Canada Foundation and an organization that treats mental health and additions to be selected by the trustees, in equal shares.
5 If any portion of the estate remains undistributed, the Trustee shall distribute it in equal shares to the charities mentioned in clause 4(b).
The estate trustee brought an application for direction about how the estate should be distributed. At the time, Cameron was 25 years old and would not be released until he would be in his early forties.
The court held first, of course, that under the slayer rule Cameron was unable to benefit under his parents’ wills. But that left the question about how the estates should be distributed. The court identified three approaches:[15]
(a) The Deemed Death Approach
This was the approach used in Dhaliwall v. Dhaliwall.[16] The victim’s will provided that her property would pass to her husband and if he predeceased her to their children. The husband killed the testator. The court deemed the husband to have predeceased his wife, so that the children could take in accordance with the will.
(b) A Literal Reading of the Will Approach
This was the approach followed in Re Dreger.[17] The husband and wife made reciprocal wills. The wife’s will directed that her property passed to her husband, but if he predeceased her there was a gift over to other beneficiaries. The husband killed his wife before committing suicide. Thus, he clearly did not predecease his wife. It followed that the wife died intestate according to the court. But since the wife predeceased the husband, his estate was distributed according to the gift over provision in his will.
(c) Implied Intention Approach
This approach was followed in Brissette Estate v. Brissette.[18] The husband murdered his wife. Her will left the residue of her estate to him, but if he predeceased her or failed to survive her by 30 days, the residue was to be paid to other persons named in the will. If the result of what happened was an intestacy, the wife’s mother would inherit her estate. The court held that it should not find in favour of an intestacy. It found an implied condition in the testator’s will that the husband had to be a legal beneficiary. Since he was not, because he could not inherit from her for public policy reasons, the alternative beneficiaries named in the will should be allowed to take, as they were next in line. In the court’s opinion, this was in accord with the testator’s will.[19]
Justice Labrosse review each of these approaches. Each of them is based on a fiction or an assumption to reach a desired result. But ultimately he adopted the implied intention approach because it focuses on the intention of the testator and allows alternative bequests to take effect, while at the same time avoiding an intestacy. The implied intention in this case is that Cameron has to be a legal beneficiary, that is, capable in law of taking the benefit bequeathed to him. Cameron was not a legal beneficiary, having lost his entitlement through the application of the slayer rule. Thus, in accordance with the testators’ intentions, the gifts over should take effect. In effect, they are accelerated.
However, this presented a problem, since the first gift over was to Cameron’s children. So the question arose whether the estates had to be kept in abeyance to see if Cameron might eventually have children. The court held that this should not be done. It emphasized the importance of the public policy rule and held, in effect, that it overrode keeping the estates on hold for the possibility that Cameron might have children in the future. The court applied the “armchair rule” and concluded that if David and Merrill had been aware of Cameron’s disentitlement they would not have wanted the estates kept in limbo. This might even fuel Cameron’s future decision to have children. With great respect, this is a misapplication of the ‘armchair rule’. It requires the court to look at evidence of surrounding circumstances that the testators were aware of when they made their wills. I agree that they might have had concerns about Cameron’s possible disabilities, but they do not seem to have turned their minds to David’s possible future disentitlement and the effect that might have on the gift over to the children and it my opinion it is wrong to ascribe an intention to them which they seem not to have considered.
That does not mean that the result is incorrect, but the court could have reached it in a different way. It could have said public policy considerations, coupled with the successive gifts over meant that it would be wrong to hold up the later gifts over because of the remote possibility that there might be children at some future point who could take under the first gift over. In that way the court would have given effect to the slayer rule and the testator’s intentions, while at the same time dismissing unlikely future eventualities. Consequently, the gifts under the gifts over to Merrill’s brothers should be accelerated.
In the result, the court held:
1. Cameron was disentitled;
2. Merrill’s three brothers became entitled as per the terms of the annuities;
3. the estate trustee had power to dispose of personal property and pay the proceeds into the residue;
4. the estate trustee was not relieved of retaining a counsellor for Cameron;
5. the estate trustee was not required to transfer proceeds from David and Merrill’s RSPs, RIF’s, and LIRA’s into Cameron’s RDSP; instead they became part of the residue and the estate trustee had to recover any moneys already paid into the RDSP;
6. the estate trustee is not required to keep the residue invested during Cameron’s lifetime and apply it for his benefit, the moneys should be applied as if Cameron had predeceased leaving no issue;
7. The alternative beneficiaries became entitled as if Cameron predeceased his parent with no issue living at his death.
The terms of the wills made this a particularly difficult case to resolve, but I believe that the court ultimately resolved it satisfactorily.
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[2] For in depth discussions of the rule, see Oosterhoff on Wills, 9th ed. by Albert H. Oosterhoff, C. David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters / Carswell, 2021), §12.4; and Oosterhoff on Trusts, 9th ed. by Albert H. Oosterhoff, Robert Chambers, and Mitchell McInnes (Toronto: Thomson Reuters / Carswell, 2019), §11.5.2.
[3] McKinnon v. Lundy (1895), 24 S.C.R. 147.
[4] Nordstrom v. Baumann, [1962] S.C.R. 147; Re Gore (1971) 23 D.L.R. (3d) 534 (Ont. H.C.); Re Charlton (1968), 3 D.L.R. (3d) 623 (Ont. C.A.).
[5] Schobelt v. Barber (1966), 60 D.L.R. (2d) 519; Singh Estate v. Bajrangie-Singh (1999), 29 E.T.R. (2d) 302 (Ont. S.C.J.)
[6] Cleaver v. Mutual Reserve Fund Life Association, 1892] 1 A.B. 147 (C.A.); Brissette Estate v. Westbury Life Insurance Co., [1992] 3 S.C.R. 87/
[7] R. v. National Insurance Commissioner, Ex parte Connor, [1981] 1 All E.R. 769 (Q.B.)
[8] Latham v. Father Devine, 299 N.Y. 22, 85 N.E, 168 (1942).
[9] A.W. Scott and W.F. Fratcher, The Law of Trusts, 4th ed. (Boston: Little, Brown and Company, 1987-91), §493.1.
[10] Re Hall’s Estate, [1914] P. 1 (C.A.).
[11] See, e.g., Manitoba (Public Trustee) v. LeClerc (1981), 123 D.L.R. (3d) 650 (Man. Q.B.).
[12] Dhingra v. Dhingra Estate, 2012 ONCA 261.
[13] Gray v. Barr, [1971] 2 Q.B. 554 (C.A.), at 581, per Salmon L.J.
[14] See Schobelt v. Barber (1966), 60 D.L.R. (2d) 519; Re Gore (1971) 23 D.L.R. (3d) 534 (Ont. H.C.).
[15] Discussed in Re Bowlen Estate, 2001 ABQB 304 at paras. 39-50.
[16] (1986), 30 D.L.R. (4th) 420 (B.C.S.C.).
[17] (1976), 12 O.R. (2d) 371 (H.C.J.).
[18] (1991), 42 E.T.R. 173 (Ont. Gen. Div.).
[19] For a similar case, see Jollimore Estate v. Nova Scotia (Public Archives), 2011 NSSC 218. The testator, who was his mother left her estate to her son and if he did not survive her to the Public Archives of Nova Scotia. The son killed his mother and the court held that the estate should be distributed to the alternative beneficiary.
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(ii) SHERMAN ESTATES: SUPREME COURT OF CANADA REVIEWS SEALING OF ESTATES FILES
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By Paul M. Murphy
On June 11, 2021, The Supreme Court of Canada (‘SCC’) released the decision relating to the public sealing of Court documents with respect to the Estates of Barry and Honey Sherman (‘Estates’).[1] In an unanimous decision, the SCC ruled in this circumstance, that documents relating to the Estates should not be sealed. The potential risk of harm to the Estate Trustees and the beneficiaries were not present, and therefore could not lead to a restriction of the public rights of open Court, which is guaranteed by the Charter of Rights and Freedoms.[2]
Tragically on December 15, 2017, the bodies of the billionaire married couple, Barry and Honey Sherman, were found dead inside their Toronto home under suspicious circumstances. To date, there has not been any charges of murder. The mystery remains unsolved, despite an ongoing homicide investigation by the Toronto Police.[3]
Early in his investigation, Chief Investigative Reporter for the Toronto Star Newspaper Kevin Donovan, attempted to find more information pertaining to the suspicious deaths of the Sherman’s, and to learn and report on information as it relates to the Sherman Estates (‘Estates Files’).[4]
When Mr. Donovan approached the Estates office in the Ontario Superior Court of Justice, he was surprised to learn that the Estates Files were sealed, and he was not able to acquire the information he had obtained so many times before in his investigations, as these files were public record.
Mr. Donovan sought to challenge the decision to seal the Estates Files by commencing an Application before the Ontario Superior Court of Justice. Mr. Donovan learned that the Sherman Estates and Estates themselves (‘Appellants’) had applied for a Sealing Order without notice to the media.[5]
Throughout the proceedings, the Appellants, have vigorously fought the unsealing of the Estates Files at every stage of litigation, including the Ontario Superior Court of Justice (OSCJ), the Ontario Court of Appel (ONCA)[6], and the SCC.[7]
The Appellants argued throughout that the litigation that the Estate Trustees and beneficiaries for the Sherman Estates had real privacy and security concerns. The Appellants argued that because of the murders, and unsolved investigation, the privacy and security concerns justify overriding the fundamental principles of justice that assures Canadians of access to Court proceedings and records.[8]
In the initial Application Decision, the Court ruled that the Appellants satisfied the Sierra Club test, and the Estates Files would be sealed for a two-year period.
The ONCA heard the Appeal in April 29, 2019 and held that the Application judge did not apply the Sierra Club test correctly by not meeting the ‘privacy’ and ‘security’ concerns from the Sierra Club test.[9]
When referring to the ‘privacy test’, the ONCA stated at paragraph 10:
“The kind of interest that is properly protected by a sealing order must have a public interest component. Personal concerns cannot, without more justify an order sealing material that would normally be available to the public under the open court principle.”[10]
Evidently, the ONCA required “more” to justify a sealing order with respect to the Estates Files.
Similarly, with the ‘security test, the ONCA stated that there was no evidence presented that amounted to a finding that the disclosure of the Estates Files posed a real risk to personal safety.[11] As such, the ONCA ruled the Estates Files to be unsealed.
The principal test to determine whether a Court will seal documents is outlined in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 (‘Sierra Club’) that privacy with something more can override openness under the Sierra Club test, but personal concerns without something more cannot lead to a court overriding the public rights to openness.
With respect to the June 11, 2021, SCC decision, again the issue on appeal to Canada’s highest Court was whether the previous decision of the ONCA to unseal the Estates Files, was correct. The Court ruled unanimously that the Sierra Club test was not met and the Estates Files were ordered to be unsealed.[12]
The SCC decision was clear an unequivocal in balancing the factors a Court must consider in pertaining to serious risk to security and privacy, versus the fundamental rights of the public interest. The Court dismissed the appeal and stated,
“The estate trustees have failed to establish a serious risk to an important public interest under the test for discretionary limits on court openness. As such, the sealing orders should not have been issued. Open courts can be a source of inconvenience and embarrassment, but this discomfort is not, as a general matter, enough to overturn the strong presumption of openness. That said, personal information disseminated in open court can be more than a source of discomfort and may result in an affront to a person’s dignity. Insofar as privacy serves to protect individuals from this affront, it is an important public interest and a court can make an exception to the open court principle if it is at serious risk. In this case, the risks to privacy and physical safety cannot be said to be sufficiently serious.”[13]
Counsel for Mr. Donovan wrote “This principle of openness, constitutionally protected, is foundational to our democracy and critical to the public’s confidence in the administration of justice.”[14]
I
n summary, and with a particular emphasis on probate, the SCC stated,
Matters in a probate file are not quintessentially private or fundamentally administrative. Obtaining a certificate of appointment of estate trustee in Ontario is a court proceeding engaging the fundamental rationale for openness — discouraging mischief and ensuring confidence in the administration of justice through transparency — such that the strong presumption of openness applies.[15]
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[1] Sherman Estate v Donovan 2021 SCC 25.
[3] Wilson, Cody It’s been 3 years since Barry and Honey Sherman were found dead Court documents reveal what we know so far, CTV December 15, 2020.
[4] Factum of the Respondent Kevin Donovan re S.C.C. No. 38695, March 9, 2020.
[5] Toronto Star Newspapers Ltd v Sherman Estate 2018 ONSC 4706 (Application Decision).
[6] Donovan v Sherman Estate, 2019 ONCA 376 (‘Appeal Decision’).
[7] Sherman Estate v Donovan 2021 SCC 25.
[8] IBID page 1, paragraph 3.
[9] IBID page 4, paragraph 10, 11
[10] Appeal Decision at paragraph 10
[13] Sherman Estate v Donovan 2021 SCC 25.
[14] Factum of the Respondent Kevin Donovan re S.C.C. No. 38695, March 9, 2020, page 1, paragraph 1.
[15] Sherman Estate v Donovan 2021 SCC 25.
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OBA Elder Law Day
Covid-19 Impacts on Elder Abuse
June 21, 2021
Speaker: Kimberly Whaley
OBA Elder Law Day
What’s really Going on Inside Long-Term Care and Retirement Homes
June 21, 2021
Moderator: Matthew Rendely
OBA Elder Law Day
Your Elder Law Case Law Round-up
June 21, 2021
Speaker: Bryan Gilmartin
Toronto Police
Elder Abuse Investigator’s Course
Civil & Criminal Remedies
September 3, 2021
Speakers: Matthew Rendely and Bryan Gilmartin
LSO Administration of Estates
Limitation Periods and Advising Executors
September 23, 2021
Speaker: Daniel Paperny
International Federation of Ageing – 15th Global Conference on Ageing November 9-12, 2021
Speakers: Daniel Paperny and Matthew Rendely
Ontario Police
Elder Abuse Investigations 2021
November 16, 2021
Speakers: Bryan Gilmartin and Paul Murphy
LESA 53rd Annual Refresher: Managing Wills & Estates Matters
DATE: TBD
Decisional Capacity: A Wills & Estates Context
Speaker: Kimberly Whaley and John Poyser
Estate Planning and Litigation Forum
Spring 2022
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