Dear Kenneth,

Happy 2023! Best Wishes from us to you, on achieving your goals and dreams in the year ahead.

We already have a healthy calendar full of firm commitments and challenges which provides us with much to look forward to throughout this coming year. As ever, we thank you for your consistent trust in our team and we are available to receive your client referrals, connections, questions, and discussions.

WEL Partners, WELcomes our latest Partner to bolster our team of experienced estate litigation partners. Kim, Matthew, and Daniel are pleased to have Bryan Gilmartin as our Partner. Bryan joined us first as a summer student but never seemed to leave us after that. Bryan worked for us while a student from afar and came back during the school year and summers to help us out. Bryan eventually articled with us and after qualifying helped us get through covid, as an ever-present fixture at the office. Covid -19 was not going to hold Bryan back! Bryan has shadowed all of my mediations as Mediator since 2019 and is now offering mediations services alone, for the right type of file matters commensurate with his experience. Bryan and I will be completing an Advanced Mediation course refresher in 2023. Our mediations can be in person or virtual, at our offices or with the support of our legal affiliates and partners offering mediation venues and support.

Bryan had a record number of speaking engagements and presentation requests last year and continues to excel in his dedication, competency and professionalism. Bryan is currently writing the STEP exams. We are super excited to work with Bryan in this next chapter of his career.

We will keep you posted on our success.

In the realm of New Year’s resolutions-I made none. The objectives and goals are constant so why bother with December 31^st pressure!

This month I went to STEP Cayman and joined international colleagues to learn and connect under the warmth of the Caribbean sunshine.

Best Wishes,

As ever enjoy the read,

Kim

TLA AWARD OF DISTINCTION

WEL congratulates Chris Paliare, at Paliare Roland Rosenberg Rothstein Barristers LLP, on being the recipient of the 2023 Toronto Lawyers Award of Distinction. The Toronto Lawyers Association’s Award of Distinction is awarded each year to a Toronto lawyer who has a demonstrated record of excellence, and who has made an extraordinary contribution to the integrity and worth of the law and to the legal profession. The Award will be bestowed on him at the TLA Annual Awards Gala to be held on March 2, 2023 at The Carlu Round Room at 444 Yonge Street.

https://tlaonline.ca/site/events/annual_gala/award-of-distinction-2023

STEP MENTAL CAPACITY SPECIAL INTEREST GROUP STEERING COMMITTEE

WEL is pleased to congratulate Darren Catton, TEP, and Martina Moscardi, TEP, who have been newly elected, and Karen Perreira, TEP, who has been re-elected to the Mental Capacity Global SIG Steering Committee. Their terms all commenced on 1 January 2023.

WEL also congratulate Yue-En Chong, TEP, who has been newly elected unopposed to the position of Chair to the STEP Mental Capacity Global committee. Louise Lewis, TEP, and Holly Miéville-Hawkins, TEP, remain as Co-Deputy Chairs.

To view the updated list of members of the STEP Mental Capacity Special Interest Group (SIG) Steering Committee, please visit the group's webpages.

WEL EATS – PAI AND CAPOCACCIA TRATTORIA

By Evan Pernica 

PAI Uptown

https://paitoronto.com/

Unassuming from the quiet front entrance nestled into one of the city’s most up-and-coming neighbourhoods, you might miss PAI at their Yonge and Eglinton location with the hustle and bustle of the area and plethora of flashing lights competing for your attention. 

PAI is an authentic Thai restaurant created by Jeff and Nuit Regular who met while Jeff was travelling through Thailand. Amongst his return to Canada, the pair wanted to celebrate their love for each other and their love of Thai food. Four restaurants later, they’ve been able to achieve their mission statement and bring the distinct flavour of Northern Thai cuisine to Toronto. 

Walking into PAI can feel like an immersion into the authentic atmosphere that the restaurant strives to maintain throughout the entire experience, but modern twists can also be found throughout. The rich wood decor, symbology, and hanging rooftop lanterns that illuminate street signs representative of traditional Thai sights are contrasted with Toronto Raptors jerseys and a stage for live music. Put together, the space mimics an open street market in Thailand mixed with familiar elements of home. PAI makes it clear that they are less concerned with pretentiousness and instead focused on providing a full sensory culinary experience.

One thing that feels distinct about the flavours at Pai is the complexity and layers - a little bit spicy, a dash of bitter, and a mix of salty, herby, and even sometimes sourness. There also always seems to be a play on textures - hot and cold vs crispy and soft, which we believe is what always makes Thai food it’s best.

To start, a must-order is the “Moo Ping”, which are northern Thai sweet grilled pork skewers. It's a simple dish, executed perfectly and bursting with flavour. 

One standout of the meal is the “Gaeng Kiaw Wan” or Green Curry. It comes with your choice of protein, and is topped with bamboo shoots, makrut lime leaves, basil leaves and coconut milk, all served inside a coconut bowl. The green curry was bursting with flavours and aromatics though it might be a bit on the spicier side for some.

Another dish that our table couldn’t seem to get enough of was the Kao Soi, which also happens to be one of Chef Nuit’s favourites. Fresh egg noodles bathe inside a spicy golden coconut curry with crispy noodles, coriander, and green onions. The contrast of the slippery egg noodles with the fried noodles is a fantastic touch of complexity to the flavourful curry base.

To wash it all down, go for the Thai iced tea. Boldly orange, this iced tea would be perfect in the sweltering Thai heat. The mouthfeel is cool but with its warm hints of cinnamon and cardamom, we again see the contrast of flavours and textures present in Thai cooking.

A fun twist you might miss if you’re not a big Basketball fan is the cocktails named after famous Raptors players like the “Spicy P” or the “Schotchie Barnes”. It's a great ode to the six. If you prefer something smooth, refreshing, and subtle, our top pick from the Raptors bench was “The Lowry”. Gin is mixed with lemongrass syrup, mint, basil, and is served on ice with a splash of lychee juice. It’s the perfect umami of sweet, and bitter.

While we can’t speak to the authenticity of Pai’s Thai influence, if you’re looking for a flavorful and all-encompassing dining experience, head down to one of Pai’s two locations.

CAPOCACCIA TRATTORIA

https://www.capocaccia.ca/

With comfort and authenticity at its heart, Capocaccia Trattoria is a cozy escape in the bustling midtown area that brings a high-end taste of Sicilian comforts to familiar territory. 

The restaurant was started nearly 20 years ago by Italian chef Salvatore Mele, and it's clear that he brought his Italian roots with him to midtown. The concept was simple, food, like most things in life, should be left to its own natural beauty. Inspired by the rustic cuisine of Southern Italy and Sicily, we can’t think of a more enticing natural beauty to personify on a plate. 

Taking a moment to look up from the charming creations making their way out of the kitchen, the restaurant’s beauty extends itself into the space with its melding of classic and modern decor. With floor-to-ceiling windows and bold blue statements throughout the space, the decor is pleasant and inviting. There’s a romantic ambience to the space that doesn’t make you feel like you’re on a business lunch and welcomes you to relax into your escape (and espresso!). 

Everything is served fresh and flavourful. Start with the calamari for its perfect crunch exterior and freshness. The burrata is a must-order and exemplifies how Capoccacia is able to take a simple dish to the next level with its execution and focus on quality ingredients. This was immediately clear to us as we dug into fresh burrata atop a slow-cooked beet medley. Don’t skip the Salumi E Formaggi with its selection of Italian cured meats and cheeses. With an array of carefully curated bites, there’s something for everyone. 

Be sure to leave room for the main course as they were true highlights of the meal. We tried the Orecchiette Rapini E Salsiccia, a bright green pasta with rapini puree and pork sausage topped with parmigiano reggiano. It's an intriguing twist on a classic pesto dish. 

The Branzino was also a standout, and it’s no surprise. As Sicily is one of the biggest islands of the Mediterranean, it favours fresh fish in its approach to food. In this dish, grilled Mediterranean Sea bass sits on a bed of braised rapini and cannellini stew, melding the rich flavours of the grill against the contrast of the delicate simplicity of the fish.

If you’re looking for a great experience with authentic dishes that have a spin on classic Italian eats, head to Capocaccia. A bonus for wine fanatics - get half priced bottles every Tuesday plus “Appertivo” every day from 4-6pm.

By Albert H. Oosterhoff

1. Introduction

Recently, I posted a blog on a Supreme Court of Canada case,^[1] which reviewed the equitable remedies of rescission and rectification and held that the remedy of rescission is not available to undo tax plans in order to avoid adverse tax consequences.^[2] In it the Court followed its earlier decisions in Canada (Attorney General) v Fairmont Hotels Inc^[3] (‘Fairmont’) and Jean Coutu Group (PJC) Inc v Canada (Attorney General),^[4] which held that rectification is unavailable in those circumstances. But recent case law has also made it clear that these equitable remedies are still available in limited circumstances. Royal Trust Corporation of Canada v Horner^[5] explores those limited circumstances. And in its additional reasons, Hoyle Estate^[6] the court arguably makes a somewhat unexpected costs award.

2. Rectification

2.1 Facts

Una Hoyle had engaged in complex estate planning while her husband was and updated that plan with a new will and various trusts with the aid of Mr White, a lawyer. In 2009, Una engaged another lawyer, Isaac, to review her estate plan, since there were concerns about possible duplicate gifts. In 2010 Ms Isaac had Una sign a number of documents that were supposed to cure the problem of the duplicate gifts. However, also in 2010 Una engaged yet another lawyer, Mr Enns, to work together with Ms Isaac to review that estate plan. Ms Isaac then picked up the original estate planning documents from Mr White and discovered that Una had made a new will and settled the UH Trust in 2008, which meant that the duplicate gifts problem was still an issue. Moreover, the default distribution of her assets under the UH Trust of 2008 differed from Una’s instructions to Ms Isaac and the 2010 planning documents that she had drafted for Una. Ms Isaac concluded that a new document, the UH Trust Deed of Appointment should be executed to resolve these problems. She discussed this with Una and with Mr Enns. Ms Isaac then sent the documents, including a new will, to Mr Enns to have them executed by Una. The package contained an original and a copy of each document. Mr Enns attended to the execution and sent the documents back to Ms Isaac. However, she discovered that the documents did not include a signed copy of the UH Trust Deed of Appointment, although it did include two signed copies of the Spousal Trust Deed of Appointment. Shortly before she discovered this, she and Mr Enns learnt that Una had scored poorly on a capacity test, so they concluded they could no longer act for her.

Una died in 2018. Probate of her will was granted to her executor, Royal Trust, in 2019. Royal Trust concluded that because the UH Trust Deed of Appointment was not signed, the 2008 UH Trust Deed default distribution would have to be followed. However, this would be contrary to Una’s intentions. Therefore Royal Trust brought an application in which it asked the court either to rectify one of the signed copies of the Spousal Trust Deed of appointment and substituting the provisions of the UH Trust Deed of Appointment instead, or alternatively to cure the unsigned UH Trust Deed of Appointment under section 58 of the Wills, Estates and Administration Act.^[7] Two of Una’s children opposed the application. The Litigation Guardian filed a response on behalf of minor and unborn issue but took no position on the relief sought by Royal Trust.

2.2 Analysis

The court held first, rightly I believe, that it had no jurisdiction to cure the unsigned UH Trust Deed of Appointment under section 58. That section empowers a court to cure a will or other ‘testamentary disposition document’ if it failed to comply with the statutory formalities for wills. The court rightly held that the UH Trust Deed of Appointment was not a ‘testamentary disposition document’ but an inter vivos document with immediate effect.^[8] In any event the Trust Deed would not be subject to the statutory formalities for wills.

However, the court held that it had inherent jurisdiction to grant the equitable doctrine of rectification. It quoted from the decision of Brown J in Fairmont,^[9] who said in paragraph 3, ‘…a court may rectify an instrument which inaccurately records a party’s agreement respecting what was to be done…’ However, Justice Brown also said in paragraph 36:

A party seeking rectification faces a difficult task in meeting this standard, because the evidence must satisfy a court that the true substance of its unilateral intention or agreement with another party was not accurately recorded in the instrument to which it nonetheless subscribed. A court will typically require evidence exhibiting a high degree of clarity, persuasiveness and cogency before substituting the terms of a written instrument with those said to form the party’s true, if only orally expressed, intended course of action.

The court concluded that the affidavits of Mr Enns and of Ms Isaac provided the requisite clear, convincing, and cogent evidence of their estate planning with Una as well as an explanation of what happened when the estate planning documents were executed. The court also concluded that Una understood that she would be signing the UH Trust Deed of Appointment, but mistakenly signed a second copy of the Spousal Trust Deed of Appointment instead. Thus, the court granted Royal Trust’s application to rectify one of the two executed copies of the Spousal Trust Deed of Appointment.

The court also found support for its decision in the United Kingdom Supreme Court decision of Marley v Rawlings.^[10] It concerned a situation in which a husband and wife mistakenly signed each other’s mirror wills. In that case the court rectified one of the wills. It acted under English legislation that permits rectification of a will.^[11] That legislation is similar to s 59 of WESA.

3. Costs

The parties then made submissions on costs. Royal Trust submitted that it should be fully indemnified for its expenses through a special costs award from the UH Trust and that the Litigation Guardian should be similarly indemnified. Royal Trust argued that trustees and litigation guardians are generally indemnified through a special costs award. The UH Trust in fact provided for Royal Trust’s indemnification and s. 95 of the Trustee Act^[12] also presumptively entitles it to be indemnified for its expenses. But Royal Trust also argued that the two children who opposed the application were not entitled to be indemnified for their costs because their opposition was unfounded. The Litigation guardian took the same position. However, the two children argued that they were also entitled to special costs from the UH Trust.

The court stated that in modern estate litigation costs normally follow the event unless there are specific exceptions to the modern approach. One exception is that trustees, executors, and other representatives are generally indemnified through a special costs award for all reasonable litigation costs they have incurred in their representative roles. Since Royal Trust acted reasonably in bringing the application to correct the clerical error and the Litigation Guardian acted reasonably in appearing on behalf of minor and unborn and unascertained beneficiaries, they were entitled to be indemnified through a special costs award from the UH Trust.

However, the two children who opposed the application were not entitled to be indemnified, even though this was a case in which the trustees asked the court to address an issue about a trust instrument that arose as a result of Una’s actions when she executed the estate planning documents. When a trustee commences the proceedings, other participating parties are not automatically entitled to be indemnified from the estate or trust under the modern approach to costs in estate litigation. As the court noted in paragraph 18, ‘Such a principle would create the perception that there is nothing to be lost in pursuing such litigation and put estate and trust assets at unwarranted risk of being depleted’.^[13]

The court acknowledged that the litigation became necessary because of Una’s unintended clerical error. Hence, it would be unfair to order to pay the costs of the Trustee and the Litigation Guardian personally. However, even though their legal submissions were of assistance to the court, they should not be indemnified out of the Trust, because their opposition to the application was unfounded and needlessly increased the length and complexity of the proceedings. For that reason it would be unjust to inflict this cost on the other beneficiaries. Consequently, they had to bear their own costs.

---

[1] Canada (Attorney General) v Collins Family Trust, 2022 SCC 26.

[2] https://welpartners.com/blog/2022/07/rescission-not-possible-to-avoid-adverse-tax-consequences/.

[3] 2016 SCC 56, [2016] 2 SCR 720.

[4] 2016 SCC 55, [2016] 2 SCR 670.

[5] 2022 BCSC 859. The court does not refer to the Collins Family Trust case, footnote 1, supra, because its reasons were handed down later.

[6] 2022 BCSC 729, 77 ETR 4th 152.

[7] SBC 2009, c 13 (‘WESA’).

[8] The court cited Quinn Estate v Rydland, 2019 BCCA 91, paras 36-37, and Waslenchuk Estate, 2020 BCSC 1929, paras 83 and 115-116 as authority on this point.

[9] Footnote 3, supra.

[10] [2014] UKSC 2.

[11] Administration of Justice Act 1982, c 53 (UK), s 20

[12] RSBC 1996, c 464. For a similar provision, see Trustee Act, RSO 1990, c T.23, s 23.1.

[13] Citing Hollander v Mooney, 2017 BCCA 238, para 112, which in turn cited McDougald Estate v Gooderham (2005), 255 DLR 4th 435 (ONCA), para 85.

By Albert Oosterhoff

1. Introduction

There have been quite a number of cases in the last while involving the passing over or removal of executors, and administrators. So I thought that it might be useful to review them together. Hence this potpourri. Even though the principles are largely the same for these different situations, I shall discuss them under the following discrete headings. Removal and passing over of trustees is not mentioned in the recent cases but the rules are much the same for such cases

2. Removal of Executor

Re Kolic Estate.^[1]

Last month I wrote a blog on a later application in this estate.^[2] The current case deals with an application by a beneficiary for the removal of the executor. The deceased had four children, Mary, Charles, Angela, and Joseph. She appointed Mary her executor. The will devised a 4/6th interest in her house to Joseph, a 1/6th interest to Mary, and another 1/6th interest to Angela, and directed that the house be transferred to them. The will also left the residue of the estate to those three siblings but left only $10,000 to Charles. Mary and Charles continued to reside in the house. Mary was very dilatory in proceeding with the administration of the estate and the administration stalled when Charles brought a will variation action. Joseph brought an application to remove Mary as executor and appointing a lawyer as executor, as well as consequential relief. Joseph and Angela opposed the will variation action, whereas Mary supported it and registered a certificate of pending litigation against the house, thus preventing her from dealing with the house. Joseph argued that Mary did not properly perform her role as executor by, for example, refusing to give him a copy of the will, failing to provide an accounting, and providing inconsistent values of the estate. He and Mary also argued that Mary is in a conflict of interest position and thus ought to be removed.

The matter was heard by Master CP Bouck. Since a Master does not have any inherent jurisdiction, he proceeded only under s. 31 of the Trustee Act,^[3] which permits a court to make an order appointing new trustees. He referred to Miles v Vince,^[4] in which the British Columbia Court of Appeal in turn referred to Letterstedt v Broers,^[5] which has been treated for many years as the fons et origo of the principles that should guide the court in removing a trustee. Although they are well-known, they bear repeating:

1. If the Court is satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate.

2. The acts or omissions must be such as to endanger the trust property or to show a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity.

3. In exercising the delicate jurisdiction of removing trustees, the Court’s main guide must be the welfare of the beneficiaries. It is not possible to lay down any more definite rule in a matter that is so “essentially dependent on details often of great nicety.” The Court must proceed to look carefully into the circumstances of the case.

4. Where a trustee is asked to resign, and if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign.

5. The lack of jurisprudence in respect of the removal of a trustee reflects that a trustee when asked to do so, will resign.

6. If, without any reasonable ground, the trustee refuses to do so the court might think it proper to remove him.

7. Friction or hostility between trustees and the beneficiary is not of itself a reason for the removal of the trustees. But where the hostility is grounded on the mode in which the trust has been administered, where it has been caused wholly or partially by substantial overcharges against the trust estate, it is not to be disregarded.

The Master concluded that Mary failed properly to preserve the estate assets, pay the debts, and distribute the balance to the beneficiaries. She was also in a conflict of interest by aligning herself with Charles and registering a certificate of pending litigation against the property. Accordingly, the Master granted an order removing Mary as executor and replacing her with the lawyer proposed by Joseph.

Meuse v Taylor.^[6]

This case concerned a potentially very expensive painting. Mary Sullivan died in 2020. She owned a painting known as the ‘Sanders Portrait’, purportedly of William Shakespeare and painted during his lifetime. A 2016 appraisal valued it at USD 50 million. It was the primary asset of the estate. It belonged to the testator’s husband, Mr Sullivan, who left it to her. He inherited it from his mother, who brought it with her from England when she immigrated to Canada in the late 19th century. His mother got it from other family members. The Portrait could be traced back to Mr Sullivan’s great-great grandfather, who mentioned it in an inventory of possessions, and from there back to one of Shakespeare’s neighbours, who presumably gave it to an early ancestor of Mr Sullivan. So the Portrait’s provenance was reasonable clear. Nonetheless, its value depends on whether it can be authenticated.

Mr. and Mrs. Sullivan appointed each other as executors with Mr Hale-Sanders, Mr Sullivan’s cousin, as substitute, and failing him David Taylor, Mr. and Mrs. Sullivan’s accountant. Mr Hale-Sanders acted as Mr Sullivan’s executor and after he died as Mrs. Sullivan’s executor, however, he renounced soon after her death. Mr Taylor then assumed the office of executor. Mr Taylor tried to prove the Portrait’s authenticity for many years. He entered into a deed with four other families who might have ownership claims. They recognized that Mr Sullivan owned the Portrait. Some persons claimed that they lent money to Mr Sullivan or were otherwise entitled to be compensated for work they did for them, including Mr Meuse, a law firm that provided legal advice, and an accounting firm.

Mr Meuse brought this application to remove Mr Taylor five years after he was appointed. He raised a number of issues claiming that Mr Taylor lacks the expertise and competence to get a fair value for the portrait, that he failed to act diligently in his duties as executor, and that he involved professionals to transfer the portrait. However, some of the issues he raised happened before Mr Taylor became executor.

Justice Gomery noted that section 5 of the Trustee Act,^[7] empowers the court to appoint a replacement trustee, but the court in any event has inherent power to remove a trustee. In paragraph 14 she summarized the principles that govern removal. The test is not that the executor might not have executed his duties perfectly. She referred to St Joseph’s Health Centre v Dzwiekowski,^[8] in which the court stated that the test is ‘whether the trust estate is likely to be administered properly in accordance with the fiduciary duties of the trustee and with due regard to the interests and welfare of the beneficiaries’ since removal ‘is intended not to punish trustees for past misconduct but rather to protect the assets of the trust and the interests of the beneficiaries’.

She also quoted from Venables v Gordon Estate,^[9] in which Beaudoin J stated:

Our courts are reluctant to interfere with a Testator’s express wishes and remove a Trustee simply because there is a conflict between the Trustee and a beneficiary. There has to be evidence that the Trustee is unable to exercise in a completely impartial and objective manner the very wide discretion they are given under a Will.

Similar comments are found in many removal cases. 

Her Honour noted that the issue is not whether Mr Meuse is better qualified, for Mrs Sullivan’s choice of executor is presumptively good, unless compelling evidence shows that leaving him in his office would endanger the estate (paragraph 16).

She decided that Mr Taylor should not be removed. The evidence fell short of establishing that he failed in his duties or that any step he took endangered the administration of the estate. In fact, he had accomplished a good deal (paragraph 20) and the issues raised by Mr Meuse were inconsequential and did not imperil the estate. She found that Mr Taylor’s response to Mr Meuse’s concern about certain transactions was reasonable, that he did not act inappropriately in involving an expert to authenticate, evaluate and potentially sell the Portrait. Nor was the estate prejudiced because Mr Taylor failed to replace a lawyer for the estate who had a conflict of interest immediately after he accepted the office. She also found that Mr Taylor did not lack the knowledge to administer the estate. He did not pre-determine the value of the Portrait and was not predisposed to sell it below market value.

Henderson v Sands.^[10]

The testator died in 2019. She appointed her sister, Cheryl Sands, executor and her other sister, Judith Norris, as substitute executor. The will named the testator’s two children, Melissa and Marnie Henderson, as the joint beneficiaries of the estate. Melissa brought an application to remove Ms Sands as executor, passing over the substitute executor, and appointing herself as executor. Melissa made serious allegations about Ms Sands’ conduct as attorney and executor.^[11]

In 2020 Justice McEwan made a consent preservation order, directing that the assets of the estate not be transferred, disposed of, distributed, or depleted, save only to pay the testator’s legitimate taxes and liabilities. By another order, Justice Conway continued the order on consent in 2021. The latter order also required Ms Sands to pass her accounts within 60 days. Since Ms Sands had been paying her significant personal legal and accounting fees from the estate, Melissa delivered both orders to TD Bank, and it froze the estate account. Ms Sands therefore brought this motion to allow her to continue to reimburse herself from estate funds. She alleged that she had made full disclosure but was unable to pass her accounts because the estate’s account had been frozen.

Thus, the case does not address the application for removal, but only the question whether the named executor can use estate assets to pass her accounts. While an executor is normally allowed to recover the reasonable costs of preparing her accounts from the estate, Justice Gilmore held that in this case she could not do so because of the preservation order, which did not extend to such costs. In any event, Ms Sands was in a conflict of interest since she is acting for her own benefit. In those circumstances Justice Gilmore applied DeLorenzo v Beresh,^[12] and Fenwick v Zimmerman,^[13] and held that Ms Sands as well as Melissa must bear their own costs until the litigation is completed. This does not offend public policy or section 23.1 of the Trustee Act.^[14]

3. Passing Over Executor

Kinnear v White.^[15]

Mr Kinnear made his will in 1999 and named his common law spouse, Arlene White his executor and principal beneficiary. He named his son, Kenneth, as alternative executor. Under the will Ms. White received 51% of the shares in the testator’s corporation and the residue of the estate. The testator’s two children, Kenneth and Katherine were given the other 49% of the corporate shares equally.

Ms. White had done very little in the estate, so the two children brought this application for various relief. In 2020 the court directed Ms. White to provide the applicants’ counsel with a statement of the estate asset, bring an application to pass her accounts in her management of the assets before and after the testator’s death, and attend an examination for discovery. She failed to comply with most of the terms of the order. She said she wanted to retain counsel but has failed to do so.

Therefore the children sought an order passing over Ms. White as executor and naming Katherine as estate trustee during litigation. The court took the view that Mr Kinnear’s wish to have Ms. White as his executor should not be lightly interfered with. Justice Dawe referred to several cases which suggest that passing over a named executor and appointing someone else should be a remedy of last resort and should happen only on the clearest evidence when there is no other solution. In particular, the applicant must demonstrate that if the order is not granted that will prevent the estate from being properly administered.

Justice Dawe found that the applicants had satisfied that heavy burden. The testator died two and a half years ago, Ms White has not applied for probate, and has done nothing else to administer the estate except to consult two lawyers briefly. Moreover, her comments during the hearing gave the judge no reason to believe that she has formed any plan to administer the estate. The applicants allege that the testator had shown signs of cognitive impairment since 2010 and had shown signs of dementia.

The court concluded that Ms. White cannot be counted on to administer the estate properly, whereas the applicants deserve to know whether they stand to inherit anything from the estate and, if so, to receive their requests without delay. It was satisfied that this would not happen unless Ms White was passed over and someone else was appointed.

Kenneth, the alternative executor, supports the proposal to name Katherine as estate trustee during litigation. Since Katherine and Ms. White are clearly in an adversarial position, Katherine would not normally be a suitable appointee. It would be better to appoint a neutral third party. However, professional executors do not work for free and although they are normally compensated out of the estate, it is uncertain whether there are sufficient assets in the estate for that purpose. But the rule that an interested party should not be appointed ETDL is not absolute. In this case appointing Katherine is the only realistic solution. Moreover, Ms. White was responsible for creating the situation and cannot complain if the court appoints an adversarial party to administer the estate. Accordingly, the court granted an order appointing Katherine as ETDL. It also granted most of the applicants’ requests for ancillary orders.

Gefen v Gefen.^[16]

The testator’s estate had been engaged in lengthy litigation since 2013. His wife, who was 98 or 99 years old was sole executor and trustee of the estate, but the court had appointed an ETDL. The sons, Harvey and Harry were named alternative executors. Harry brought an application for an order passing over his mother as executor of the estate, as well as himself and his brother as alternative executors. The court made an order that the mother be examined under 39.03 of the Rules of Civil Procedure.^[17] The mother was examined in 2022 and Harry took the view that the examination raised concerns about her capacity. Therefore, Harry sought an order for his mother to be formally examined for an assessment of her capacity to instruct counsel and to manage property under section 105 of the Courts of Justice Act,^[18] as well an order for interim relief continuing the ETDL pending the completion of the capacity assessment.

The court found that the mother’s capacity was in issue and that there would be potential harm if the assessment was not completed. It concluded that the importance of obtaining an independent and objective assessment outweighed interference with the mother’s privacy. Therefore, the court granted the order for an assessment under section 105. It also held that leaving the ETDL in place on an interim basis was efficient and appropriate.

4. Intestacy

Similar issues can arise on an intestacy, as the following cases illustrate.

Re Berlinguette Estate.^[19]

Marlene Louise Berlinguette died intestate in 2017. She was survived by her five children, Cherie, Albert, Lorne, Kellie, and Rene. In 1992 the mother and Albert bought a house as tenants in common in order to qualify for a mortgage. Albert later removed himself from the title. In 2008 the mother added Rene, Lorne, and Kellie as joint tenants with her. In February 2020 Rene, Lorne, and Kellie sold the property for $1.1 million. In April 2020 Cherie filed a notice of civil claim against all her siblings. She claimed that Rene, Lorne, and Kellie held the proceeds in trust for the estate or for her and Albert. She also sought an order appointing her administrator of her mother’s estate. In November 2020 Lorne and Kellie used their share of the proceeds to purchase a new property. In November 2021 Lorne and Kellie filed a notice of dispute in respect of their mother’s estate. And in December 2021 the court removed Albert as defendant from the civil claim and added him as plaintiff.

On Cherie’s application to be appointed administrator of the estate, Lorne and Kellie were the respondents. The issue before the court was whether Cherie can act with detachment and even-handedness and without animosity so that she can be administrator of the estate. She argued that she can because she is entitled to aliquot share of the mother’s estate together with her siblings. The respondents argued that she is not an appropriate administrator since her interests are not aligned with her siblings. They also argue that they are entitled to the proceeds of sale since they were joint tenants of the house with their mother.

The court held that Cherie does not have the consent of the majority of the children to act as administrator and therefore does not qualify under section 130 of the Wills, Estates and Administration Act.^[20] For the court to appoint an administrator under WESA, the person must be independent and indifferent to the outcome of the estate’s distribution. In other words, the person must be neutral and not have an actual or perceived conflict of interest. Moreover, as held in Raye v Phillip Estate,^[21] ‘In exercising its discretion to appoint an administrator, the court must consider the best interests of the estate and all persons interested in the estate’. Thus, the court dismissed the application.

Letourneau v Summers as Estate Trustee.^[22]

Bernold Summers died intestate in 2020, without a spouse of children. Under section 47(3) of the Succession Law Reform Act,^[23] the applicant, his mother Verna Letourneau, is the sole beneficiary of his estate. She is 82 years old and because of her age and health she agreed that another of her sons, Arnold Summers, be appointed administrator of the estate. However, Arnold and his counsel failed to communicate in any meaningful way with Verna and failed to respond to her repeated requests to sell Bernold’s house even after she engaged counsel to communicate with Arnold’s counsel. Further, Arnold and his counsel failed to provide Verna with a list of assets and liabilities of the estate. Nor did they give her any updates about the administration even though she asked for them repeatedly.

Arnold claimed that he wanted to buy the property and that he paid debts associated with the house but provided no documentary evidence. Besides, he did not consult Verna about these matters, and she did not know whether Arnold made payments to himself from the estate. Eventually, long after Verna’s request, Arnold listed the property for sale but again failed to consult with Verna. Meanwhile, he rented the house to a friend but provided no evidence about any rent paid, and he failed to account for the contents of the house which he removed.

Verna therefore brought this application to have Arnold removed and another of her sons, Joseph, appointed in his stead.

The court listed some principles mentioned in Meuse v Taylor^[24] that the court considers when asked to remove an estate trustee. However, that case was about the removal of an executor, not an administrator and therefore the first principle mentioned, that the court will not lightly interfere with a testator’s choice of executor, is irrelevant. However, other principles are, such as the welfare of the beneficiaries and the possibility that the person appointed may endanger the administration of the estate.

The court concluded that Arnold acted in his own self-interest, contrary to Verna’s wishes. Further, he rented the property and executed an agreement of purchase and sale without consulting Verna and failed to provide any kind of accounting. He also claimed to be a creditor of the estate. Therefore, the court granted the order to remove Arnold and to appoint Joseph in his stead. It also granted supporting orders, including a full accounting by Arnold.

5. Conclusion

It is clear from these cases that the issues raised are similar, whether the matter concerns removal of an executor or an administrator, or if it concerns passing over a named executor or a person in line to be appointed administrator. What is clearly important in all such cases is that the applicant demonstrate by clear evidence that the person sought to be removed or passed over is unqualified and that failure to remove or pass over the person will endanger administration of the estate and will not be in the best interests of the beneficiaries.

---

[1]2016 BCSC 1312.

[2] See ‘The Rule in Cherry v Boultbee Redux’, https://welpartners.com/blog/2022/12/the-rule-in-cherry-v-boultbee-redux/.

[3] RSBC 1996, c 464.

[4] 2014 BCCA 289, para 84.

[5] (1884), 9 App Cas 371 at 385-89 (PC).

[6] 2022 ONSC 1436.

[7] RSO 1990, c T.23.

[8] 2007 CarswellOnt 7642, para 28.

[9] 2012 ONSC 956, para 31.

[10] 2022 ONSC 2959.

[11] The court referred to Judith Norris as alternate executor, and Ms Sands as Power of Attorney. Both highlighted terms are incorrect. The word alternate suggests that Judith Norris and Ms Sands would take turns back and forth as executor. That is not what the testator intended. The correct term is either alternative or substitute. The term Power of Attorney means a document made by a person in which she appoints an attorney. Thus, the correct term is attorney.

[12] 2010 ONSC 5655, para 24.

[13] 2008 CarswellOnt 4827 para 13. The citation for this case is not given in the Henderson case and the paragraph number in it is incorrect.

[14] RSO 1990, c T.23.

[15] 2022 ONSC 2576.

[16] 2022 ONSC 3378.

[17] RRO 1990, Reg 194.

[18] RSO 1990, c C.43

[19] 2022 BCSC 1098.

[20] SBC 2009, c 13 (‘WESA’).

[21] 2021 BCSC 387 para 27.

[22] 2022 ONSC 4295.

[23] RSO 1990, c S.26.

[24] Footnote 6, supra.

By Brett Book ^[1]

In the 2^nd Session of the 60^th Legislature of New Brunswick, the Supported Decision-Making and Representation Act^[2] was introduced by the Honourable Hugh J. Fleming, K.C. Bill 20 as it is known in the Legislature, was first read on November 18, 2022 and received Royal Assent on December 16, 2022. The Act will come into force and effect on a day to be fixed by proclamation.

The ­Supported Decision-Making and Representation Act (the “Act”) will provide adults living with a disability, the ability to make decisions about their lives with the support they require in order to do so. The Act replaces New Brunswick’s Infirm Persons Act^[3] and illustrates a significant shift in New Brunswick’s adult decision-making laws. Robin Acton, President of Inclusion Canada, said, “This is a monumental moment for persons with disabilities and their families in New Brunswick and across Canada.”^[4]

This article will examine the Act in the overview and its implications for adults with disabilities, their families, and the professionals that endeavour to help them.

INTRODUCTION

The Act features a three-level framework which provides legal recognition and outlines the rights and responsibilities of:

1.  Decision-making assistants for assisted persons;

2.  Decision-making supporters for supported persons; and

3.  Representatives for represented persons.

The Act also addresses considerations of capacity, capacity assessments, and revises the language characterizing incapacity in New Brunswick’s Devolution of Estates Act.^[5] 

Since the Act is clearly rooted in human rights, dignity, and the autonomy of adults with disabilities, this is arguably a step towards reflecting the fortitude of implementation of the United Nations Convention on the Rights of Persons with Disabilities (“CRPD”) and the promise of legal capacity and equal recognition before the law. New Brunswick now becomes one of the few jurisdictions in the world to provide a court-recognized supported decision-making alternative to guardianship and substitute decision-making.

PART I – DEFINITIONS, INTERPRETATIONS AND PURPOSE

The Act defines several commonly used terms including “common-law partner”,^[6] “court”, “financial matter”, “health care”,^[7] “personal care matter”, “Public Trustee”, “supported decision-making process”, and “trust company”.

Perhaps most importantly, the Act provides an interpretation of what is meant by references to “assistance”, explaining that in relation to the decision-making process, assistance means “any measure that helps a person have the capacity to make a decision, including explanations of relevant information and reasonably foreseeable consequences of the available options.”^[8]

Capacity

The Act not only defines capacity but outlines how assistance and support factors into the decision-making process. The Act provides that:

3(1) A person has the capacity to make a decision if the person is able to,

(a) understand the information that is relevant to the decision, and

(b) appreciate the reasonably foreseeable consequences of the decision.

3(2) A person has the capacity to make a decision if the person is able to satisfy paragraphs (1) (a) and (b) with the assistance that is available.

3(3) A person may have the capacity to make a decision even if the person,

(a) makes, or would make a decision that another person would consider risky or unwise,

(b) lacked the capacity to make a similar decision in the past,

(c) lacks the capacity to make other decisions, or

(d) requires assistance to communicate.

Purpose

The Act is designed in part, “to protect and promote the autonomy and dignity of persons who require support in relation to decision-making in accordance with the principle that persons should receive the support they need to make or to participate in the decisions about their lives to the greatest extent possible.”^[9]

The Act recognizes the right to legal capacity of adults with disabilities. The Act has regard to the principles outlined in the CRPD.

To recap, the CRPD has eight principles that signatory States Parties are expected to adhere to. These principles are:

1)  Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;

2)  Non-discrimination;

3)  Full and effective participation and inclusion in society;

4)  Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;

5)  Equality of opportunity;

6)  Accessibility;

7)  Equality between men and women; and

8)  Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.^[10]

PART II – DECISION-MAKING ‘ASSISTANTS’

An ‘assisted’ person is defined in the Act as the person who has made the decision-making assistance authorization.

In order for a person to create a decision-making assistance authorization, the Act holds that they must be 19 years of age or older. Anyone with the capacity to make an authorization can make one.^[11]

Pursuant to the Act, a person has the capacity to make an authorization if they have the capacity to make the decisions involved, including:

a)  Whom to appoint as a decision-making assistant;

b)  The matters in relation to which a decision-making assistant may exercise powers; and

c)  The powers that a decision-making assistant may exercise.^[12]

The decision-making authorization can be made for all or some personal care matters of an assisted person and all or some financial matters of an assisted person.^[13]

An authorization provides the person appointed as assistant with the power to obtain from any person any information relevant to a decision of the assisted person or to assist them in obtaining that information. An authorization will also provide the assistant with the power to communicate a decision of the assisted person to other persons or to assist with the communication of a decision.^[14]

However, the decision-maker does not have to exercise their power regarding a decision if they are of the opinion that the assisted person does not have the capacity to make the decision, even with assistance.^[15] The assistant may also decline to communicate or assist the assisted person in communicating a decision, if the decision would cause serious harm to the assisted person.^[16] The assistant may provide assistance but shall not make a decision on behalf of the assisted person and shall not delegate any of their powers.

An assistant’s duties provide that they shall “act honestly and in good faith and shall exercise reasonable care.”^[17] An Assistant shall not act for their own benefit or for benefit of a person other than the assisted person.^[18]

To be appointed as an assistant, a person must be 19 years of age or older. Ineligible parties to appointment include the Public Trustee, any person who provides health care services or support services to the assisted person for compensation, or a member of a class of persons prescribed by regulation.^[19]

What Will an Authorization Look Like?

The form of a decision-making assistance authorization shall be in a form to be prescribed by regulation and shall:

a)  Identify each person appointed and the person’s relationship to the assisted person;

b)  Contain a signed statement by each person appointed as a decision-making assistant indicating consent to appointment;

c)  Specify the matters in relation to which a decision-making assistant may exercise powers;

d)  Specify the powers an assistant can exercise;

e)  Contain a statement signed by a lawyer indicating the lawyer is a practicing member of the Law Society of New Brunswick, has reviewed the provisions of the decision-making authorization with the assisted person, was present when the decision-making authorization was signed and dated in accordance with subsection (7), and is of the opinion that the assisted person has the capacity to make the authorization; and

f)   Contain a statement by the person signing on behalf of the assisted person, if applicable, indicating that the person signed and dated the authorization at the direction and in the presence of the assisted person.^[20]

The Act provides that the authorization may specify conditions or restrictions on the powers of the assistant, specify a date on which the authorization expires, and contain a statement indicating that any previous authorization is revoked.^[21] The authorization must also be signed and dated in the presence of a lawyer by the assisted person or a person on behalf if the assisted person is unable to sign and date the authorization and the person is 19 years or older and signs and dates in the presence of the assisted person.^[22] The appointed person cannot sign the authorization on behalf of the assisted person.^[23]

An authorization will remain in effect until:

a)  The assisted person revokes the authorization by providing notice to each assistant;

b)  The appointment of each assistant is terminated;

c)  The date specified in the authorization as the date on which it expires;

d)  The court makes an order terminating the authorization;

e)  The court makes an order appointing a decision-making supporter or a representative for the assisted person, unless the court orders otherwise, or

f)    The assisted person dies.^[24]

Multiple assistants

Where there are multiple persons appointed as assistants, the Act provides that they may exercise their powers separately or jointly.^[25] If an individual assistant is terminated, the remaining assistants may continue to act for the assisted person.^[26]

Court orders regarding authorizations

The Act allows the following persons to apply to the court for an order regarding an authorization:

- The assisted person;

- The decision-making assistant;

- The Public Trustee; and

- Any interested person 19 years of age or older.^[27]

The court can make any order it considers appropriate, including giving directions, and authorizing the assistant to exercise powers to matters referred to in subsection 10 (2).

PART III – DECISION-MAKING SUPPORTERS

The Act defines a supported person as “a person who is the subject of an application for a supported decision-making order or in relation to whom a supported decision-making order has been made”^[28]

A person must be 19 years of age or older to apply to the court to be appointed. The application must also be accompanied by:

a)  An affidavit of the applicant;

b) An affidavit of any proposed decision-making supporter other than the applicant;

c)  A Capacity Assessment made in accordance with Part 5;

d)  In financial matters, a financial summary; and

e)  Any other document prescribed by regulation or required by the court.^[29]

In determining suitability to be appointed as a supporter, the court shall consider:

a)  The nature of the relationship between supported person and the proposed decision-making supporter, including whether the relationship is one characterized by trust;

b)  The views of the supported person;

c)  The ability and availability of the proposed decision-making supporter to exercise the powers and perform the duties of a decision-making supporter; and

d)  Any other relevant factor.^[30]

The Supported decision-making process

In making decisions with a supported decision-making person through a supported decision-making process, a decision-making supporter shall:

a) Discuss the relevant information and the reasonably foreseeable consequences of the available options with the supported person in a manner the supported person is likely to best understand,

b)  Assess the available options together with the supported persons wishes and preferences, including those expressed by the supported person and the time the options are discussed and those that are otherwise known to the supporter.^[31]

A decision-making supporter shall accept a decision made with a supported person through a supported decision-making process unless doing so would cause serious harm to the supported person, in which case the decision-making supporter may refuse:

a)  To communicate or assist the supported person in communicating the decision, or

b)  To do anything to give effect to the decision.^[32]

Property Subject of a Specific Gift-Orders

The Act holds that a person who is directly affected by the disposal of property by a decision-making supporter that is the subject of a specific gift in a supported person’s will may apply to the court for directions. On application, the court shall consider the intentions of the supported person and the circumstances in which the property was disposed of and may make any order it considers appropriate.^[33]

PART IV – REPRESENTATIVES

The Act defines a ‘represented’ person as “a person who is subject of an application for a representation order or in relation to whom a representation order has been made.”^[34]

Similar to an application for a decision-making supporter, the application for a representative must be companied by the following:

a)  Affidavit of the applicant;

b)  Affidavit of any proposed representative other than the applicant;

c)  A Capacity Assessment report made in accordance with Part 5;

d) A financial summary, if the applicant seeks an order appointing a representative with powers in relation to financial matters;

e)  Any other document prescribed by regulation; and

f)    Any other document required by the court.^[35]

In relation to financial matters, the Act provides that a trust company is eligible to be appointed as a representative in relation to financial matters only.^[36] What’s more, while the Act provides that a person who provides health care services or support services to the represented person for compensation is ineligible to be appointed as a representative,^[37] the Act provides an exception for a spouse, common-law partner or relative of a represented person who provides health care services or support services to the represented person for compensation.^[38]

Duties of a Representative

The Act provides that a representative shall keep the representative’s property separate and apart from the property of the represented person unless expressly authorized to do so in the representation order.^[39]

What’s more, if a representative does not have sufficient knowledge of the represented person’s wishes and preferences to ensure that the decision is guided by them or if a decision guided by those wishes and preferences would result in serious harm to the represented person, the representative shall make the decision that the representative believes will best promote the represented person’s well-being.^[40]

PART V – CAPACITY ASSESSMENTS

In accordance with the Act, an ‘assessor’ is defined as:

a)  A medical practitioner lawfully entitled to practice in the province;

b)  A nurse practitioner lawfully entitled to practice in the province;

c)  A psychologist lawfully entitled to practice in the province; or

d)  A member of a class of persons prescribed by a regulation.^[41]

If a person refuses to undergo or continue with a capacity assessment, the assessor shall take no further steps in the assessment and shall notify the person who requested the assessment. Any capacity report shall be dated no earlier than six months before the application is filed with the court, unless the court orders otherwise.^[42]

Rights of a Person for Whom a Capacity Assessment is Sought or Conducted

The Act provides that a person is entitled to refuse or undergo or to continue with a capacity assessment but also that during the assessment, a person is entitled to:

a)  Have a person of their choosing accompany them;

b)  Have a device or an interpreter or other person to assist them to communicate; and

c)  Ask the assessor questions or raise concerns with the assessor about the assessment.^[43]

The assessor can conduct an assessment without the person in respect of whom the assessment has been sought if:

a)  The person refuses to undergo or to continue with the capacity assessment or cannot reasonably participate in the assessment, and

b)  The assessor is satisfied the assessment can be completed accurately using the information available.

PART VI – GENERAL

The Act has a helpful provision which provides that authorizations made outside the province shall be deemed a valid decision-making authorization if it:

a)  Gives a person comparable powers to the powers of a decision-making assistant, and,

b)  Is valid according to the law of the place where it was made

The Act offers the same treatment for representative orders made outside the province.

PART VII – TRANSITIONAL PROVISIONS, CONSEQUENTIAL and CONDITIONAL AMENDMENTS, REPEAL and COMMENCEMENT

The Act provides that a person who was appointed as a committee of the estate under the Infirm Persons Act, chapter I-8 of the Revised Statutes, 1973, and held office immediately before the commencement of this section shall be deemed validly appointed as representative with powers in relation to a represented person’s financial matters under a representation order under the Act. The same treatment is provided to a committee for personal care.

Updating the Language Surrounding Incapacity

The Act updates the language in the Devolution of Estates Act,^[44] by amending subsection 10(2) of that Act by striking out “a lunatic” and “such lunatic” and substituting it with “a person who lacks the capacity to concur in the sale” and “person who lacks capacity”, respectively.^[45]

Section 12 of the Devolution of Estates Act is also amended by striking out “a lunatic with the approval of the committee of the lunatic, if any minor or lunatic” and substituting “a person for whom a representative has been appointed under the Supported Decision-Making and Representation Act, with the approval of the representative, if any minor or represented person.”^[46]

Concluding Thoughts

The Act was created with the critical input of community stakeholders such as Inclusion Canada. In fact, Tanya Whitney, President of Inclusion New Brunswick has recently shared that, “Progress like this doesn’t just happen overnight, and we are grateful for the collaboration that led to this historic day. Not only did we work closely with our government colleagues, but the bill also received unanimous support by all parties.”^[47]

Under the previous legislation in New Brunswick, adult’s living with a disability would have to be declared incompetent before someone could be appointed as a guardian to make decisions on their behalf.

This new legislation will permit adults to make decisions that impact their lives with assistance or support and without being declared incapable. The Supported Decision-Making and Representative Act will allow adults with an intellectual disability in New Brunswick to retain the presumption of capacity and make the decisions they need to, with the supports they require to do so.

It will be interesting to see if some of New Brunswick’s legislation is incorporated by other provincial governments as they consider creating their own supported decision-making legislation.

---

[1] With many thanks to Kathleen Cunningham for her valuable comments/assistance.

[2] SNB 2022, c 60.

[3] RSNB 1973, c I-8.

[4] Inclusion Canada, “New Brunswick Makes History with Supported Decision-Making and Representation Act” (2022) Accessed online: https://inclusioncanada.ca/2022/12/15/press-release-new-brunswick-makes-history-with-supported-decision-making-and-representation-act/

[5] RSNB 1973, c D-9.

[6] Defined as a person who cohabits in a conjugal relationship with another person if the persons are not married to each other.

[7] Defined as anything done for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health-related purpose, including a course of treatment.

[8] SNB 2022, supra, note 1 at Part 1, s 2.

[9] Ibid, s 4.

[10] United Nations, “Convention on the Rights of Persons with Disabilities (CRPD) - Article 3 – General principles” Accessed online: https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/article-3-general-principles.html.

[11] Ibid, s 6(1).

[12] Ibid, at s. 6(2).

[13] Ibid, at s. 6(3).

[14] Ibid, at s. 6(4).

[15] Ibid, at s. 10(3).

[16] Ibid, at s. 10(7).

[17] Ibid, at s. 12(1).

[18] Ibid, at s. 12(2).

[19] Ibid, at s. 9(1) & (2).

[20] Ibid, at s. 6(5).

[21] Ibid, at s. 6(6).

[22] Ibid, at s. 6(7).

[23] Ibid, at s. 6(8).

[24] Ibid, at s. 8.

[25] Ibid, at s. 7(1).

[26] Ibid, at s. 7(2).

[27] Ibid, at s. 17(1).

[28] Ibid, at s. 18.

[29] Ibid, at s. 19(2).

[30] Ibid, at s. 20(2).

[31] Ibid, at s. 27(1).

[32] Ibid, at s. 27(2).

[33] Ibid, at s. 34(1) & (2).

[34] Ibid, at s. 35.

[35] Ibid, at s. 36(2).

[36] Ibid, at s. 40(2).

[37] Ibid, at s. 40(3).

[38] Ibid, at s. 40(4)

[39] Ibid, at s. 43(3).

[40] Ibid, at s. 44(2).

[41] Ibid, at s. 52.

[42] Ibid, at s. 53(2) & (4)

[43] Ibid, at s. 54.

[44] Supra, note 4.

[45] Ibid, at s. 69(2).

[46] Ibid, at s. 69(3).

[47] Inclusion Canada, “PRESS RELEASE: “New Brunswick Makes History with Supported Decision-Making and Representation Act” December 16, 2022, accessed online: https://inclusioncanada.ca/2022/12/15/press-release-new-brunswick-makes-history-with-supported-decision-making-and-representation-act/.

By Nima Hojjati

Introduction

Proficiency in CaseLines is not only a valuable skill for litigators but it can have an impact on substantive outcomes. Justice Myers has noted:

As advocacy is the art of persuasion, is it not obvious that efforts by an advocate to assist the judge to focus on the argument and see the evidence will increase the chances of comprehension by the judge and therefore the persuasiveness of the presentation? In addition, it is also likely to garner some appreciation for the effort to simplify cumbersome and distracting technical tasks.^[1]

In declining a summary judgment, Justice Dunphy noted:

I cannot grant judgment where I am not confident in my ability to make findings of fact and I cannot acquire that confidence where every single fact requires me to dive repeatedly into the thick of the electronic document jungle, machete in hand as some kind of judicial Stanley in search of Dr. Livingstone.^[2] 

In another declined summary motion, Justice Dunphy held:

None of the parties hyperlinked the references to the evidence contained in their facta. Each such reference was to a motion record or transcripts with neither hyperlinks nor even a reference to the relevant Caselines page number. […]

This failing alone is more than sufficient to warrant dismissal of this motion. […] Hyerlinks and, in appropriate cases, separate uploading of individual tabs or exhibits serve to make the task of navigating large volumes of documents feasible. That was simply not done here. The result was to drop a task in my lap akin to asking me to sort through an overturned bowl of spaghetti. […]

My closing comment would be to exhort ALL counsel to check back on their case after they have uploaded their documents to Caselines and verify that a judge reviewing it will be able to navigate through the evidence, case law and written argument in the way they would like. Hyperlinks in facta and motion records are a MUST. Separately loaded and clearly identified tabs should be considered. It must be usable.^[3] 

Care and attention should be given to keeping CaseLines organized. Hyperlinking documents not only assists the Court but can help advance arguments. Below is a step-by-step guide to using CaseLines’ internal hyperlink function to create a “hyperlink sticker” on an uploaded document (as opposed to uploading pre-hyperlinked documents).

Hyperlink Stickers

A CaseLines hyperlink is like a sticker that can be placed on a page, particularly next to footnotes or in an index. In the “Review Evidence” interface, a hyperlink sticker appears as the “page number” of the destination location. For example, if you are on page “A2” and see a blue hyperlink sticker that says “H: A45”, by clicking on it you will be brought to page “A45” (or open page “A45” on the right panel if you have two panels open).

In order to create a CaseLines hyperlink sticker on a document that has been uploaded, follow these steps:

1) Update Case – From the homepage, go to “Update Case” for the selected case (right under “Review Evidence”).

2) Index – Go to the “Index” tab on the top of the interface. The Index will include all uploaded documents. 

3) Select Bundle – Make sure you are on the correct bundle (you can change the bundle on “Select Bundle”). A bundle is similar to a folder containing the documents for a hearing date. Some cases can have multiple bundles while others may only have one active bundle.

4) View – Choose the “View” function for the selected document you want to hyperlink.

5) Hyperlink – To enter the Hyperlink interface where you can create stickers, click on the blue “Hyperlink” next to the page numbers at the top of the document.

6) Left-click on the Sticker Spot – Once you are in the hyperlink interface, scroll down or select the document page where you want to create a hyperlink sticker. Left-click on the chosen spot where the sticker will be placed (you can move it around once it has been created).

7) OK – once you have chosen a spot for the hyperlink sticker, a pop-up will appear saying “Add a hyperlink to this page?”. Press OK.

8) Edit Hyperlink – Once you press OK, an “Edit Hyperlink” window appears. In this window, you will create the destination address for the hyperlink sticker. You can add “Web site” or add “Document Page” if you are hyperlinking within the bundle. You are creating an address where the hyperlink sticker leads to. Follow these steps:

a. Description – You can add a description for your hyperlink sticker. However, this description usually does not appear in the “Review” tab. Only the “page number” end destination appears as the hyperlink sticker.

b. Section – Choose the “Section” where the hyperlink sticker’s destination document is located. These are court created sections (i.e. plaintiff or defendant).

c. Document – Choose the “Document” where the hyperlink sticker’s destination page is located. These documents are those that were uploaded to CaseLines by the parties so make sure to follow the naming conventions to facilitate organisation.

d. Page – Scroll to the page number where the hyperlink sticker’s destination is located.

9) Save – Once you press “Save”, the hyperlink sticker is created on the selected location.

10) Move – you can move the hyperlink sticker around to your desired location on the page.

11) Remove or Edit – you can modify or remove the hyperlink sticker on the right side of the document under the “Hyperlinks” column which will include all hyperlink stickers on the selected page. 

Additional Tips

The following additional tips can assist in using hyperlink stickers:

1)  In the “Review” interface open two panels by clicking on the superimposed rectangles on the top of the document (to the right of the document name). Once two panels are open, clicking on a hyperlink sticker on the left panel opens the hyperlink destination on the right panel. This allows you to keep the original document (such as an index or a factum) open on the left while you review the hyperlink sticker destination documents on the right.

2)  When drafting documents, anticipate additional space for hyperlink stickers in an index or in footnotes prior to uploading to CaseLines.

3)  Periodically check your hyperlink stickers in the “Review” tab to make sure they are correct.

4)  When hyperlinking a large document, open the document in a separate PDF outside of CaseLines in order to navigate between pages quickly.

5)  Hyperlink stickers between bundles do not seem to work.

6)  Additional information and resources can be found on the LSO CaseLines FAQ page.



Happy hyperlinking!

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[1] [B.] v. Uwaifo, 2022 ONSC 678 at para 57.

[2] [D.] v. [S.], 2021 ONSC 7901 at para 8.

[3] [B.] v. Bridal Image Inc., 2021 ONSC 8038 at paras 7-8 and 27.

By Brett Book

The Ministry of the Attorney General (“MAG”) has previously announced important changes which impact the process for lawyers to prove service of a court document.

On November 10, 2022, regulation, O. Reg. 520/22 was approved, making changes to the civil rules of court to introduce a new unsworn lawyer’s certificate of service. This new certificate can be used to prove service of a court document where service was effected or caused to be effected by a lawyer.

The regulation effectively amends five rules, creates two new forms, and revises seven forms. All of the changes are effective from January 30, 2023.

Rule Amendments

Previously, the regulations required a lawyer to prepare and submit Form 16B, a sworn Affidavit of Service. With this amendment, two new forms can now be completed by the lawyer and filed/issued accordingly. For general use, lawyers can use Form 16B1, which can be found at: https://ontariocourtforms.on.ca/en/rules-of-civil-procedure-forms/16b1/.  

For probate applications, lawyers will need to use Form 74B.1, which can be found at: https://ontariocourtforms.on.ca/en/rules-of-civil-procedure-forms/pre-formatted-fillable-estates-forms/74b1/. 

Self-represented litigants should note that these changes effectively designate the lawyer’s certificate of service, as well as electronic filing of certain enforcement documents, as an exception to the general rule that self-represented litigants may perform any step assigned to lawyers under the rules.

These changes also update the name and terminology of the Form 16C certificate of service available to the Sheriff and updates references to affidavits of service to clarify the applicable forms of proof of service.

The regulation also prescribes revised versions of the following Forms to update their existing references to affidavits of service:

§ Form 74.44;

§ Form 74.49.3;

§ Form 74.50;

§ Form 74.51; and

§ Form 75.8.

Conclusion

The new Forms created by the MAG should help streamline processes by saving time in having to prepare a sworn Affidavit of Service. This should be helpful for lawyers in their practice, allowing them to complete one form without having it sworn.

By Evan Pernica



In a series of recent decisions by the ONCA, the principle as set out in Handley Estate v. DTE Industries Limited, concerning abuse of process, occuring where parties to litigation fail to immediately disclose an agreement which changes the litigation landscape, has been endorsed and further clarified.

These disclosure requirements do not apply to any agreement that effects the relationship between the litigation parties or changes the litigation landscape, but rather necessitates a higher threshold that requires that the settlement “changes entirely the landscape of the litigation in a way that significantly alters the adversarial relationship among the parties to the litigation or the ‘dynamics of the litigation.”^[1]

In their analysis, courts must also consider the “reality of the adversity between the parties” and whether an agreement changes either “the dynamics of the litigation” or the “adversarial orientation”, such as changing the relationship between two parties from an adversarial one into a co-operative one.^[2]

To this end, the recent decision by the ONCA in CHU de Québec-Université Laval v. Tree of Knowledge International Corp. sets out 8 principles relating to the abuse of process that arises from a failure to immediately disclose an agreement which changes the litigation landscape:

1.  There is a “clear and unequivocal” obligation of immediate disclosure of agreements that “change entirely the landscape of the litigation”. They must be produced immediately upon their completion;

2.  The disclosure obligation is not limited to pure Mary Carter or Pierringer agreements. The obligation extends to any agreement between or amongst the parties “that has the effect of changing the adversarial position of the parties into a co-operative one” and thus changes the litigation landscape;

3.  The obligation is to immediately disclose information about the agreement, not simply to provide notice of the agreement, or “functional disclosure”;

4.  Both the existence of the settlement and the terms of the settlement that change the adversarial orientation of the proceeding must be disclosed;

5.  Confidentiality clauses in the agreements in no way derogate from the requirement of immediate disclosure;

6.  The standard is “immediate”, not “eventually” or “when it is convenient”;

7.  The absence of prejudice does not excuse a breach of the obligation of immediate disclosure; and

8.  Any failure to comply with the obligation of immediate disclosure amounts to an abuse of process and must result in serious consequences… The only remedy to redress the abuse of process is to stay the claim brought by the defaulting, non-disclosing party. This remedy is necessary to ensure the court is able to enforce and control its own processes and ensure justice is done between the parties.

In the face of these recent decisions setting out the need to immediately disclose an agreement that changes the litigation landscape and the substantial consequence of having a matter permanently stayed where such immediate disclosure is not provided, parties must proceed extremely cautiously when entering into any form of agreement that can effect the landscape of litigation. 

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[1] Poirier v. Logan, 2022 ONCA 350 (CanLII) at para 47.

[2] Handley Estate v. DTE Industries Limited, 2018 ONCA 324 at paras. 39-41.

By Evan Pernica

In the recent decision of Re Estate of Darlene Edwards, the Ontario Superior Court considered the validity of a will that was brought into question after an employee of the testatrix, who signed the will as a witness and was subsequently terminated, refused to confirm that she had in fact witnessed the testatrix sign her will. Instead, the witness took the position that unless the terms of her severance package were revisited, she would not swear that she witnessed the testatrix sign her will.

The testatrix prepared her will during the height of COVID after being diagnosed with cancer. Due to health concerns and restrictions on public gatherings, the testatrix’s daughter drove her to her insurance agency where she met with two employees, including Ms. R, who witnessed the testatrix execute her will.

When the testatrix passed away, her daughter, who was one of the two equal beneficiaries of the estate, contacted Ms. R and informed her that she would require Ms. R to sign an affidavit of execution about witnessing the testatrix’s will. Ms. R originally agreed to provide the affidavit of execution.

Shortly thereafter, the testatrix’s daughter wound up the insurance agency, and in doing so terminated Ms. R’s position. As a result, Ms. R took the position that she would no longer “sign” until the question of her entitlement to severance pay was revisited. At the time, Ms. R had already received 14 weeks of severance pay, more than was required under the Employment Standards Act.

The testatrix’s daughter moved for the directions of the court, and provided evidence that she personally observed Ms. R witness the execution of her mother’s will. In contrast, Ms. R stated that she did not actually see the testatrix sign the document, and only signed the document as a witness because the testatrix was her boss.

Considering the conflicting accounts of what occurred, Justice Ramsay focused on the fact that that Ms. R changed her “tune” and would not sign any documents until her severance package was reconsidered. On this basis, Justice Ramsay found that Ms. R’s testimony was not credible and she was instead motivated by spite.



As a result, the testatrix’s will was found to be valid and executed in compliance with the requirements of the Succession Law Reform Act..

Hesperus Village

Wills and POA’s

March 2, 2023

Speaker: Bryan Gilmartin

Osgoode Certificate in Elder Law

Predatory Marriages

April 11, 2023

Speakers: Kimberly Whaley and Professor Albert Oosterhoff

https://osgoodepd.ca/wp-content/uploads/2019/10/2023-Certificate-in-Elder-Law-Brochure.pdf

Estate Planning and Litigation Forum

April 16-18, 2023

Blended Families

Speaker: Kimberly Whaley

Osgoode Power of Attorney and Guardianship: Non-  Contentious and Contentious Matters 

April 19, 2023

Contentious Guardianship Applications and Removals of  Attorney and Guardians

Speaker: Kimberly Whaley 

https://osgoodepd.ca/professional-development/short-courses-and-conferences/powers-of-attorney-and-guardianship/

CBA Elder Law Symposium 

April 25, 2023

Civil & Criminal Remedies/Responses to Elder Abuse 

Speaker: Kimberly Whaley 

Program info 

Osgoode Intensive Program in Wills & Estates

Passing of Accounts and Fiduciary Accounts

April 26, 2023

Chair: Kimberly Whaley

https://osgoodepd.ca/professional-development/short-courses-and-conferences/the-osgoode-intensive-program-in-wills-estates/

LSO Six-Minute Estates Lawyer

May 4, 2023

Proving Due Execution

Speaker: Kimberly Whaley

https://store.lso.ca/the-six-minute-estates-lawyer-2023

Elder Law Conference, Vancouver

November 9 -10, 2023

Co-chair: Kimberly Whaley

What Happens When a Person Writes on Their Will?

Revisiting the “Armchair Rule” in Jonas v. Jonas

The More Beds, Better Care Act, 2022

Canadians Without Wills

Proprietary Estoppel: Guest v Guest

Protective Trusts and Re Richards

The Rule in Cherry v Boultbee Redux