WEL Newsletter - Volume 5, Number 10 - January 2016
HAPPY NEW YEAR!

 

Whaley Estate Litigation provides litigation, mediation and dispute resolution to clients throughout Ontario:
 

 
* Albert Oosterhoff, Professor Emeritus Western University, Counsel to WEL consults on matters within his areas of expertise, providing opinions concerning Wills, Estates, Trusts and related Property matters. 
 
Please Enjoy,

Kimberly A. Whaley
WEL

PART I: WEL NEWS
1. HEATHER HOGAN JOINING RHRA (Retirement Homes Regulatory Authority)
 
WEL wishes colleague and friend Heather Hogan every success and happiness in her new role at RHRA. Heather will be missed at the office-she is a good lawyer!

2. TORONTO POLICE COLLEGE, 2016 ELDER ABUSE
 
On January 22, 2016, Kimberly Whaley and Lionel Tupman will be speaking on Elder Abuse at the Toronto Police College.
3. 
OSGOODE PROFESSIONAL DEVELOPMENT, ELDER LAW WEBINAR SERIES   


On January 21, 2016, Kimberly Whaley and Suzanne Michaud of RBC will be presenting a webinar on " Navigating Unique Issues with Seniors and their Financial Institutions".
4. 
THE ADVOCATES' QUARTERLY, VOLUME 44, NUMBER 4, NOVEMBER 2015

Kimberly's and Ameena's article "Where There's (Not) a Will: Intestacies, Partial Intestacies and Remedies" was published in The Advocates' Quarterly, Volume 44, Number 4, Cited as: (2015), 44 Adv. Q. 
5. WEL ON GUARDIANSHIP
 
WEL has just recently published our book on Guardianships.

For details, please contact Kim Whaley at: kim@whaleylawyers.com

PART II: LAW REVIEW
THE ROLE OF EXPERTS IN ELDER LAW CASES: WHAT NOT TO DO
by Kimberly Whaley

When an older adult suffers from dementia, tension and disagreements may arise within families over the care of their loved one. Sometimes these disputes turn into litigation, and when they do, the parties will often turn to experts and expert reports to support their position. Justice Danyliuk of the Saskatchewan Queen's Bench was extremely critical of the "experts" in the elder law case of Hilbig v Pasloski 2015 SKQB 306 (CanLII), http://canlii.ca/t/glpwf and the evidence they proffered. This recent case assists counsel in its consideration of the role and the duties of experts.

The Facts

A dispute arose between the husband of an incapable older adult and their daughter who was appointed as guardian of the wife/mother. The husband brought an application to have his daughter removed as guardian of his wife as he felt she was abusing her position and not allowing him to see his wife when he wanted, or allowing him to be alone with her.

The daughter (and her siblings) noted, however, that their father was 94 and not capable of caring for his wife, he tended to be overly physical with her, and would sometimes feed her the wrong food or medication. The children were worried about how he treated their mother when the two of them were alone. Allegations of abuse were made on both sides.

The "Expert" Evidence

The husband filed several affidavits including two from "experts" supporting his position. One was from a doctor who looked after the husband and wife over a 14 year period. Justice Danyliuk was critical of the fact that the doctor lapsed into opinion and argument which were outside of his medical expertise. For example, the doctor made "sweeping statements" including that there were "underlying personal and family dynamics that [were] playing a significant role in what [the doctor] would consider to be elder abuse."[1] Justice Danyliuk noted that these statements reflected the doctor acting as an advocate for the husband, as opposed to being "a neutral and dispassionate provider of expert information".[2] Much of the affidavit was disregarded as hearsay and little weight was given to the affidavit overall.

While Justice Danyliuk was dissatisfied with the doctor's affidavit, he was extremely critical of the husband's second "expert": a retired police officer who now has a business of investigating fraud and elder abuse.

This retired police officer was hired to "investigate" the situation and provide a report. The investigator attended at the assisted living facility where the wife resided. He gave staff a false name and told them he was a member of a local Catholic parish and was a volunteer there to make sure parish members were being properly cared for. He stayed for approximately 2 ½ hours, during which he entered the wife's room and filmed her with the camera on his phone. He also sat at a table with the husband and wife and filmed them for 14 minutes.

The husband's lawyer filed an affidavit attaching a "report" by the investigator. Justice Danyliuk first questioned the "expert" designation of the investigator noting that while he holds himself as an expert on fraud and elder abuse "there is no indication in the material that he has ever been qualified as an expert in anything by a court" and that his curriculum vitae did not show "him as having experience, much less expertise on these issues".[3][emphasis in original]

Justice Danyliuk went on to note that the affidavit and report were "replete with opinion, argument and polemic". Some examples:
  • "Based upon my expertise, training and what I observed and what was said, I am of the opinion there is elder abuse occurring."
  • "The notion that [the husband] can't touch his wife leaves me baffled. The man is 94 years old and is in a wheelchair. He is not physically capable of doing anyone any harm even if he intended to do so."
  • "I believe that this 'fear of danger' and the need for tight constraint against the actions of [the husband] is the product of a very controlling guardian who has past issues with her father and, is wont in some of the Power of Attorney abuse cases I've investigated, has discovered that she can abuse her position to attain control over him, to hurt him by her actions, to spread false rumour and lies to others in an attempt to demonize her father, and to get revenge against perceived injustices from the family past."[4]
The Court struck the entire affidavit and report, finding that they were "not evidence". Justice Danyliuk concluded:

It is so clearly impermissible and not admissible that I cannot fathom why it would have been filed. It is the well-known professional and ethical duty of counsel to act as a filter, ensuring only proper material is placed before the court. . .

As well, I am mindful that these proceedings have much to do with [the mother's] dignity and welfare. Surreptitiously filming her in her own room as she sleeps and in the dining room during dinner, posing as a parish member to gain trust that has not been earned, and proffering arguments and opinions in the guise of "expert' evidence do nothing to safeguard [the mother's] dignity. In my view, they have precisely the opposite effect.

While the filing of this affidavit was improper and ill-advised, the actions of the investigator in these circumstances were repugnant .[5] [emphasis added]

While the Court "seriously considered awarding costs of the striking against [the husband's] solicitor", costs were eventually awarded against the husband only, fixed at $500.00.[6] The Court concluded that the daughter should remain as the guardian.

Take-Away Points

Presumably there existed good and proper intentions in the hiring of an investigator in this matter and in filing such a report. And indeed, an investigator may have a useful role in an elder law case, but notably the investigator was not a qualified expert and his or her evidence therefore not properly before the Court.

This case is a helpful reminder of the role of experts in litigation, including in elder law cases, and the following take-away points:
  • Experts owe a special duty to the Court to provide independent assistance through the delivery of an objective unbiased opinion;
  • An expert's duty owed to the Court takes precedent over any obligation owed to the party who hired them.[7]  Experts are not meant to be "hired guns";
  • In Ontario, the Rules of Civil Procedure require experts to provide evidence that is "fair, objective and non-partisan";[8]
  • Experts must provide opinion that is only within the expert's area of expertise;[9] and
  • Experts must also be impartial and independent and free from improper influence.[10]
It is important to keep these duties in mind when involved in highly emotive matters such as in elder law where the evidence is not numbers in a spread sheet, rather it involves the mental, emotional and physical condition of potentially vulnerable older adults. 
 
An excellent and helpful tool prepared by Archie Rabinowitz and Anita Szigeti, in considering medical experts and experts' reports, is their article: 
"METHODS OF ATTACKING A CAPACITY ASSESSMENT". Download a PDF copy of the article (posted with permission of the authors) .

[1] Hilbig v Pasloski 2015 SKQB 310 at para. 17 ["Hilbig"].
[2] Hilbig at para. 17.
[3] Hilbig at para. 21.
[4] Hilbig at para. 26.
[5] Hilbig at paras. 30-32.
[6] Hilbig at para. 34.
[7] Rules of Civil Procedure RRO 1990 Reg 194, Rule 4.1.
[8] Rules of Civil Procedure RRO 1990 Reg 194, Rule 4.1.
[9] Rules of Civil Procedure RRO 1990 Reg 194, Rule 4.1.
[10] See Moore v. Getahun 2015 ONCA 55.


PART III: 11TH ANNUAL NEW YORK MAGAZINE "REASONS TO LOVE NEW YORK" ISSUE, DECEMBER 2015 
In the 11th annual "REASONS TO LOVE NEW YORK RIGHT NOW" issue of the NEW YORK Magazine, Dec 14-27, 2015, the #1 reason is because.... "THE OLDEST PERSON IN THE WORLD IS LIVING IN BROOKLYN."

This is a short snapshot about a woman named Susannah Mushatt Jones born in Alabama on July 6, 1899. Now Ms. Jones is 116 years of age. Thirty -five years ago at the age of 80, Ms. Jones moved into a Seniors Residence in Canarsie. The article states that at age 100 Ms. Jones stopped cooking and gave up her neighborhood watch role due to her eyesight deteriorating. In fact, it is said to be due to cataracts that Ms. Jones refused surgery. .and-being described as "too stubborn" to undergo the procedure to remove them. Ms. Jones is described as fragile but loves her morning bacon that she eats with gusto! She still votes and if she votes in the next U.S.A presidential election, it will be her 21st President.

The article suggests that Ms. Jones has family in New York provide her with love and support.

Thank you to NEW YORK Magazine for sharing this positive story about Ms. Jones with us.



PART IV: UPCOMING EVENTS

Toronto Police College, 2016 Elder Abuse

January 22, 2016
Elder Abuse
Speaker: Kimberly Whaley
 

STEP Passport Series

January 20, 2016
Probate Planning - Issues Arising from Drafting and Litigating Secondary Wills
Moderator: Danny Dochylo
Speakers: Danielle Joel, Clare A. Sullivan
 

Osgoode Professional Development, Elder Law Webinar Series

January 21, 2016
Navigating Unique Issues with Seniors and their Financial Institutions
Speakers: Kimberly Whaley and Suzanne Michaud (RBC)
 

OBA Institute 2016

February 2, 2016
Civil Litigation Section, Estate and Capacity Issues
Speaker: Benjamin Arkin
 

Osgoode Professional Development, Osgoode Elder Law Webinar Series

February 4, 2016
New Spouse/Old Money: Predatory Marriages
S peakers: Kimberly Whaley and Professor Albert Oosterhoff
 

STEP Passport Series

February 17, 2016
Post Mortem Planning - Private Corporation Shares
Moderator: Joan Jung
Speakers: Michael Atlas, Brian Nichols
 
Estates and Succession Practice Group, Ottawa
March 2, 2016, Skype Presentation
Capacity - the lawyer's task and the importance of notes - Is capacity a medical or a legal test? Why the answer might surprise you, and why you will wish you had cared
Speaker: Kimberly Whaley
 

Barreau du Québec, Montreal

LES DÉVELOPPEMENTS RÉCENTS EN SUCCESSIONS ET FIDUCIES (2016)
March 18, 2016
Predatory Marriages: Legal Capacity to Marry and the Estate Plan
Speaker: Kimberly Whaley
   

STEP Passport Series

April 13, 2016
Insurance in Estates and Trusts
Moderator: Harris Jones
Speakers: Ted Polci, Glenn Stephens
 

Estate Planning and Litigation Forum

Langdon Hall, London, ON
April 24-26, 2016
 

Ontario Police Conference

Elder Abuse
April 26, 2016
Speaker:  Kimberly Whaley
 

LSUC, The Six-Minute Estates Lawyer 2016

May 3, 2016
Administration of Insolvent Estate
Speaker: Benjamin Arkin
 

STEP Passport Series

May 18, 2016
Planning Using Trusts
Moderator: Brian Cohen
Speakers: Rachel Blumenfeld, Prof. Albert Oosterhoff
 

B'Nai Brith Seminar

June 21, 2016
Speakers: Kimberly Whaley and Arieh Bloom
 
Estates and Succession Practice Group, Ottawa
June 1, 2016, Skype Presentation
Serving the executor- the lawyer's dual role
Speaker: Arieh Bloom
 

LSUC, Administration of Estates 2016

September 20, 2016
Chair: Kimberly Whaley and Timothy Grieve

PART V: RECENT BLOG POSTS

Older Adults and Prime Minister Trudeau's Mandate Letters: a glimpse of things to come

Joint Bank Accounts and Fiduciary Obligations

Lionel Tupman speaks with Professor Albert Oosterhoff on his career and the future of trusts

How much advice is too much? The principle in Re Fulford and the limits of the court's ability to give direction

PART VI: CONNECT WITH WEL
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WEL Newsletter Volume 5, Number 10, January 2016