WEL Newsletter - Volume 6, Number 5 - August 2016


WEL 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 & Lionel J. Tupman


WEL is pleased to announce that as of September 1st, Lionel Tupman is a Partner of the Firm, now called WEL Partners. Standby for new email and website details.

Kimberly has been selected by her peers for inclusion in the 11th edition of The Best Lawyers in Canada for her work in Trusts and Estates.

If you would like to obtain a hard copy of our publication on Guardianship, please contact Celine Byer at 416-355-3253 or celine@whaleylawyers.com 

Kimberly's article  "New Spouse/Old Money: Claims Arising Out of Later in Life Partnerships- Part 1" was published in t he July 2016 issue of Money and Family Law.   

Dr. Kenneth I. Shulman, Kimberly Whaley and Kerri Crawford were published in The Advocates' Quarterly. The article: "The Myth of a Hierarchy of Decisional Capacity: A Medico-Legal Perspective" (2016) 45:4 The Advocates' Quarterly 395
This article attempts to dispel the myth of a hierarchy attributed to the assessment or determination of decisional capacity. Decisional capacity to undertake certain decisions and tasks have unique and specific criteria applied to each so as to establish whether or not requisite capacity is present. Decisional capacity is presumed at law. When capacity is at issue, it should not be measured as higher or lower, rather capacity is decision specific-time specific, and situation specific.
This article is written from both a medical and legal perspective addressing the complex area of capacity as it relates to decision making.


WEL hosted the JTEP Meeting on August 29th where Albert Oosterhoff presented a summarized version of his article: "The Discrete Functions of Courts of Probate and Construction".

Kimberly was selected into the 2016 Canadian Legal Lexpert Directory. 

WEL thanks Kate Stephens for all of her hard work and effort that she put forth with a big smile this summer for all of us, including her work on an article currently in publication; updating our WEL Fiduciary Accounting publication coming out this Fall; and directing and editing our new Power of Attorney publication to be released this Fall.  Kate also helped organize our Scotia partnering with the Rat Race and soon Easter Seals.
Good luck in your last year Kate! We look forward to having you back. 

See below for the following book reviews:
(i)    Bennett on the Commercial List , Second Edition; and
(ii)   Oosterhoff On Wills Eighth Edition

WEL and Scotia Wealth Management are teaming up to propel down a building in support of Easter Seals. WEL and Scotia would appreciate your sponsorship. 
WEL team members are: Kimberly, Arieh, Lionel, Andrea, Kate and Deb Stephens, and Samantha, and our team is called the "Whaley Wallcrawlers". 
The Easter Seals Drop Zone is a knee-shaking, heart-pounding, adrenaline-pumping fundraising adventure that encourages you to get out of your comfort zone and face your fears by rappelling from the top of a towering high-rise building - all in support of Canadians living with disabilities.  The Whaley Wallcrawlers will be rappelling down the side of the 30-storey RioCan Centre at Yonge and Eglinton on September 21, 2016, to raise money for children and youth with physical disabilities in Ontario.

(i) GAULT v. GAULT - 2016 ABCA 208 (CanLII), http://canlii.ca/t/gsc28
By Kimberly A. Whaley

Solicitor Client Privilege and Deceased Parties

The Alberta Court of Appeal recently examined whether the files of an accountant and lawyer retained by a party to an estate proceeding, who subsequently died, were producible and whether the accountant and lawyer could be examined under oath. This case also addressed whether the gross amount of legal fees an estate paid should be disclosed, or whether it would reveal privileged information.

Gault Estate v. Gault Estate [1 arises from a second marriage that took place in 1975 where both the husband and wife had three sons each from previous marriages. The husband and wife had entered into a prenuptial agreement to keep their property separate and for both parties to contribute to the household finances. In 2009 the husband's cognitive functions began to decline and substitute decision makers were appointed to assist with his personal and property decisions. He died in 2014. His will left no monetary bequest to the wife.

The Litigation & Motion for Disclosure

After her husband's death, the wife commenced an action for unjust enrichment alleging that the husband under-contributed to the household expenses causing him to be unjustly enriched and entitling the wife to a portion of his estate, notwithstanding the pre-nuptial agreement. The estate trustees of the husband's estate launched a counterclaim alleging that the wife was the one who was unjustly enriched. The wife then died in 2015 but the litigation continues.

During the pursuit of the claims a dispute arose between the parties about the disclosure of certain documents and evidence. The wife had consulted an accountant and a lawyer with respect to her rights vis-à-vis the estate of her husband as early as 2009 or 2010. The husband's estate trustees demanded production of these records for the purposes of bringing a summary dismissal application arguing that the wife's claim was statute barred based on the expiry of the limitation period. Their theory was that the wife was aware of her claim against his eventual estate when she spoke with the lawyer and accountant in 2009 or 2010 and that is when the limitation period began to run. They also sought to examine the lawyer and accountant under oath.
The Appeal

After losing their motion, the husband's estate trustees appealed to the Alberta Court of Appeal, where that Court held that:

[10] . . . [t]he case management judge correctly ruled, however, that the files of the lawyer are protected by solicitor-client privilege, because that file consists of communications with the client, and the advice given to her. The records of the accountant, to the extent that they were created for the dominant purpose of litigation, are subject to the litigation privilege. These documents need not be produced; there is no exception to privilege for the purposes of making out a limitation defence. . . Further, neither the lawyer nor the accountant may be examined . . . with respect to privileged information.

The husband's estate argued that privilege does not extend to "facts" that are communicated by the client to the lawyer, if they are "neutral facts" that exist independent of the client's communication. However, the Alberta Court of Appeal noted that the Supreme Court of Canada recently rejected the suggested that "facts" are not protected by privilege in Canada (Attorney General) v Chambre des notaires du Quebec 2016 SCC 20. Attempting fine distinctions between "fact" and "communication" runs the risk of seriously emasculating the privilege:

[13] It is difficult to perceive of a more pervasive breach of solicitor-client privilege than to acknowledge the exception to the privilege put forward by the appellant. [The wife] was entitled to tell her lawyer her expectations, perceptions, inferences, knowledge, and other information about her potential claim with the full expectation that what she told her lawyer would not leave the room. Her mindset and state of knowledge with respect to her grievance, as communicated to the lawyer from whom she was seeking advice, cannot be described as "neutral facts". Even if her state of mind could be described as a "fact", solicitor-client privilege must extend to her discussions with her solicitor about that state of mind.

[14] Likewise, any communications with the accountant with a view to obtaining his professional assistance in contemplation of litigation against the estate of [the husband] are privileged, so long as the communications were for the dominant purpose of the litigation. As noted, the respondent does not dispute that background financial information is producible, notwithstanding that it might have been delivered to the accountant or the lawyer [emphasis added].

The Court of Appeal also refused to allow an examination of the lawyer and accountant, even though the wife was deceased, as the death of a party is not a basis for setting aside privilege. [2]

Are Legal Fees Privileged?

The final issue the Court decided was whether the estate trustees for the husband's estate were required to disclose the amount of legal fees paid by the estate. The trustees argued the amount was privileged. The Court noted that the Chambre des notaires du Quebec case (mentioned above) and its companion case Canada (National Revenue) v Thompson 2016 SCC 21 confirmed that the amount and content of a lawyer's accounts may reveal privileged information, so accordingly there is a rebuttable presumption that the amount of fees paid is privileged.[3] However, the wife's estate is a contingent beneficiary of the husband's estate and so may be entitled to an accounting in due course. The motion judge found that there was no reasonable possibility of the amount of fees paid by the estate would "directly or indirectly" reveal any communications protected by privileged. The Court of Appeal deferred to the motion judge and found that there was no reviewable error.


This decision confirms that solicitor client privilege and litigation privilege are still strongly protected by our Courts. For the most recent overview of the state of solicitor client privilege in Canada it is helpful to review the Supreme Court of Canada cases, Canada (Attorney General) v Chambre des notaires due Quebec 2016 SCC 20 and its companion decision, Canada (National Revenue) v Thompson 2016 SCC 21.

[1] 2016 ABCA 208 ["Gault"].
[2] Gault at para. 15.
[3] Gault at para. 21.
By Kimberly A. Whaley

A recent case [1] from the Prince Edward Island Court of Appeal illustrates the issues that arise when parties attempt to navigate the court system in complex estate cases without the assistance of a lawyer. One common error made by self-represented litigants is not following the required timelines, either because they are unaware or choose to ignore them to their own peril.

The self-represented appellant sought to appeal two passing of account orders, one for his father's estate and one for his mother's estate. The orders approving the accounts were issued in January 2015. At the passing of account hearings the appellant was present and stated his position and objection to the accounts. The estate trustees waited until after the appeal period expired before they distributed all of the funds of the estates, which took place in March 2015. The appellant received his cheque and cashed it, also in March 2015. Nine months later, in December 2015, the appellant made an application for an extension of time for filing a Notice of Appeal. The estate trustees successfully opposed the application and the appellant appealed.

The Appeal

The Prince Edward Island Court of Appeal examined the competing interests in determining whether to grant an extension of time to appeal:

[6] In exercising discretion to grant relief from compliance with the time-limit for commencing an appeal, appellate courts in Canada attempt to reconcile competing interests of finality and certainty for the successful party to a proceeding and the draconian effect for the unsuccessful party of failure to comply with time limits.  One competing interest approaches the issue from the premise that a successful party has a vested right once the time for appeal has expired.  The other competing interest favours dealing with the appeal on the merits unless a respondent is prejudiced by the delay.  Courts attempt to reconcile these competing interests by averting to several "guidelines" or "factors," while maintaining an overriding power to ensure that the "interests of justice" in each individual case should govern.  The factors considered  by Canadian appellate courts vary in phraseology and detail; however, they include consideration of: (a) bona fide intention to appeal, formed during the prescribed appeal period; (b) explanation for non-compliance; (c) undue prejudice to the other party; and (d) the merits of the appeal.
. . .
[8] The Ontario Court of Appeal treats the question of whether the "justice of the case" requires that an extension be given as the governing principle, and employs all of the mentioned factors, as well as prejudice to the other party, as factors.  In my view, that approach facilitates a full assessment of the competing interests.[2] [emphasis added]

The appellant in this case asserted irregularities regarding the proceedings and the presence of a "second" will that his father had executed. However, Letters Probate were granted for both estates, a hearing was held for the passing of accounts, the appellant was present at the hearing and asserted his position, and he cashed his cheque when the funds were distributed from the estates. He also adjourned the hearing of his application multiple times, and never filed any affidavit or other material beyond the bare application.

Justice Jenkins, on behalf of the Court, determined that "[u]pon considering the applications themselves, while [the appellant] is apparently sincere in his quest for justice, I cannot see any demonstration of merit in either proposed appeal. . . Overall, it is in the interest of justice that the applications be decided now and that they be denied. Conversely, it would be contrary to the interests of justice to allow the appeals to proceed." [3]

The estate trustees also demonstrated real potential for significant prejudice as all of the funds of the estates were already distributed to the beneficiaries. There are no assets remaining in either estate. Also, the Court was receptive to the argument that "downgrading the value of finality by granting an extension of time in these circumstances would be adverse to the interests of justice in effective estate administration - for executors might become reluctant to distribute funds to beneficiaries for fear that decisions could be appealed beyond the prescribed time limits, and family members might well be discouraged from accepting appointment as personal representatives." [4]


Clearly the Court must approach such matters with caution when dealing with self-represented estate litigants who may not be aware of, or understand, certain deadline or filing obligations. However, parties need finality and certainty in litigation. Estate litigation, including passing of accounts applications, can be complex and require expertise and understanding of the nuanced rules and procedures. In the end, not seeking the assistance of a lawyer resulted in the appellant not only losing his appeals but also being subject to a $6000.00 costs order. [5]

[1] Thomas v. Thomas Estates, 2016 PECA 13.
[2] Thomas at paras. 6 & 8.
[3] Thomas at paras. 15 & 18.
[4] Thomas at para. 22.
[5] Thomas at para. 26.


by Helen Burgess
Frank Bennett's Book Bennett on the Commercial List provides lawyers with a comprehensive guide to navigating the commercial list in Toronto. This book provides a succinct and valuable review of the operation of this specialized division of the Superior Court of Justice, including its origin, purpose, procedures, and subject matter.

In addition to detailing the procedural essentials of commencing litigation on the commercial list, this book includes up to date practice directions that every lawyer appearing in matters on the commercial list is expected to know and follow. It also includes a list of current forms, insightful commentary, and relevant case law that every commercial practitioner should be familiar with. This easy to read book strikes the perfect balance between serving as a how-to guide for the newly licensed lawyer, and a handy resource for seasoned veterans.

Frank Bennett is a principal of his own boutique firm in Toronto, Bennett & Company, specializing in creditor and debtor law, asset protection, enforcement of judgments, receivership, bankruptcy and restructuring.  He was the Head of Section and lecturer for the Ontario Bar Admission Course on creditors' and debtors' rights and remedies for many years, and the past Chair of the Bankruptcy and Insolvency Sections of the Canadian Bar Association. He is also a former member of the Bankruptcy and Insolvency Advisory Committee to Industry Canada, a veteran council member of the Ontario Bar Association, and frequent lecturer and author of several books and articles on creditor and debtor topics. 

by Arieh Bloom

Hanukkah and Christmas have come early this year as the newest edition of our favourite Professor, Albert Oosterhoff's "Oosterhoff On Wills" has now been published. The eighth edition includes the addition of Professors C. David Freedman, Mitchell McInnes, and Adam Parachin to the roster of authors with Professor Oosterhoff in what looks to be a magnum opus of a text for Wills and Estate Practitioners.

The eighth edition speaks to all types of lawyers and law students. Whether you are in law school taking an estates course for the first time or a seasoned estate practitioner, this text will serve all within the legal community due to authors' knack for providing a clear and easily digestible breakdown of what can be otherwise be esoteric concepts in estate law.

Notably the new edition provides in depth analysis of the Superior's Court's separate jurisdiction as a court of probate and a court of construction. The text seeks to put an end to the ambiguity created in the jurisprudence surrounding the inquisitorial approach of a court of probate vs. the role of the superior court sitting as a court of construction. The authors provide a compelling analysis of the current state of the law in Canada concerning the much debated topic of the admissibility of evidence when a Superior Court sits as a court of probate verse a court of construction.

The new edition provides updates concerning the Wills Statutes in British Columbia and Alberta. British Columbia overhauled materially its wills statutes in 2014 and Alberta in 2012.  The effect of the change in the statutory regime in these provinces can be seen in the rewritten chapter on intestate succession which can be found in chapter 3 of the new text. The revised intestacy chapter compares the different intestate legislative regimes across Canada providing a welcome analysis.

Chapters 4 and 18 in the eighth edition provide updated text on the doctrine of public policy and the impact the doctrine has on Wills and the validity of conditions imposed by testators. The text incorporates the recent appellant decisions of
McCorkill v McCorkill Estate as well as
Spence v BMO Trust Company.

Estate Litigators will welcome the recent editions revised chapters on dependant's support in chapter 22 and on substitute decisions in Chapter 24. The dependant's support chapter provides an in-depth analysis not just of the substantive law on the topic across Canada but also on the practice and procedure for bringing dependant support applications and type of Orders available to litigators in trying to resolve dependant support claims. Litigators will find this pragmatic enhancement to the chapter to be value added.

The new text is a much welcome read for the bar across Canada. Congrats to Professor Oosterhoff and his new team of Professors on the new edition.

by Kerri Crawford
When reflecting on the field of estates, it is not often that we think of cutting edge scientific research. A great deal of what we do at Whaley Estate Litigation involves discerning how the past impacts upon subsequent circumstances. For example, a testator's previously expressed intentions are often scrutinized in coming to a conclusion as to whether those intentions would have remained the same at the time of death, or at a point at which a person was deemed to lack the requisite capacity to make a particular decision. Estates is a field steeped in the indelible nature of the past and, as such, is often perceived as being static, with wishes, capabilities and intentions representing relics to be unearthed rather than flexible concepts to be interpreted. This tendency appears to be enhanced in the context of the adversarial paradigm of litigation, where we seek to establish the underlying factual structure of a given matter so that we can assess the strength of the foundation upon which a litigant's claim rests. The advances of science are typically a far-away thought in such scenarios.

As a former psychology student and psychiatric research assistant, I have been continually inspired by the advances and revelations of neuroscience. It is difficult to imagine a field more ubiquitous than the study of the brain and the human condition (aside from tax law, of course). It is exciting then, as a lawyer, to witness the earnestness with which estates practitioners appear to be venturing further into the field of neuroscience for answers to questions about the past, and about current mental states. After all, the central question in estates disputes is often what a particular person's intentions and desires are or would have been, which requires an attempt at discerning the underpinnings of that person's mental processes. How are we, as lawyers, to establish these elusive concepts when the very nature of what it means to be capable, to communicate, or to make a decision is up for debate?

I recently had the pleasure of meeting renowned neuroscientist Dr. Adrian Owen, the Canada Excellence Research Chair in Cognitive Neuroscience and Imaging at The Brain and Mind Institute, Western University, Canada, and a name I remember well from my days as a psychology student. Dr. Owen has made headlines not just among the scientific set but in mainstream media numerous times throughout his career, most notably in 2006 when he used a neuro-imaging technique known as functional magnetic resonance imaging (fMRI) to show that patients in a vegetative state were, in limited circumstances, capable of conscious awareness. Dr. Owen and his colleagues accomplished this feat by asking an individual in a vegetative state to imagine various tasks she regularly engaged in, including walking through her home and playing tennis, and demonstrating that her cortical centres were activated in the same way as would be expected if she were conscious.

In the context of estates, where it is often difficult to assess whether and when a person possesses the requisite capacity to make particular decisions, the notion that it is possible to communicate with a person previously viewed as non-communicative is stunning, and brings up a host of bioethical and legal questions. For instance, if it is sometimes possible to communicate with an individual who appears to be in a vegetative state, is there a positive obligation on the person's substitute decision maker to communicate with that person? What if the cost of employing the requisite technology to communicate in this fashion is prohibitively expensive? In our newly established legal regime permitting medical assistance in dying, will individuals who have previously been unable to communicate eventually be able to use the technology associated with neuroscience to provide their consent to end their lives? Is fMRI an acceptable and reliable means of ascertaining consent in a given circumstance?

As we move forward with new ideas about the future, what we learn will impact how we assess the past. Despite the field of wills and estates frequently appearing to be entrenched in immovable, historic elements, this retrospective method will continually be informed and altered by rapidly evolving scientific concepts such as capacity, communication and mental processes. At the intersection of law and neuroscience and, in many cases, the confluence of our past and present circumstances, estates practitioners are faced with exciting new challenges and a field of law that is anything but static.

LSUC, Administration of Estates 2016
September 20, 2016
Chairs: Kimberly Whaley and Timothy Grieve
Presenter: Lionel Tupman
Osgoode Professional Development
September 28-29, 2016
Critical Update on Predatory Marriages & Later Life Partnerships
Speakers: Kimberly Whaley and  Professor Albert Oosterhoff
STEP Toronto
October 19, 2016
Attacking and Defending Gifts
Speakers: Kimberly Whaley and John Poyser
Toronto Police College, Elder Abuse Investigators Course
October 20, 2016
Elder Abuse presentation
Speakers: Kimberly Whaley, Lionel Tupman
2nd Annual WET Fundamentals Course
October 29, 2016
Contested Passing of Accounts
Speakers: Kimberly Whaley, Lionel Tupman
LSUC Summit
November 3-4, 2016
Solicitor's Negligence
Speakers: Kimberly Whaley, Lionel Tupman
STEP Toronto
November 16, 2016
Financial & Tax Planning
Speakers: Harris Jones, Glenn Davis and James Kraft
OBA Elder Law
November 16, 2016
Law & the Older Adult Client
Speakers: Kimberly Whaley and Professor Albert Oosterhoff
RBC Estate Workshop for Millennials
Fall, 2016
How to avoid litigation with your siblings/family members
Speakers: Andrea Buncic and Arieh Bloom
STEP Toronto
January 18, 2017
Case Law & Potpourri of Trust Issues
Speakers: Ian Lebane, Howard Black, Justin de Vries, Timothy Youdan
STEP Toronto
February 15, 2017
Life Insurance
Speakers: Ted Polci, Angela Ross and Florence Marino
STEP Toronto
April 12, 2017
Estate Planning for Global Families
Speakers: Jeff Halpern, Michael Cadesky and Margaret O'Sullivan
STEP Toronto
May 17, 2017
Challenges of Probate Planning
Speaker: Gillian Musk
CBA Wills Estate and Trust PEI
June 23, 2017
Speaker: Kimberly Whaley
LESA, Calgary
Undue Influence
March 1, 2017
Speaker: Kimberly Whaley
LESA, Edmonton
Undue Influence
March 8, 2017
Speaker: Kimberly Whaley
LSUC Six Minute Estate Lawyer
May 8, 2017
POA Litigation
Speaker: Kimberly Whaley 

LCO releases research papers: Improving the Last Stages of Life Project

Competing appointments: Section 29(2) of the Estates Act

The Ontario Court of Appeal provides guidance on the rules governing an estate trustee's ability to recover legal costs

Criminal Liability for Breach of Fiduciary Duty: R. v. Hooyer, 2016 ONCA 44

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