WEL Newsletter, Vol.8 No.9, December 2018

Whaley Estate Litigation Partners helps clients navigate dispute resolution throughout Ontario. We hope you enjoy our newsletter.

From all of us at WEL Partners we wish you and your family the best of this holiday season.

Albert H. Oosterhoff's blog on Milne was quoted in Justice Penny decision the estate of Ratnalabh Panda, deceased, on October 11, 2018, in paragraphs 17and 23.


Kimberly Whaley was quoted in the November 19, 2018 Law Times article: "Calls to Change Legislation to Stop Predatory Marriages".

Kimberly Whaley and Ian Hull presented the final two of their four part webinar series on Client Capacity focusing on Real Estate Lawyers' Retainers, November 28 and Family Lawyer's Retainers, December 12.

Webinar series info:  https://whaleyhullwebcasts.ca/


Kimberly Whaley was interviewed by Michael McKiernan and quoted in the November/December issue of Canadian Lawyer Magazine in the article " Predatory Marriages: Estate Planning can be Quickly Undone When a Vulnerable Person is Married".
Kimberly Whaley and Ian Hull attended Peacebuilders Canada event at St. James Cathedral with keynote speakers Former Chief Justice of Canada, The Honourable Beverley McLachlin and Grammy Award Winner, David Clayton-Thomas. To find out more about Peacebuilders Canada, please visit their website http://peacebuilders.ca/.


Kimberly Whaley is thrilled to be invited to join the International Academy of Estate and Trust Law. She became a member of the International Academy of Estate and Trust Law on December 6, 2018.
Kimberly Whaley spoke at the STEP Mental Capacity Special Interest Group, on a panel with Julia Abrey TEP, Co-Head-Elder Law, Withers LLP, Jane Buswell, Independent Nurse Consultant & Best Interest Assessor and Chair, British Geriatrics Society Older People's Specialist Nurse and Senior Practitioner Group,  Mark Dunkley TEP, Partner, Shakespeare Martineau and Chair, STEP Mental Capacity Special Interest Group, Claire van Overdijk TEP, Barrister, Outer Temple Chambers, Patricia Rickard-Clarke, Solicitor and Chair, Sage Advocacy CLG Ireland, Stephen Richards, Partner-Trust and Succession Disputes and Co-Head-Elder Law, Withers LLP, Stafford Shepherd TEP, Director-QLS Ethics and Practice Centre, Queensland Law Society and Patricia Wass TEP, Consultant, Enable Law Solicitors and Worldwide 'Putting the Lawyer at the Heart of Capacity Assessments: Examining the Role of the Lawyer in Determining Capacity' in London, UK on December 7, 2018 on: "Assessing Capacity in Canada - Putting the Lawyer at the Heart of Capacity Assessments".
The following materials can be accessed on our website:
  1. Paper: Concepts of Ageism: Arguments in Favour of the Need for Protection
  2. PPT - Assessing Capacity in Canada: Putting the Lawyer at the Heart of Capacity Assessments
  3. Chart - Assessing Capacity in Canada - Cross-Provincial Examination of Capacity Legislation


Daniel Paperny was interviewed for the December 10, 2018 issue of the Law Times in the article "Case Involving Multiple Wills has Spinoff Effects".

By Michael Marra
I practiced family law for many years. Now in an estate litigation practice I have a primary focus on the property and support rights and obligations of spouses and former spouses on death and in particular dependent's support claims.
As a family law practitioner the treatment of spousal and child support obligations on death is always a concern. The standard practice is to include a clause requiring that the support payor designate the recipient as an irrevocable beneficiary of a life insurance policy in an agreed upon amount in the separation agreement or final court order. In addition, a clause confirming that the support obligation binds the estate of the support payor and is a first charge on the estate is recommended.
Given the Court of Appeal's decision in Dagg v Cameron, 2017 ONCA 366 http://canlii.ca/t/h3l1m the following should now be apparent to all family law practitioners;
  1. The life insurance clause in the court order is not a guarantee that the recipient is entitled to a cheque (or judgment) for the specified face amount of the policy;
  2. The recipient will have to prove his or her entitlement to support-past and future, in the claim against the estate;
  3. This implies responding to the estate trustee's requests for reduction in the amount payable based on material changes in circumstances, if applicable;
  4. The amount of the policy proceeds in excess of the recipient's proven support claim - past and future, will be "clawed back" into the estate;
  5. The recipient is likely a dependent within the meaning of Part V of the Succession Law Reform Act ("SLRA") and may have a claim available thereunder.
It is fair to say that these are not the outcomes that were generally contemplated by the inclusion of these life insurance clauses in separation agreements and court orders in the past.
The effect of Dagg is avoided in the following circumstances:
  1. Where the policy is owned jointly with the deceased by the recipient or a trust for the benefit of the recipient;
  2. Where the policy is solely owned by the recipient (This also ensures that the premiums will presumably always be paid);
  3. Arguably where the clause is contained in a separation agreement (see Dagg at paragraph 83 and Turner v. DiDonato 2009 ONCA 235 (CanLII).
Disputes will inevitably arise as older separation agreements and orders are considered upon the death of the support payor. A recent reported example is Larmer v. Birnie, 2018 ONSC 5313.
Larmer involves a motion for directions brought in the face of two competing proceedings stemming from the deceased's failure to designate his first spouse as an irrevocable beneficiary of a $500,000 life policy pursuant to a 2004 Separation Agreement. Upon his death the deceased had various life policies in force totalling $1,885,000 without any designation in favour of the first spouse. As of the date of death he was in a second marriage (a long term relationship) and he stood in the place of a parent to the twenty year old son of his second spouse who was in post-secondary school.
In the court proceeding the first spouse is seeking judgment for the $500,000 face amount of the policy pursuant to the 2004 Separation Agreement. In the alternative she seeks an order for continued ongoing support pursuant to the agreement plus retroactive and go-forward increases. In the further alternative, she seeks dependent's relief pursuant to part V of the SLRA.
The second spouse defends all claims by taking the position that the first spouse is entitled to make a claim under Part V only.
Determination of the claims of dependents under Part V is a highly discretionary exercise based on the numerous factors set out in section 62 of the Act.
The court set timelines for a summary judgment motion to be brought by the first spouse for the $500,000 and set out the various issues to be tried and the procedural framework in the event that the summary judgment motion is not granted.
Given the wide range of potential disputes and outcomes in these situations family lawyers are well advised to revisit these clauses and in particular when motions to change arise.

By Kimberly A. Whaley
In the recent UK decision of  James v James the Court ultimately concluded that the criteria set out in Banks v Goodfellow is still the correct "test" for determining requisite testamentary capacity: "More recently the   Mental Capacity Act 2005  has made fresh provision for the law of mental capacity in certain situations. What is unfortunately not made expressly clear in that legislation is the extent to which this fresh provision affects the test for capacity to make a Will when that question is being judged retrospectively (typically, though not necessarily, post mortem)." 
The England and Wales Law Commission has recommended adopting the test set out in the MCA, 2005 for establishing testamentary capacity. The MCA test is described in the within James decision as linked and sets out a single test of capacity for a broad range of financial, healthcare and welfare decisions.
Modern Interpretation of Banks v Goodfellow
In a recent article by Canadians Dr. Kenneth Shulman, Susan Himel, Ian Hull, Carmelle Peisah, & Courtney Barnes entitled "Banks v. Goodfellow 1870: Time to Update the Test for Testamentary Capacity" (2017), Can. Bar Rev,  the authors propose an updated and modern interpretation of the Banks criteria, based largely on clinical experience. The updated proposal requires that the testator be:
  1. Capable of understanding the act of making a will and its effects;
  2. Capable of understanding the nature and extent of their property relevant to the disposition;
  3. Capable of evaluating the claims of those who might be expected to benefit from the estate, and able to demonstrate an appreciation of the nature of any significant conflict and or complexity in the context of the testator's life situation;
  4. Capable of communicating a clear, consistent rationale for the distribution of their property, especially if there has been a significant departure form previously expressed wishes or prior wills; and
  5. Free of a mental disorder, including delusions, that influences the distribution of the estate. 
Like the proposed Canadian amendments to the Banks criteria, the empowering principles of the MCA 2005 appear potentially less discriminatory than the Banks language from 1870, and avoids assumptions of incapacity based on diagnosis alone and requires a functional assessment of whether or not someone can actually make the specific decision at hand.

By Kimberly A. Whaley

The U.N. Convention on Rights of Person's with Disabilities entered into force in May 2008. It is the first legally binding international treaty aimed specifically at protecting the rights of persons with disabilities.

Ratifying State Parties have to either incorporate new laws or change existing laws to meet their obligations of implementing this Convention.

Notably, 174 States have ratified the convention.

Article 12 of the Convention - "Equal Recognition before the Law" - recognizes that persons with disabilities have legal capacity on an equal basis with others - an individual cannot lose his/her legal capacity to act, simply because of a disability. However, legal capacity can still be lost in situations that apply to everyone.

In response to Article 12, most jurisdictions have incorporated substitute decision making (i.e. guardianship) rather than supported decision-making in their legislation in response to this U.N. Convention.

However, a recent report on mental health and human rights prepared by the U.N. High Commissioner for Human Rights interprets Article 12 as meaning that:

"States should repeal legal frameworks allowing substitute decision makers to provide consent on behalf of persons with disabilities and introduce supported decision-making, ensuring its availability for those who request it. Health service providers should seek the free and informed consent of the person concerned by all possible means". [1]

With supported decision-making, the presumption is always in favour of the person with a disability who will be affected by the decision.

The individual is the decision maker; the support person(s) explain(s) the issues, when necessary, and interpret(s) the signs and preferences of the individual.

Supported decision-making can take many forms.

Those assisting a person may communicate the individual's intentions to others or help him/her understand the choices at hand.

They may help others to realize that a person with significant disabilities is also a person with a history, interests and aims in life, and is someone capable of exercising his/her legal capacity.

The U.N. recognizes[2] the Province of British Columbia in Canada as one of the leading jurisdictions in incorporating supported decision-making into law, policy and practice.

In B.C., an individual with disabilities can enter into a "representation agreement" with a support network.

A representation agreement is a legal document under the Representation Agreement Act of BC.

Representation agreements are both a supported and substitute decision making option by which an adult may appoint another person to make decisions on their behalf in respect of personal and health care matters, and the routine management of an adult's financial affairs.

The agreement is a sign to others, including doctors, financial institutions and service providers, that the individual has given the support network the authority to assist him/her in making decisions and represent him/her in certain matters.

The Government of British Columbia amended its Representation Agreement Act to increase accessibility to representation agreements while maintaining related safeguards such as requiring a monitor to be appointed in certain circumstances. [3]

In fact, it was B.C.'s Representation Agreement Act that inspired Article 12[4] of the UN Convention calling on governments to implement legislation that ensures all adults receive support with decision making without the need to take away or restrict their rights.

One of the main innovations in the legislation is that persons with more significant disabilities can enter into representation agreements with a support network simply by demonstrating "trust" in the designated supporters.

A person does not need to prove legal competency under the usual criteria, such as having a demonstrated capacity to understand relevant information, appreciate consequences, act voluntarily and communicate a decision independently, in order to enter into this agreement.

A number of individuals and support networks have entered representation agreements as an alternative to guardianship or other forms of substitute decision-making.

A community-based Representation Agreement Resource Centre (now called Nidus Personal Planning Resource Centre and Registry) assists in developing and sustaining support networks by providing information, publications, workshops and advice.

The Centre also oversees a registry in which a network can post an agreement for other parties to view if required before entering a contract with the individual. For more information see http://www.nidus.ca.

The most recent report from Canada on the U.N. Convention (Convention on the Rights of Persons with Disabilities, First Report of Canada, dated 2014) confirmed that both supported decision-making and substitute decision-making regimes exists under provincial legislation.

According to the Report, the interpretive declaration to Article 12 clarifies Canada's understanding that the article reflects a presumption of legal capacity and permits both supported and substitute decision making arrangements in appropriate circumstances and in accordance with the law.

The Report also states that the reservation to Article 12 preserves Canada's ability to continue to use substitute decision-making arrangements in appropriate circumstances and subject to appropriate and effective safeguards.

In Canada, many measures relating to the exercise of legal capacity are subject to regular review by an independent and impartial authority or judicial body, while others are subject to a review or appeal mechanism.

Additionally, according to the Report - Canada's reservation to Article 12(4) preserves its right to maintain the supported and substitute decision-making arrangements that are not subject to regular review by an independent authority, where such measures are subject to review or appeal.

Canada's interpretative declaration in relation to Article 33(2) clarifies that Canada implements this article at both the federal and provincial levels through a variety of mechanisms such as courts, human rights commissions and tribunals, public guardians, ombudspersons, and intergovernmental bodies.

[1] Mental Health and Human Rights, January 31, 2017 at p. 9. See also https://jme.bmj.com/content/medethics/44/4/226.full.pdf
[3] Convention on the Rights of Persons with Disabilities, First Report of Canada, dated 2014 at 8.
[4] See BC's Nidus Personal Planning Resource Centre and Registry website - http://www.nidus.ca/?page_id=240
[5] See section 8(2) of the Representation Agreement Act, RSBC 1996, c 405.
[6] First Report at p.4

Previous blogs on this topic can be found here:

What Is a Will and What Is the Role of a Court of Probate - Update by Albert. H. Oosterhoff, published on October 23, 2018 

Case Update: Re Milne Estate - Decision Appealed by Daniel Paperny,  published on October 16, 2018

By Albert H. Oosterhoff

Once more unto the breach, dear friends, once more . . . [1]

Recently I blogged[2] about Re Milne,[3] a case involving multiple wills that contained what have become known as "basket clauses". Such clauses give the executors (referred to as estate trustees in Ontario) power to allocate assets into either the primary will (for which probate is required and which therefore attracts estate administration tax ("EAT")), or the secondary will (for which probate is not required). When the estate trustee applied for a Certificate of Appointment of Estate Trustee[4] of the Primary Will in Milne, Justice Dunphy held that the Primary Will was void because its basket clause excluded assets for which the trustees determined that probate was not required. His Honour concluded that this rendered the primary will uncertain. He came to this conclusion because he opined that a will is a form of trust and it must therefore satisfy the three certainties of intent, subject matter, and objects. In his view, certainty of objects was lacking.

I criticized the Milne judgment principally on two grounds: (a) a will is not a trust and the suggestion that it is a trust is completely without authority; and (b) in probate proceedings it is improper for a the court to engage in interpreting the language of the will to determine its validity as a matter of construction. A court of probate is only concerned to determine whether a will presented for probate is a testamentary document, is made by a testator who is competent and was not subjected to undue influence, and has been executed with the required formalities.

The decision set the denizens of the wills and estates dovecote all aflutter. There was great fear that it had the effect of invalidating many similar wills and that this could lead to negligence claims against the drafters of those wills. LawPro, Ontario's professional liability insurer for the legal profession, also got in on the act and offered advice to the drafters. The case is now under appeal and it is to be hoped that it will be reversed.

Meanwhile, I have the pleasant task of introducing the readers to a more recent case that has restored sanity in this area of the law and has done much to calm the ruffled feathers of the estates bar.

The facts in Re Panda[5] are almost identical to those in Milne. Again it involved a Primary Will and a Secondary Will, the first was made in respect of assets that would require probate, while the second dealt with assets that did not require probate. The basket clauses in Panda were slightly different from those in Milne, but there was no difference in substance. When the estate trustee applied for a Certificate of Appointment of Estate Trustee of the Primary Will, the application came before Dunphy J. In his endorsement he said: "I am not satisfied that the Primary Will constituted a valid trust in the absence of the Secondary Will due to lack of certainty of subject matter ... If this is to be proceeded with, a motion and argument is needed." [6]

The motion for directions came before Penny J. He declined to follow Milne, granted the application, and gave his reasons in an extensive endorsement. He stated that the decision in Milne raises one procedural and two substantive issues. The procedural is:

(1) whether on an unopposed application for a certificate of appointment as estate trustee, it is appropriate to inquire into substantive questions of construction of the will or whether the inquiry is limited to "formal" validity of the will for purposes of probate. [7]

The substantive issues are:

(2) whether the validity of a will depends upon the testamentary instrument satisfying the "three certainties" test which govern the test for the valid creation of a trust; and

(3) whether, apart from the questions of the validity of the will itself, a testator can confer on his or her personal representatives the ability to decide those assets in respect of which they will seek probate and those in respect of which they will not. [8]

With respect to the procedural issue, Penny J. stated:

[15] The role of the court on an application for a certificate of appointment as estate trustee with a will is to determine whether the documents presented are the testator's last will. The document must satisfy certain technical requirements - that is, the document must be in writing and signed at its end by the testator in the presence of two or more witnesses who subscribe the will in the presence of the testator. The court must also, as a matter of substance (or "construction"), determine whether the instrument is testamentary in nature; in other words, does it disclose an intention to make a disposition of the testator's property upon his or her death?

[16] Broader questions of interpretation which involve ascertaining the meaning of the testamentary documents, whether the testamentary dispositions relate to assets owned by the testator at the time of his or her death, or the validity of powers of appointment or other discretionary decision-making conferred on the estate trustees, are matters of construction not necessary to the grant of probate authorizing the applicant to act as the deceased's personal representative.

. . .

[18] In my view, the question of the validity of the conferral of the authority to decide under which of two wills (the probated will and the non-probated will) the property of the deceased will be administered, and the effect of the answer to that question on the administration of the estate, are matters of broad construction which ought not to be dealt with in the context of an application for probate per se.

Thus, Justice Penny disagreed with Justice Dunphy's approach and concluded, rightly, in my opinion that the role of the Court when exercising its Probate function is limited.

With respect to the first substantive issue, Justice Penny also disagreed strongly with Justice Dunphy's assertion that a will is a kind of trust and for a will to be valid it must create a valid trust and must therefore satisfy the "three certainties". He held, correctly in my view, that a will is not a trust and therefore does not have to have to satisfy any such test.

Justice Penny then turned to the second substantive issue and took the view, again rightly in my opinion, that the question whether a testator can give the personal representatives power to determine the assets for which they will seek probate and those for which they will not, is a question of construction and not a question of the validity of the will itself. His Honour, again rightly, recognized that a question of construction should not normally be considered on an application for probate. If it needs to be considered at all, it ought to be done only in separate proceedings by the court exercising its function of construing a will.

That being so, His Honour concluded that it would be inappropriate to make any decision at this stage about the validity of the powers conferred on the estate trustees in this case, because that issue was not before him. [9]

His Honour then discussed the different ways in which provisions to minimize the reduction of EAT can be drafted. He followed this with a very helpful dictum:

[31] In the circumstances of this case, it is not at all clear to me that a direction from the testator about how the estate trustees should decide whether or not to seek probate in respect of two or more wills dealing with particular components of the deceased's property, is any more extreme or "uncertain" than other, well-established discretionary choices frequently conferred on and exercised by estate trustees. Directing the estate trustees to determine whether a grant of authority by a court of competent jurisdiction is or is not required for the transfer, disposition or realization of property, and to act on that determination in their administration of the estate, arguably provides to the estate trustees an objective, ascertainable basis for the exercise of whatever "discretion" is embedded in that conferral of authority.

I agree with this dictum and in my blog on Milne[10] I expressed the view that testators commonly confer extensive powers on estate trustees designed to facilitate the administration of the estate in an orderly manner. Such powers have been accepted for many years and their validity is unquestioned. The powers conferred by basket clauses are similar in nature in my opinion and ought also to be considered acceptable.

However, Justice Penny rightly concluded[11] that such questions should be left for an occasion when they are properly raised as a matter of construction.

In the course of his reasons Justice Penny cited, quoted from, and adopted ideas that I had previously expressed in other materials. It is of course very gratifying when one's work receives the court's imprimatur. But what is much more important is that a judge sets the law to rights by clearly outlining the correct principles to be followed in particular circumstances. Justice Penny has certainly done that in this case and the estates bar can be grateful for his clear exposition of these principles.

Does this mean that the drafters of multiple wills can now go back to using "basket clauses" with impunity? No, for as Justice Penny has made clear, such clauses may raise validity issues that can only be addressed in proceedings in which the will or portions of it are presented to the court for construction. While those issues should not be considered in probate, they may and are likely to be raised in future in proceedings before the court exercising it construction function.

Accordingly, while Justice Penny's decision is very welcome, it does not (and could not) solve the problem entirely. Indeed, it can give an estate trustee only a Pyrrhic victory by permitting a primary will to be probated, but then potentially having the basket clauses ruled invalid in construction proceedings.

Since we now have opposing decisions on the issue in Ontario, it would seem opportune for the Court of Appeal to address and resolve the problem. One would hope that in the process the court will give us strong, helpful dicta along the lines expressed by Justice Penny in paragraph 31 of his reasons.

It is perhaps not untoward to reflect on the fact that multiple wills came into common use because of the introduction of the hated EAT. They have engendered a multitude of problems over the years. The Estate Administration Tax Act, 1998[12] has become more complex with each iteration and creates enormous practical difficulties for solicitors and estate trustees who must comply with it. It greatly complicates the administration of estates and the revenue it raises for the provincial coffers is relatively modest. Might the government be persuaded to repeal the legislation one wonders. That would certainly simplify estate administration.

[1]    With apologies to William Shakespeare for applying these words from Henry V in a rather different context.
[2]    "What Is a Will and What is the Role of a Court of Probate". http://welpartners.com/blog/2018/09/what-is-a-will-and-what-is-the-role-of-a-court-of-probate/. Posted 26 September 2018.
[3]    2018 ONSC 4174.
[4]    Known as applying for probate everywhere else.
[5]    2018 ONSC 6734.
[6]   Ibid., para. 3.
[7]   Ibid., para. 13.
[8]   Ibid., para. 14.
[9]   Ibid., para. 28.
[10]  Supra, footnote 2.
[11]  Ibid., para. 32.
[12] S.S. 1998, c. 34, Sched.

Barberio Estate (Re) v. Da Costa: http://canlii.ca/t/hvks3

By Kimberly A. Whaley

This case[1] involves a dispute over the transfer of an elderly man's Toronto home to his neighbours for $100,000.00 and negligence allegations against the lawyer who assisted with the transfer. The defendant neighbours and lawyer brought a summary judgment motion seeking to have the claim dismissed.
Justice Nakatsuru dismissed the motion finding that the complex matter required a trial of the issues. The case provides helpful guidance on when a summary judgment is, and is not, appropriate in estate litigation.


The deceased had lived next door to the defendants (a husband and wife), from 1994 to 2008. The defendants testified that they were like family to the elderly gentleman and looked after him regularly.   In April of 2008, the deceased approached the defendants with the idea of transferring his house to them for $100,000.00 in exchange for them looking after him and allowing him to live in his home for the rest of his life. The defendants agreed.

In late April, the deceased prepared a Will and powers of attorney for property and personal care with the assistance of a lawyer. He named the lawyer as his attorney for property and the defendant wife as his attorney for personal care. He named his sister as his beneficiary.

He approached the same lawyer later that month with a signed agreement of purchase and sale to transfer his home to the defendants. The lawyer refused to approve of the agreement as she found the elderly gentleman to be vulnerable. She put the defendant neighbours on notice of her decision noting that the terms of the transfer were "unconscionable".

The deceased then met with a second lawyer (the defendant lawyer in this case). The neighbours also retained counsel and a new agreement for the transfer was signed. The lawyer completed the transfer of the deceased's property to the husband only. In exchange, both husband and wife provided an undertaking to allow the deceased to live in his home and to look after him.   According to the plaintiff estate trustee, the deceased had only signed a direction for the transfer of the property to the husband and wife jointly.

With the assistance of the second lawyer, the deceased also granted power of attorney for property to the defendant wife and signed a new Will naming his sister as his beneficiary.

There was a dispute over how much care the husband and wife provided to the deceased after the transfer. The neighbours also submitted that there was medical evidence suggesting that the deceased was becoming confused and declining cognitively by April of 2009.

In August of 2009, the deceased met with his cousin and nephew. He showed them his Will and the transfer documents and indicated that he never signed the transfer.

The deceased then retained a third lawyer who wrote to the neighbours revoking the previous power of attorney and advising them that they were going to be taking steps to set aside the transfer.

This lawyer also informed the defendant lawyer who assisted with the transfer that it was the deceased's understanding that he had not sold his home.   The new lawyer also requested the transferring lawyer's file with the deceased's authorization. The lawyer did not produce the file promptly.

The deceased then signed a new power of attorney for property in favour of his new counsel and his cousin and a new Will naming his cousin and nephew as beneficiaries.

The deceased died in February of 2010. In September 2011, the estate trustee brought a claim in unjust enrichment and solicitor's negligence seeking among other things, an order transferring the property back to the estate (subject to the return of $100,000) or in the alternative, general and punitive damages and damages against the lawyer for solicitor's negligence.


Unjust enrichment and genuine issue for trial:

The neighbours submitted that there was no genuine issue requiring a trial as the plaintiff's claim for unjust enrichment failed. Referencing Petkus v. Becker[2], they argued that they had not been enriched by the transaction because they had provided care to the deceased in exchange, the deceased did not suffer a corresponding loss, and the agreement for purchase and sale provided a juristic reason for the transfer.

Justice Nakatsuru found that the nature of the relationship between the deceased and the defendants was material to the issue requiring a trial.   Examining that relationship and what took place at the time of the agreement required credibility assessments and viva voce evidence that could not be obtained through a summary motion despite the expanded powers of the Court.

Is the plaintiff's claim for punitive or general damages, against the neighbours, statute barred?

The defendants argued that the plaintiff's claim for damages was brought outside the two- year limitation period and was statute barred.

Justice Nakatsuru stated that even if he considered this issue at this stage, it would only provide the defendants with partial summary judgement.   After reviewing the principles set out by the Court of Appeal in Butera v. Chown[3], the Court concluded that there was no utility in granting summary judgment on this issue since it would not dispose of the action entirely. Furthermore, the claim for damages was essentially an alternative claim to the return of the property.

Referencing Cook v. Joyce[4], Justice Nakatsuru, noted that the determination of the limitation period defence required credibility assessment and factual findings that would need to be made at trial.

Did the lawyer's negligence, if any, cause the plaintiff's damages?

The plaintiff must show that the transferring lawyer's actions were causally connected to the damages to establish liability against the lawyer. The test for causation is whether the injury would have occurred 'but for' the negligence of the lawyer, as per Pilotte v. Gilbert. [5]

The lawyer argued that there was no genuine issue requiring a trial since the deceased chose to ignore a previous lawyer's advice and proceed with the transfer.   Accordingly, the plaintiff estate trustee cannot prove that, 'but for' the lawyer's negligence, the estate would not have suffered the alleged injury.
The plaintiff estate trustee relied on an expert opinion which concluded that in completing this transfer, the lawyer fell below the standard of care of a reasonably competent solicitor.

Justice Nakatsuru found that the issue of causation requires a trial for a number of reasons including: the lack of direct evidence available from the deceased; the unfairness of relying on a sole piece of evidence about the deceased ignoring another lawyer's advice; and, the need to consider the complex matrix of the factual circumstances in assessing the degree of the solicitor's negligence as well as causation.

Is the claim against the solicitor statute barred?

The Court noted that the viability of the claim against the solicitor rested on the principle of discoverability. Determining whether the discoverability principle applies, is a fact-based analysis.

The lawyer argued that the plaintiff discovered the claim shortly after the transaction closed on June 3, 2008, but certainly no later than September 1, 2009, when his counsel put the neighbours on notice of this claim.

The plaintiff alleged that the limitation period did not apply because the lawyer committed fraud during the course of the closing of the agreement.   

Alternatively, the plaintiff submitted that the claim was only discovered when the lawyer's complete file was obtained. Counsel delayed the production of the complete file, which was required to discover the claim.  

Ultimately, the issue of discoverability of the claim against counsel was a genuine issue requiring a trial and could not be determined on a summary judgment motion despite the expanded powers of the Court.


Where the issues require in-depth credibility assessment and factual findings, the courts will be less inclined to grant summary judgment despite the expanded powers stipulated in the Rules and set out by the Supreme Court in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87.

This case is also a reminder that partial summary judgement creates the risk of inconsistent or duplicate judgments and may not be appropriate in cases involving an assessment of credibility.

This will be an interesting case to follow should it proceed to trial.

[1] Barberio Estate (Re) v Da Costa 2018 ONSC 6144 (CanLII).
[2] Petkus v. Becker, 1980 CanLII 22 (SCC)
[3] Butera v. Chown, 2017 ONCA 783 (CanLII)  paras. 29 to 35
[4] Cook v. Joyce, 2017 ONCA 49 (CanLII)  at para. 96
[5] Pilotte v. Gilbert, 2016 ONSC 494 (CanLII)

Whaley/Hull Webinar Series
Please click here to access more information or to purchase each program

Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
February 15, 2019
Speaker: Michael Marra and Daniel Paperny

Osgoode Professional Development
2019 Elder Law - Marriage Contracts; conflicts in Blended Families: Sibling Struggles, Predatory Marriages and Family Meetings
February 26, 2019
Speakers: Kimberly Whaley and Professor Albert Oosterhoof
Osgoode Professional Development
Powers of Attorney and Guardianship: Non-contentious and Contentious Matters
April 9, 2019
Speaker: Kimberly Whaley
Cambridge Forum
Steering Committee Member: Kimberly Whaley
April 14-16, 2019
Osgoode Professional Development
Passing of Fiduciary Accounts
April 30, 2019
Chair: Kimberly Whaley 
Speakers: Ian Hull, Professor Albert Oosterhoff, and Tracey Phinnemore
STEP Premier Sponsorship Education Session
Short Case Study Presentation
May 22, 2019
Presenter: Bryan Gilmartin 

GTA Accountants and GTA Finance Network
Elder Abuse
October 1, 2019
Speaker: Kimberly Whaley
Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
November 1, 2019
Speaker: Matt Rendely 
Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
December 6, 2019
Speaker: Alex Swabuk

Playing Peacemaker: With "no legal solution" in sight, Ontario Court mandates therapeutic counselling to save feuding family

Court Denies Motion to Remove Opposing Counsel in Estate Dispute: Gloger v Evans

There is No Presumption of Undue Influence in Probate!

Court Denies Request for Sealing Order and Requires Plaintiff to Serve Motion Materials on Opposing Party in Settlement Approval Motion under Rule 7.08

What Is a Will and What Is the Role of a Court of Probate Redux: Re Milne and Re Panda

A Moving Target: Capacity, Legal Representation, and the Ability to Instruct Section 3 Counsel

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