WEL Newsletter, Vol.9 No.2, May 2019


 
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I. WEL NEWS

1. LAW SOCIETY OF ONTARIO CPD, SIX MINUTE ESTATE LAWYER, APRIL 29, 2019


Kimberly Whaley presented her article: 'Tips and Tools to Enhance an Estate Mediation', at the Law Society of Ontario's Six Minute Estate program on April 29, 2019.

2. OSGOODE PROFESSIONAL DEVELOPMENT, PASSING OF ACCOUNTS AND FIDUCIARY ACCOUNTING, APRIL 30, 2019

On April 30, 2019, Professor Albert Oosterhoff chaired the program at the Osgoode Professional Development, Passing of Accounts and Fiduciary Accounting.
 
Tracey Phinnemore presented "Reviewing Accounts: What Lawyers Need to Look For" at the Osgoode Professional Development program "Passing of Accounts & Fiduciary Accounting".
 
Katherine Antonacopoulos of the Children's Lawyer Office; Heather Hogan of the Public Guardian and Trustee; and Ian Hull from Hull & Hull LLP were also presenters at the program.

3. STEP CANADA TORONTO BRANCH - CONNECTION, MAY 2019, VOL.6, NO.7


Kimberly Whaley's article "No Interim Support Awarded Where Dependant Conflates Entitlement to Interim" was published in STEP Canada Toronto Branch Connection, May 2019, Vol.6, No.7.
4. THE INTERNATIONAL ACADEMY OF ESTATE AND TRUST LAW, TOKYO, JAPAN, MAY 20-23, 2019
 
Kimberly was honoured to participate on an International Panel of the International Academy of Estate And Trust Law in Tokyo, Japan on May 20th, collaborating with Academcians Bruce S. Ross from California , Lyat Eyal from Israel,  and David Brownbill Q.C. from the U.K. The panel presented and discussed ADR, in particular, Arbitration and Mediation of estate disputes internationally as well as local to our respective jurisdictions and the different processes involved. Bruce spoke on his training in "AIKIDO", a Japanese Martial Arts Defence. The meaning being Coordination of Harmony; Mental Energy or Spirit, and Method or way. The concept is of protecting oneself without harm to the attacker. David's mantra when approaching ADR is that it is better to be a Diplomat than a Lawyer!


Papers:




5. STEP TORONTO SEMINAR, MAY 22, 2019

 
Bryan Gilmartin presented the case comment at the STEP Toronto Seminar on May 22, 2019. The topic of the seminar was "How to Help Your Clients Choose the "Right" Fiduciaries". The moderator was Elaine Blades from RBC Wealth Management and the speakers were Justin de Vries from de Vries Litigation LLP; Donna Graham from RBC Wealth Management and Corina Weigl from Fasken LLP.

6. NATIONAL ASSOCIATION OF PUBLIC TRUSTEES AND GUARDIANS, 2019 CONFERENCE, MAY 27, 2019


On May 27, 2019 Professor Albert Oosterhoff, Kimberly Whaley presented at the National Association of Public Trustees and Guardians 2019 Conference. Their article is entitled: "Predatory Marriages and Financial Abuse of Elders".

7. OSGOODE PROFESSIONAL DEVELOPMENT, ESTATE LITIGATION: THE PRACTICAL GUIDE FOR LEGAL PROFESSIONALS, MAY 28, 2019


On May 28th, 2019 Kimberly Whaley presented at the Osgoode Professional Development program: "Estate Litigation: The Practical Guide for Legal Professionals", Session 3. Kimberly presented on: "Finding Missing Beneficiaries" and "Costs in Estate Litigation".


8. WEL ON DEPENDANTS' SUPPORT, 2019
 
Our newest publication, on Dependants' Support under the Succession Law Reform Act.


If you would like to receive a hard copy of our book, we invite you to contact Blossom Pangowish, Office Coordinator at blossom@welpartners.com

A PDF of our book can be accessed on our website: 
http://welpartners.com/resources/WEL-on-dependants-support.pdf


II. SHOUT OUTS
Ontario Bar Association Awards

Congratulations to the all of the 2019 award recipients for the Ontario Bar Association Section Awards.

 List of recipients: 2019 OBA Section Awards

III. LAW REVIEW
(i) WHAT MOORE V. SWEET TELLS US ABOUT THE FLEXIBILITY OF THE DOCTRINE OF UNJUST ENRICHMENT
Moore v. Sweet, 2018 SCC 52 (CanLII), http://canlii.ca/t/hw6vr
 
by Bryan Gilmartin
 
Moore v. Sweet [1]  has received a great deal of attention since its release in 2018. As an articling student with little more than a high-level understanding of the doctrine of unjust enrichment, I find this case offers a well-developed explanation of how it can be applied flexibly in order to achieve a result that is just in the circumstances.
 
Below is a discussion of the case with a particular focus on the application of the doctrine of unjust enrichment.
 
I. Facts:
 
Lawrence Moore purchased a life insurance policy, making his wife, Michelle Moore, his designated beneficiary. The couple entered into an oral agreement with respect to the policy upon their separation in 1999. Pursuant to the agreement, Michelle would continue to pay the premiums to maintain the policy and would be entitled to the proceeds upon Lawrence's death. [2]
 
After Lawrence began cohabiting with Risa Sweet, he designated Risa as the irrevocable beneficiary under the terms of the policy, thereby removing Michelle. Michelle continued to pay the premiums on the policy, pursuant to the agreement she had made with Lawrence up until his death in 2013. Michelle was informed that she was no longer the designated beneficiary of the policy and the proceeds were paid to Risa. [3]
 
II. Decisions Below:
 
Michelle brought an application seeking the opinion, advice, and direction of the court with respect to her entitlement to the proceeds of the policy.
 
A. Ontario Superior Court of Justice - 2015 ONSC 3914 (Ont S.C.J.)
 
Wilton-Siegel J. ruled that if Risa were to receive the proceeds of the policy, she would be unjustly enriched at the expense of Michelle. Furthermore, the court did not accept the fact that Risa being an irrevocable beneficiary was a sufficient juristic reason for the enrichment. For this reason, the court held that the proceeds of the policy were held in constructive trust in favour of Michelle. Risa appealed this decision. [4]
 
B. Ontario Court of Appeal - 2017 ONCA 182
 
The majority allowed the appeal and the decision of the Superior Court was set aside. The court ordered that Michelle be paid only the amount she had contributed towards the policy between the date of her oral agreement and the date of Lawrence's death (approximately $7,000). Risa was to receive the balance of the proceeds as the irrevocable beneficiary to the policy. [5]
 
In its reasons, the majority accepted Risa's irrevocable beneficiary designation as a juristic reason sufficient to overcome a finding of unjust enrichment.[6] Specifically, the majority stated, "the existence of the statutory regime relating to revocable and irrevocable beneficiaries [...] falls into an existing recognized category of juristic reason constituting both a disposition of law and statutory obligation." [7]
 
C. Supreme Court of Canada
 
With respect to unjust enrichment, the issues before the court were:
 
A. Has Michelle made out a claim in unjust enrichment by establishing:
(1) Risa's enrichment and her own corresponding deprivation
(2) The absence of any juristic reason for Risa's enrichment at her expense? [8]
 
Writing for the majority, Cote J. found that Risa was enriched, Michelle was correspondingly deprived and that both the enrichment and the deprivation occurred in the absence of a juristic reason. A remedial constructive trust was imposed.
 
(i) Enrichment
 
The parties did not dispute the fact that Risa was enriched on account of receiving $250,000 by virtue of being an irrevocable beneficiary to the policy.
 
(ii) Corresponding Deprivation
 
In this case, the court held that Michelle was deprived of the right to receive the proceeds of the policy as a result of a clear correspondence between her deprivation and Risa's gain. This deprivation clearly exceeded her "out-of-pocket expenses," being $7000 she paid in premiums.[9] Rather, the court noted that a corresponding deprivation focuses on what the plaintiff actually lost and how it relates to the defendant's enrichment. The court emphasized the fact that there must have been some causal connection between the loss and the gain to arrive at the conclusion that the defendant was enriched at the plaintiff's expense. [10]
 
(iii) Juristic Reason
 
The court's reasoning was founded upon the two-stage analysis articulated by the Honourable Justice Iacobucci J. in Garland v. Consumers' Gas Co.[11] First, a plaintiff must show that the enrichment obtained cannot be justified on the basis of any of the "established categories":
  • a contract,
  • disposition of law,
  • donative intent, and
  • other valid common law, equitable or statutory obligations
If any of these categories are applicable, the plaintiff's claim must fail. In this case, the majority found that these factors did not apply. Specifically, the court stated that "nothing in the Insurance Act can be read as ousting the common law or equitable rights that persons other than the designated beneficiary may have in the policy proceeds." [12]
 
Further, the court stated that even with an irrevocablebeneficiary designation, the Insurance Act cannot be interpreted as "barring the possibility of restitution to a third party who establishes that this irrevocable beneficiary cannot, in good conscience, retain those monies in the face of that third party's unjust enrichment claim." [13]
 
As for the second stage, there is an opportunity to show some other residual reason to deny recovery. The court is to consider (1) the parties' reasonable expectations and (2) public policy. The argument was focused on the irrevocable beneficiary designation made pursuant to the Insurance Act and whether it justified Risa's enrichment at Michelle's expense. [14]
 
It is clear in this case that both Michelle and Risa expected to receive the proceeds. Michelle, by way of the oral agreement, had a contractual right to remain the beneficiary of the policy. Risa, by contrast, expected to receive the proceeds by virtue of the fact that she was validly designated as the irrevocable beneficiary of the policy. In this instance, the court did not accept that Risa's claim could take precedent over Michelle's contractual right to remain as beneficiary. [15]
 
Comments:
 
The majority's analysis emphasized the flexibility of the doctrine of unjust enrichment. This flexibility was apparent in the application of the test in both the majority and dissenting opinions with specific regard to what constitutes a "corresponding" deprivation.
 
The dissenting opinion provides an interesting discussion about the meaning of "correspondence" as it relates to a "corresponding" deprivation. The dissent set out a hypothetical demonstrating that Michelle's claim ought to have been against Lawrence's estate, assuming that it had sufficient assets. [16]
 
In this instance, Michelle may have laid claim to those assets for breach of contract and Risa would have kept the proceeds as an irrevocable beneficiary. It was on this point that the dissent could not find that there was a corresponding deprivation to accompany Risa's enrichment because, in this hypothetical, they would co-exist, meaning, Risa's enrichment would not be at Michelle's expense.
 
If the facts of the hypothetical were true, I would agree with the reasoning. But in my mind, it is too far removed from the facts of the case. This case arose because Michelle had no other viable avenue to enforce her agreement with Lawrence. True, in theory, she had a claim in breach of contract, but it would seem fair in the circumstances that the flexibility of the unjust enrichment doctrine served its purpose in this instance where no other viable option was available to right the wrong.
 
It seems important to consider how the flexibility of the doctrine of unjust enrichment will operate in practice going forward. Careful thought ought to be given in estate planning to avoid situations such as what has been discussed, especially in cases where there has been a relationship breakdown.

[1] 2018 SCC 52.
[2] Ibid at para 2.
[3] Ibid.
[4] Ibid at para 19.
[5] Ibid at para 21.
[6] Ibid at para 23.
[7] 2017 ONCA 182 at para 99.
[8] Moore v. Sweet, supra note 1 at para 30.
[9] Ibid at para 44.
[10] Ibid.
[11] (2001), 57 O.R. (3d) 127 (Ont. C.A.).
[12] Moore v. Sweet, supra note 1, at para 70.
[13] Ibid at para78.
[14] Ibid at para 83.
[15] Ibid at para 85.
[16] Ibid at para 111.

IV. UPCOMING EVENTS
B'NAI BRITH CANADA
Trust Troubles - Litigation, Tax and Ethical Issues
June 4, 2019
Moderator: Kimberly Whaley
 
Osgoode Professional Development - The Essential Guide to Estate Dispute Mediations: Unique Challenges Creative Solutions
Best Practices at the Mediation and Documenting the Settlement Properly
June 5, 2019
Speaker: Kimberly Whaley

OBA and Toronto Public Library Law in the Library
June 6, 2019
Speaker: Matthew Rendely

Toronto Police Seminar
Elder Abuse
June, 7, 2019
Speakers: Kimberly Whaley and Sareh Ebrahimi

OBA and Toronto Public Library Law in the Library
June 27, 2019
Speaker: Marian Passmore

LSO
Administration of Estates
September 10, 2019
Chair: Kimberly Whaley and Tim Grieve

STEP Toronto
Case Law and Legal Update
September 11, 2019
Speaker: Kimberly Whaley

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: Matthew Rendely and Marian Passmore
 
CCEL BC
Access to Justice, Bridging the Gap, Elder Law for Everyone
November 14-15, 2019
Speaker: Kimberly Whaley

Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
December 6, 2019
Speaker: Alex Swabuk and Michael Marra

V. IN CASE YOU MISSED IT - RECENT BLOG POSTS
Removal of Estate Trustees as a Result of Conflict of Interest

Marriage Contracts on Death

Potential Conflict of Interest Not Enough to Remove Executor Another Cautionary Warning on Removal of Fiduciary Applications

Cryptocurrency Disclosure in Litigation

Lawyer Suspended for Failing to Meet with Client to Obtain Instructions & Execute Will & for Acting in a Conflict of Interest

Gift or Resulting Trust? Zacher v. Zacher

VI. CONNECT WITH WEL
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