WEL Newsletter, Vol.9 No.3, June 2019


 
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I. WEL NEWS
1. SENIORS' AND ELDER AWARENESS MONTH, JUNE 2019
 
June is Seniors' Month in Ontario.

 
It is a time to celebrate our seniors who built this province - and to recognize the contributions they have made in communities across Ontario, and the lives they have impacted - across generations. The government's theme this year is Aging Strong: Respect and Protect Seniors.
 
Aging is about living, and everyone should be able to age strong, in an Ontario that is open to all. The theme represents the importance of seniors' valued experience and independence as they age, while celebrating their many contributions in building this province, and protecting what matters most to them.
 
Throughout June, municipalities and community organizations are encouraged to hold Seniors' Month events including award ceremonies and recognition events. For more information about programs and services that are available to help seniors lead healthy, active, and engaged lives over 65, please visit https://www.ontario.ca/page/information-seniors.
 
The Toronto Police Seniors Community Consultative Committee has launched their isolation project. Please visit our website to view their new brochure: "Social Isolation of Seniors" and also their previous brochure:  " Elder Abuse and Neglect: A Guide for Police Officers ".


 

2. ALBERT OOSTERHOFF, PROUD RECIPIENT OF ONTARIO BAR ASSOCIATION'S AWARD OF EXCELLENCE IN TRUSTS AND ESTATES, JUNE 4, 2019


The OBA's Trusts & Estates Law Section was pleased to present Professor Albert H. Oosterhoff as the recipient of its 2019 OBA Award of Excellence in Trusts and Estates Law. Professor Oosterhoff was honoured at The OBA Award of Excellence dinner held on June 4, 2019 at the Four Seasons Hotel in Toronto.

3. 18th ANNUAL B'NAI BRITH CANADA, TRUST TROUBLES, LITIGATION, TAX AND ETHICAL ISSUES, JUNE 4, 2019


Kimberly Whaley was asked by Charles Wagner of Wagner Sidlofsky LLP to moderate a panel on the Accounting and Tax Issues at the B'Nai Brith Seminar on June 4, 2019. The panelists included Jeff Berliner, Arthur Fish and Susan Stamm. Charles is credited for tirelessly and meticulously organizing this annual conference held at Shaarei Shomayim Synagogue. Thank you again Charles!    

       
 
Tracey Phinnemore's checklist on Fiduciary Accounting: Red Flags was included in the materials.

4. OSGOODE PROFESSIONAL DEVELOPMENT, THE ESSENTIAL GUIDE TO ESTATE DISPUTE MEDIATIONS: UNIQUE CHALLENGES, CREATIVE SOLUTIONS FOR COUNSEL, JUNE 5, 2019
 
Kimberly Whaley presented her article: 'Best Practices in Estate Mediation and Documenting the Settlement' at the Osgoode Professional Development program, Best Practices in the Mediation and Documenting the Settlement Properly, on June 5, 2019. The session was moderated by Ian Hull, and included Bryan Tannenbaum and Paul Torrie as speakers.

 

5. ALBERT OOSTERHOFF, PROFESSOR EMERITUS, WESTERN UNIVERSITY AND FIRM COUNSEL WAS HONOURED TO RECEIVE THE INVITATION OF LIFETIME HONOURARY MEMBER, STEP WORLDWIDE, JUNE 6, 2019

 
On June 6, 2019 Professor Albert Oosterhoff received his honorary membership as TEP with STEP Worldwide. The international selection committee unanimously agreed that Albert has made unique and exceptional contributions to 'scholarships in the law of trusts and estates'.

6. TORONTO POLICE SEMINAR, ELDER ABUSE, JUNE 7, 2019

 
Marian Passmore and Sareh (Lua) Ebrahimi were invited to present at the Toronto Police, East GTA Family Health Team Unit, on "Elder Abuse: Civil and Criminal Remedies" on June 7, 2019.
 

7. ONTARIO BAR ASSOCIATION PRESENTATION - TORONTO PUBLIC LIBRARY, DEER PARK BRANCH, SENIORS MONTH, JUNE 11, 2019

 
Matthew Rendely was invited by Emily Siskins, Manager of Communications and Information Services at the Ontario Bar Association to present on "Law Affecting Older Adults Session" at the Toronto Public Library - Deer Park Branch, organized by the Ontario Bar Association. Matthew focused his presentation on the importance of elder abuse awareness.

 
8. 15TH ANNUAL BUGSY AND KEN GOLF TOURNAMENT, JUNE 12, 2019
 
WEL Partners was invited and Ian Hull of Hull & Hull LLP to join colleagues in support of Lawyers Feed the Hungry Toronto in the 15th Annual Bugsy and Ken Golf Tournament which was held on June 12, 2019. Proceeds support Toronto Lawyers Feed the Hungry raising almost $1M to date.  

If you would like to donate directly to this worthy cause, please click the following link: https://www.gifttool.com/donations/
9. REFERTOHER

A positive step for female lawyers from Lenczner Slaght an industry leader. ReferToHer, is Lenczner Slaght taking control of gender equality within the bar. Kimberly is honoured and pleased to be named amongst other well regarded colleagues as one of the experienced female lawyers to confidently refer work to. https://litigate.com/ReferToHer.
 
Thank you Lenczner lawyers for your leadership by 'doing' !

10. MICHAEL GARRON HOSPITAL, POLICE vs PERSONAL HEALTH INFORMATION, JUNE 19, 2019

 
Mark Handelman presented at Michael Garron Hospital on: "Police vs Personal Health Information: When the Police Want Information on Your Patients".
11. ONTARIO PUBLIC GUARDIAN AND TRUSTEE UPDATED WEB LINK
 
The Ontario Public Guardian and Trustee's web page is operated by the Ministry of the Attorney General. The office-specific home page is subsumed within the Ministry of the Attorney General/Family Law domain, which makes for long URLs in letters and outreach material.

It now has a simpler URL to access OPGT brochures and forms. Simply typing ontario.ca/opgt (or ontario.ca/tuteurpublic for French content) into any web browser will take you directly to the main OPGT page.
12.  LAST CHANCE FOR OUR RECENT 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. WEL SHOUT OUTS
WEL Congratulates Ontario Bar Association's Trusts and Estate Law Section Award Recipients:

Wolfe Goodman Award - Calvin Hancock

Calvin Hancock is an associate at Borden Ladner Gervais, Ottawa office, practicing in the Commercial Litigation Group, with a focus on estate litigation and commercial disputes.

The Wolfe Goodman Award (the "Award") is a $250 cash award established by Joel Nitikman through the OBA Foundation from contributions made by numerous lawyers and law firms across Canada.  The Award was established by Joel in honour of the late Wolfe Goodman's many accomplishments and contributions to Estates and Trusts law. 

The Award will recognize annually the best article or case comment published in the Estates, Trusts and Pensions Journal by a Canadian lawyer who has been called to the Bar for six years or less.

Widdifield Award - K. Thomas Grozinger

K. Thomas Grozinger is a  Principal Trust Specialist,  Royal Trust Corporation.

The Widdifield Award is a cash award of $500 established by the OBA Foundation with contributions made by the authors of Widdifield on Executors and Trustees (sixth edition).  The Award is presented annually at the year end dinner of the Trusts and Estates section of the Ontario Bar Association to the author of the best original article in each volume of the Estates, Trusts and Pensions Journal.  The winning article is chosen each year by a rotating panel of three of the authors of Widdifield.

III. LAW REVIEW
(i) DOES YOUR CLIENT HAVE THE REQUISITE TO COMMENCE A LAW SUIT?: THE CAPACITY TO SUE- FACTORS TO CONSIDER
Carmichael v. Glaxosmithkline Inc ., 2019 ONSC 2037 (CanLII), http://canlii.ca/t/j000w
 
by Kimberly Whaley
 
The Ontario Superior Court of Justice recently examined[1] whether a litigant had the requisite mental capacity to commence a lawsuit in the context of a summary judgment motion seeking dismissal of a claim based on a limitation period defence.

The Court looked at the distinction between the discovery of a claim, and the requisite capacity to commence a claim.

Background

In 2004 the Plaintiff killed his 11-year-old son. At his criminal trial, the Court found him not criminally responsible by reason of a mental disorder as he tragically had killed his son during a psychotic episode which was a feature of an underlying major depression. The Plaintiff underwent in-patient treatment and was conditionally discharged in 2007 and received an absolute discharge in December 2009.

On October 5, 2011, seven years after his son's death, the Plaintiff commenced an action against the manufacturer of an anti-depressant drug he was taking at the time leading up to his son's death. The Plaintiff alleged that his psychotic episode was caused by the drug and not by a major depression as presented at his criminal trial.

The drug company brought a motion for summary judgment seeking a dismissal of the claim as being statute-barred pursuant to the Limitations Act, 2002.The basic limitation period provides that a claim cannot be commenced after the second anniversary of the day on which the claim was discovered, or, the day "on which a reasonable person with the abilities and in the circumstances of the person with the claim ought to have known" that "injury, loss or damage" had occurred, which was caused by the person against whom the claim was made, and that a proceeding would be an appropriate means to seek to remedy it.

The drug company submitted that it was not reasonable to think that the Plaintiff did not discover the claim until within two years of the day on which the action was started, i.e., October 5, 2009. The drug company presented substantial evidence showing that the Plaintiff was aware of a possible connection between the drug and his psychotic episode long before October 5, 2009, including that: the plaintiff had discussed with his lawyers for his criminal trial that the drug had caused his psychological state; he discussed the drug with the police when he was arrested; he was informed by one of his psychiatrists in 2005 that the drug might have played a role in the psychotic episode; and in 2006 he told his doctors that he was contemplating bringing a lawsuit against the drug company.

While the evidence suggested that any claim would have been discovered prior to 2009, Justice Lederer noted that the legislation requires that it would have been discovered by "a reasonable person with the abilities and in the circumstances of the person with the claim". Therefore, the question on the motion became: was the Plaintiff the "reasonable person" to whom the legislation refers?

Section 7 of the Limitations Act, 2002 provides that the basic limitation period does not run during any time in which the person with the claim is "incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological conditions." Therefore, the central question was, "whether at the material time, the plaintiff had capacity necessary to commence and conduct this action." [2]

The drug company relied on contemporaneous medical records that reflected the findings of mental health professionals that the Plaintiff "had capacity, was assessed as being capable to consent to treatment, to view his record of personal information to provide informed consent to disclose information and to manage his financial affairs."  [3]

An expert retained by the Plaintiff disagreed and concluded that the Plaintiff was psychologically incapacitated from taking on the stress and risk of confronting the drug company in a legal proceeding and that the Plaintiff was incapable of commencing a proceeding before his absolute discharge in December 2009. While the drug company retained an expert respecting the capacity issue, the expert never spoke with the Plaintiff, nor, any of his care providers.

Justice Lederer began by confirming that:

the fact that [the Plaintiff] was capable of consenting to treatment, dealing with contracts associated with his professional activities or difficult family events such as the death of his father-in-law or the sale of the family home does not necessarily mean that he was capable of initiating a law suit that would have been a continuing and present reminder of his role in the death of his son. [4]

Justice Lederer referred to the case of, AC v Joyce 2016 ONSC 2164 and noted that in that case the court observed:

that the capacity to start an action stands apart form the capacity to deal with other stressful circumstances that can be part of our daily lives:

This type of legal phenomenon of different mental states co-existing is not unknown to law. The mental capacity to sue is not the same as the mental capacity to contract, or to marry, or to execute a will, or to consent to medical treatment. [5]

Justice Lederer then set out the factors to be considered when determining whether a person is capable of commencing an action as set out in the case of Huang v Braga 2016 ONSC 6306, and repeated in Hengeveld v Ontario (Transportation) 2017 ONSC 3600:

a)  A person's ability to know or understand the minimum choice or decisions required to make them;
b)  An appreciation of the consequences and effects of his or her choices or decisions;
c)  An appreciation of the nature of the proceeding;
d)  A person's ability to choose and keep counsel;
e)  A person's ability to represent himself of herself;
f)  A person's ability to distinguish between relevant and irrelevant issue; and,
g)  A person's mistaken beliefs regarding the law or court procedures.  [6]

The drug company submitted that the Plaintiff satisfied these seven factors no later than 2005 as: he was able to participate in the determination of the defence to be put forward at his criminal trial; he accepted the risk of speaking publicly, and on his website, in spite of his expressed fear that he was concerned that bringing an action might pose a risk of his being discharged from the mental hospital; and he thought about and talked about commencing litigation.

Justice Lederer, however, concluded that:

the application of those factors, in this way, continues the same mistake.  It fails to recognize the fundamental distinction between the cognitive ability to commence an action and the psychological strength required to actually undertake the initiation of a lawsuit.   Understood from the perspective of the psychological burden being carried by [the Plaintiff], taking into account the evolution of his coming to terms with his role in the death of his son, particularly as interpreted by the treating professionals along the way, as assessed thereafter by Dr. Stephen Fleming, accounted for in the decisions of the Ontario Review Board and confirmed by his wife and daughter I am unable to take each of these factors as having been met prior to his absolute discharge. By way of example, I have no trouble in finding that [the Plaintiff] would not have been able to understand the minimum choices or the decisions he would have been required to make, to appreciate the consequences of those choices, to fully understand the nature of the proceedings, to choose and keep counsel and to represent himself or to distinguish between relevant and irrelevant issues.[emphasis added] [7]

Based on the expert's evidence, testimony from the Plaintiff's wife and daughter and medical professionals, Justice Lederer observed that "it is not difficult to understand and accept a professional judgement that a person struggling with such a realization [that he killed his child] would be psychologically impaired if not destroyed, at least for a period of time and that his capacity to function fully would take time to return." [8]

The motion for summary judgement was dismissed.

Takeaway

While this is case has very tragic circumstances, this decision acts as a reminder when dealing with limitation periods, of the distinction between the discovery of a claim, and the requisite capacity to commence a claim as well as the tolling period for persons "incapable" of commencing a lawsuit.


[1] Carmichael v Glaxosmithkline Inc. 2019 ONSC 2037
[2] Ibid at para 19.
[3] Ibid at para 21.
[4] Ibid at para 23.
[5] Ibid at para 27.
[6] Ibid at para 40.
[7] Ibid at para 42.
[8] Ibid at para 45.
(ii) NOT EVERY BREACH OF DUTY BY AN ATTORNEY UNDER A POA IS A FIDUCIARY BREACH OF DUTY
by Kimberly Whaley
 
In Meng Estate v. Liem, 2019 BCCA 127 (CanLII), http://canlii.ca/t/hzs87, the British Columbia Court of Appeal overturned a lower court's decision which found that an attorney had breached a fiduciary duty owed to the grantors of the power of attorney when executing a contract of sale for the elderly couple's home. The Court of Appeal found that the lower court judge erred by founding her judgment on the "unstated assumption that any breach of duty was a breach of fiduciary duty." [1]
 
Background
 
The elderly Mengs granted a power of attorney to two individuals, Mr. Liem and Mr. Truan, in 2011. The attorneys were friends of the Mengs. Acting under the power of attorney, the two attorneys executed a contract of purchase and sale of the Mengs' home for $1.4 million which was substantially lower than the listing price of $1.9 million. The joint power of attorney was revoked in 2012.
 
The Mengs attempted to stop the sale of their home and refused to complete it. The purchaser sued for specific performance. This lawsuit was eventually settled.
 
The Mengs also commenced proceedings against the attorneys arguing that they breached their fiduciary duty when they used the power of attorney to execute the contract since they failed to ascertain the current wishes of the Mengs and as a result acted contrary to their best interests in executing the contract. Mrs. Meng died in 2014 and Mr. Meng died in 2017, however Mrs. Meng's evidence was preserved.
 
Mr. Truan advised the court he was bankrupt and took no part in the trial.
 
Mr. Liem represented himself at trial. The judge found that Mr. Liem was in a fiduciary relationship with the Mengs, and, as such, was found liable for breaching a fiduciary duty.
 
Court of Appeal
 
The Court noted it was important to highlight some aspects of the evidence to set the issues into context. First, Mr. Liem was asked to accept the attorney appointed as a friend and volunteered to do so. There was no evidence that he benefitted from any breach of duty or that he was in a conflict of interest, or that he intentionally, or in bad faith failed to protect the interests of the Mengs. There was nothing to suggest he knowingly breached his duty of loyalty to the Mengs.
 
The ability to communicate with the Mengs was limited as he did not speak Mandarin and needed an interpreter when they spoke. Mr. Liem testified that he relied on the advice of the real estate agent when pricing the home and regarding accepting the sale price. He relied on the real estate agent, and Mr. Truan (the other attorney), to confirm that the Mengs' agreed to the sale price. As a result of Chinese custom, there were cultural reasons why Mr. Liem could not, at that time, accompany the real estate agent, and Mr. Truan to visit the Mengs personally to confirm the sale price.
 
There was no evidence at trial of fair market value and no evidence that the sale was improvident. The case was not advanced on an allegation of improvident sale, but that the contract, with which Mrs. Meng later disagreed, was signed without determining her current wishes at the time. However, there was no admissible evidence that the Mengs agreed or disagreed with the price. The Court of Appeal found that there was no basis in the evidence to find that the contract was inconsistent with the Mengs' current wishes.
 
The Court of Appeal observed that: "[e]ven though Mr. Liem was in a fiduciary relationship with the Mengs, not every potential breach of duty is a breach of fiduciary duty. . .a fiduciary may breach duties owed in contract or negligence without those breaches being transformed into breach of fiduciary duty." [2]
 
Typically, a breach of fiduciary duty captures circumstances in which there is a breach of the duty of loyalty owed by the fiduciary and includes acting in the face of conflict, preferring a personal interest, taking a secret profit, acting dishonestly or in bad faith, or a variety of similar or related circumstances. Justice Harris concluded, writing on behalf of the Court, that, I am satisfied that the undisputed facts in this case do not permit treating Mr. Liem's breach as anything other than negligence. I can see no proper basis on which it can be said that Mr. Liem failed to discharge his duty of loyalty; the problem is that he was negligent in how he attempted to fulfil it. [3]
 
The Court concluded that the trial judge was, "led into error in analysing the breach as a breach of fiduciary duty, rather than a breach of a duty of care sounding in negligence" [emphasis in original]. [4]
 
As a result, the cause of action was negligence, and the plaintiffs carried the burden of proving that breach of duty caused the loss. The Mengs did not lead any evidence from which their then current wishes could be determined. Absent evidence establishing that the Mengs did not agree with the sale, rather than subsequently changing their minds about it, the action should have been dismissed.
 
Takeaway
 
This case is an example of why it is important to frame a claim around the correct cause of action, or otherwise risk losing a lawsuit. While many may jump to the conclusion that all breaches of duty by an attorney under a power of attorney must be breaches of a fiduciary duty, this is not always true. The breach must be accompanied by "something more," such as for example: failing to honour the duty of loyalty; acting in bad faith; acting in the face of a conflict; self-dealing; preferring personal interest.


[1] Meng Estate v Liem, 2019 BCCA 127 at para 3.
[2] Ibid at para 33.
[3] Ibid at para 35.
[4] Ibid at para 7.

IV. UPDATED CHECKLISTS

V. UPCOMING EVENTS
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 and Sareh (Lua) Ebrahimi

GTA Accountants and GTA Finance Network
Elder Abuse
October 1, 2019
Speaker: Kimberly Whaley

Law Society of Ontario
22nd Estates and Trusts Summit (Day One)
October 16, 2019
Speaker: Kimberly Whaley
 
Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
November 1, 2019
Speaker: Matthew Rendely and Marian Passmore

The Pitblado Lectures, Winnipeg, Manitoba
Predatory Marriages
November 8, 2019
Speaker: Kimberly Whaley and Albert Oosterhoff

CCEL BC
Access to Justice, Bridging the Gap, Elder Law for Everyone
Elder Abuse, Civil and Criminal Remedies
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

Institute 2020 Elder Law Section Program
Rights and Limitations on an Attorney Under a Power of Attorney
February 2020
Chairs: Kimberly Whaley and Albert Oosterhoff

VI. IN CASE YOU MISSED IT - RECENT BLOG POSTS
If Validity of Testamentary Documents Sought by Declaratory Relief Alone - Limitation Period of 2 Years from Date of Death May Not Apply

US Developments in Addressing Suspected Elder Financial Abuse

Ending Retainer Issues Canvassed in Superior Court

What Moore v. Sweet tells us about the Flexibility of the Doctrine of Unjust Enrichment

A Plot Twist for the Estate of the Queen of Soul: Three Handwritten Wills Found in Aretha Franklin's Detroit Home Months After Her Death

Sealing Orders in the Estates of Bernard and Honey Sherman

Summary Judgment Motions - A Cautionary Tale

Admissible Evidence in Construing Wills

Update: Life Insurance as Security for Support Obligations

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