Dear Kenneth,

Happy Spring! I had the good fortune to spend a few days in London, U.K. this month and the city was truly in spring blossom. England has one of the nicest spring seasons and with the greenery, and the royal parks, it was on full display. I enjoyed the sunshine and refreshing change from our seemingly still never-ending winter.

While in London, I attended the offices of Russell Cooke LLP where my colleague, Gareth Ledsham practices, and we presented together with colleagues, Sheree Green, Church Legal (U.K.), and Martin Haanen, Castle Trustees, New Zealand at a STEP Spot the Signs of Financial Abuse Webinar. Over 1100 individuals registered. Together, we discussed a selection of global court decisions from the United Kingdom, Australia, United States, and Canada highlighting instances of financial abuse through different vehicles including, powers of attorney, abuse by investors, advisors and trustees, while also touching on the interplay of capacity, vulnerability, and undue influence. We also discussed red flags, tools and resources.

I attended STEP Council meetings re-energized and ready for the next quarter of STEP. Volunteers on Council and Board, focused on working towards growth in membership-the next generation of STEP TEP’S, competence and compliance, EDI, and initiatives designed to make STEP an even more excellent and relevant organization of industry professionals for its members in a rapidly changing world landscape.

I also had the unexpected pleasure of meeting up with my friend and colleague, Jan Goddard and shared a lovely Syrian meal together in SOHO. It was nice to catch up in an extraordinary city, away from our hometown.

From London, I flew to Victoria to attend and present on a panel at LESA with colleagues Nancy Golding KC, and Les Scholly. The Alberta Bar and Judiciary alike are top notch, and their LESA conference also always excellent. The agenda and speakers-exemplary (program website). I was so fortunate to have been invited as a guest to some wonderful dinners and receptions hosted by lawyers and law firms alike and all I can say is, the Albertans know how to have a good time. Thank you for including me, LESA, Shelley Waite and the team. I am grateful and appreciative of your hospitality and the special invites to dinner, from Shelley Waite and McLeod Law, Anthea at Vogel Law, Eleanor Carlson, Curtis Marble at Carbert Waite LLP, BD & P, Trevor, Cheryl, Sydney, James, Sarah and Leah. As an aside, Victoria was also in full, lush blossom. Canada is a truly a diverse and beautiful country! I enjoyed being in such a beautiful place especially having never been before.

Meanwhile, back in Toronto since we last connected in the St. Patrick’s Day newsletter, we have had spring arrival festivities including Ramadan, Eid, Holi, Nowruz, Songkran, Shunbun, Trujillo, Passover, and now Easter, and of course, Tulip gardens blossoming around the world! I hope you have had some fun family and friend gatherings, and wish you continued happiness in all your celebrations whatever and wherever they may be.

I was remiss last month in not mentioning that our very own Bibi Minoo won the OSCAR POOL! Congratulations to Bibi. Bibi confessed she had not watched all the award-winning productions, just goes to show you can win a pool without doing the watch with some superior smarts and wit.

Regrettably, lawyer, Glenn Davis sadly passed away too young. I will fondly remember Glenn, amongst his other qualities, for his good humour and for gifting me a curated purple hoodie dawning the message “LAW GODDESS.” RIP Glenn.

Finally, our growing team is looking for a senior litigator well versed in drafting applications, and court documents and attending court as a client advocate. We are a small but mighty team who like to work hard and play hard. Please connect with me, or with my partner, Bryan Gilmartin if you are interested or someone you know might be interested.

Until next month, Enjoy the Read!

Kim

STEP 2024 FOUNDER’S AWARDS WINNERS

WEL Partners congratulates all nominees and recipients of the 2024 STEP Founder’s Awards. The Founder Awards are given to exceptional volunteers who have made an extraordinary and outstanding long-term contribution to STEP. The 2024 recipients include Julia Abrey TEP (STEP City of London), Emma Chamberlain OBE TEP (STEP London Central), Michael Dew TEP (STEP Bournemouth), Daniel Frajman TEP (STEP Montreal), Matthew Gilligan TEP (STEP Guernsey), Andrea Jones TEP (STEP Yorkshire), Ian Lebane TEP (STEP Toronto) and Fiona McFarlane TEP (STEP Jersey). Congratulations to all!

For more information on the award, please visit the following link: https://www.step.org/members/founders-awards-2024

THE HONOURABLE GEORGE R. STRATHY AWARD AT TORONTO METROPOLITAN UNIVERSITY’S LINCOLN ALEXANDER LAW SCHOOL

WEL Partners would like to congratulate Elad Menham as the recipient of the Honourable George R. Strathy Award, at Toronto Metropolitan University’s Lincoln Alexander Law School. The award recognizes law students who have contributed to the health, wellness, and sense of belonging in the Lincoln Alexander Law community, as well as to those who demonstrate financial need and academic excellence. Congratulations again Elad, on this well-deserved award.

HeARTS FOR HUNGER

On April 24, 2025, the Law Society Foundation will be presenting HeARTs for Hunger, a charitable auction of original studies and paintings by the late Hon. Roy McMurtry in support of the Foundation’s Toronto Lawyers Feed the Hungry Program. Presented with the support of Hull & Hull LLP, and WEL as sponsor, the event will feature over 100 original works for both live and silent auction.

For more information on this charitable function or to make a donation, please see the following link: https://lso.ca/the-law-society-foundation/events/events-2023/hearts-for-hunger-art-auction

View auction catalogue: https://simplebooklet.com/heartsforhungersilentauctioncatalogue

CHERYL APPELL AWARDED THE MARY LOU BENOTTO AWARD

WEL Partners wishes to congratulate Cheryl Appell for being awarded the first annual Mary Lou Benotto Award for Excellence in Family Law by the Ontario Court of Appeal. Presented on March 27, 2025, at the 19th Family Law Summit, the award was established by the Chief Justice of Ontario, Michael Tulloch, to recognize the legacy and extraordinary contributions of the Honourable Mary Lou Benotto, a pillar of family law in this province. For more than 35 years, Cheryl has been a leader and innovator in the field of adoption law. She has helped shape the legal framework surrounding adoption in Canada, while supporting countless families with her deep expertise and unwavering kindness. Congratulations again Cheryl!

2025 LAW SOCIETY AWARD RECIPIENTS

WEL Partners wishes to acknowledge and congratulate the winners of the 2025 Law Society Awards on their outstanding career achievements and contributions to their communities. The presentation of these awards will be held at the annual Law Society Awards ceremony on May 28, 2025.

For more details on the winners of the 2025 Awards, as well as further details on the award ceremony, please see the following link: https://lso.ca/news-events/news/latest-news-2025/law-society-announces-2025-award-recipients

CANADIAN LAW AWARDS 2025 EXCELLENCE AWARDEES

WEL Partners congratulates all the outstanding firms, teams, and professionals who have been nominated at the 6th Annual Canadian Law Awards. The award show will be held on May 7, 2025, to honor the achievements and dedication of legal professionals across Canada. WEL Partners congratulates all those who have been nominated and the winners of each prestigious award for their excellence in law.

For more details on the Canadian Law Awards winners, please see the following link: https://www.lawawards.ca/winners-excellence-awardees/2025-winners-excellence-awardees/

WEL CONGRATULATES RICHARD COUTINHO

Richard has received the King Charles III Coronation Medal. Richard has been a dedicated professional in public service. It has been my personal pleasure to have worked with Richard as a fellow estates colleague. Richard is dedicated senior counsel at the Office of the Public Guardian & Trustee. Congratulations to the other recipients of this prestigious medal: https://gg.ca/en/honours/canadian-honours/directory-honours/commemorative-medals/king-charles-iii-coronation-medal

WEL Partners were saddened to hear of the passing of Glenn Davis in his 74th year. A graduate of University of Toronto (B.Sc.) and Queens University (LL.B.), Glenn greatly enjoyed multiple, overlapping careers in the law and related fields helping clients build practical plans that addressed what was important to them. In 2022, he retired from active business to focus on family, friends, and paying forward his many, many blessings through various Toronto service organizations and neighbourhood acts of charity. Our condolences to Glenn’s family and friends.

Glenn Davis obituary

EVERYONE IN THIS ROOM WILL SOMEDAY BE DEAD BY EMILY AUSTIN

By Samantha Henderson-Whaley

I was given a copy of Everyone in This Room Will Someday Be Dead by Emily Austin as a gift. My friend pitched it to me as a thought-provoking and funny narrative about coping with the inevitability of death. I wasn’t quite sure what to expect, but I can say my expectations were exceeded. This off-beat, dark, witty, and truly empathetic novel leaves a lasting impression.

In Everyone in This Room Will Someday Be Dead, Gilda, our main character, grapples with the oppressive weight of knowing that everyone around her is dying. The clock of your life starts ticking from the day you are born, and no one knows when their time will be up. This knowledge, partnered with the empathetic pain she feels as she notices the people around her struggling with the burden of existence, is making Gilda feel like she is dying. With a startling frequency that has her on a first name basis with her local emergency room staff, Gilda’s panic attacks are bringing her to the hospital believing her time is up. After she is put on the lengthy waitlist for therapy for the hundredth time, she decides to follow her own lead to treatment in the form of a street flyer offering free counselling services. When she shows up at the flyer’s address, however, she finds herself at a Catholic church, where a priest asks her if she’s there about the job posting. Too embarrassed to admit her true reason for being there, she interviews for the position, and despite being an atheist, and not knowing the first thing about Catholicism, she gets the job. What ensues is a series of ill-advised decisions, a makeshift investigation into the death of the woman whose job Gilda inherited, a concerted effort to connect with the people around her, and the crushing realisation that no matter how hard she tries, she can’t help anyone if she doesn’t first try to help herself.

Gilda’s journey depicts a struggle that I imagine is all too familiar for a lot of people, and Emily Austin does an impeccable job of telling this incredibly difficult and emotional story with a quick wit and admirable flair. Two of my favourite of Austin’s lines exemplify the unique tone of this novel:

“I wish that I find something distracting enough to occupy my mind with thoughts unrelated to the futility of my existence, or that I die in the least disruptive way possible for my family.”

[…]

“We are all just floating in space, okay? Think about it, we’re just ghosts inside skeletons, inside skin bags, floating on a rock in space. If there is anything that would make you feel happy to do, please do it.”

This book had me laughing, crying, feeling profoundly uncomfortable, and pausing to take deep breaths and process the words I had just read. Emily Austin is a Canadian author and fellow Western University Alumna. Everyone in This Room Will Someday Be Dead is her debut novel.

https://www.indigo.ca/en-ca/everyone-in-this-room-will-someday-be-dead-a-novel/9781982167363.html

By: Albert H. Oosterhoff

1. Introduction

The anfractuosities of the common law occasionally come back to haunt us. That is especially true of the law of property. Most of us know the difference between a joint tenancy and a tenancy in common. But it is not always clear whether a grantor or testator created one or the other. The issue arose in the recent case, Clements v Everson.^[1]

2. Facts

John and Mildred Clements had seven children, including Yvonne and Katherine. In 2000 John and Mildred purchased a country property called Thorah. In 2001 they transferred title to themselves and Yvonne and Katherine as joint tenants. In 2004 the four entered into a trust agreement, under which Yvonne and Katherine became trustees of Thorah and held their one-half interest in trust for their parents, who remained beneficial owners. But Yvonne and Katherine’s interest was registered to them as joint tenants. The agreement provided that if either parent predeceased Yvonne and Katherine, the surviving parent remained the beneficial owner of Thorah. Mildred died in 2007, and John, Yvonne, and Katherine were then listed as joint tenants.

John died in 2016. His Will devised Thorah to Yvonne and Katherine for their own use absolutely. But it went on to say that either Yvonne or Katherine was entitled to acquire the interest of the other in the property. Finally, the will provided that if both Yvonne and Katherine predeceased their father, the property would fall into the residue of his estate.

There were two dwellings on Thorah and Yvonne and Katherine each lived in their own dwelling. Yvonne relied on Katherine for her water supply. Katherine’s house required major renovations that she could not afford, so she and Yvonne got a joint line of credit to pay for the renovations. It was secured against Thorah. Katherine died in 2021, and Yvonne has been responsible for the payments on the line of credit since 2023. Katherine’s daughter, Kelly, paid her mother’s share of the carrying costs of Thorah since her mother died.

Yvonne made an assignment in bankruptcy in 2015 and in consequence assigned her interest in Thorah to the trustee in bankruptcy. That severed the joint tenancy and thereafter the trustee and Katherine each held a one-half interest in Thorah as tenants in common. In 2022 Yvonne satisfied her debt and the trustee registered a notice of disclaimer on title to divest itself of title and requested that title be amended to show Yvonne as the owner of the disclaimed half interest. The disclaimer and the amended title abstract did not show whether Yvonne and Katherine’s estate held title as joint tenants or tenants in common.

Yvonne then brought an application for a declaration that the title to Thorah be amended to show her as joint tenant. In the alternative, she sought an order declaring that the respondents, being the three children of Katherine and the executors of her estate, were unjustly enriched.

3. Analysis and Judgment

Justice Casullo noted that while originally, pursuant to the trust agreement, the property would have passed to Yvonne by right of survivorship when Katherine died, when Yvonne made an assignment in bankruptcy the joint tenancy was severed the title was held by the trustee in bankruptcy and Katherine as tenants in common. Although Yvonne was restored to the title, the parcel abstract failed to show the capacity in which Yvonne and Katherine held title.

Her Honour quoted section 13(1) of the Conveyancing and Law of Property Act,^[2] which adopted the equitable rule of construction which states that when two or more persons take title to real property, presumptively they take title as tenants in common, unless the letters patent, transfer, or will makes it clear that they are to take as joint tenants. The document that governed the transfer of Thorah to Yvonne and Katherine, namely, John’s will, did not declare the capacity in which the sisters would take title. Nor was there any other evidence to show that they should take as joint tenants. Thus, the presumptive rule of section 13(1) applied to give the sisters title as tenants in common.

On the issue of unjust enrichment and responsibility for the line of credit, Justice Casullo made the sensible decision that a reference was not necessary to determine the respective liabilities of the parties. As she said in para 61, ‘This matter has already consumed more than its fair share of legal fees and judicial resources, not to mention the emotional toll to the parties’. Instead, those liabilities could readily be determined by a couple of spreadsheets detailing the carrying costs of Thorah and the expenditures made from the money borrowed under the line of credit.

Accordingly, Her Honour declared that Yvonne and Katherine acquired ownership to Thorah as tenants in common. Therefore, on Katherine’s death her half interest fell into her estate. Further, she declared that the carrying costs of Thorah should be borne by Yvonne and Katherine’s estate in proportion to their respective contributions. Similarly, satisfaction of the line of credit should be determined based on what portion of the moneys was used by Yvonne and Katherine’s estate.



The costs of the proceeding could not be recovered from an estate, since there isn’t one. Her Honour held that in the circumstances each party should bear their own costs.

--

[1] Clements v. Everson, 2024 ONSC 4885.

[2] RSO 1990, c C.34.

By Albert H. Oosterhoff 

Three years ago, I wrote a blog on two Privy Council cases, Equity Trust (Jersey) Ltd. v Halabi and ITG Ltd v Fort Trustees Ltd.^[1] Although they were unrelated, the Privy Council heard them together. The first was an appeal from the Court of Appeal for Jersey; the second was an appeal from the Court of Appeal for Guernsey. However, both were governed by Jersey law. The cases raised the question whether a prior trustee has priority over a successor trustee when the prior trustee makes an indemnity claim and the trust assets are inadequate to pay the indemnity claims of both trustees. The Board held: (1) the right of indemnity confers a proprietary interest in the trust assets on the trustee; (2) the proprietary interest survives the transfer of the trust assets to a successor trustee; and (3) the trustee’s indemnity extends to the costs of proving its claim. However, (4) while the minority of the Board concluded that the first-in time principle applied to give the original trustee priority over the successor trustee, the majority held that, as a matter of justice, equity, fairness, and common sense, the pari passu rule should be applied rather than the first-in-time rule.

The matter arose again in the recent High Court of Australia case, Naaman v Jaken Properties Australia Pty Limited.^[2] However, in this case the issue was somewhat different, namely, whether a successor trustee owes a fiduciary obligation to a former trustee not to deal with the trust assets so as intentionally to destroy, diminish, or jeopardise the former trustee’s entitlement to indemnification out of the trust assets or the commensurate beneficial interest that the former trustee has in the trust assets. The majority of the court held that the successor trustee does not owe such a fiduciary obligation; the minority held that it does. For ease of reference, I include paragraph numbers from the case when quoting from specific passages.

For clarity’s sake I want to mention that while we usually refer to the trustee’s right to be indemnified out of trust assets for costs and expenses incurred by it, the right is actually better described as a two-fold right. First, if the trustee, which is after all personally liable for debts and liabilities it incurs, has paid or satisfied these itself, it is entitled to recoup the amounts (assuming that they were reasonably incurred) from the trust assets. Second, if the trustee has not paid the debts or liabilities, it is entitled to be exonerated for them and may apply trust assets to discharge the debts or liabilities. The two-fold right is recognised in the reasons of the majority and he minority.

2. Facts

Jaken Property Group Pty Ltd (‘JPG’) is the first trustee of the trust in question. The first respondent, Jaken Properties Australia Pty Ltd (‘Jaken’) is the successor trustee. The second respondent was the sole director of JPG until 2006, as well as a major beneficiary under the trust. The other respondents were persons and companies that were involved in Jaken’s dealings with the trust property. The appellant, Naaman, is a judgment creditor of the former trustee.

The primary judge found [61] that Naaman ‘is entitled by way of subrogation in equity to the rights of JPG to be indemnified out of the assets of the’ trust and that JPG’s right of indemnity extended to the judgment debt owed to Naaman. The primary judge also found [62] that Jaken ‘engaged in a dishonest and fraudulent design to strip itself of assets that might otherwise be available to satisfy JPG’s power of indemnity to which Naaman was subrogated’ and that the other respondents knowingly assisted in the dishonest and fraudulent design.^[3] His Honour held that a successor trustee owns a former trustee a fiduciary obligation not to deal with the trust assets so as to destroy, diminish or jeopardise the former trustee’s entitlement to indemnification.

The majority of the Court of Appeal of the Supreme Court of New South Wales held that a successor trustee does not owe a former trustee such a fiduciary obligation, so the court allowed the appeal.^[4]

Naaman appealed to the High Court, which dismissed the appeal by a majority.

3. Reasons of the Majority

Gageler CJ, Gleeson, Jagot, and Beech-Jones JJ constituted the majority. As already mentioned, the majority held, ‘a successor trustee does not owe a fiduciary obligation to a former trustee in respect of the entitlement of the former trustee to indemnification out of the trust assets or the commensurate beneficial interest that the former trustee has in the trust assets’. [6] This meant that the basis of the primary judge’s holding that the other respondents knowingly assisted in the first respondent’s dishonest and fraudulent design is removed. [11]

Based on established authority, the majority confirmed, ‘The interest which a trustee has in the trust assets that is commensurate with the entitlement of the trustee to be indemnified out of the trust assets for expenses and liabilities properly incurred in the execution of the trust’ is ‘properly characterized as a beneficial interest in the trust assets which takes priority over the beneficial interest that the cestuis que trust have in the trust assets’. [13]

However, by reference to Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (In liq),^[5] the majority pointed out that the difference is not solely a matter of priority. Both are indeed equitable proprietary interests, but they are different. The right of a trustee to be indemnified was formerly called a ‘lien’ or an ‘equitable charge’^[6] that a court of equity can enforce, if necessary, by ordering a sale of the property and payment of the debt out of the proceeds. It is directed against the property. In contrast, the equitable relief available to a cestui que trust is not against the property but against the holder of the property (i.e., the trustee) and serves to ensure performance of the trust. This means ‘that the trustee holds the trust property for the cestuis que trust but subject to the interest of the former trustee’. [19]. As the Privy Council explained in Halabi,^[7] (1) the trustee’s entitlement does not create a personal liability in anyone to indemnify the trustee; it is instead simply a right to have the trust property applied to pay the amount owed; and (2) the remedy to enforce the right is an order that the trust property be applied to pay the amount owed. [24, 25]

This means that the interest that a former trustee retains in the trust assets, whether described as a lien, charge, or a proprietary interest, enables the trustee to obtain the assistance of a court of equity to enforce its entitlement to have the trust assets applied to recoup its expenditure or to exonerate it from liability. And the court can then make an order requiring a sale of the trust assets and paying the amount owing to the former trustee. [27]

Until the court makes such an order, on the application of the former trustee, ‘a court of equity has ample power to … protect the equitable proprietary interest of the former trustee from being destroyed, diminished, or jeopardized by the conduct of the successor trustee’. [28] It can do so on the application of the former trustee. And therefore, it is up to the former trustee to take action to protect its interest.

In consequence, it was unnecessary to consider whether the successor trustee owed any obligation to the former trustee for a court of equity to be able to protect the former trustee’s entitlement from being affected adversely by any conduct of the successor trustee. This meant also that it was unnecessary to consider whether the label ‘fiduciary obligation’, should be applied. In the opinion of the majority, ‘a fiduciary obligation cannot exist other than as an incident of a fiduciary relationship of “absolute and disinterested loyalty” within the scope of which one party, the fiduciary, is recognized in equity as having a responsibility to act in the interests of the other party (or in their shared interests) to the exclusion of the fiduciary’s own interests’. [31]

The majority was of opinion that a fiduciary relationship should not be recognized in this novel setting [32] and pointed out that Australian authority has ‘cautioned against a tendency “too readily to classify as fiduciary in nature relationships which might better be seen as purely contractual or giving rise to tortious liability”’.^[8] Therefore, the majority rejected the appellant’s argument that a fiduciary relationship between a successor and a former trustee should be superimposed on the entitlement to indemnification, simply because the successor trustee holds the trust assets subject to the former trustee’s beneficial interest and knows that the former trustee is entitled to be indemnified. [35] As Leeming JA stated in the judgment of the Court of Appeal:^[9]

Many persons have equitable proprietary rights in the property of others, in circumstances where no fiduciary obligation is owed to them. Every equitable mortgagee, every equitable chargee, every unpaid solicitor with an interest in a judgment or compromise and every unpaid vendor with a lien enjoys rights which are properly regarded as proprietary, and those mortgagors, chargors, clients, and purchasers are susceptible to equitable relief commensurate with those rights. But fiduciary obligations are not owed by the mortgagors, chargors, clients or purchasers to the persons with equitable proprietary rights, and that is so even though to an extent they may be vulnerable to conduct which might defeat their equitable rights.

Nor does characterizing the equitable property as a beneficial interest turn the relationship between the parties into a fiduciary relationship. [37]

In this case, ‘the legal owner of the property, the successor trustee, holds trust property for the cestuis que trust in circumstances where that property is subject to the interest of the former trustee…. A successor trustee holding trust assets subject to the beneficial interest of a former trustee not only has its own entitlement to indemnification and commensurate beneficial interest in the trust assets but has an ongoing duty to deal with the trust assets in the performance of the trust’. [40]

While a successor trustee may deal with trust assets in a manner that affects the former trustee’s right to indemnification adversely, this does not make the former trustee vulnerable in a way that might attract a fiduciary obligation. It is simply the consequence of having trust assets transferred from one person to another. Vulnerability would only be relevant if the supposed fiduciary had a responsibility to act solely in the interests of the vulnerable party to the complete exclusion of its own interests, and that is not the case here. [42, 43]

Consequently, the majority held that Jaken was not in a fiduciary relationship with JPK and owed no fiduciary duties to it.

4. Reasons of the Minority

Gordon, Edelman, and Steward JJ, constituted the minority. The minority took the view that the successor trustee is under an obligation not to destroy, diminish or jeopardize the former trustee’s entitlement to be indemnified from the trust estate. The relationship between the two ‘is one by which the successor trustee assumes a responsibility to the former trustee as would reasonably entitle the former trustee to expect that that the successor trustee will act in relation to the trust assets in the interests of the former trustee to the exclusion of its own or a third party’s interest’. Thus, it is a relationship that attracts the duty of loyalty or the conflict principle that ‘is the irreducible core of the fiduciary obligation’ [54]

The minority relied on the unchallenged findings of the primary judge, inter alia, that the successor trustee defrauded creditors of the trust, including the former trustee, by transferring trust assets to others, which assets might otherwise be available to satisfy the former trustee’s right to indemnity. [56, 62]

The minority made the following observation about the relationship between the parties:

In this appeal, it is sufficient to say that a person will be in a fiduciary relationship with another when and insofar as that person has undertaken loyalty in the sense of undertaking to perform a function for, or has assumed such a responsibility to, another as would thereby reasonably entitle that other to expect that they will act in that other’s interest to the exclusion of their own or a third party’s interest. [77]

and

The relationships that are, without more, generally recognized as fiduciary are therefore those where an undertaking of loyalty is “inherent in the position” of the fiduciary. [78]

The minority then lists a number of clearly recognized fiduciary relationships. But with respect, even though it is recognized that the categories of fiduciary relationship are not closed, it is a significant, and in my view an unwarranted leap to treat a successor trustee as a fiduciary toward a prior trustee. The danger in doing so is that if opens the floodgates and potentially makes all kinds of relationships into fiduciary ones. Canadian courts have, with reason in my opinion, been criticized in the past (often by Australian judges and lawyers) for doing exactly that,^[10] and in my view the approach of the minority does so as well. By treating a successor trustee as a fiduciary is to cast upon it the well-known duties not to profit from the position and to avoid conflict between their duties and their own interests. In my opinion it is illegitimate to do that merely for the reasons adduced by the minority.

The minority is correct to say the description of the right of indemnity as a security interest in the nature of a lien or an equitable charge is inaccurate because a successor trustee does not owe a debt to a former trustee. The minority is also correct in stating that it is a fundamental error to treat a trust as a legal person that has the capacity to owe debts. [88] A trust is not a person and therefore cannot owe debts. Nor, for that matter, can it own any assets. Only the trustee can incur debts and hold title to assets.

The minority then goes on to equate the proprietary interest of a former trustee with that of the beneficiaries of the trust. [90] Yes, both have a beneficial interest in the trust assets but, as explained by the majority, the interests are different. The interest of a trustee to be indemnified (a proprietary interest) is directed against the trust property, and a court can enforce it by ordering a sale of the property and directing payment of the amount owed out of the proceeds. However, the rights of beneficiaries are not against the property but against the trustee. [19]

The minority is right to say that the issue in the case must be decided ‘by recognizing, first, that the former trustee in this case had an existing right of exoneration out of the trust property (not merely a contingent right) which gave rise to equitable proprietary rights in relation to the trust estate and, second, that the successor trustee was bound to prioritise that right over the claims of the beneficiaries of the trust. But in my opinion, while the successor trustee is in a fiduciary relationship with the beneficiaries of the trust, it does not follow that it is ‘also in a fiduciary relationship with a former trustee where the circumstances make apparent that the former trustee has a right of exoneration from the trust assets’. [94] And therefore, I believe that the ratio adduced by the minority, ‘where a person has undertaken to perform a function for, or has assumed a responsibility to, another as would thereby reasonably entitle that other to expect that they will act in that other’s interest to the exclusion of their own or a third person’s interest, such a relationship may be fiduciary’, is incorrect. So is the conclusion the minority draws that ‘the nature and contents of the rights [of beneficiaries and of former trustees as regards their right to be indemnified] in substance are the same’. [95] The majority has adequately refuted that opinion in my view.



I do want to underline that the minority does recognize that the fiduciary obligation it promotes arises only if the successor trustee acts intentionally so as to defeat the interest of the former trustee in the trust property. It should not arise if the prejudice to the former trustee’s interest is caused accidentally. [98, 101]

--

[1] [2022] UKPC 36, [2023] AC 877. See “Trustee’s Right of Indemnity” https://welpartners.com/blog/2022/12/trustees-right-of-indemnity/, posted 1 December 2022.

[2] [2025] HCA 1. I am indebted to Joel Nitikman for drawing my attention to this case.

[3] See Jaken Properties Australia Pty Ltd v Naaman [2022] NSWSC 517. By the way, ‘Pty’ is an abbreviation of ‘Proprietary’. It is used in Australia, South Africa, and New Zealand to indicate that the corporation is a private corporation.

[4] Jaken Properties Australia Pty Ltd v Naaman (2023) 112 NSWWLR 318.

[5] (2000) 202 CLR 588.

[6] The Privy Council disapproved of these terms in Halabi, footnote 1 supra and preferred the simple term ‘proprietary interest’ instead.

[7] Ibid.

[8] Maguire v Makaronis (1997) 188 CLR 449 at 474.

[9] Footnote 4, supra, p 331.

[10] For examples see Oosterhoff on Trusts, 10th ed by Albert H Oosterhoff, Robert Chambers, and Mitchell McInnes (Toronto: Thomson Reuters, 2024) §3.3.

By Oliver O'Brien

In Ontario, when a party seeks an order for the production of medical records belonging to an incapable person, the Superior Court of Justice will apply Rule 75 of the Rules of Civil Procedure (the “Rules”),^[1] and the ‘minimal evidentiary threshold’.

The ‘Minimal Evidentiary Threshold’

The minimal evidentiary threshold primarily applies to a party challenging the validity of a testamentary instrument under Rule 75.01 of the Rules, which states:

Formal Proof of Testamentary Instrument

75.01 An estate trustee or any person appearing to have a financial interest in an estate may make an application under rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs. 

Rule 75.06(1) of the Rules states:

Application or Motion for Directions

75.06 (1) Any person who appears to have a financial interest in an estate may apply for directions or move for directions in another proceeding under this rule, as to the procedure for bringing any matter before the court. 

In Neuberger v. York, (“Neuberger”),^[2] the Ontario Court of Appeal provided guidance on how the court is to exercise their role under Rule 75:

An interested person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. In the absence of some minimal evidentiary threshold, estates would necessarily be exposed to needless expense and litigation. In the case of small estates, this could conceivably deplete the estate. Furthermore, it would be unfair to require an estate trustee to defend a testamentary instrument simply because a disgruntled relative or other potential beneficiary makes a request for proof in solemn form.^[3]

In Neuberger, the Ontario Court of Appeal continued by stating that an interested person must “adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded”.^[4] Moreover, the minimal evidentiary threshold is a matter of judicial discretion and the court has a discretion whether to order that a testamentary instrument be proved as well as a discretion over the manner in which the instrument is proved.

In Seepa v. Seepa,^[5] Justice Myers of the Ontario Superior Court of Justice further elucidated the meaning of the minimal evidentiary threshold:

At [the] preliminary stage, the issue is not whether the applicant has proven his or her case but whether he or she ought to be given tools, such as documentary discovery, that are ordinarily available to a litigant before he or she is subjected to a requirement to put a best foot forward on the merits.^[6]

Moreover, Justice Myers stated that “the court ought to measure the evidence adduced by the applicant challenger against the evidence answered by the proponent of the Will and assess what, if any, processes are required to resolve any conflicts that the court cannot fairly resolve on the record before it”.^[7] In so doing, the court must fashion a process which provides fair and just resolution, and that meets the goals of efficiency, affordability and proportionality.

Applicability in Power of Attorney disputes

In Botelho v. Faulkner (“Botelho”),^[8] an application was brought under the Substitute Decisions Act (“SDA”),^[9] seeking, amongst other things, the production of medical records belonging to an incapable person. Justice Fowler Byrne applied Rule 75.06 of the Rules and the minimal evidentiary threshold in granting an order for the production of the medical records sought.

In doing so, Justice Fowler Byrne found that the applicants’ affidavit evidence, which highlighted the grantor’s susceptibility to undue influence and diminished capacity, was sufficient to meet the “low” minimal evidentiary threshold.^[10]

In McCormick v. McCormick,^[11] Justice Wilcox cited the decision in Botelho, but was skeptical of whether the minimal evidentiary threshold applied to proceedings under the SDA. Notwithstanding, Justice Wilcox held that if the threshold were to apply, it was met, stating:

[26] If the minimum evidentiary threshold test does apply in the present case, I find that it has been met. It appears not to be a very high bar, which is fitting at a preliminary stage before all of the information becomes available. In Neuberger, as mentioned above, the court indicated that the applicant need only adduce or point to evidence that calls into question the validity of the instrument which the propounder does not successfully answer. In the present case, there are conflicting affidavits regarding the validity of the 2019 Powers of Attorney. Without more, the court would be unable to resolve the differences on a motion.^[12] [emphasis added]

More recently in Vrantsidis v. Vrantsidis,^[13] the Ontario Superior Court of Justice applied the minimal evidentiary threshold in an application seeking directions on the validity of a Power of Attorney document. The court stated:

[59] In Seepa v. Seepa, 2017 ONSC 5368, at para. 49, Myers J. stated: “The court should be very reluctant to consign estates and beneficiaries to intrusive, expansive, expensive, slow, standard form fishing expeditions that do not seem to be planned to achieve the goals of civil justice for the parties.”

[60] In my view, the same principle ought to apply to disputes regarding powers of attorney. Bill and Mary submit that it is not proportional, efficient or cost effective, and it would not be in Mrs. Vrantsidis’ best interest to permit John to pursue John’s Application for directions given the weakness of his evidence. Bill and Mary seek an order that John’s Application be dismissed as having no merit.^[14]

Concluding Comments

Where there is a lack of medical, solicitor or financial evidence to corroborate a challenge to a Will or testamentary instrument, documentary disclosure may be permitted if the challenger provides sufficient evidence to a court to meet the minimal evidentiary threshold. Recent case law in Ontario has demonstrated that this evidentiary threshold extends to Power of Attorney disputes. The difficulty in the result of these decisions is that only the estate trustee, or attorney in this case, has access to, or the ability to gain access to evidence and those challenging Wills and POAS do not, and so the only manner in which to gain the access is through disclosure and productions lest the actions of the surreptitious remain unchecked.

--

[1] Rules of Civil Procedure, RRO 1990, Reg 194.

[2] Neuberger v. York, 2016 ONCA 191 (CanLII) (“Neuberger”).

[3] Neuberger at para 88 [emphasis added].

[4] Neuberger at para 89.

[5] Seepa v. Seepa, 2017 ONSC 5368 (CanLII) (“Seepa”).

[6] Seepa at para 35 [emphasis added].

[7] Seepa at para 39.

[8] Botelho v. Faulkner, 2020 ONSC 6471 (CanLII) (“Botelho”).

[9] Substitute Decisions Act, 1992, S.O. 1992, c. 30.

[10] Botelho at para 25 and para 26.

[11] McCormick v. McCormick, 2021 ONSC 5177 (CanLII) (“McCormick”).

[12] McCormick at para 26.

[13] Vrantsidis v. Vrantsidis, 2023 ONSC 321 (CanLII) (“Vrantsidis”).

[14] Vrantsidis at para 59 and para 60 [emphasis added].

By Chhavi Monga

Introduction

R. v. Lasaga, [2005] N.J. O. 398 (PC), illustrates how Canadian courts apply sentencing principles in cases involving violent offences against elderly individuals. The decision highlights the consideration given to factors such as the victim’s vulnerability, the deliberate planning behind the crime, and the court’s emphasis on deterrence when determining an appropriate sentence.

Facts of the Case

In the case of R. v. Lasaga (2005), Jerome Alfred Lasaga pled guilty to robbery and unlawful entry into the home of Mr. Ted Kennedy, an elderly man living alone in Lark Harbour, Newfoundland and Labrador.^[1] The incident occurred on July 27, 2005, when Mr. Lasaga and his accomplice, Timothy Sheppard, carried out a premeditated plan to rob Mr. Kennedy, who was believed to have recently received a substantial sum of cash. During the course of the robbery, Mr. Lasaga was masked and armed and violently assaulted Mr. Kennedy, who was already in a vulnerable state due to recovering from a stroke. The assault rendered Mr. Kennedy injured and unconscious, and the perpetrators stole $1,600 from his home.^[2]

The Law

The court applied several sections of the Criminal Code to this case. Mr. Lasaga was charged under sections 344(b) and 349(1), which pertain to robbery and unlawful entry with intent to commit an indictable offence, respectively.^[3] Section 344(b)^[4] addressing the robbery as an indictable offence punishable by life imprisonment in certain cases, emphasizing the gravity of the crime.^[5] Section 349(1)^[6] addressing the unlawful entry into a dwelling with intent to commit an indictable offence, carrying a maximum penalty of ten years.^[7]

The court referenced several significant cases to support the sentencing decision. In R. v. Matwiy^[8], the Alberta Court of Appeal emphasized that home invasion robberies merit a higher starting point for sentencing due to their impact on the victims' sense of security^[9]. Similarly, in R. v. Fraser^[10], the Nova Scotia Court of Appeal highlighted the increasing targeting of elderly individuals in rural areas and the necessity for severe penalties to deter such crimes.^[11] These cases, among others, illustrate the judiciary's recognition of the unique vulnerabilities of elderly victims and the corresponding need for stringent legal responses.

Decision

Justice Gorman sentenced Mr. Lasaga to eight years of incarceration, reflecting the seriousness of the offences and the need for a denunciatory element in the sentence.^[12] The court considered the planned nature of the crime, the vulnerability of the victim, and the violent assault as aggravating factors.^[13] The sentencing also took into account Mr. Lasaga's personal circumstances, including his difficult childhood and addiction issues, but ultimately prioritized the protection of the elderly and the need for a strong deterrent message.^[14]

Concluding Comments

R v Lasaga underscores the critical role of the criminal justice system in safeguarding vulnerable members of society, particularly the elderly, from violent and targeted offences. The case highlights the importance of applying legal provisions in a manner that reflects the profound impact such crimes have on victims. By emphasizing deterrence and denunciation, the court affirmed its commitment to protecting the safety and dignity of older adults, reinforcing public confidence in the justice system’s ability to respond effectively to crimes against vulnerable populations.

---

[1] R v Lasaga 2005, para 1

[2] Ibid, at para 5

[3] Ibid, at para 1

[4] Criminal Code RSC, 1985, c C-46, s 344

[5] Supra Note 1, para 11

[6] Criminal Code RSC, 1985, c C-46, s 349(1)

[7] Supra Note 1, para 11

[8] R v Matwiy (S.B.) and Langston (J.D.), (1996) 178 AR 356 (CA)

[9] Supra Note 1, para 48

[10] R v Fraser (S.A.), (1997) 158 NSR(2d) 163 (CA)

[11] Supra Note 1, para 49

[12] Supra Note 1, para 53

[13] Supra Note 1, paras 9 - 12

[14] Supra Note 1, paras 14 - 15

Osgoode Powers of Attorney and Guardianship

April 30, 2025

Speaking: Kimberly Whaley & Bryan Gilmartin

https://osgoodepd.ca/professional-development/short-courses-and-conferences/powers-of-attorney-and-guardianship-non-contentious-and-contentious-matters-2025/

Cambridge Forum: Estate Planning & Litigation

April 27 – 29, 2025

https://www.cambridgeforums.com/forums/eplf/

Canadian Lawyer Webinar

The Law of Joint Ownership: Navigating Key Legal Developments

May 13, 2025

Speaking: Kimberly Whaley, Ian Hull, Bryan Gilmartin & Suzana Popovic-Montag

https://us02web.zoom.us/webinar/register/7317435219160/WN_3CWLGp1LRjyCID7TScAblw#/registration

TIAETL – Greece

May 18 - 22, 2025

Annual Academician AGM & Conference, Kimberly Whaley

https://tiaetl.org

STEP National Conference

Mental Health and How It Impacts Estate Planning and Administration

June 16 - 17, 2025

Speaking: Kimberly Whaley, Rhonda Johnson and William Dion Bernard

https://web.cvent.com/event/e0091d99-becb-49bd-9170-5ced75f9ac08/summary

Ontario Bar Association Elder Law Day

Loneliness, Vulnerability and the Law

June 19, 2025

Speaking: Kimberly Whaley

https://www.cbapd.org/details_en.aspx?id=ON_ON25ELD05C

University of Toronto: Medical Experts Course

The Role of the Medical Expert in Estate Litigation

September 11-12, 2025

TBD

Rising Incidence of Elder Abuse and Financial Exploitation: The Story of Anita George and Ian Percival

Articling Weekly No.9: Who Might Inherit Gene Hackman’s Estate?

Court Dismisses Will Challenge Due to Applicant’s Failure to Follow Court Orders

Wendy Williams, Her Guardian, and the Age of the Celebrity Conservatorship

Renunciation vs. Resignation of an Estate Trustee: An Important Distinction

Case Review: Hockney v. Kneeland

May a Surety Demand Collateral Pursuant to an Indemnity Agreement?

Deadlocked Estate Administration

Validity of Disputed Designated Beneficiary Form

Check out our recent Feature Series which are posted on our Blog:

1 WEL PARTNERS - SENIORS’ SERIES

2 WEL PARTNERS ON POWERS OF ATTORNEY: POA Weekly

3 WEL PARTNERS ON GUARDIANSHIP: Guardianship Weekly

4 WEL PARTNERS – DIGITIZING THE BUSINESS OF WILLS

5 WEL PARTNERS – ELDER LAW SERIES

6 WEL PARTNERS ON SOLICITOR'S NEGLIGENCE

7 WHAT REMAINS by Bryan Gilmartin

8 USING ENGLISH PROPERLY by Albert H. Oosterhoff

9 WEL ON CHARITIES SERIES by Oliver O'Brien

10 ARTICLING WEEKLY by Chhavi Monga

Do you follow us on social media? Do you subscribe to our blog?  We invite our subscribers to read our blog on-line or via a feed reader using our blog's RSS feed and to follow us on social media.

Newsletter Archive

Access past editions of the WEL Newsletter:  WEL Newsletter Archive

WEL Blog

Follow the WEL Blog:  https://welpartners.com/blog/

WEL Blog RSS Feed:  https://welpartners.com/blog/feed/

Online Connections          

Twitter: https://twitter.com/WELPartners

LinkedIn:  https://www.linkedin.com/company/whaley-estate-litigation/

Instagram:  https://www.instagram.com/whaleyestatelitigation/

Sign Up for Our Newsletter

If you're not already receiving our Newsletter and would like to click here to subscribe

WEL Directory

Link to the WEL Firm Directory