WEL NEWSLETTER October 2020, Vol. 10, No. 7

So Halloween has always been a favourite for me. For as long as I can remember, I have gone full out on the indoor & outdoor decorations, the costumes, the organized nights of haunted fun with close friends. A meal, trick or treating with the kids, the little one’s at the door- all so fun. When I lived in England, friends celebrated Guy Fawkes Night, also known as Bonfire Night. Halloween was not so much of a thing and I missed it during my 10 years in the U.K. This year, I could decorate, but somehow, I am not feeling it. I feel I should rise above the pandemic blues and decorate, but instead, this year WEL are doing Halloween by what else, but ZOOM. No surprise right? Everything is by Zoom. Whatever you are doing, wherever you are, whoever you are with-Happy Halloween, and here’s hoping there will be many more Halloween celebrations without Zoom!

Stay Safe and Keep Well, 

Albert Oosterhoff, Kimberly Whaley, and John Poyser were included in the Best Lawyers, fifth annual Global Business Edition, published on October 2, 2020. The publication highlights more than 40,000 lawyers recognized by Best Lawyers for their top legal talent from 28 countries worldwide.

Complete Issue: www.bestlawyers.com
Section 1 of The Ontario Regulation 458/20, which allows virtual witnessing in counterpart for the execution and witnessing of Wills and Powers of Attorney, extended to October 22, 2020, is now further extended to November 21, 2020.

For more information, please visit: https://www.ontario.ca/laws/regulation/R20589
Kimberly Whaley was pleased to present at a program chaired by Jessica Lyle, of Touchstone Legal Inc., together with colleagues, Erin Brook, and Dale Hensley, on Capacity to Marry.

CBA Program:

View Kim's presentation:
Kimberly Whaley was pleased to present at a program chaired by Jessica Lyle, Kimberly Whaley and Ian Hull presented at the 23rd Estates & Trusts Summit on October 8, 2020, participating in a panel discussion with Dora Charalambous, former Toronto Registrar and Supervisor, Court Operations, where the discussion was focused on preventable errors in probate applications. Kimberly and Ian, with the assistance of Dora and colleagues prepared Checklists for an Application for a Certificate of Appointment of Estate Trustee with a Will, and without a Will. The checklists can be accessed on our website:

Professor Albert Oosterhoff was pleased to be invited as a guest lecturer at York University, Osgoode Hall Law School by Dr. Susan Drummond. Albert presented on the topic, the Distinct Roles of Courts of Probate and Construction.
WEL PARTNERS, in collaboration with Mark McCabe, of Toronto Police Services, Vulnerable Persons Unit, and Dr. Kenneth Shulman of Sunnybrook Health Sciences Centre and Laroux Peoples, presented at the fall education conference on Elder Abuse, Capacity, Capacity Proceedings, Will Challenges, Dependant’s Support & Family Law Act Elections, Powers of Attorney and Related Disputes, Guardianship, Drafting Considerations, and Fiduciary Accounting and Compensation.

Link to GTAAN presentation:

Notably, Melanie Russell (Kalex Valuations Inc.), on behalf of GTAAN made generous charitable donations in our names (in thanks for our time) to the SECOND CHANCE SCHOLARSHIP FOUNDATION INC.
Kimberly Whaley was a panelist, together with Kim Gale of Gale Law, Elena Mamay of Borden Ladner Gervais, and Charles Ticker of Charles Ticker Law Office, in a program chaired by Krista Simon, Partner of Hammerberg Lawyers, on the topic of Litigation, Regulation and Estate Planning.

Professor Albert Oosterhoff was interviewed on the topic of the Distinct Roles of Courts of Probate and Construction by lawyer, Avi Charney, Charney Legal, whose practice includes Estate Planning, Estate Administration, Real Estate and Business Law.

About Avi Charney: https://charneylegal.ca/who/

Access Podcast:
Kimberly Whaley and Alex Procope, partner at Perez Bryan Procope, LLP, Co-chaired the OBA program, Your Comprehensive Guide to Section 3 Counsel under the Substitute Decisions Act.

OBA Program:

Kim’s Materials:

Alex Procope co-chair has graciously provided his permission to link his accomplished paper: “The Ongoing History of Section 3 Counsel: Origins of the Role and a Path Forward.”
Kimberly Whaley’s article: Kumra v. Kumra: Was the Guardian of Property Bound by Previously Executed Minutes of Settlement,” was published in STEP Connection, September 2020, Vol. 8, No.1.

OCTOBER 28, 2020
Kimberly Whaley and Laura Tamblyn Watts were invited by the 33rd President of NAELA, Ms. Wendy Shparago Cappelletto, Attorney, Office of the Public Guardian of Cook County, to participate in the NAELA International Committee Conversation Series, on October 28, 2020. 

Kimberly addressed how Canada is handling the pandemic and more specifically, how it has impacted the clients we serve.
We are pleased to share with you our Elder Law Video. Please feel free to share it with your colleagues.

This video is LSO accredited and contains 15 minutes of Professionalism Content, eligible for up to 0.75 Substantive Hours

The video is an overview of our recently released book, Whaley Estate Litigation Partners on Elder Law which is available for PDF download: http://welpartners.com/resources/WEL-on-elder-law.pdf 
We would be happy to send you a hard copy of our book if you wish (while supplies last). Please contact Blossom Pangowish, blossom@welpartners.com to make arrangements. 

Visit our website at https://welpartners.com/resources/publications to view our other published books.
STEP Canada
WEL PARTNERS congratulates Leanne Kaufman, President and CEO of RBC Royal Trust, who was nominated as the Canadian Representative to STEP Worldwide Council.

WEL PARTNERS extends its congratulations to Malcolm Mercer on his appointment as Chair of the Law Society Tribunal.

WEL PARTNERS would like to congratulate Teresa Donnelly on being elected to the position of Treasurer of the Law Society of Ontario

WEL PARTNERS congratulates Sana Halwani and Shara Roy on their initiatives in developing a platform for women professionals. I was invited by Anne Posno, partner also at Lenczner Slaght.

ReferToHer™ was initially launched as a litigation referral network in June 2019. Sana Halwani and Shara Roy, both partners with the litigation law firm, Lenczner Slaght, recognized a need for a female focused referral list to drive more business to experienced women in law. In January 2020, McCarthy Tétrault, together with Lenczner Slaght, developed the first Corporate ReferToHer™ list of its kind.

On October 21, 2020, more than 130 of Canada’s top female litigators and corporate lawyers, all members of the list, joined a Zoom call for the first “in person” ReferToHer event. Kimberly Whaley the Founding Partner of WEL Partners, and a member of this referral network, participated in the zoom call and the ensuing discussions.

New candidates must be nominated by someone already on the list. If you are already on the list and wish to nominate and endorse someone, visit Get Her on the List. The person being nominated must be a partner, senior counsel or a sole practitioner practicing in Canada, she must be a litigator or corporate lawyer, and must identify as female.

For more information on this initiative and how it works, please visit https://refertoher.com/en/ 
(i) The UTRA: Protecting Society’s Vulnerable from “Unconscionable Transactions”
By Daniel Paperny

Here’s a Halloween-themed fact pattern for you: say a horde of trick-or-treaters arrive at your front door demanding candy (obviously, this imaginary scene takes place during some normal year, not 2020). You agree to provide one “fun size” bar to each child, but only on the condition that each recipient agrees to re-pay you with a “King Size” bar on the first day of every month, in perpetuity (muahaha). The children, in their sugar-induced delirium, agree to your terms. They sign on the dotted line, leave with their tiny bits of candy and you look forward to your lifetime supply of huge chocolate bars. You have yourself a sweet deal, right? Well, the Unconscionable Transactions Relief Act might have something to say about that …

What happens when unfair financial transactions are procured as a result of a “power imbalance, “or due to one party’s weakness relative to the other, stronger, party?

As capacity and estate litigators, we are always looking for tools that can be used to address and remedy instances where a vulnerable person has been taken advantage of by an unscrupulous third-party who has exploited the vulnerable individual’s frailty and the power imbalance that exists between the contracting parties.

Whether due to a person’s advanced age, diminished cognition or other impairment, it is all too common for said person to be exploited financially by those looking to take advantage of their vulnerability (this is becoming even more commonplace as our general population continues to age).

Tragically, such instances of financial exploitation are most often perpetrated by those who the vulnerable person relies upon for personal or financial care: such as their attorneys under POA documents, guardians, financial advisors, close friends or family.

Fortunately, when such unconscionable transactions are discovered, there are remedies available at law which can be used to right the wrong. 

Equitable legal principles, such as undue influence, economic duress or unconscionable procurement, can be applied in the context of civil legal proceedings to unwind, set aside or render voidable improper transactions, and hold the perpetrator accountable.

Also, there are provisions available under the Criminal Code[1] (such as s. 331 ‘theft by a person holding a power of attorney’; s.386 ‘fraud’; s. 346 ‘extortion’, etc.) that can be pursued in circumstances that warrant criminal proceedings.

In addition, an underutilized statute, the Unconscionable Transactions Relief Act, RSO, 1990, c. U.2 (“UTRA”) can be used to set aside or vary “unconscionable” transactions that have been procured in circumstances of unequal bargaining power and where one party has taken unfair advantage of this imbalance.

Specifically, the UTRA applies to loans, gifts or mortgages, and permits a court to cancel or revise such transactions, when it considers the terms of the agreement or the circumstances surrounding the transaction to be “harsh and unconscionable”.

Section 2 of the UTRA provides that:

The court may,
2      Where, in respect of money lent, the court finds that, having regard to the risk and to all the circumstances, the cost of the loan is excessive and that the transaction is harsh and unconscionable, the court may,

reopen transaction and take account
(a) reopen the transaction and take an account between the creditor and the debtor;

reopen former settlements
(b) despite any statement or settlement of account or any agreement purporting to close previous dealings and create a new obligation, reopen any account already taken and relieve the debtor from payment of any sum in excess of the sum adjudged by the court to be fairly due in respect of the principal and the cost of the loan;

order repayment of excess
(c) order the creditor to repay any such excess if the same has been paid or allowed on account by the debtor;

set aside or revise contract
(d) set aside either wholly or in part or revise or alter any security given or agreement made in respect of the money lent, and, if the creditor has parted with the security, order the creditor to indemnify the debtor. R.S.O. 1990, c. U.2, s. 2.

Courts, in discussing the UTRA and the judicial discretion to set aside unconscionable deals, have noted that it is not necessarily the financial terms of the impugned transaction that render it “unconscionable”, but rather it is the totality of circumstances that gave rise to the transaction that a court is interested in. Including the vulnerability of one party or unequal bargaining power that may have existed between the parties, and whether that imbalance was exploited in striking the deal.

Justice Judson for the Supreme Court of Canada in Ontario (Attorney General) v. Barfried Enterprises Ltd., 1963 CanLII 15 (SCC) (“Barfried”), notes that the purpose of the UTRA is to relieve a party from their obligations under a contract in instances where there has been an imbalance in bargaining power between the contracting parties, such that one party is deemed not to have actually given their free and valid informed consent to the contract. Read this way, the statutory relief available under the UTRA can actually be interpreted as an extension of the civil doctrine of undue influence. 

The following is an excerpt from the SCC’s Barfried decision regarding the UTRA.

The wording of the statute indicates that it is not the rate or amount of interest which is the concern of the legislation but whether the transaction as a whole is one which it would be proper to maintain as having been freely consented to by the debtor. If one looks at it from the point of view of English law it might be classified as an extension of the doctrine of undue influence … The theory of the legislation is that the Court is enabled to relieve a debtor, at least in part, of the obligations of a contract to which in all the circumstances of the case he cannot be said to have given a free and valid consent.[2]

The Ontario Superior Court in Smith v Pluim, 2015 ONSC 7945, cited the Barfried decision, and noted that the purpose of the UTRA is to provide courts with the power to “relieve a party to a contract from his [or her] obligation where the contract was made absent his [or her] informed consent or in circumstances of unequal bargaining power.”[3]

The Court in Smith goes on to rule that, in assessing whether an impugned transaction is “harsh and unconscionable” to the extent that a court should exercise its discretion under the UTRA to annul or vary the contract, “it must be established that either the terms are very unfair or that the consideration is grossly inadequate, or that there was an inequality of bargaining power between the parties and that one of the parties took advantage of this.” [emphasis added][4]

While the UTRA has not been used extensively, it is clear from the wording of the statute and its judicial treatment that it can be applied to set aside unfair deals, in circumstances where a vulnerable, compromised or unsophisticated individual has entered into an unfair agreement, in which the other party has taken advantage of the power imbalance between the respective parties.

In these circumstances, a court applying the UTRA could rule that the “weaker” party was at such a disadvantage, and the terms of the deal were so harsh, that the vulnerable party did not actually give their free and informed consent to the contract (similar to the rationale behind the doctrine of undue influence) and therefore the transaction should be set aside or varied in favour of the vulnerable party.

This is a potentially valuable legislative tool for individuals who have been taken advantage of, or exploited, in the context of a transaction. 

Perhaps the UTRA will be considered more often in the future and put to use as a means to protect society’s vulnerable from unconscionable agreements – including cruel candy contracts.  Happy Halloween!

[1] Criminal Code (R.S.C., 1985, c. C-46) 
[2] Barfried at pg. 577
[3] Smith at para. 17
[4] Smith at para. 21
(ii) Halloween Remedies for Ghosts, Vampires and Vexatious Litigants: Fleischhaker v Fleischhaker
Fleischhaker v Fleischhaker: 2020 ONSC 6373, http://canlii.ca/t/jb5zl

By Matthew Rendely

If you are a fan of Halloween, you are most likely a fan of Halloween movies. From Ghostbusters to Beetlejuice to Dracula, Halloween movies can be scary and informative. For instance, Ghostbusters taught us how to save Time Square from paranormal activity. Similarly, to stop a vampire in its tracks, Halloween movies have taught us that all you need to do is string together a stinky necklace made of garlic. What Halloween movies have failed to teach us, however, is how to stop perhaps the scariest offender of them all: the vexatious litigant.

Luckily for you readers, Ryan Bell J.’s decision in Fleischhaker v Fleischhaker[1], came out just in time for Halloween. Although reading this decision may not be as fun as watching Gene Wilder in Mel Brooks’ Young Frankenstein, the decision offers a helpful summary of the law on declaring a party as a vexatious litigant.


The Respondent, Kevin David Fleischhaker (“Kevin”), is the son of the Applicant, David Allan Fleischhaker (“David”), and a brother of the other Applicant, Brian Fleischhaker (“Brian”). Kevin has a schizophrenia diagnosis. He was involuntarily hospitalized in 2010 and 2015. In 2015, Brian was named as Kevin’s representative to consent to or refuse treatment on his behalf under the Health Care Consent Act, 1996. There were a number of hearings before the Consent and Capacity Board.

Since 2015, Kevin has commenced five separate actions in the Small Claims Court against Brian, David, and his former psychiatrist. All of Kevin’s claims have been dismissed. Kevin then made complaints about the deputy judges who dismissed his actions in the Small Claims Court. Kevin also initiated complaints to the Law Society of Ontario concerning Brian and David’s lawyers.

Brian and David attributed Kevin’s actions to his schizophrenia. They maintained that Kevin was abusing the court system and using it to threaten and intimidate those trying to render assistance to him. Brian and David argued that they were concerned that unless Kevin was declared a vexatious litigant, he would continue to pursue them in the courts by initiating wholly unmeritorious proceedings.

Kevin argued that his litigation history did not merit a vexatious litigant declaration, as he suggested that he yielded mixed results and only filed a small number of claims.  

Legal Principles: Vexatious Litigation Applications
Section 140(1) of the Courts of Justice Act directs that where a Judge of the Superior Court of Justice is satisfied that a person has “persistently and without reasonable grounds” instituted vexatious proceedings in any court, or conducted a proceeding in any court in a vexatious manner, the Judge may order that no further proceeding be instituted by the person in any court, or a proceeding previously commenced not be continued, except by leave of a Judge of the Superior Court of Justice.

In Peoples Trust Company v Atlas[2], Corbet J. stated that section 140(1) of the Courts of Justice Act embodies a three-part test:

i) Has the impugned activity been persistent?
ii) Has the impugned activity been “without reasonable grounds”? and
iii) Has the impugned conduct been “vexatious”?

The characteristics of a vexatious proceeding were summarized by Henry J. in Lang Michener v Fabian[3]:

a. The bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;

b. Where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

c. Vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

d. It is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

e. In determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;

f. The failure of the person instituting the proceeding to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and

g. The Respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

The standard for determining whether a proceeding is vexatious is objective.[4]

Lastly, Ryan Bell J. explained that it is not a specific number of claims per year that will determine whether a vexatious litigant finding is warranted. Instead, “the respondent’s conduct as a litigant is in issue, and that includes their conduct in litigation, in administrative proceedings (including complaints to professional regulators), and in related extra-litigation conduct, such as harassment and incivility.”[5]

Ryan Bell J. determined that a vexatious litigant declaration was warranted to protect not only Brian and David, but also the integrity of the judicial system.


Section 140(1) of the Courts of Justice Act is a powerful tool which Judge’s will use to protect the integrity of the judicial system.[6] Once found to be a vexatious litigant, a party is prohibited from instituting a proceeding, directly or indirectly, in any court in Ontario unless and until he or she has obtained leave. While a person’s access to justice is a fundamental right, the court must be diligent to ensure that its processes are not abused by any particular litigant to the detriment of, not only those directly involved in the litigation, but also the system at large.[7]

[1] 2020 ONSC 6373 (“Fleischhaker”)
[2]  2018 ONSC 58, at para 34
[3] (1987), 1987 CanLII 172 (ON SC)
[4] Supra note 2 at para 40
[5] Supra note 1 at para 25
[6] Dale Streiman & Kurz, 2007 CanLII 1902 (ON SC), at para 7
[7] P.R. v K.R., 2005 CanLII 44186 (ON SC), at para 1
(iii) Be Aware - "Continued and Persistent Lack of Self-Awareness" Results in Cost Consequences: Cardinal v. Perreault
Cardinal v. Perreault, 2020 ONSC 4825 - http://canlii.ca/t/j95r9  

By Bryan Gilmartin

The case of Cardinal v. Perreault,[1] involved the issue of costs in two court applications pertaining to the estate of Joseph Edmond Beaulieu (the "Estate"). The first was an application for advice and directions commenced by Roger Cardinal ("Mr. Cardinal") in his capacity as a testamentary trustee. The second was an application to pass accounts commenced by Ginette Perreault ("Ms. Perreault") in her capacity as estate trustee of the Estate as well as in her capacity as attorney for property of Joseph Edmond Beaulieu (the "Deceased").

Mr. Cardinal's application resulted in several orders directed at Ms. Perreault including an order that she commence the application to pass accounts. Ms. Perreault consented to the court order and costs were reserved to the judge who would hear the application for the passing of accounts.

Following the adjudication of Ms. Perreault's application, Mr. Cardinal sought costs of $89,683.60 on a full indemnity basis to be paid by Ms. Perreault personally or from the assets of the Estate. He did so on the basis that Ms. Perreault initially refused Mr. Cardinal's reasonable requests for an accounting. As such, he argued that he ought not to have been required to bring his application on the basis that Ms. Perreault should have been willing to provide him with the disclosure sought.

Ms. Perreault also sought costs on a full indemnity basis to be paid by Mr. Cardinal personally or from the assets of the Estate. In doing so, Ms. Perreault directed the court to instances of Mr. Cardinal's misconduct. Particularly, she cited instances where Mr. Cardinal pronounced challenges of her conduct. Furthermore, Ms. Perreault noted that Mr. Cardinal insisted that the application proceed in French although Mr. Cardinal and his counsel were fully bilingual, which increased her costs substantially.


Writing for the Superior Court of Justice, Justice Tzimas refused to order that costs come out of the Estate on the basis that it was a modest estate and that it would be unfair to deplete it. Rather, citing a persistent 'lack of self-awareness' on the part of Mr. Cardinal and Ms. Perreault, Justice Tzimas Ordered costs personally against both parties.

In her reasons, Justice Tzimas noted that Ms. Perreault's initial resistance to Mr. Cardinal's reasonable requests for an accounting demonstrated a lack of understanding about her obligations as an estate trustee. However, this finding did not "diminish the fact that at some point in the court of litigation, Mr. Cardinal lost perspective and credibility".[2]

As the hearing progressed, the inquiry on whether Mrs. Perreault's expenses were reasonable and consistent with her fiduciary obligations as estate trustee and as attorney for Mr. Beaulieu was overtaken by the challenges to her personal integrity. That shift was an afront to the various thankless tasks that both Mrs. Perreault and her husband undertook to care for Mr. Beaulieu, while he was still alive, and then to manage his estate after he died. Mrs. Perreault was simple-minded in the way she approached her obligations but there was no foundation to the allegations that she acted in bad faith or that she misappropriated any funds.[3]

Mr. Cardinal made efforts to attack Ms. Perreault's integrity and personal dignity. These included allegations of bad faith and misappropriation of Estate funds. This was qualified as an "unfortunate attack".

Though Justice Tzimas held that the costs claimed by both Mr. Cardinal and Ms. Perreault were reasonable and proportional based on their respective counsels' expertise, they were not justified due to the parties' reprehensible conduct. Accordingly, costs were ordered in the amount of $18,000 in favor of Mr. Cardinal and the amount of $48,000 in favor of Ms. Perreault. These costs were reconciled such that Mr. Cardinal was ordered to pay $30,000.00 to Ms. Perreault personally. 

[1] Cardinal v. Perreault, 2020 ONSC 4825
[2] Ibid at para 19.
[3] Ibid at para 19.
(iv) Knowledge of a Will Notice – NoticeConnect
A 'Knowledge of a Will Notice' is a legal notice sent out to estate practitioners enquiring as to whether anyone has knowledge of or information with respect to a will made by a particular deceased individual. The notice invites anyone who has knowledge of a will to contact the lawyer who published the notice. It is a useful tool and another method for an estate administrator to determine if the deceased had a will. These notices can be published with NoticeConnect.

If no one responds to this notice, then the estate administrator can be more certain that there is no outstanding will that could surface later.

For more information please visit the NoticeConnect website: https://www.noticeconnect.com/how-it-works/
The Advocates Society
Conduct of the Estates Motion
Speakers: Kimberly Whaley & Craig Vander Zee
November 30, 2020

Elder Abuse in Canada
Speaker: Kimberly Whaley
December 2, 2020

Toronto Lawyers Association
Serious Illness Decision Making
January 28, 2021
Speaker: Kimberly Whaley

Osgoode Professional Development
Passing of Fiduciary Accounts
April 6, 2021
Chair: Kimberly Whaley, Speakers, Albert Oosterhoff, Tracey Phinnemore

Estate Planning and Litigation Forum
April 18-20, 2021

Osgoode Professional Development
Contentious Guardianship Applications and Removals of Attorneys and Guardians
April 27, 2021
Speaker: Kimberly Whaley

LESA 53rd Annual Refresher: Managing Wills & Estates Matters
April 30-May 3, 2021
Decisional Capacity: A Wills & Estates Context
Speaker: Kimberly Whaley and John Poyser

Law Society of Ontario, 15th Solo and Small Firm Conference
The Solo/Small Advantage
June 10, 2021
Chair: Kimberly Whaley

International Federation of Ageing – 15th Global Conference on Ageing
November 10-12, 2021
Speakers: Daniel Paperny and Matthew Rendely
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WEL NEWSLETTER October 2020, Vol. 10, No. 7