Toronto Estate Law Blog

The Good Government Act, 2009

Hull & Hull LLP — Mon, 08 Feb 2010 07:00:00 -0500

On December 15, 2009, the Good Government Act, 2009 received royal assent. This statute amended or repealed over 300 pieces of legislation, ranging from the Accumulations Act to the Off-Road Vehicles Act. There are various amendments that should be of particular interest to those of us who practice estate, capacity and trust litigation.

The Crown Administration of Estates Act is amended by adding a new section 5.1, dealing with the enforceability of compensation agreements. A “compensation agreement” is defined to mean an agreement with an heir of an estate that provides for compensation, directly or indirectly, to one or more persons or entities on the location, recovery or distribution of any interest in the estate to which the heir may be entitled. In cases of estates administered by the Public Guardian and Trustee, there must be fair disclosure before a possible heir is asked to sign a compensation agreement. In addition, there is a cap on compensation of 10 per cent of the value of the possible heir’s interest in the estate. Click here for the complete text of the Act.

The Health Care Consent Act, 1996 is amended to increase the time allowed, from two days to four days, for the Consent and Capacity Board to issue written reasons for decisions. In addition, the Act is amended to allow the Board to direct Legal Aid Ontario (instead of the Public Guardian and Trustee or the Office of the Children’s Lawyer) to arrange for legal representation for a person who may be incapable with respect to a treatment, managing property, admission to a care facility or a personal assistance service. Click here for the complete text of this Act.

Bianca La Neve

Bianca V. La Neve - Click here for more information on Bianca La Neve.

The Search for Lost Art Revisited

Hull & Hull LLP — Thu, 04 Feb 2010 23:00:00 -0500

“He who touches the ashes of the past,
Will burn himself with still glowing coals.” --Elizabeth Heyking

Han Sachs invoked this quote in his autobiographical work: "The World’s Greatest Poster Collection: How it came into being and How it Disappeared From the Face of the Earth." As the title of his book suggests, Sachs (who was, among other things, Einstein's dentist) compiled an invaluable poster collection that was confiscated by the Nazis in November, 1938. He died without ever recovering his treasured collection.

In a recent essay published in the Timesonline, his great-granddaughter recounts the subsequent efforts made by Sachs' son to recover his late father's collection. Despite the fact that Germany: (i) committed to return confiscated art found in museums by signing the Washington Conference Principles on Nazi-Confiscated Art in 1999, and (ii) where the Third Reich was implicated, implied that it would not invoke any statute of limitations, a recent Court decision in favour of the estate was nonetheless appealed by the German government and the decision is pending.

The efforts of an executor of an estate to recover lost art poses special challenges that I recounted in this blog reviewing the efforts of the estate trustees of the estate of Max Stern and the advent of the Lost Art Internet Database.

David M. Smith

David M. Smith - Click here for more information on David Smith.

The Executor: Whose Choice?

Hull & Hull LLP — Wed, 03 Feb 2010 23:00:00 -0500

Testators choose their executors. The choice of executor is commonly assumed to be a very personal choice predicated on trustworthiness. But in the face of this assumption, can the beneficiaries of an estate ever agree amongst themselves to oust an executor in the absence of any recognized basis for removal? A pending case in the U.K., as reported in The TimesOnline, addresses this question.

A firm named Will Drafters in the U.K. was named executor in the Will of a deceased. The beneficiaries named in the Will are not happy with the compensation Will Drafters is entitled to under its contract with the testator. The beneficiaries have brought this so-called "test case" to see if the Court will order the removal of the named executor based simply on the fact that all beneficiaries seek its removal in favour of another company, Final Duties, which will apparently charge a lesser rate of compensation. Not surprisingly, Will Drafters takes the position that they contracted with the testator for their services at an agreed rate of compensation and ought not to be removed. Certainly there is no indication that there are any of the factors that give rise to the removal of an executor (in Ontario, this would proceed under s.37 of the Trustee Act)

Quite apart from the legal issue of when the Court ought to remove an executor, the case has sparked a debate respecting whether "will-writing companies" (as they are called in the U.K.) such as Will Drafters and Final Duties, ought to be regulated. As the Times notes: "The only will-writing association to offer accreditation — the Fellowship of Professional Willwriters and Probate Practitioners — says that its research shows that two thirds of people wrongly thought the willwriters they used were all trained solicitors. A recent report on regulation of legal services by Lord Hunt of the Wirral expressed concern about the “fringe legal market” in will-writing, probate and claims handling."

On a final note, to all who read yesterday's blog, please see this link for a revised version of that blog now posted in its place on our website

David M. Smith

David M. Smith - Click here for more information on David Smith.

Abatement and Ademption: More Challenges for the Executor of a Cash-Strapped Estate

Hull & Hull LLP — Tue, 02 Feb 2010 23:45:00 -0500

What follows is a revised edition of this morning's blog which inadvertently created confusion between the principles of Abatement and Ademption. I apologise for any confusion caused by the initial version.

On Monday, I blogged on the payment of debts of an estate and the steps that an estate trustee ought to take to protect him or herself from any personal liability. Today's blog is a sequel of sorts (it would have been posted yesterday but a Groundhog Day tie-in was too good to resist).

The issue today is Ademption and Abatement, words that will only be found in a law dictionary. Ademption occurs when a specific gift of personal or real property in a Will is no longer in existence at the date of death, in which case the gift fails. If specific legacies of cash can be partially satisfied (as detailed below) from the funds remaining in the estate after payment of debts, then there is an Abatement of such legacies.

For greater clarity, where there are debts to be paid, the residuary beneficiaries take the hit first. If the debts can be paid and still leave something in the residue, than the specific cash legacies can be paid in full. However, when the residue is exhausted by the payment of debts, and there is a shortfall between the amount remaining and the amount required to fully fund the specific cash legacies, the principle of abatement dictates that these legacies are reduced on a pro rata basis.

The situation gets considerably more complicated if an executor is faced with a cash poor estate and a Will that contains combinations of cash legacies, gifts of real estate, gifts of personal property, and gifts of personal bank accounts (sometimes called general or demonstrative legacies). In such a case, good legal advice is critical.

David M. Smith

David M. Smith - Click here for more information on David Smith.

Power of Attorney - Hull on Estates #197

Hull & Hull LLP — Tue, 02 Feb 2010 14:35:19 -0500

Listen to: Power of Attorney - Hull on Estates #197

This week on Hull on Estates, Natalia Angelini and Nadia Harasymowycz discuss when Power of Attorney should be executed.

If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.

Natalia R. Angelini - Click here for more information on Natalia Angelini.

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.

Power of Attorney - Hull on Estates- Episode #197

Posted on February 2, 2010 by Hull & Hull LLP

Natalia Angelini: Hello and welcome to Hull on Estates. You’re listening to episode #197 on Tuesday, February 2, 2010.

Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.

Nadia Harasymowycz: Hi and welcome to another episode of Hull on Estates. I’m Nadia Harasymowycz.

Natalia Angelini: And I’m Natalia Angelini.

Nadia Harasymowycz: If you want to be heard on Hull on Estates, you can participate by leaving us a comment or e-mail us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

Natalia Angelini: So hey Nadia, how are you?

Nadia Harasymowycz: I’m good. How are you Natalia?

Natalia Angelini: Not bad. It’s the first time we’re podcasting.

Nadia Harasymowycz: It is.

Natalia Angelini: It’s going to be extra long to get our last names in there. But anyway I’m happy that we’re talking about Continuing Power of Attorneys for Property today. And more of a discreet issue of when or when not to exercise that attorneyship.

Nadia Harasymowycz: Yeah, it seems that this issue comes up a lot when people know that they have a Power of Attorney for a family member or a friend. And there may be issues of capacity but aren’t entirely sure whether or not they can act on that attorneyship.

Natalia Angelini: Right and it is interesting and it definitely depends on the wording of the actual attorneyship document itself. I mean, often times Powers of Attorney for Property say they’re effective immediately. Sometimes they’re effective on some kind of pivotal event, usually a finding of incapacity and potentially other events. Also it is a permissive document so depending on how it’s worded, I mean it might not be as clear as one would think for the commencement of the attorneyship to begin.

Nadia Harasymowycz: Right but in the case where it is an issue of a capacity or incapacity and whether or not you can act on the Power of Attorney, I think it’s important to distinguish that capacity is not necessarily forgetting things or just having some sort of mental issues. It really is incapacity in its truest form.

Natalia Angelini: Right and there’s a good paper written by Irit Gertzbein that addresses this issue. And you can find it in the December volume of Dead Beat so we will be referring to it now and again, or basing our talk on it. But in that paper, he goes through or addresses what the definition of capacity or incapacity is.

So essentially if it can be demonstrated that a person’s illness or impairment interferes with his or her ability to manage property or if there’s evidence by way of an assessors’ report that the grantor is not able to understand information relative to making the decision, or appreciating the reasonable, foreseeable consequences of a decision or lack thereof in the management of his or her property, then the attorney has a duty to make decisions and take action. So essentially in that case, the person would be incapable. And if you really want to look at the formal definition for capacity, I can refer you to the Substitute Decisions Act. I believe it’s Section 6.

Nadia Harasymowycz: Right. I think this becomes a more fuzzy area when capacity isn’t clearly assessed and the person who is holding the Power of Attorney is just concerned about incapacity. And there are several ways that are discussed in Irit Gertzbein’s article regarding how to take steps to get an assessment or to decide whether or not you should be acting on a Power of Attorney.

Natalia Angelini: Right and I think he points out some good things to do when you’ve got a situation where, let’s say the grantor is your mom and she’s got some sort of declining dementia. You know, you may want to start by sitting down with her and other family members that are involved in her life and talking about it in that kind of forum. And really seeing if you can all come to some kind of agreement as to whether the attorneyship document should take effect at that time or a later time or what other steps should be taken.

Nadia Harasymowycz: On that note also if there is any issue amongst family members or people who are deciding whether or not they’re going to act on a Power of Attorney, it may be worth speaking to the grantor and suggesting a capacity assessment. And whether or not the parties can agree on that, it may be worth taking so that you can determine whether or not you should be acting.

Natalia Angelini: Right and I think that really is the best kind of protection you’re going to get. And, you know, we do…I mean, I guess as lawyers we think in terms of protection…but you know, you definitely, as an attorney, want to decrease the risks to you in taking steps as attorney because it is a job with serious obligations. And having that assessment report that says the grantor is incapable at least should give you the green light to, you know, now commence acting under that document.

Nadia Harasymowycz: With respect to the issue of risks and protection, I think it’s important to note also that whether or not an attorney receives compensation actually amends their standard of care in terms of how they behave and what actions they do take. And where an attorney does not receive compensation, the standard of care is that of the diligence and skill that a person of ordinary prudence would exercise in managing his or her own property. And that is to be contrasted with an attorney who is receiving compensation. And they’re expected standard of care is that of a person in the business of managing other’s property is required to exercise.

Natalia Angelini: Right so it’s definitely a higher onus if you plan to get compensated for doing the job. So, for instance, if you’re dealing with investments, you know you definitely have that obligation to do it, I would say, prudently.

Nadia Harasymowycz: Even with respect to your prudent behaviour, however, you have to pay attention to the fact that a Power of Attorney document may be granted to more than one individual. And in that case, it’s important to look at the specific language of the Power of Attorney document to see whether or not decisions can be made individually by those individuals named or if they have to be done together. And if they are named to be together, then all parties have to come to a communal decision. You can’t just act independently.

Natalia Angelini: Right and again, you’d need to look to the document to see if there is some kind of majority provision in there so you know if a majority decision stands or not.

Nadia Harasymowycz: I think on that same note, though, it’s important to, if you are drafting a Power of Attorney, think about where the people that you are naming happen to reside. If they’re close to you, if they’re on opposite sides of the country because that could have an impact on how your attorneyship document will be enforced.

Natalia Angelini: Right that’s a good point, Nadia. So earlier I mentioned the test for capacity. And it’s just noteworthy to say that an individual is presumed to possess capacity to manage his or her own property. And the test set out in the SDA really sets a high bar for evidence sufficient to rebut that presumption. So really the ability to understand and appreciate, which is sort of the two tenants of the test, it’s not global but really relates to, you know, functioning relating to certain decision.

Nadia Harasymowycz: Right and in terms of making decisions, it’s important to note that, you know, momentary lapse of memory or poor judgment is not necessarily evidence of incapacity. If you understand what’s going on and choose not to act on it, it’s not incapacity; it’s simply a choice that you’re making. That distinction has to be made when you’re exercising or contemplating exercising a Power of Attorney.

Natalia Angelini: So there really is a distinction between acting foolishly and being capable versus being incapable. And that was sort of borne out in the Re Coach decision where the grantor really was choosing to take, for lack of a better word, foolish decisions but this didn’t necessarily mean that that person was incapable. So that type of decision would have to be respected, no matter if it’s disagreed with or not. It still does not, you know, meet the test. And so it really does support the notion of getting a proper assessment done before you can act on your attorneyship.

Nadia Harasymowycz: I think then, in summary, it’s important to note that if you’re going to act as Power of Attorney or act on a Power of Attorney document, that you do so with confidence that the person who you are acting for is legally incapacitated. We’ve mentioned the best way to do that is to have a capacity assessment or a finding of incapacity under the SDA requirements. And it’s also important to note that if you do make decisions for somebody who you believe may be incapable, even if you did that with good intentions, if the person was indeed capable, you may face personal liability.

Natalia Angelini: Right and we’re not going to get…I mean, in this podcast, we’re not going to get into the duties of an attorney in a big way but suffice it to say, you know, an attorney is a fiduciary. And, you know, you’ve got the basic duty to keep records and be ready to account if requested, and keep, you know, close family members involved. So it’s not something to be taken on lightly. And maybe…I mean this is just an aside…but you know, if a grantor is at all concerned that down the road, you know, they’re granting this attorneyship but you know someone could take advantage and try to use it before they’re really ready to or before they would like to, they can take certain steps to guard against that. And they could, for instance, get an attorneyship document or have it prepared by their lawyer and have it provide that it only gets activated on certain events including, you know, one of them could be incapacity. And they could enter into an escrow agreement with their lawyer who would hold the original of the attorneyship document in his or her possession and would only release it on certain terms. For instance, you know, receiving a capacity assessment report that makes the conclusion. So that might be an added layer of protection, rather than just handing over…you know, getting the attorneyship document. What I think a lot of people do is they hand over the original to their attorney and they do trust them but, you know, that’s not always the best course of action, depending on who you’re dealing with, of course.

Nadia Harasymowycz: Those are all certainly things that you should be considering before you create your Power of Attorney documents. But I think that should lead us to our wrap-up. And it was great podcasting with you, Natalia.

Natalia Angelini: Thanks Nadia, same with you. It was a pleasure and I look forward to podcasting with you again. So to our listeners, you can send us an e-mail at hull.lawyers@gmail.com or visit our blog at estatelaw.hullandhull.com. We hope you enjoyed our talk and have a good day.

This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.

Limited Power of Attorney - Hull on Estates and Succession Planning #193

Hull & Hull LLP — Tue, 02 Feb 2010 11:57:00 -0500

Listen to: Limited Power of Attorney - Hull on Estates and Succession Planning #193

This week on Hull on Estates and Succession Planning, Ian and Suzana discuss the issues with having a limited Power of Attorney or no Power of Attorney at all.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

Ian M. Hull - Click here for more information on Ian Hull.

Suzana Popovic-Montag - Click here for more information on Suzana Popovic-Montag.

Limited Power of Attorney - Hull on Estate and Succession Planning #193

Posted on February 2, 2010 by Hull & Hull LLP

Welcome to Hull on Estates and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag. The podcast you’re listening to will provide information and insights into estate planning in Canada. From the offices of Hull & Hull in Toronto, here are Ian and Suzana.

Suzana Popovic-Montag: Hi and welcome to Hull on Estate and Succession Planning. You’re listening to episode 193 of our podcast on Tuesday, February 2, 2010.

Ian Hull: Hi Suzana.

Suzana Popovic-Montag: Hi there Ian.

Ian Hull: So welcome.

Suzana Popovic-Montag: Thank you.

Ian Hull: And now that we’re back full speed, we want to dive right into our topic today.

Suzana Popovic-Montag: Yes.

Ian Hull: We want to take no prisoners because we’ve got lots we want to talk about and some of the interesting developments as well in the social media world that, if we have time at the end, we’ll discuss as well.

But let’s turn away from, we talked about getting paid in guardianship when we last were talking about legal-based podcasting and now let’s talk a little bit about the guardianship process more generally.

Suzana Popovic-Montag: And when we talk about the guardianship process, Ian, we’re talking about the situation where someone doesn’t have a Power of Attorney or they have a Power of Attorney that’s only for limited purposes or for limited assets. And so in this case, you need the assistance of a Court to give you the authority to deal with someone’s assets, if they haven’t provided for that while they were capable themselves.

Ian Hull: For sure. And that whole question of what do you do if there is no Power of Attorney, is dealt with cross the U.S. and in Canada in different pieces of legislation. Ours, of course, is Substitute Decisions Act. But they all typically do the same thing, and that is they break down the role into two or three parts, that is of course a guardianship for property. We call it in Ontario a guardianship for personal care. And some jurisdictions, and Ontario touches on it, is the whole question of a Living Will and what role, if any, the Court can play in that.

So let’s break it down now. We’re dealing with guardianships of property at the outset, that’s a good starting point. The first step along the way is what, when we’re going to go to the Court and get appointed as guardian for property?

Suzana Popovic-Montag: Well basically we’re talking about a Court proceeding and so we’re going to need a Notice of Application that seeks that appointment. We’re going to need the proposed guardian’s Affidavit in support of that Application and as part and parcel of that, a Management Plan that sets out how it is that the proposed guardian wants to or will deal with the incapable person’s assets.

Ian Hull: And the key component of all the documents before the Court is, of course, the finding of incapacity. The doctor’s certificate certifying that the individual is incapable.

Suzana Popovic-Montag: And I think we can’t underestimate the importance of that finding because the first thing that in our experience a judge will look for is that statement in the Affidavit that says doctor so and so has found this person to be incapable of managing property. And that is really the crucial point for any kind of Application where you’re trying to get control over someone else’s assets.

Ian Hull: Alright, so when we deal with, and we’ve talked about in previous podcasts, so I don’t want to get into too much detail on this podcast anyway, on the duties and roles of a guardian for property because we’ve kind of hashed those out over the time. But let’s focus on the guardianship of personal care. And first of all, again similar materials, of course, are filed. You need a Management Plan for the guardianship for property. Guardianship Plan is for guardianship for personal care. You need to tell the Court how you intend to behave and you need to have a finding of incapacity. Again, the doctor’s finding of incapacity. So with those in mind, the similarities are obvious in that sense. What are some of the goals or duties or roles of the Power of Attorney for Personal Care now?

Suzana Popovic-Montag: Well when it comes to personal care, it’s really broken down into a number of different categories. And so you can have a finding on someone being incapable of all the categories, on some of them or most of them. And it can really be quite flexible. And when I talk about categories, I’m talking about things like health care, like nutrition, like shelter, like clothing, being capable of taking care of one’s hygiene and safety. And those are the kinds of big headings that we’re going to look at when we’re looking at a Guardianship Plan and how someone proposes to deal with someone on each of those bases.

Ian Hull: Alright and again, sort of keeping in the back of the mind, of course, the Court’s ongoing obligation for ensuring that everything that is done is done in the best interests of the incapable.

Suzana Popovic-Montag: And our legislation certainly here in Ontario talks to that being one of the requirements. That and consulting with the incapable person to the extent that you possibly can, making them informed of what it is that you’re doing, and also consulting with supportive family members, so that really it is like a family kind of management, a family kind of care for the individual, to the extent that that’s possible.

Ian Hull: Well and that consistency is so very important when we’re dealing with the personal care decisions and ideas such as you can get into some unnecessary tension when you have to, for example, picking caregivers. And that tension can be alleviated substantially if you have good co-operation and co-ordination but also good communication.

Suzana Popovic-Montag: And you know I think we talked on the previous podcast about the importance of documenting the work that you do. And we said previously also that you know when you’re dealing with someone in a rush or a crisis situation, sometimes keeping notes of what it is that you’re doing just is the last thing from your mind. And I’d say it’s maybe even differently but maybe more so in this situation, when you’re dealing with someone’s well-being, their personal care. Those decisions have to sometimes be made quickly; they have to be made without the benefit of being able to do a whole bunch of thinking in advance as it maybe just a reactionary kind of decision. And to be able to document that is something that we do try to tell people to keep in mind because at the end of the day, you’re going to have to explain it to someone possibly and you want to be able to remember, to reconstruct why it was that you did what you did at that time.

Ian Hull: For sure. You know keeping copies of all relevant documentation that you make, that others make, doctors’ notes, doctors’ reports, anything like that, keeping handy the Power of Attorney documents. I had a client yesterday call and say they’re quite healthy but they said we’ve been looking through our files and we can’t find our Power of Attorney. And so, you know, those are important documents to maintain. But if they were incapable, it could be a really difficult scenario. So…

Suzana Popovic-Montag: Yeah, for sure.

Ian Hull: …you’re right, record-keeping and keeping all of the significant decision-making documents that identify the decisions and why and how is vital.

Alright, one of the things too, when you take on the role of guardian of personal care and property is the same sort of circumstances in some respects, is of course access to those documents. So if you don’t have them in hand, is it worth getting it in hand? Because we talked about in a previous podcast the right of a Power of Attorney for Property to go and look at the Will to make sure that he or she isn’t conducting the business affairs of the individual in complete absence of the Will provisions. And I think it’s very important as well for personal care that they go out and seek out the medical records to the extent that they’re relevant and necessary to help you better understand what personal care decisions you need to make. If you don’t know the nature of the illness or the kinds of symptoms that the individual is suffering from and you could glean them from looking at medical reports and so forth, the records of some relatively consistent period of time that is fairly current, it can go a long way to assisting you. It’s a bit of an intrusion into the person’s life but the point is that you’re here to help. And if you’re here to help, access to that medical information can be vital.

Suzana Popovic-Montag: And just from a planning perspective too, I know many times when people will create their Wills and they create their Powers of Attorney at the same time, to have documents and know where those documents are. And so maybe we don’t have a Power of Attorney, for instance, here but we might have some direction, some note that says if and when something were to happen, this is something that’s important to me. So having that in the right hands or even telling people where to look for it at the end of the day is something that, to the extent we can try to get people to think about in advance, I think is very helpful.

Ian Hull: Terrific. Alright, well let’s continue this discussion on but we’re at our treadmill time. So we want to thank everyone and welcome everyone back to our regular podcast from our brief reprieve that we discussed at our last podcast. And thank you very much for today.

Suzana Popovic-Montag: Thanks Ian.

You have been listening to Hull on Estates and Succession Planning by Ian

Hull and Suzana Popovic-Montag. The podcast that you have been listening

to has been provided as an information service. It is a summary of current

issues in estates and estate planning. It is not legal advice and you are o

reminded to always speak with a legal professional regarding your specific circumstance.

To listen to other Hull & Hull podcasts, or leave any questions or comments, please visit our website at hullestatemediation.com.

Groundhog Day: A Time to Reflect

Hull & Hull LLP — Mon, 01 Feb 2010 11:17:00 -0500

Every year on Groundhog Day I can't help but reflect on Bill Murray and his contribution to the modern North American psyche. It must be a massive ego trip to know that, on one day of the year, most everyone reflects on a movie that you have made. With all due apologies to Punxsutawney Phil and Ontario's own Wiarton Willie, Bill Murray is to Groundhog Day what Cupid is to Valentine's Day (that other February distraction). And you can't escape him. Groundhog Day (the movie) is played endlessly in syndication (especially on, well, Groundhog Day) unrivaled in its mind-numbing repetition except by the inescapable "Bridget Jones Diary" and Murray's other masterpiece "What About Bob?"

But I digress. Groundhog Day (the day, not the movie) speaks to our deepest yearnings for the coming of Spring in the depths of what is now a very frigid winter. And Groundhog Day (the movie, not the day) observes the mind-numbing monotony of everyday life coupled with the fantasy of excelling at a given endeavour if only given 365 chances to repeat it. There is a lesson in there somewhere...I am just not sure what it is.

Here's to trying to get it right the first time...whatever "it" happens to be!

David M. Smith

David M. Smith - Click here for more information on David Smith.

Paying the Debts of an Estate

Hull & Hull LLP — Sun, 31 Jan 2010 23:35:00 -0500

It is a trite principle of estate administration that "debts must be paid before beneficiaries." Assuming this maxim is followed, the estate trustee will not assume any personal responsibility for the debts of the deceased. On the other hand, if the estate trustee distributes the estate without due consideration to creditors' entitlements, the estate trustee may be left personally exposed unless the beneficiaries return their entitlement to the estate trustee to fund any unpaid debts.

To be fully relieved from personal liability, the estate trustee must make reasonable efforts to locate and satisfy the creditors of the deceased. Advertising for creditors is therefore an essential step in protecting the estate trustee from liability and ensuring that the creditors of the deceased have had the opportunity to be paid. But the importance of the advertisement ought not to be overstated. If an estate trustee can be proven to have had independent knowledge of a creditor who does not claim (for whatever reason) in response to the advertisement, and if the estate trustee distributes in the face of this knowledge, he or she could conceivably be personally responsible to such a creditor.

The bottom line is that the estate trustee, understandably focused on his or her fiduciary duty to the beneficiaries, stands in the shoes of the deceased and must give more than a passing regard to the creditors of the estate.

David M. Smith

David M. Smith - Click here for more information on David Smith.

Famous Vermeer Painting Faces Nazi-Era Claim

Hull & Hull LLP — Fri, 29 Jan 2010 00:56:47 -0500

The heirs of a man who sold a well known Vermeer painting to Hitler are seeking its return from the Austrian museum where it is currently on display.

“The Art of Painting”, which dates between 1665 and 1668, is currently housed at the Kunsthistorisches Museum in Vienna and is considered one of Vermeer’s most important works. Its exact value is unknown, but conservative estimates put it at in excess of $211 million (US).

Vermeer never sold it, but after his death his widow was forced to do so because of financial hardship. The painting eventually made it to Jagomir Czernin, part of the Austrian aristocracy, in the early 1900s. Czernin later tried to sell it to an American industrialist in the 1930s, but when the annexation of Austria to the Third Reich occurred, foreign sales of that nature were prohibited.

Czernin then tried to sell it to a German industrialist, but Hitler found out about the potential sale and decided he wanted to buy the painting for a museum he had previously established. Hitler, because of his office, held a prerogative to acquire goods before others and ended up purchasing the painting for what was then about $660,000.00 (US) – a price Czernin’s heirs allege was below market value.

Czernin’s heirs are now arguing that the sale amounted to duress because his family was under threat at the time (as a result of his wife’s Jewish ancestry). Apparently, after the painting was sold Czernin spent fifteen years unsuccessfully suing to get it back. His heirs are now continuing the fight.

So far, the museum has refused to return it. It says there is no evidence of duress at the time the sale was made or that the painting was undervalued. Currently, the Austrian Commission for Provenance Research is considering the matter and is expected to make recommendations this year regarding whether the piece should be returned to the heirs.

As a postscript to yesterday's blog on the litigation involving the Toronto Humane Society, I note the decision I discussed is now available online.

Have a great weekend!

Megan F. Connolly

Megan F. Connolly - Click here for more information on Megan Connolly.

Court Appoints Financial Monitor to Review Humane Society's Finances

Hull & Hull LLP — Thu, 28 Jan 2010 00:01:17 -0500

The Superior Court of Justice (at Toronto) ruled Tuesday that the accounting firm Deloitte & Touche be appointed to monitor the finances of the Toronto Humane Society. In his ruling (which does not yet appear to have been put online), the Honourable Mr. Justice Brown also ordered that the Ontario Society for the Prevention of Cruelty to Animals retain the control and care of the pets currently housed at the Humane Society.

As some of you may recall, this past November the president of the Humane Society (who announced this week that he would resign) and four senior managers were arrested and charged with animal cruelty. In addition, the organization’s board of directors faces non-criminal charges. The matter is currently ongoing and no finding of guilt has been made against anyone involved.

Apparently, in his ruling Justice Brown raised particular concern about legal fees the organization had incurred for seemingly non-essential reasons, unpaid hydro bills, incomplete financial statements, a decline in the value of its investments, and the fact that it had refused to disclose particulars regarding the liability insurance it carried for its directors and officers.

For those interested in the decision, generally court decisions are available on the website Canlii within a week or so of their release.

In a statement, the Humane Society pledged to cooperate with the financial monitor and provide assistance in compiling the necessary financial information.

Next up, Deloitte & Touche will provide the court with a preliminary report regarding the Humane Society’s finances and the court will hear argument about whether the organization’s board of directors should be removed and whether The Public Guardian and Trustee should conduct a formal investigation.

Have a great day!

Megan F. Connolly

Megan F. Connolly - Click here for more information on Megan Connolly.

Cost Recovery for In House Counsel

Hull & Hull LLP — Wed, 27 Jan 2010 01:54:27 -0500

The recent decision of Grand & Toy v. Aviva Canada discussed whether a party, represented by salaried in-house counsel, could recover costs and, if so, to what extent.

Aviva Canada had been successful in responding to a motion and was seeking the associated costs from Grand & Toy. It had calculated the fees on the basis of $350 for the senior counsel on the file and $175 for the junior counsel.

Grand & Toy took the position that as Aviva had been represented by its salaried, in-house counsel, to the extent a cost order was made, it should be on the basis of the actual costs incurred by the successful party – and this would involve Aviva disclosing the salaries of the in-house counsel, so a proper determination of actual cost could be made.

The court rejected the argument that because in-house counsel was used, the type of cost order available was limited and pointed to s. 36 of the Solicitors Act, which provides that costs cannot be disallowed or reduced merely because the counsel involved are salaried employees of the party. It found that in the circumstances it could not simply reduce a cost order that otherwise would have been made.

Turning to the issue of quantum of fees, the court found that it should consider the factors enumerated in R. 57.01(1) of the Rules of Civil Procedure(“Cost of Proceedings – General Principles”) and fix an amount that was fair and reasonable to the unsuccessful litigant (rather than that merely reflects the costs of the successful party).

In this situation, the court determined that the hourly rates charged by counsel were too high given the complexity of the matter; that the time spent on some steps was excessive; and that one, rather than two, counsel from Aviva was all that was reasonably required for the hearing. Accordingly, it awarded costs at a lesser amount than claimed.

Have a great day!

Megan F. Connolly

Megan F. Connolly - Click here for more information on Megan Connolly.

Announcements - Hull on Estates and Succession Planning #192

Hull & Hull LLP — Tue, 26 Jan 2010 12:56:49 -0500

Listen to: Announcements - Hull on Estates and Succession Planning #192

This week on Hull on Estates and Succession Planning, Ian and Suzana discuss Hull & Hull's most recent Breakfast Learning Series and the upcoming changes being made to the firms website. If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

Ian M. Hull - Click here for more information on Ian Hull.

Suzana Popovic-Montag - Click here for more information on Suzana Popovic-Montag.

Announcements - Hull on Estate and Succession Planning #192

Posted on January 26, 2010 by Hull & Hull LLP

Suzana Popovic-Montag: Hi and welcome to Hull on Estate and Succession Planning. You’re listening to episode 192 of our podcast on Tuesday, January 26, 2010.

Ian Hull: Hi Suzana.

Suzana Popovic-Montag: Hi there Ian. How are you today?

Ian Hull: I’m well thanks. How are you doing?

Suzana Popovic-Montag: Good, thank you.

Ian Hull: We’re back from a prolonged break as a result of personal circumstances. And that’s the beauty of the podcast world, is forgiveness in the world of social media.

Suzana Popovic-Montag: Got our fingers crossed anyways.

Ian Hull: We’ve been swamped with a couple of matters that required far more attention than we had time for. So we’re back and we want to talk about a couple of things. But first of all, we want to talk a little bit about our last Breakfast Series which…Hull & Hull Breakfast Series which we have three times a year. We have our next one in June. We’ll be posting the date and the details shortly. But it was an excellent breakfast and gave opportunity but a different format this time. Paul Trudelle co-chaired it. We had Jordan Atin and Anne Werker helping participate with a question and answer format. It really went well. I saw the video of it. We’re going to hopefully, once we get the video finally cut, we’re going to have that on the web page.

Suzana Popovic-Montag: That’s right.

Ian Hull: So that was a great excitement. And the second thing that we’re about to do and we want to give a little bit of a plug for it because it’s imminent, literally within hopefully weeks away, is our new web page.

Suzana Popovic-Montag: Yes.

Ian Hull: Why don’t you tell us a little bit about what we’ve been thinking about that?

Suzana Popovic-Montag: Well we’ve taken on a little bit of a new look to sort of keep up with the times as we tend to try to do whenever we can when it comes to the social media and our presence. And so we’ve made some improvements and, of course, we look forward to hearing any feedback that people may have when they go to view our new web page.

Ian Hull: Well I think you’re understating it as usual. It’s phenomenal. The new page is going to be incredible. It’s going to allow a lot different interaction. We’ve organized the format to allow for what we think is a massive amount of content. And we want to make sure that people can still use that content. It’s almost at the early stages when we started this web page was, can we get enough on the page? And now we’re at the point where it is trying to access that information in an efficient way. And we have spent a lot of time and worked a lot, very closely with our new partner in the venture, Carswell’s. And they have been a big help in refocusing our content position. Not that you’re going to look at the page and say that it is widely different, but what it is, it’s going to allow people to get to the source of the information a lot easier.

Suzana Popovic-Montag: Yeah, sort of managing the content more than anything I think. And it helps that it’s sort of packaged a little differently as well.

Ian Hull: Well we have to…we can’t go to all this trouble and look exactly the same.

Suzana Popovic-Montag: That’s right.

Ian Hull: So we’re really excited about that and we’re in the finishing touches. We’ve refined some of the video format too, so it’s coming out a little better quality. Not that the quality wasn’t great before but the nice thing about technology is that when it’s advancing, you take advantage of the advancements so to speak. So those are the two recent developments and we’re still at our firm thinking a lot about and living with the passing of my father…

Suzana Popovic-Montag: Yes.

Ian Hull: …on December 5^th and we’ve got a nice link to him and his legacy in part on the web page. But, you know…so the last how many podcasts we’ve missed…four or five podcasts we’ve missed…it wasn’t like we were standing on our hands.

Suzana Popovic-Montag: That’s for sure.

Ian Hull: We’ve been busy and we’re looking forward to branching out into these new aspects of it. The other part of it is that we went…I personally went, you were a little better than me, but we went a little quiet on our Twitter posts. But we’re back at that starting today now that we’ve climbed out of our professional business. We’re going to be back to Twittering and we look forward to anybody whose interested to join in to the Twitter group. I know that I spend a lot of time watching some of my favourite Twitterers, Tim Ferris from the Four Hour Work Week…

Suzana Popovic-Montag: Yes.

Ian Hull: …is one of my favourites. And Mitch Joel from Six Pixels of Separation. And then, of course, Terry Fallis as well from Insight PR. So we don’t shy away from that, it’s just that we’d fallen into a bit of a business. And it’s not an excuse. I think that’s the life of social media.

Suzana Popovic-Montag: I’ve also actually, Ian, now that you mention, I’ve noticed a big increase in the number of people who are communicating through Linked In which is sort of one of our newest ventures, our newest platforms that we’ve joined. And it’s great because you’re drawing a real cross-section of professionals who’ve got an allied interest in what it is that we do. And so it’s kind of neat to be part of that as well.

Ian Hull: Absolutely. And we have a lot to thank with Amy Cochrane of our office…

Suzana Popovic-Montag: Absolutely.

Ian Hull: …because she’s the one whose keeping us honest on some of the new ventures we’re going down. Not that Linked In is that new but we’re as a firm trying to use it much more efficiently and also helping to disseminate some of the podcasts and blogs through that different venue as well. So we’re excited about it. This is a bit of a capture the moment, recap podcast today. We wanted to welcome everyone back and apologize but we’ll stop apologizing and we’ll get back to the content. And I know that our next podcast we’re going to focus back on some of the Power of Attorney disputes but also some of the good and not so good parts of it. And also some of the non-contentious aspects of guardianship in our next podcast which will be more focused on the legal text and the legal basis for which we like to discuss these issues in.

So thank you again. Welcome back and thank you for those of you and your patience for us during this difficult and busy time.

Suzana Popovic-Montag: Yes, thank you very much.

You have been listening to Hull on Estates and Succession Planning by Ian

Hull and Suzana Popovic-Montag. The podcast that you have been listening

to has been provided as an information service. It is a summary of current

issues in estates and estate planning. It is not legal advice and you are o

reminded to always speak with a legal professional regarding your specific circumstance.

To listen to other Hull & Hull podcasts, or leave any questions or comments, please visit our website at hullestatemediation.com.

Strategies for Headache-Free Estates

Hull & Hull LLP — Tue, 26 Jan 2010 01:50:52 -0500

A recent article in the Financial Post, “Eight Tips for Feud-Free Estate Plans”, provides helpful advice on how to minimize family-infighting over one’s estate (or retirement) plan.

The article is a must-read for anyone planning for the future as well as those who advise them.

Here are a few of the tips that are offered:

1. Give some thought to how you will fund future long term care

The idea of going to a retirement or care facility is something a lot of people don’t like to think about. However, this does not mean it will never happen – and if it does, the cost can be high.

Longterm care insurance is offered by various companies and, for a relatively low premium, can provide the funding needed to pay for care costs when and if they arise.

2. If you own a vacation property, give special consideration to how it will be distributed on your death

Fights over a family cottage happen quite often and can easily result in lengthy and costly litigation. A frequent source of tension is when one sibling wants to keep the cottage in the family (“because that’s what mom would have wanted…”) while another sibling is happy to see it sold and to receive part of the proceeds.

To avoid this it is worthwhile discussing with your children (if they are to be beneficiaries of your estate) what to do with the property before doing your will.

3. Make sure to keep your will up to date

You might be surprised how many people forget to change their wills when their circumstances change (for example, leaving gifts to three grandchildren, and neglecting to update the will when more grandchildren are born, leaving some out in the cold).

Whenever your family structure changes (by birth, marriage, divorce, death) it would be worthwhile to contact the lawyer doing your will to see if revisions would be advisable.

It is always suggested that you discuss your plans with those who will be affected – this is a good way to help avoid fighting down the road.

Have a great day!

Megan F. Connolly

Megan F. Connolly - Click here for more information on Megan Connolly.

A Devastating Inheritance: Huntington's Disease

Hull & Hull LLP — Sun, 24 Jan 2010 22:53:55 -0500

Huntington’s disease (HD) is a progressive, degenerative brain disorder that causes certain nerve cells in the brain to waste away. Huntington’s is inherited, and if one of your parents has Huntington’s disease, you would have a 50% chance of getting the gene for the disease. Everyone who carries the gene will develop the disease. Since the HD gene was isolated in 1993, one can be tested to see if they are a carrier, however because there is no cure for HD, some people choose not to be tested.

About 1 in 10,000 Canadians has HD.

There are two types of HD: i) adult-onset, the most common form, with symptom onset in the mid 30s and 40s; and ii) early onset, which accounts for about 16% of all HD cases, with symptoms developing in childhood or adolescence.

Huntington’s disease is associated with three types of symptoms:

· Movement symptoms, referred to as chorea, which consist of jerking, involuntary movements (‘tics’) of the limbs, trunk or face;
· Cognitive symptoms including a gradual impairment of concentration, memory, judgment, reasoning, decision-making and learning. This cognitive decline starts in a very subtle fashion, but eventually results in dementia; and
· Psychiatric symptoms may include depression, and psychotic behaviours such as delusions, hallucinations, paranoia and inappropriate outbursts.

HD usually runs its course in about 10 to 30 years, with a strong correlation between an earlier onset and a more rapid progression of the disease.

Jennifer Hartman, Guest Blogger

Substantial Increase in Death from.....Watching TV?

Hull & Hull LLP — Fri, 22 Jan 2010 05:00:00 -0500

I came across an article when thinking about blog topics for this week. It appears that a recent Australian study from the Baker IDI Heart and Diabetes Institute in the state of Victoria concluded that watching television can increase risk of death.

The study, published in Circulation: Journal of the American Heart Association, followed the lifestyle habits of 8,800 adults who were age 25 or older at the commencement of the study. It was found that each hour spent in front of the TV daily increased the risk of dying earlier from cardiovascular disease, as well as creating a 9% higher risk of cancer related death.

Although the study focused on Television watching, it seems from the publication that the conclusions may be even more related to a sedentary lifestyle. While this may seem like a logical conclusion, this result is to be distinguished from any previous knowledge of the positive effects of a healthy active lifestyle. It appears that we now have evidence which assures us that spending time sitting, particularly in front of the television may cause additional harm to our bodies, even if we generally live an active lifestyle.

I can’t personally advocate on behalf of any of the articles to which I’ve referenced, but what I do know, is if there is any truth to the possibility that television viewing can shorten a life, it seems to be a pretty simple solution to get outside, enjoy the beautiful weekend forecast and go for a walk.

Have a nice weekend, thanks for reading,

Nadia

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.

Jimi Hendrix to Release a New Album

Hull & Hull LLP — Thu, 21 Jan 2010 05:00:00 -0500

Jimi Hendrix's family and Sony Commercial Music Group have collaborated and the result is a new album featuring Hendrix music. Mark this day in your calendar as this album should hit the stores on March 9, 2010.

The Hendrix legacy is closely protected by Experience Hendrix LLC, a family run company, currently being run by Janie Hendrix, Jimi's sister. She has indicated that the Estate 'had enough material for "a decade's worth" of new releases, both music and video.'

The currently slated release will be titled "Valleys of Neptune", and will include never before heard recordings. The music will mostly be taken from a four month studio session in 1969, a year before Hendrix died, at the young age of 27.

With his estate in possession of so much fresh artistic material, it looks like we may be able to look forward to many more Hendrix albums. Shockingly, Hendrix may release more in death than in life.

Until Tomorrow,

Nadia

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.

Kafka: A New Twist - The Unpublished Works

Hull & Hull LLP — Wed, 20 Jan 2010 05:30:00 -0500

Franz Kafka left a will instructing his friend, Max Brod, to burn his manuscripts and not to publish them. However, Brod spent much of his life editing Kafka's work for publication, making Kafka's writings into very influential pieces of fiction. However, Brod's life work, and his alleged actions are currently under scrutiny in Israeli courts.

It appears that certain Kafka manuscripts have fallen into the hands of two sisters who received them from their mother. Their mother, Esther Hoffe, received them from Max Brod, some 20 - 30 years after Kafka's death. The sisters allegedly sold some manuscripts for millions of dollars and shared the profits with their mother. Others purportedly remain in a safety deposit box.

This matter is currently before Israeli courts and it appears that there is some debate about the manner in which the manuscripts were received. It further appears that true ownership of the documents is being contested, and the courts have given the parties involved, including the State of Israel and the National Library, an opportunity to settle this matter out of court. The settlement deadline expired last week. If the parties have not yet reached a settlement, the courts have indicated that they will order the safety deposit box where the manuscripts are being held to be opened, potentially damaging the manuscripts and reducing their value.

The outcome of this litigation will surely be interesting from an Estate perspective, but also may provide us with several new literary works from a truly famous author. Only time will tell if the world will be gifted with such new works.

Until Tomorrow,

Nadia

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.

Civil Proceedings - Hull on Estates #196

Hull & Hull LLP — Tue, 19 Jan 2010 14:17:28 -0500

Listen to: Civil Proceedings - Hull on Estates #196

This week on Hull on Estates, Paul Trudelle and Chris Graham discuss the amendments to civil procedure, effective January 1st, 2010.

If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.

Paul E. Trudelle - Click here for more information on Paul Trudelle.

Christopher M.B. Graham - Click here for more information on Chris Graham.

Civil Proceedings - Hull on Estates- Episode #196

Posted on January 19, 2010 by Hull & Hull LLP

Paul Trudelle: Hi and welcome to Hull on Estates. You’re listening to episode 196 on Tuesday, January 19^th.

Chris Graham: Hi and welcome to another episode of Hull on Estates. I’m Chris Graham.

Paul Trudelle: And I’m Paul Trudelle. How are you today, Christopher?

Chris Graham: I’m fine thanks, Paul. How are you?

Paul Trudelle: Very good, thanks. It’s a special day for me. This is my anniversary today.

Chris Graham: Oh, congratulations.

Paul Trudelle: Wedding anniversary.

Chris Graham: Which anniversary number would this be?

Paul Trudelle: This is number 19 on the 19^th, so that makes it my champagne anniversary.

Chris Graham: They’re all champagne anniversaries.

Paul Trudelle: I guess you’re right. Well put, well put. So in addition to celebrating my anniversary, we thought we’d spend some time today talking about the new Rules of Civil Procedure that are now in effect and have been in effect since January 1, 2010.

I guess the Rules aren’t new necessarily but there are a number of substantial amendments to the Rules and perhaps we can spend some time talking about those and just pointing out some of the highlights or important features with respect to the amendments.

Chris Graham: Okay, so one major change in the new Rules is the principle of proportionality which was brought into the Estates Practice Direction last year, has also been brought into General Civil Litigation. And now the new Rule 1.04, sub 1.1 brings this factor into play for litigation in all jurisdictions and mandates that Court Orders and directions must be proportionate to the importance and complexity of issues and the value of the amounts at stake.

Paul Trudelle: Right and that’s an overlying principle of interpretation that’s to be applied to the Rules in general and any Order that you’re seeking from the Court will now be made against that backdrop. Is the Order and directions proportionate to the importance and complexity of the issues and to the amounts involved in the proceeding? That’s a substantial change. We have yet to see how that’s going to be implemented or how that’s going to affect the Orders that a Court makes, but that’s something that must be kept in mind. That concept of proportionality is also something that is specifically referred to when dealing with motions and discovery. Sorry, when dealing with discovery, the discovery process. So in addition to that overriding principle, it’s also repeated in the discovery rules. But that proportionality concept is an important one and I think that all Judges and Masters will be aware of that principle of interpretation.

Chris Graham: Rule 20 has been revised significantly to expand…well why don’t you speak to this one Paul?

Paul Trudelle: Sure. The Rule 20 is the rule under which you can move for summary judgment. And it’s been expanded substantially and overhauled. Before, the test was whether a trial was necessary and where there were issues of credibility, the Courts could normally not make an Order for summary judgment. Now under the Rule, the Court’s powers are expanded so that they can access credibility and weigh evidence in making a finding as to whether the matter is something that can be decided in a summary manner or whether it needs to proceed to trial.

The rule also provides that if the matter is to go to trial, the Courts can make specific directions with respect to how the matter is tried. In effect, the rule allows the Judge to direct all of the issues for trial and set out the process for getting to trial much like a Simplified Proceeding. There can be an Order with respect to hearing evidence with respect to one issue only, limiting the amount of examinations that are necessary, providing that the materials that have been used to get to summary judgment can be relied upon in getting it to a summary trial.

Chris Graham: And Rule 20.06 has significantly altered fixing of costs in Rule 20 as well. So now the Court may fix and order payment of costs for a motion under Rule 20 by a party on a substantial indemnity basis if the party acts unreasonably in making or responding to the motion or the party acted in bad faith for the purpose of delay. So Rule 20, I suppose one might say some teeth have been added to Rule 20. It’s now a lot more practically effective or useful than it was before.

Paul Trudelle: I think it’s a lot more effective and we’re going to see a lot more motions for summary judgment under the expanded rule simply because the Court has more flexibility in deciding that motion. Before, we would often advise our clients or clients would be advised by anyone in a civil proceeding that a motion for summary judgment could be brought. However it was difficult to get a motion for summary judgment and there were substantial cost consequences if you failed on a motion for summary judgment. Now because of the expanded powers of the Court in determining whether a matter can be decided on summary judgment, I think that we’re going to see more of that.

Chris Graham: It almost seems like the Rules have been revised to bring in elements of trial of an issue only on a more modest scale.

Paul Trudelle: Right, yes. And in the Estates context, we’d often see that with the Order giving Directions, the Court could set out what the issues are to be decided and a summary procedure for getting those issues decided by the Court. In the regular Civil context, there wasn’t that power unless you were bringing a Simplified Proceeding. Now the Court has that power on the motion for summary judgment to either decide those issues that it can decide in a summary manner or if it can’t or it feels that it’s not able to decide those issues, setting out a summary trial procedure for getting those narrow issues decided. So that’s a substantial change under Rule 20 and we’ll have to consider that and wait to see how widespread those motions become and how many more of them we see.

Another substantial amendment is with respect to expert evidence. Firstly, the Court has codified the duty on experts to act objectively and to give non-partisan opinion evidence and only evidence with respect to matters which are within their expertise. So the Rules provide for that and set out what the obligations and duties are of the expert witness.

The Rules also affect the timing of delivery of expert reports. They’re now to be filed 90 days before the pre-trial conference rather than 60 days before trial. And responding expert reports must be served 60 days prior to the pre-trial conference. I think there part of the intent was to avoid delays or adjournments of trial because expert reports aren’t delivered in time. It also seems to enable a more meaningful pre-trial conference and I think that’s an important concept as well.

Chris Graham: Yeah, and you’ll find all of the new provisions relating to experts or a lot of them in Rule 53.03 including at sub 2.1, there’s specific form requirements to expert reports which are useful because they lay out what the report should include in the Order. And you know we deal with a lot of reports and there seems to be no consistent format for the kind of reports that have been provided in the past.

Paul Trudelle: Right, so there’s now the shopping list of things that need to be in your expert report and that includes the acknowledgment from the expert of the expert’s duty to be objective and non-partisan. I talked a bit about the timing change with respect to expert evidence. There are also substantial changes to the timing of most other matters in the Rules, with the view to providing more lead time. Most notice periods with respect to motions have now been bumped up to 7 days. That includes where a Factum is delivered and responding materials and now 4 days before the proceeding for the most part.

Chris Graham: Yeah and those changes are, I think they’re fairly obvious. Even 4 days could be difficult to meaningfully address arguments raised within 4 days but that’s what we do for a living I guess.

Paul Trudelle: Right, right. And just with respect to the motions for summary judgment, it’s not in the Rules but there’s a new Practice Direction that deals with the scheduling of those motions. And in effect, there’s now going to be a Scheduling Court appearance held before the motion for summary judgment can proceed in order to set out the time frames for delivering materials, examinations if any, responding materials, Factum and the like. So all of that will be time-tabled at this scheduling hearing.

The next change that I think is substantial and that we should talk about before we wrap up today is with respect to Examinations for Discovery.

Chris Graham: Yeah, discoveries really have been tightened up in a lot of respects. The first major change is the phrase in the Rules that states “relating to any matter in issue in the action” in defining the scope of discovery, has been replaced with “relevant to any matter in issue in the action”. And so there’s now a relevance test.

Paul Trudelle: Right, and I think that some felt that this may make production a little bit easier and you won’t have to produce everything that may relate to a matter in issue, and only produce what’s relevant to the matters in issue. I don’t know if that is necessarily going to be the outcome because if it related to the matter then it may be relevant to the matter. But we’ll see how that’s put in place in practice.

The other change or one of the other changes is with respect to oral Examinations for Discovery. There’s now a 7 hour time limit on examinations and under that rule, each party has 7 hours to complete all of their examinations of all of the other parties. So that may be something that will streamline…it will streamline discoveries and will I think force counsel to become much more focused and surgical with respect to their discoveries. There’s also a requirement that a discovery plan be put in place. There’s also the provision that the parties can agree that more discovery can be had if it’s felt to be necessary and all the parties agree. If the parties can’t agree that more discovery is needed, then the Court can order by Order allow for longer discovery. But I think you’re going to need to set out materials that address the matters in issue, why more discovery is important and also deal with the issues of the costs to all of the parties and address the issue of proportionality that we started with.

Chris Graham: And not to demean the importance of discovery before these Rules, but it certainly didn’t have the same structure to it and now it is a step that will have to be taken as seriously as drafting a Statement of Claim. I mean it was always taken seriously but the endless 10 hour, 2 day, 3 day discoveries of one witness are certainly over.

Paul Trudelle: Right, and I was at a seminar on the new Rules last week and one of the things that they were talking about is that preparation is going to be much more important under the Rules now because of the limits on the time for discovery. And the presenters at that seminar were talking about the old days where parties would not prepare as fulsomely as they should perhaps and really not get into the discovery until the second day and in the first day they’re just learning the documents themselves. That’s not going to be permitted or an option under the amendments and you’re going to have to know the case cold going in and make sure that you can get right to the meat of the examination and get those questions asked and answered.

Chris Graham: And just to reiterate, that’s 7 hours in total, not 7 hours per witness. So you’re really limited to a day and a half as discoveries go, really. A day and a half in all for all of the witnesses you’re going to call, subject to any agreement you may make with all counsel.

Paul Trudelle: Right. There’s also a change to the Rules with respect to Simplified Procedure. The limit for Simplified Procedure is now $100,000. So claims that are $100,000 or less or for property that’s worth $100,000 or less must be brought under the Simplified Procedure. And there’s changes to those rules as well. Discovery is now permitted under the Simplified Procedure. However that discovery is limited to 2 hours.

I think that wraps up an overview of the amendment to the Rules. We can perhaps spend more time dealing with each of those areas and maybe that’s something we can do on a later podcast. But for now, I think it’s important to be aware of the changes and we’ll wait to see how they get put into practice.

Chris Graham: Yeah, actually it’s going to be quite exciting to see, particularly with respect to Rule 20. That could really shake up the way trials are conducted in Ontario.

Paul Trudelle: Yeah, that seems to be…that and the discovery provisions…seem to be the two major changes. And I’m thinking that they’re going to have a profound impact on litigation because of the expanded powers of the Court to make summary judgment, and if summary judgment isn’t granted, to tailor the trial so that it can be dealt with in a more expeditious basis.

Well thank you very much, Chris.

Chris Graham: And thank you, Paul. It was a pleasure.

Paul Trudelle: And we look forward to hearing from you. If you want to send us an e-mail, please e-mail us at hull.lawyers@gmail.com.

Chris Graham: Be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice in Estate law. And we hope that you enjoyed the show. I’m Chris Graham.

Paul Trudelle: And I’m Paul Trudelle. Thank you.

Chris Graham: Till next week.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.

Miep Gies - The Last Survivor of the Anne Frank Story, Dies at 100

Hull & Hull LLP — Tue, 19 Jan 2010 05:30:00 -0500

Although the name "Miep Gies" may not be familiar to you, she was a key player in a story you almost certainly know. Miep Gies, together with four others, provided a hiding spot for Anne Frank and her family as well as 4 others during WWII. This act would have been enough to make her a hero. Mrs. Gies' role did not stop there: without her help there is a good chance the world would never have seen Anne Frank's diaries published. Mrs. Gies discovered Anne's diaries and gave them to Anne's father at the end of the war, allowing for their eventual publication.

I am sure that, for many, reading Anne's diary was a memorable experience. It certainly was for me. So much so, that when I visited Amsterdam I sought out the Anne Frank Museum to view the hiding place which Mrs. Gies and her fellow protectors risked their lives for to provide to the Frank family. It was a truly humbling experience.

Mrs. Gies was the last survivor of both the protectors of Anne and her family. She was the last living connection to the 'Anne Frank story'. While she maintained that her actions did not make her a hero, I beg to differ. Her courage and thoughtfulness will live on forever through Anne's story, and although her passing is a true loss, it allows us to remember and once again reflect on her heroism.

Until tomorrow, Nadia

Nadia M. Harasymowycz - Click here for more information about Nadia Harasymowycz.

When the Bottle Hits Back: Korsakoff's Syndrome

Hull & Hull LLP — Mon, 18 Jan 2010 00:01:21 -0500

Korsakoff’s syndrome is a brain disorder usually associated with chronic, excessive alcohol consumption. At the physiological level, Korsakoff’s is caused by a thiamine (vitamin B1) deficiency, which ultimately affects the brain and the central nervous system. In the context of alcoholism, this thiamine deficiency comes about as a result of poor diet as well as an impeded ability of the stomach lining to absorb vitamins.

Korsakoff’s predominantly affects men between the ages of 45 and 65. Women tend to develop the disease at an earlier age than men. According to the Alzheimer’s Society UK, it takes about 20 years for the disease to develop in men, whereas it takes about half that time to develop in women.

At first glance, one with Korsakoff’s syndrome may appear fairly normal. An in-depth assessment, however, would reveal symptoms including:

· Memory loss, particularly of events post-onset of the disease;
· Impaired ability to acquire new information;
· Lack of insight into the condition;
· Perseveration (repetitive comments or questions);
· Eye movement disorders; and
· Confabulation, or ‘falsification of memory’ in which the sufferer makes up events to cover up their inability to remember events.

Once Korsakoff’s develops, recovery is unlikely, however the progression of the disease can be halted with abstinence from alcohol. Treatment for Korsakoff’s is comprised of thiamine therapy, as well as the administration of medications usually given to people with Alzheimer’s disease.

Jennifer Hartman, Guest Blogger