Archive for ‘Litigation’

April 14, 2016

Medically Assisted Death Bill Introduced in Parliament

On April 14, 2016 Parliament introduced Bill C-14 to amend the Criminal Code and related statutes in response to the Supreme Court of Canada’s Carter ruling on medical assistance in dying.

The bill removes criminal liability for assisting a person to end her or his life if carried out in compliance with the new s. 241.1.

The bill first defines “medical assistance in dying” as the administering by a medical practitioner or nurse practitioner of a substance to a person, at their request, that causes their death, or the prescription or provision of such substance to be self-administered.

In order to be eligible to receive medical assistance in dying, a person must:

  • be 18 years of age and capable of making decisions with respect to their health;
  • have a grievous and irremediable medical condition;
  • have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
  • give informed consent to receive medical assistance in dying.

Clearly the most debated portion of the bill will be defining what constitutes a “grievous and irremediable medical condition”.  The government has defined it in the bill as requiring all of the following:

  • a serious and incurable illness, disease or disability;
  • an advanced state of irreversible decline in capability;
  • enduring physical or psychological suffering that is intolerable to the person and cannot be relieved under conditions that they consider acceptable; and
  • natural death being reasonably foreseeable, taking into account all medical circumstances, without a prognosis necessarily having been made as to the specific length of time that a person has remaining.

The requirement of “an advanced state of irreversible decline in capability” and “natural death being reasonably foreseeable” have been viewed as overly restrictive by some, but are largely approved of by the medical community.

Safeguards are included in the bill, requiring that before a medical practitioner or nurse practitioner provides a person with medical assistance in dying, they must:

  • be of the opinion that the person meets all of the eligibility criteria above and obtain a written opinion to that effect from another, independent medical practitioner or nurse practitioner;
  • ensure that the person’s request for medical assistance in dying was made in writing, signed and witnessed after the person was informed that their natural death has become reasonably foreseeable;
  • ensure that the person has been informed that they may, at any time and in any manner, withdraw their request;
  • ensure that there are at least 15 clear days between the day on which the request is signed and the day on which the medical assistance in dying is administered, unless a shorter period is deemed appropriate in the circumstances;
  • immediately before providing the medical assistance in dying, give the person an opportunity to withdraw their request and ensure that the person gives express consent to receive medical assistance in dying.

The bill extends protection to pharmacists who prescribe substances and to others who assist the medical practitioner or nurse practitioner is administering assistance in dying.  A criminal offence is established for failing to follow the safeguards, with potential jail sentences of not more than 5 years.

No manner of providing medical assistance in dying is set out.  The bill only requires that assistance be provided with reasonable knowledge, care and skill and in accordance with any applicable provincial laws, rules and standards.  Indeed, as health care is within provincial rather than federal jurisdiction, it will be up to the provinces to implement and oversee the practice of delivering medical assistance in dying.

Much debated before the bill was introduced were issues such as the eligibility of minors, mental illness and advance consent.  Minors are clearly not eligible and will be the subject of further study.  As for mental illness, it is not specifically deemed ineligible and indeed the definition of a grievous and irremediable medical condition illness references psychological suffering.  However, the issue of mental illness will undoubtedly be problematic as mental illness may affect the ability of a person to give informed consent.  Connected to this issue is the matter of advance consent.  What happens if a person has a serious and incurable illness, disease or disability but is not yet in an advanced state of irreversible decline in capability?  If they are suffering from a progressive cognitive disease, by the time their disease and suffering has advanced, they may no longer be capable of giving informed consent to treatment.  This bill would not allow that person to give consent to medical assistance in dying before their cognitive abilities decline.

The government has taken a cautious approach with this bill.  Given what is really a short period of time to deal with such a large social issue, this was not unexpected.  Once this bills passes, whether intact or with amendments, the debate will continue and there will undoubtedly be many calls for amendment, both for more restrictive and for more liberal measures.

 

January 23, 2016

Don’t spend that life insurance money too quickly!

Life insurance can be an effective way to leave a legacy.  It allows you to benefit a loved one and, unless the insured’s estate is the beneficiary, avoids the requirement that funds pass through probate.  However, life insurance proceeds are not entirely free and clear of estate obligations in Ontario – so beware before spending that money (and do not disregard notice of court proceedings) – as one man’s daughter learned in the recent case of Bormans v. Bormans Estate.

Sections 72(1) (f) and (f.1) of the Ontario Succession Law Reform Act deem life insurance proceeds to be an estate asset for the purpose of determining the rights of a dependant to support from the estate.  Insurance proceeds therefore may be available to pay support if the other assets of the estate are insufficient to do so.  In Bormans, Mr. and Mrs. Bormans divorced after 38 years of marriage.  Mr. Bormans was to pay support to Mrs. Bormans and warranted to her that she was named as beneficiary of his company life insurance policy.  When he died, without assets, Mr. Bormans was in arrears of his support obligations.  To Mrs. Bormans’ surprise, the company policy had been cancelled but Mr. Bormans had purchased another life insurance policy, naming his daughter as beneficiary.  The proceeds of that policy had been paid to the daughter.  The daughter, despite notice of a  court application by Mrs. Bormans for dependant’s relief, proceeded to dispose of most of the insurance proceeds.

The Court found that Mrs. Bormans was a dependant of Mr. Bormans’ estate.  As a result, the Judge determined that most of the policy proceeds paid to the daughter should have been available to satisfy the estate’s support obligations to Mrs. Bormans.  The Court placed emphasis on the fact that Mr. Bormans had warranted that Mrs. Bormans was the beneficiary of a life insurance policy.  The daughter was ordered to pay to Mrs. Bormans most of the insurance proceeds, with the exception of some amounts spent prior to her receiving notice of the court application.  As the daughter had already used a large part of these proceeds, she became personally liable to repay these amounts.

February 9, 2015

Physician-Assisted Dying – The Supreme Court of Canada Charts a New Course

If you live in Canada, you have heard of the Supreme Court of Canada’s decision in Carter v. Canada, released February 6, 2015.  That decision declared void two sections of the Canadian Criminal Code to the extent that those sections prohibit “physician-assisted dying for competent adults who seek such assistance as a result of a grievous and irremediable medical condition that causes enduring and intolerable suffering”.  So how did this come about?

Section 14 of the Criminal Code provides that “no person is entitled to consent to have death inflicted on him”.  Any such consent does not absolve a person from criminal responsibility if they cause the death of that person.  Section 241(b) makes it an offence to aid or abet a person to commit suicide.  The combination of these two sections constitutes a ban on any person, including a physician, assisting another person in ending her life, regardless of the circumstances.

In Carter, the Supreme Court concluded that these sections, to the extent that they prohibit physician-assisted dying for competent persons suffering from grievous and irremediable medical conditions, are invalid because they deprive those persons of the right to life, liberty and security of the person guaranteed under section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”).  The prohibition was found to be “overbroad” and not in accordance with the principles of fundamental justice.  The Court found further that the Criminal Code provisions were not “saved” under section 1 of the Charter.

The argument before the Court was limited to “physician-assisted death”, which was defined as “the situation where a physician provides or administers medication that intentionally brings about the patient’s death, at the request of the patient”.  The decision therefore does not extend beyond physician-assisted death.

One obstacle before the Court in dealing with this case was the fact that it had already heard an appeal dealing with physician-assisted death and these same provisions of the Criminal Code in the 1993 Rodriquez case.  At that time, the Court upheld the prohibition against physician-assisted death.  What changed in the last two decades?  It turns out quite a bit.

While one of the tenets of our legal system is the principle of stare decisis (lower courts being bound by decisions of higher courts), trial courts can reconsider rulings of higher courts in two situations (1) “where a new legal issue is raised” and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”.  The Supreme Court found that both conditions were met in this case.  While for lawyers the new legal issue is of interest, for most people (lawyers included) the real meat of the decision is in the fundamental shift in the physician-assisted death debate in the years since Rodriguez.  In particular the Court noted that:

  1. Notwithstanding Rodriguez, between 1991 and 2010 no less than six private members bills dealing with physician-assisted dying were debated by the House of Commons and its committees;
  2. Recent reports have come down in favour of reform of the prohibition;
  3. When Rodriguez was decided, there were no other jurisdictions that permitted assistance in dying.  By 2010, eight jurisdictions permitted some form of assisted dying.

In other words, the Court found that Rodriguez was a product of its time.  Times have changed.

In coming to its conclusion, the Supreme Court agreed with the trial judge’s assessment of most of the evidence.  Of particular interest, the Court found that:

  1. Section 7 rights encompass life, liberty and security of the person during the passage to death, recognizing that the sanctity of life is no longer seen to require that all human life be preserved “at all costs”;
  2. The prohibition deprives some individuals of life by, in effect, forcing them to take their own lives prematurely, for fear that they will be incapable of doing so when they reach the point where suffering is intolerable;
  3. An individual’s response to a grievous and irremediable medical condition is a matter critical to the person’s dignity and autonomy.  While a competent person is entitled to give informed consent to the refusal of life sustaining treatment, the prohibition does not allow them use informed consent to request a physician’s assistance in dying.  This interferes with the person’s ability to make decisions concerning their bodily integrity and medical care and exposes them to intolerable suffering, impinging the liberty and security of the person.

However, as the Court noted, the right to life, liberty and security of the person is not absolute.  Those rights can be restricted provided the restriction does not violate the principals of fundamental justice.  Here, the Court found that the prohibition did violate the principals of fundamental justice because it was overly broad.  The Court found that the object of the law, to “protect vulnerable persons from being induced to commit suicide at a time of weakness”, impacted persons other that vulnerable persons.  It also affects competent, informed people who have shown a persistent wish to end their own lives.

Having found a Charter right infringement, the Court had to determine whether the “saving provision” of section 1 of the Charter would allow the prohibition to stand.  Section 1 will uphold a law that breaches section 7 of the Charter provided the law is (1) rationally connected to the law’s objective (2) minimally impairs the right in question and (3) there is proportionality between the deleterious and salutary effects of the law.  The argument here came down to whether the law prohibiting physician-assisted death was a minimal impairment to the right to life, liberty and security of the person.  Canada argued that the impairment was minimal because it was not always possible to determine which individuals are vulnerable and therefore the general prohibition was necessary to protect from error.  It also put forward the “slippery slope” argument that allowing physician-assisted dying will lead to assisted dying in other circumstances.

The Court rejected these arguments and looked primarily to the standard of informed consent in Canada.  With informed consent, individuals make decisions about their lives and potential death all the time.  The Court found that physicians are able to determine whether a person is competent to assess alternatives and to make decisions regarding life and death. They are likewise able to determine whether such decisions are made voluntarily, free from coercion, undue influence and ambivalence.  The Court agreed with the trial judge that a permissive regime of physician-assisted dying, with properly designed safeguards, is capable of protecting vulnerable people from abuse and error.  The Court recognized that there are risks but stated that a “carefully designed and managed system is capable of adequately addressing them”.  The Court also found that such a system addresses any concern of a “slippery slope”.  The Court’s finding was bolstered by a lack of evidence of a heightened risk to people with disabilities in jurisdictions that allow for physician-assisted dying.

So what happens now?  The Court suspended its declaration of invalidity of sections 14 and 241(b) for 12 months to permit Parliament to enact provisions so as to comply with this ruling.  The decision itself does not set out circumstances whereby physician-assisted dying can be carried out.  It will be up to lawmakers to implement a regime that allows for physician-assisted dying but protects the vulnerable.  Already this has become a matter of great debate as the Supreme Court has provided no definition beyond a “grievous and irremediable medical condition that causes enduring and intolerable suffering”.  Perhaps tellingly, the Court did not restrict itself to terminal conditions (although query what “irremediable” means in this context). It also left a great degree of subjectivity to the analysis as only the individual can determine what is “intolerable” to her or him.  But how should intolerability be assessed by physicians?  It will certainly be an interesting debate to follow over the next year.

December 9, 2014

Mediation in Elder Law

I often focus in this blog on interesting cases dealing with points of law in estates and elder law.  However, I read an interesting article in this week’s Lawyers Weekly by Marilyn Piccini Roy dealing with the important role of mediation and the mediator in elder law.  Definitely worth a look.

Please note:  The original hyperlink used in this post was not functional.  I believe that the problem has been corrected.  My apologies.

November 26, 2014

Whose Life Insurance is it Anyway?

A trial decision from the British Columbia Supreme Court recently caught my eye because it dealt with the interesting interplay between life insurance policies and separation agreements.  In Milne Estate v. Milne, a separation agreement required a husband to maintain a life insurance policy in his name, naming the wife as beneficiary.  He later changed the beneficiary to a new common law spouse.  This is not an entirely uncommon occurrence.  The husband died before his obligations under the separation agreement ceased.

The issues in the case were as follows:

  1. Because the husband was required by the separation agreement to name the wife as beneficiary, could the new beneficiary be deemed to hold the insurance proceeds as constructive trustee for the wife?
  2.  Was the estate liable for breach of contract?
  3. If the estate was liable for breach of contract, what is the measure of damages? – the full amount payable under the policy or only such amounts as are required to meet the policy holder’s obligations under the separation agreement?

In dealing with the issue of a constructive trust, the Court cited and followed the Supreme Court of Canada decision in Soulos v. Korkontzilas.  Soulos holds that, under the umbrella of good conscience, constructive trusts are recognized as a remedy for wrongful acts such as fraud and breach of duty of loyalty, as well as to remedy unjust enrichment. However, the Court went on to state that the remedy should be used restrictively, and set out four criteria for the imposition of a constructive trust:

  1. The defendant must have been under an equitable obligation, being one recognized by courts of equity, in relation to the activities giving rise to the assets in her hands
  2. The assets held by the defendant must have resulted from a breach of her equitable obligation to the plaintiff;
  3. The plaintiff must show a legitimate reason for seeking a proprietary remedy, either personal or related to the need to ensure that others like the defendant remain faithful to her duties; and
  4. There must be no factors which would render imposition of a constructive trust unjust in the circumstances.

In the context of this action, the Court found that these criteria were not met.  While it found that relationships between separated spouses can (in the right circumstances) result in fiduciary obligations, once formalized in a separation agreement, the obligations are primarily contractual and equity will not apply.  That was the finding in this case and the Court was therefore unwilling to impose a constructive trust on the new beneficiary.  The new beneficiary was entitled to the insurance proceeds.

As for the issue of contract, the Court did find that the failure to maintain the life insurance policy in the name of the former spouse resulted in a breach of the separation agreement for which the estate was liable for damages.  The issue was the measure of damages – was it the full amount payable on death under the insurance policy, or only such amounts as the deceased was liable for under the separation agreement, being primarily support obligations?

After reviewing relevant Court of Appeal decisions in Ontario and British Columbia, the Court concluded that the level of damages depended on the wording of the separation agreement.  If the separation agreement stated that the life insurance policy was to act as security for the obligations of the deceased under the separation agreement, the level of damages would be determined by and limited to those obligations.  However, if the obligation to maintain an insurance policy was not stated to be security for the obligations of the deceased, the level of damages for the breach is the full amount payable under the policy.

In this case, while there were certain connections in the separation agreement between support obligations and the requirement to maintain the insurance, it was not clearly stated in the agreement that the policy was to act as security for the performance of the husband’s obligations.  Following the Ontario Court of Appeal in Turner v. DiDonato, the Court found that the obligation to maintain life insurance was a stand-alone obligation; i.e. not security for the husband’s obligations under the separation agreement.  As result, the wife’s entitlement to damages against the estate was the full amount payable upon death under the life insurance policy.

The end result is certainly interesting as the death benefit is in effectively payable twice.

October 2, 2014

Why Lawyers Draft Wills

A recent Ontario case is a good reminder of why preparing a will is best left to a competent lawyer.

In Budai v. Milton, the testator clearly wanted a no-nonsense approach to how his failing health and his estate were dealt with.  He had a will prepared by a retired financial planner, who also happened to be named as executrix of the estate.  The proposed executor was in all likelihood an excellent financial planner, but was found lacking in legal skills.

The will named one beneficiary, the applicant (defined in the will as a paid caregiver) and contained the following clauses:

6.1      Should my beneficiary, Kathy Budai challenge this Will or my choice of Executrix in any way then she will be removed from the Will and not inherit anything.

6.3      Should the estate have holdings due to my beneficiary not honouring my final wishes to pass away without any further efforts to prolong my life then the Executrix shall be in the control of distribution of the Estate.  She may give away the funds in any way she sees fit.  She may invest the balance of the Estate and use it for donations or any other purpose as long as the funds last.  There are no restrictions to what she may do with the balance of the Estate.

With respect to clause 6.1, the applicant took the position that it should be struck out as contrary to public policy on the basis of the in terrorem doctrine.  That doctrine can be invoked to strike a portion of a will where three criteria are satisfied, namely;

(a)   the legacy must be of personal property or blended personal and real property;

(b)   the condition must be either a restraint on marriage or one which forbids the donee to dispute the will; and

(c)   the “threat” must be “idle.”

The court found that these criteria had been satisfied. A bald prohibition to challenging the will “in any way” offended the doctrine.  Determining whether a threat is “idle” requires an examination of whether the threat is “imposed solely to prevent the donee from undertaking that which the condition forbids”.  Bare forfeiture of a gift is therefore considered an idle threat.

While the court found paragraph 6.3 to be valid, despite several claims of uncertainty, it did note that the ability of the executor to disburse funds in any way she sees fit to be suspicious. The proposed executor was also the drafter of the will and had the ability under that clause to disburse the estate to herself if the applicant was disinherited.  However, while the Court was willing to consider that suspicion may be a factor in determining whether a will as a whole is valid (an example would be suspicion contributing to a finding of undue influence), it was not satisfied that there was authority to hold that suspicious circumstances may be used to strike only a single provision in a will, leaving the remainder of the will valid.

May 23, 2014

Whither Walt Disney’s Fortune: I don’t think Mickey would approve

According to the Hollywood Reporter, the real-life Walt Disney World may not be the happiest place on earth.

May 13, 2014

More on DNA Testing in Paternity Actions

In a February 2013 post, I commented on a Manitoba Court of Appeal case where defendants to an action for a declaration of paternity sought an order requiring the plaintiff and a third party to submit to DNA testing (see DNA Testing in Estate Matters – How Far Can it Go?).  The Court in that case held that an order requiring a party to litigation to submit to DNA testing could be made but such an order could not be extended to a non-party.  Obviously, without both parties involved, testing would be of no value.

With that evidentiary determination in hand, the plaintiff recently brought a motion for summary judgment for a declaration of paternity (Nandwani v. Nandwani).  The plaintiff relied heavily on the presumption of paternity legislated under section 23 of the Manitoba Family Maintenance Act which states that; “unless the contrary is proved on the balance of probabilities … a man shall be presumed to be the father of the child in one or more of the following circumstances: (a) he was married to the mother at the time of the child’s birth …”.  That section creates an onus on the defendants to proffer evidence to displace the presumption of paternity.  The mother and alleged father were married at the time of the plaintiff’s birth.

In denying the motion for summary judgment, the Master declined to follow a line of caselaw that held that the presumption of paternity is so strong that it would require overwhelming evidence to rebut it.  His reasons for doing so had to do, in part, with changes in public policy and advances in scientific testing.

In dismissing the motion for summary judgment, the Court commented positively on the lower court decision on the motion to compel DNA testing, finding that the purpose for the presumption of paternity originally served to overcome certain legal barriers resulting from, for example, findings of illegitimacy.  Such concerns do not exist today as the concept of illegitimacy is no longer valid or recognized at law.  Therefore, the presumption of paternity may no longer be so strong as older caselaw suggests.  As well, even though the Court of Appeal had dismissed the motion for DNA testing, the Master’s reasons, reading between the lines, suggest that the Court was not prepared to allow the plaintiff to obtain summary judgment in circumstances where he was successful in precluding the gathering of evidence that, in all likelihood, would have answered the question of paternity one way or the other.

 

March 27, 2014

MP Steven Fletcher to introduce 2 bills on assisted suicide

While not expected to be supported by the Harper government, Conservative MP and former cabinet minister Steven Fletcher plans to introduce two private members bills dealing with assisted suicide.  One would allow doctors to assist people in ending their lives under restricted circumstances. The other would set up a commission to monitor the system.  It will be interesting to see how this issue plays out with the pending appeal to the Supreme Court of Canada in the Carter/Taylor case.

 

March 24, 2014

Limitations and the Doctrine of Fraudulent Concealment

At common law, an action in negligence or for an intentional wrong is not permitted against or on behalf of a deceased person. The right to sue arises from statute, in Ontario the Trustee Act (s. 38). As a result, compliance with the Act is a must. The Act includes its own limitation period for actions, providing that an action under section 38 “shall not be brought after the expiration of two years from the death of the deceased”. Unlike the Limitations Act, 2002, there is no “discoverability” factor to be considered.  The date is fixed.
However, like most rules, there is an exception. This limitation period can be extended or “tolled” under the equitable doctrine of “fraudulent concealment”.  In other words, where a party has actively concealed wrongdoing, he or she cannot rely on the statutory limitation period to frustrate an action. In order to show fraudulent concealment though, the party asserting concealment must show:
(a) the parties are in a special relationship with one another;
(b) given be nature of this relationship, the conduct complained of amounts to an “unconscionable thing” for one to do to the other;
(c) the person conceals the right of the other (either actively, or as a result of the manner in which the act that gave rise to the right of action is performed)
This doctrine was recently considered in by the Ontario Superior Court of Justice in Rajmohan v. Solomon Family Trust. At issue was whether victims of a mortgage fraud could sue the estate of their lawyer more than two years after his death. The lawyer was not a party to the fraud but did not discover it.  The Court found that the requisite special relationship existed and that there had been concealment because the facts surrounding he lawyer’s actions only became evident after a review of his file. However, while the Court was very critical of the manner by which the lawyer handled the transaction, such actions were at best negligent and did not amount to an “unconscionable thing”.  As a result the doctrine could not be applied to toll the limitation period and the action was dismissed.
Updated:  The Court of Appeal upheld the decision of the Motions Judge