Posts tagged ‘litigation’

February 1, 2016

David Bowie’s Will

According to reports, aside from what appear to be a couple of generous bequests (what is Possum Inc.?), David Bowie, or should I say David Robert Jones, has left most of his real estate and 50% of the residue of his estate to his wife Iman.  25% of the residue will go to each of his two children (one real estate property goes to David and Iman’s daughter).  I suggest litigation should be unlikely with this division but …

Here is The Guardian’s story.

Here is the New York Post’s story.

Bowie fans will know that he took the stage name “Bowie” because in the early years another Brit named David Jones was enjoying great (if fleeting) fame with The Monkees.

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
January 28, 2014

A New World in Dealing with Experts?

Estate litigation may require evidence from various types of experts; medical professionals, business valuators, forensic accountants, real estate appraisers, etc.  Below I have reproduced an article by Stephen Schwartz and Gillian Silverhart of Chaitons LLP commenting on a recent Ontario case that could have a chilling effect on how lawyers interact with experts.


Stephen Schwartz
Gillian Silverhart

On January 14, 2014, Madam Justice Wilson of the Superior Court of Justice released her decision in Moore v. Getahun (“Moore”) strongly criticizing the current practice of lawyers reviewing and commenting on draft expert reports prepared for use at trial.


Moore was a personal injury action. During the examination of an expert retained by the defendants at trial, plaintiff’s counsel reviewed the expert’s file and found notes referring to a telephone conversation between the expert and defence counsel. During the call, counsel reviewed the expert’s report and suggested changes, which were made by the expert.

The plaintiff argued that it was inappropriate for defence counsel to make suggestions to the expert concerning his report. Defence counsel took the position that experts are entitled to prepare draft reports to be shared with counsel for comment.

Madam Justice Wilson agreed with counsel for the plaintiff, admonished counsel’s common practice concerning expert reports and found as follows:

“[50] For reasons that I will more fully outline, the purpose of Rule 53.03 is to ensure the expert witness’ independence and integrity. The expert’s primary duty is to assist the court. In light of this change in the role of the expert witness, I conclude that counsel’s prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable.

[51] If after submitting the final expert report, counsel believes that there is need for clarification or amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel.

[52] I do not accept the suggestion in the 2002 Nova Scotia decision, Flinn v. McFarland, 2002 NSSC 272 (CanLII), 2002 NSSC 272, 211 N.S.R. (2d) 201, that discussions with counsel of a draft report go to merely weight. The practice of discussing draft reports with counsel is improper and undermines both the purpose of Rule 53.03 as well as the expert’s credibility and neutrality….

[520] The purpose of Rule 53.03 of the Rules of Civil Procedure is to ensure the independence and integrity of the expert witness. The expert’s primary duty is to the court. In light of this change in the role of the expert witness under the new rule, I conclude that counsel’s practice of reviewing draft reports should stop. There should be full disclosure in writing of any changes to an expert’s final report as a result of counsel’s corrections, suggestions, or clarifications, to ensure transparency in the process and to ensure that the expert witness is neutral.” [Emphasis added in bold.]


An expert is required to be independent and impartial. Their duty lies to the Court, he or she must not advocate for the party on whose behalf they are engaged. An expert’s duty is codified in Rule 4.1.01 of the Rules of Civil Procedure (the “Rules”).


It is common practice for experts to provide counsel with draft copies of their reports for review and comment. Counsel regularly provide the expert with input where appropriate.

In our opinion, this practice was accepted by the Court because an expert’s impartiality remained protected in at least the following ways. Firstly, the entire file of an expert called to testify at trial, including their notes, correspondence with counsel and draft reports, may be the subject of a production order (see Conceicao Farms Inc. v.
Zeneca Corp
; reversed on other grounds). Secondly, an expert can and often is cross-examined by opposing counsel on their draft reports. Thirdly, pursuant to Rule 53.03(2.1) , experts must sign an acknowledgment of their duty to be objective and non-partisan as set out in Rule 4.1.01 of the Rules.


The comments of Justice Wilson in Moore, if followed, represent a marked departure from the current practice concerning the preparation of expert reports in Ontario. According to Justice Wilson, it is no longer appropriate for counsel to review and provide comment on draft expert reports. The current practice may result in the Court refusing to accept the report or limiting the evidentiary value or the report.
As a decision of the Superior Court of Justice, it remains open for other trial judges of co-ordinate jurisdiction to disagree with the analysis of Wilson J. and confirm the acceptability of the current practice.

In our view, for the reasons set forth above, consultation between counsel and an expert concerning the expert’s draft report does not compromise the expert’s impartiality or create a perception of bias. Moreover, such consultation is not inconsistent with the expert’s duty to the Court. Interestingly, the Court’s decision in Moore does not appear to expressly prohibit discussions between counsel and an expert prior to the report being drafted.
However, until the comments of Justice Wilson are overruled or rejected, counsel and experts should be mindful of the Court’s direction. They may consider proceeding by expanding discussions and consultation prior to the report being written. Further, any revisions requested to a draft report by counsel might be provided by correspondence and disclosed to opposing counsel. At a minimum, there should be a discussion between the expert and counsel on the level and manner of counsel’s involvement in the preparation of an expert report.

* As at January 23, 2014, counsel for the defendants was awaiting instructions as to whether appeal the decision. However, even if the decision is overturned, the Court of    Appeal may not comment on Justice Wilson’s findings on this issue.

January 23, 2014

Supreme Court of Canada Sets the Test for Summary Judgment

The Supreme Court of Canada today released a decision that resets the bar for how courts will deal with summary judgment motions in Ontario and, by effect, the other common law jurisdictions of Canada. In Hryniak v. Mauldin, The Supreme Court conducted a review of the history of the Ontario rules for summary judgment, the various changes and the interpretation of those changes by lower courts. While there will be much comment on the effect of the decisions, it certainly appears at first blush that the Court is intent on opening up the availability of summary judgment. Highlights of the decision include the following:

  • Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes;
  • A shift in culture is required.  The proportionality principle can act as a touchstone for access to civil justice;
  • Summary judgment motions provide an opportunity to simplify pre-trial procedures and move the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case;
  • Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims;
  • The new powers in Rules 20.04(2.1) and (2.2) expand the number of cases in which there will be no genuine issue requiring a trial by permitting motion judges to weigh evidence, evaluate credibility and draw reasonable inferences;
  • Summary judgment motions must be granted whenever there is no genuine issue requiring a trial;
  • There will be no genuine issue requiring a trial where the judge is able to reach a fair and just determination on the merits on a motion for summary judgment.  This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result;
  • There will be no genuine issue requiring a trial if the summary judgment process provides a judge with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure;
  • If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2);
  • Absent an error of law, the exercise of powers under the new summary judgment rule attracts deference.  The exercise of the fact‑finding powers under Rule 20.04(2.1) and a determination whether there is a genuine issue requiring a trial, are questions of mixed fact and law which should not be overturned, absent palpable and overriding error.
May 16, 2013

The “Plot” Thickens – A Grave Situation?

Firstly – my apologies for the puns (both of them).

An issue that rarely receives judicial consideration was the subject of a recent Ontario Superior Court of Justice application – the rights of descendants to burial plots.

In Smith v. Cataraqui Cemetery Company, the Court was asked to determine whether the applicants, certain lineal descendants of Joseph Smith, were entitled to interment rights at Cataraqui Cemetery in Kingston Ontario. The name of the case caught my eye as I recognized the cemetery as the resting place of Sir John A. MacDonald.

Brothers Darius and Joseph Smith purchased sixty-four plots for interment of human remains in the Cataraqui Cemetery in 1869 for which they were given a “deed” to certain plots. The deed included the following grant:

to have and to hold the above granted Premises to the said Darius Smith and Joseph Smith and their Heirs and Assigns forever subject, however, to limitations and conditions with the privileges specified in the rules of the said cemetery…that they are actually and lawfully seized of the Land hereby granted.

On paper, Darius and Joseph Smith remain the interment right holders of the sixty-four plots and there was no evidence that either transferred their interment rights while they were alive or devised their rights by way of will. The cemetery took the position that unless the applicants could prove that they are interment right holders of any of the Smith plots, none of the remaining plots purchased by Darius and Joseph Smith can be used and, in effect, these plots should forever be sealed. The question then was whether the grant under the deed was sufficient to pass interment rights to descendants.

The Court reviewed the general rights of interment at common law. A person purchases not the land to which they wish to be interred, but the right to be interred in a specified plot. The purchaser is provided with an Interment Right’s Certificate as a record of how many rights were purchased and where, in the cemetery, the rights are located.

The Court considered the application of the Funeral, Burial and Cremation Services Act (the Act), which came into force July 1, 2012, and replaced the old Cemeteries Act. The Act specifies that that only an interment rights holder, or such other person to whom the interment rights have been assigned, has the right to inter human remains in the plot to which the interment rights relate. The cemetery therefore took the position that the applicants were required to show that they had such a right of interment as required by the Act.

On the facts, the Court found that the intention of the parties to the 1869 deed was to permit the transfer of interment rights to heirs of Darius or Joseph. It defined “heirs” in the deed broadly to include lineal descendants or family members of lineal descendants of either brother. The fact that the cemetery had permitted the burial of over twenty Smiths since 1869 without formal proof that they are interment right holders was a factor in the Court’s decision. Also important was the obvious fact that the brothers had purchased 64 plots. What did the cemetery think they intended to do with them?

The Court found further that the requirement under the Act that the right to interment be direct or by way of assignment does not have retroactive application so as to remove pre-existing substantive rights. Therefore, the deed was effective to transfer the Smiths’ interment rights to their lineal descendants and spouses without assignment.

Finally, the Court applied the law of estoppel to find that the cemetery’s silence and its acts in permitting other Smith burials without formal proof of interment rights prevents it from now insisting that the applicants prove such rights.

April 26, 2013

Summary Judgment and Testamentary Capacity – The Ontario Court of Appeal Speaks

The use of summary judgment motions to dismiss will challenges appears to have been given a boost by the Ontario Court of Appeal. In Orfus Estate v. Bessie Orfus Family Foundation, the Court heard an appeal from the Superior Court, which granted summary judgment dismissing a challenge by the daughter of the deceased to the validity of two wills and a codicil. The challenge was grounded in an allegation of a lack of testamentary capacity and of undue influence. The motion judge held that the testator had capacity, knew of and approved the contents of the documents and that their execution was not procured by undue influence. The Court of Appeal upheld that decision. The case is interesting for a few reasons.

The decision under appeal was decided before the Court of Appeal decision in Combined Air, which established or clarified (depending on your viewpoint) the test for summary judgment in Ontario. On appeal, the Court applied the Combined Air “full appreciation” test to ask – “can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial”.

A voluminous record often bodes ill for meeting the full appreciation test, usually because “more paper” is often equated with “more complicated” and therefore deserving of a full trial. However, in the circumstances of this case, the fullness of the record (20 witnesses, 5000 pages of evidence, including exhibits) may have had the opposite effect.

The Court found that the evidence, while voluminous, was not particularly contradictory and did not raise issues of credibility. Much of the evidence was from the deceased’s physicians and lawyers who, unless there is evidence otherwise, are generally considered by courts to be disinterested, reliable witnesses and therefore not usually prone to credibility problems. Here, the physician / lawyer evidence was found to either support the position that the deceased had capacity and was not unduly influenced, or to be inconclusive either way. Rather than add to the complexity of the case, it appears that the Court saw the volume of evidence as bolstering the case for capacity.

Granted, this was not a case involving significant conflicting evidence of capacity or undue influence from family members, which is often the case. Credibility issues tend to arise more often where the evidence of interested family members is important to the court’s findings. However, reading into the comments of the Court, the message appears to be that testamentary cases generally are good candidates for summary judgment, at least in the cause of dismissing them. The Court noted that the evidence of the main party, the deceased, cannot be subject to credibility (at least none that can be tested at trial, for obvious reasons). As well, as stated, courts will generally prefer available medical evidence and the evidence of the drafting lawyer and witnesses to the execution of a will or codicil over that of self-interested offspring. Therefore, with this case, the Court of Appeal may be signaling that the availability of sound evidence of reliable professionals to support a finding of capacity should encourage the use of summary judgment in dismissing will challenges.

As a postscript, the Court of Appeal has released its decision on costs of the motion. The successful respondents asked for substantial indemnity costs of approximately $85,000 or in the alternative, partial indemnity costs of approximately $58,000. The Court granted costs of $30,000, stating that the party alleging incapacity “argued reasonable questions of law and process, and her challenge to the codicil raised a difficult issue”.

Comments of the Superior Court of Justice in the first three paragraphs of Baywood Homes v. Alex Haditaghi are also interesting. While not a will challenge case, the comments of Justice Belobaba support the notion that “more paper” does not equate with “more complicated”.

See also Blanchard v. Bober.

March 19, 2013

Judge moves to end 40-year war over Forest Hill man’s estate

This is truly a sad story and the ultimate illustration of what can go wrong in estate litigation. Unfortunately, regardless of the thought put into succession, it is difficult to guard against a party bent on litigation. I represented a family member in this matter some years ago and while that issue was ultimately resolved, it appears that the purchasers of the estate realty have not been so lucky.

The Court’s decision can be found here:

January 31, 2013

Speaking from Beyond the Grave

The Court of Appeal for Ontario recently dealt with one of the last remaining anomalies to the modern rules of evidence – the statutory requirement for “corroboration” of evidence in an action involving a deceased person.

While in Ontario this rule is embodied in section 13 of the Evidence Act, a similar rule is enacted in many common-law jurisdictions. Section 13 of the Ontario Act states:

In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

In Brisco Estate v. Canadian Premier Life Insurance Company, the Court was not dealing directly with an estate action but an action against a life insurer by the beneficiaries of a policy owned by the deceased. At issue was whether the deceased had or had not canceled the policy prior to his death. The beneficiaries sought to rely on certain hearsay evidence of the deceased, through the beneficiaries, with respect to the deceased’s intentions regarding his life insurance policies. At issue was whether the hearsay evidence was (1) subject to s. 13 of the Evidence Act and (2) if so, whether the evidence was sufficiently corroborated.

The Court went through an interesting analysis of the rationale for s. 13. It noted that the rule is an anomaly to the common-law rules of evidence and is among the last requiring that evidence be corroborated. The Court noted that “[m]ost statutory and common law requirements have fallen away in the last thirty to forty years, including requirements for corroboration of the evidence of children, rape victims and accomplices”. The Court went on to review the purpose for the rule and the possible dangers that may arise from its application:

The purpose of the rule is to guard against fraud in an action against the estate by a party to a transaction with the deceased. This objective is based on the fact that only the survivor’s testimony is available. Section 13, however, is drawn in broad terms to capture not only those who bring an action against the estate, but those bringing an action on behalf of the estate. And, as in this case, the rule potentially captures a case where the court does have the testimony of the deceased, albeit in the form of hearsay. In this latter case, the primary danger lies in the witnesses’ possible perjury, but they are available for cross-examination.

Given the exceptional nature of the rule and its potentially broad application, the Court in this case restrained the rule, stating:

Given its anomalous place in the modern law of evidence, especially in a case such as this, I see no reason to give s. 13 a broad interpretation when considering its application nor a narrow interpretation when considering the scope of evidence capable of corroborating the evidence of the interested party.

In this particular case, the Court determined that section 13 does not apply, finding that “s. 13 is limited to circumstances in which the interested party claims as an heir, next of kin, executor, administrator or assignee and not simply because, coincidentally, the person happens to fall within one of these categories. In this case, the Brisco children do not claim as next of kin or heirs but under a contractual right as beneficiaries of an insurance policy”. The Court therefore clearly restricted the application of section 13 to actions involving an estate itself and the rights of those claiming in the estate.

The Court also seemed anxious to give wide breadth to the type of evidence available to corroborate evidence to which section 13 might apply. In particular, it agreed that corroborating evidence can include an accumulation of circumstantial evidence, notwithstanding that each item or piece of evidence viewed in isolation may not be corroborative.

Given the Court’s generally negative view of s. 13 in this case, is it possible that the section may not be too far from the grave itself?