Whaley Estate Litigation

Whaley Litigation Newsletter No. 10 January 2012




Welcome to our January newsletter. Happy New Year from all of us at Whaley Estate Litigation to our clients and colleagues.


We continue to invite you to send your feedback, comments, enquiries and even contributions to newsletter@whaleyestatelitigation.com

Whaley Estate Litigation provides litigation, mediation and dispute resolution services to its clients in the following areas: 

  • Will, Estate, Trust Challenges/Interpretations
  • Dependant Support Claims
  • Passing of Estate, Attorney and Fiduciary Accounts
  • Capacity Proceedings
  • Guardianships
  • Power of Attorney Disputes
  • Consent and Capacity Board Hearings
  • End of Life Decision Making
  • Treatment Decision Disputes
  • Elder Law
  • Solicitor's Negligence
  • Opinions
  • Agency Services
  • Counsel to Estate Trustee(s) and Estate Trustee(s) During Litigation
Please enjoy,


Kimberly A. Whaley
Whaley Estate Litigation




As many of you are aware, I co-mediate with Brian Wilson, and qualified chartered accountant, tax lawyer and partner at the law firm of Wilson Vukelich LLP.  Together we offer our mediation services through estatemediators.ca.  Brian and I co-mediate  every mediation matter on which we are retained.  




We prefer the co-mediation route for several reasons and believe that it offers parties an effective mediation opportunity.


Apart from the fact that perhaps, "two heads are better than one", often Estate Mediations are very lengthy in terms of time. Though sometimes the mediation is being conducted because it is mandatory; mediation may also be pursued early on, either within the Court process or prior to Court proceedings being commenced such that the mediating parties retain as much control over the process as possible.  Whatever the circumstances of the mediation, often Estate Mediations are time consuming and hard work for all involved.  In other words, the mediation is often not just the standard roster mediation provided for in Rule 24.1 of the Rules of Civil Procedure which provide for one-half hour preparation and three hours of actual mediation.   Because the mediations are often lengthy, they require considerable mediator energy, patience and persistence.  Estate Mediation is fraught with a great deal of emotion by the participants and one must not forget after all, the mediation often arises out of a loss - in other words, a death.


Not only is the mediation fraught with emotion, there is often financial and legal complexity.


Specific professional background or expertise is ideal in Estate Mediation - we offer my experience as an Estate Litigator and Brian's experience as a Tax lawyer who is often involved in complicated Estate Tax and Trust planning initiatives.


Often there is a need to stabilize dynamics, and in this regard, co-mediating can be very effective.


In the case of Brian and I, the co-mediation approach does not add to the bottom line - we charge a competitive combined rate for our mediation services.


As co-mediators, Brian and I have complimentary experience which may mean that each of us may be more active at any one stage of the mediation.  However that said, whichever one of us is less active at any particular time will still mean that the other is performing a useful function in observing party reactions, taking notes, considering options and otherwise observing and analyzing the negotiations.  This ability can provide the basis for an appropriate contribution throughout the mediation process.  Co-mediation is a team effort in which we - at all times - strive to perform our functions together and not separately.


Brian and I always have a joint preparation session before we co-mediate.  We look at how we can ensure that an appropriate balance is maintained at the mediation as between us. Every mediator has a different style and often certain mediators are chosen particularly for his/her style as it relates to the circumstances of the parties and the subject matter of the proceedings, issues or negotiations.


Preparation prior to attending a mediation is important, both for Counsel for the parties and for the mediator. Counsel for the parties who are mediating should consider approaching the mediator prior to the mediation if there are concerns about convening an all-party session at the outset of the scheduled mediation.  Likewise, if there are particular issues sensitive to the parties which should be addressed, for instance, tendency toward violence, medical issues or other which may impact the mediation proceedings, it is important to consider how to approach issues such as these in advance of the mediation so that the day is not impeded by any unforeseen yet otherwise addressable issues. 


In some instances, preliminary meetings may be useful before the mediation meeting.  The broad functions of a preliminary meeting could include education about the process; the nature of the mediation; the respective roles in mediation; the style of the mediation; and managing parties' expectations from an early stage. It may also provide an opportunity for the participant parties to communicate a preferred style of mediation.  Sometimes a preliminary meeting may be useful where an all-party group session prior to the mediation is not advisable or not agreed upon given the nature of the dispute and the relationship between the parties. 


It is important to us as co-mediators to create favourable conditions for the parties such that the dispute resolution process has every opportunity to succeed.


Please direct all mediation enquiries through our estatemediators.ca website or contact Bibi Minoo at bibi@estatemediators.ca.


Brian and I welcome every opportunity to assist you and your clients with your mediation requirements.  Please do not hesitate to contact either one of us at:


Kimberly Whaley - kim@estatemediators.ca

Brian Wilson -- brian@estatemediators.ca  

Elder and Guardianship Mediation


The British Columbia Law Institute ("BCLI") has released today a masterful report on Elder and Guardianship Mediation. 


Link to the full report: http://www.bcli.org/sites/default/files/EGM_Report_Jan_2012.pdf


Peter Ramsay, Q.C., says on this report the following by way of background to the initiative:


"The Elder and Guardianship Mediation Project arose from a recognition that the reform of adult guardianship and substitute decision-making legislation contained in the Adult Guardianship and Planning Statutes Amendment Act, 2007 (commonly referred to as "Bill 29") would impact significantly on mediation practices involving older participants which is already a new and growing area of practice. The time was right to embark on a research initiative. Ethical and practice issues unique to working with older client, a review of guardianship mediation pilot projects previously explored in other jurisdictions, and collecting the wisdom of experts working in elder and guardianship mediation across North America all needs to be addressed.


The Elder and Guardianship Mediation Report is the culmination of three years of research and consultation on the complex and overlapping areas of elder mediation and guardianship mediation. This comprehensive report brings together material that will support mediation practitioners as well as leaders in elder and guardianship mediation working in policy and

education. The report provides expert guidance in support of changes that need to be made in the province of BC when the existing adult guardianship mediation provisions are proclaimed.


Many leaders in elder law, elder mediation and guardianship have contributed their expertise to this project. We are most grateful to everyone who generously donated his or her time, and to the Law Foundation of British, which generously funded this project. The Law Foundation has been a long-time supporter of the work of the BCLI and the CCEL."


Thank you to Laura Watts, LLB, Principal, Elder Concepts and Former National Director, CCEL for sharing this important piece of work with us. 

Case Review: Malitza v. Iclanzan <1>




This is not an Estate case... but it is an interesting case because the Ontario Superior Court of Justice found that the relationship as between the parties created a trust relationship such that a fiduciary obligation was owed and ultimately that there had been a breach of fiduciary duty.


The Facts


The facts are not really relevant from a perspective of an Estate matter as stated, however, they are relevant particularly in situations where we find that a person has dealt with the property of an elderly or incapable person where there has been no formal relationship established pursuant to, for example, a Power of Attorney document, a Guardianship Order, or a Trust Agreement. Nevertheless, an individual has held property or money for a person and that person has suffered a loss.


In the circumstances of this particular case, the parties were friends. The plaintiff had advanced money to the defendant in cash to be held and invested by the defendant for him. The case dealt with a U.S. dollar account and a Canadian dollar account, whether or not there was a loan and whether or not that loan had been repaid with interest.  I want to focus on the significant development which happened subsequent to the initial advance of money on in or about December 1996 where there was a fundamental change in the relationship between the plaintiff and the defendant as highlighted by the Court.


At the time of in or about 1996, the parties signed documents tantamount to a mortgage agreement with terms. The plaintiff had agreed that funds could be advanced by the defendant on a mortgage to his son out of the monies owed to the plaintiff. The relevant questions raised at trial were as follows:<2>


(i) Was the defendant a "trustee" for the plaintiff?

(ii) Did the defendant owe a duty to the plaintiff once the mortgage agreements had been signed?

(iii) If so, did the defendant breach that duty?

(iv) Is there an amount owing by the defendant to the plaintiff, and if so, how much?

(v) If the answer to (iv) is yes, is there interest owing on the amount owed to the plaintiff?

(vi) Is the plaintiff's claim barred by acquiescence or laches?


The Court found at paragraph 93 of the judgment that the relationship as between the plaintiff and defendant bore many of the hallmarks of a classic trust relationship.


At paragraph 94 of the judgment, the Court reviewed the elements necessary to establish a trust. 


[94] "The three elements, or certainties, necessary to constitute a trust are: a) certainty of intention, b) certainty of subject matter and c) certainty of object: see Eileen E. Gillese, The Law of Trusts (Concord, Ont.; Irwin Law, 1997) at p. 37; Royal Bank v. Fogler (1991), 5 O.R. (3d) 734 (Ont. C.A.), at p. 741; Henry v. Henry (1999), 30 E.T.R. (2d) 89 (Ont. C.A.), at para. 14; Christian Brothers of Ireland in Canada, Re (2000), 47 O.R. (3d) 674 (Ont. C.A.) at para. 25".


At paragraph 94, the Court reviewed the evidence essential to the establishment of the trust and stated as follows:


[95] "As to intention, the defendant drafted the document acknowledging firstly that he was accepting the plaintiff's money, and secondly that the "purpose" in doing so was for "safekeeping" (see Exhibit 4 and testimony of the witnesses). As to the certainty of subject matter, the parties agree that the original subject matter was $46,000 and that as of December 1, 1996, it had grown to approximately $70,000 (see Exhibit 4 and testimony of the witnesses). With regards to the "certainty of object", there was consensus that both the "entire deposited amount" and any "resulting interest" were to be held for the benefit of Mr. Malitza".


Accordingly the Court found that the defendant was a trustee for the plaintiff. 


Having made that finding, the Court then determined that the plaintiff owed a fiduciary duty to the defendant and in doing so, reviewed the hallmarks of a fiduciary relationship in the case of Frame v. Smith:


[97]  "In light of this trust relationship it follows that Mr. Iclanzan owed a fiduciary duty to Mr. Malitza. Wilson J. offered some guidance on the subject of fiduciary relationships in Frame v. Smith, [1987] 2 S.C.R. 99 (S.C.C.). At p. 136, she stated:


Relationships in which a fiduciary obligation have been imposed seem to possess three general characteristics:


1) The fiduciary has scope for the exercise of some discretion or power.

2) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests.

3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power."


The Court determined that in this case the defendant had physical possession of the plaintiff's money and therefore relied heavily on the defendant's integrity. Accordingly, the Court found that the defendant was a trustee who owed a fiduciary duty to the plaintiff.  At paragraphs 102 through 104 of the judgment, the Court analyzed whether or not the defendant breached the fiduciary duty he was found to have had in respect of the plaintiff. The Court stated:


[103] "I reject the assertion of the defendant and John that they did not know what a mortgage was. There are several reasons for this conclusion.


[104] First, with respect to Mr. Iclanzan:

  • Mr. Iclanzan admitted to having bought a total of three properties and to having been through the mortgage process himself on several occasions;
  • Mr. Iclanzan ran a business for many years. As part of that business he had done banking, maintained a line of credit, and performed other financial functions;
  • Mr. Iclanzan's counterclaim requests compensation "for time spent in advising the plaintiff regarding investments". That claim is clearly not that of an individual who is lacking in financial knowledge;
  • Mr. Iclanzan acknowledged that he knew that the Mortgage Agreement specifically called for the New Hamburg building to be put up as collateral;
  • Mr. Iclanzan acknowledged under cross-examination that during his examination for discovery he had acknowledged Mr. Malitza was to get a mortgage;
  • Mr. Iclanzan stated that he did not think he had any obligation to see the Mortgage Agreement through. That statement is consistent with Mr. Iclanzan having some knowledge that something further had to be done;
  • Mr. Iclanzan stated in cross-examination something to the effect that he expected the plaintiff to do whatever was necessary. That demonstrates that Mr. Iclanzan knew there was something further to do. Accordingly, I do not accept his evidence to the contrary.

For all of these reasons, the Court concluded that the defendant's obligation was impressed with a fiduciary duty to the plaintiff.  From this the Court further concluded that there were overreaching duties arising from the relationship including a duty of loyalty and avoidance of conflict.  The Court further stated at paragraph 108 as follows:


[108] "The Supreme Court of Canada considered the concept of loyalty in fiduciary relationships in Hodgkinson v. Simms, [1994] 3 S.C.R. 377 (S.C.C.). At p. 407, Sopinka and McLachlin JJ., writing for the dissent, adopted the language from Keech v. Sandford (1726), 25 E.R. 223 (Eng. Ch. Div.):   


At the heart of the fiduciary relationship lie the dual concepts of trust and loyalty. This is first and best illustrated by the fact that the fiduciary duties find their origin in the classic trust where one person, the fiduciary, holds property on behalf of another, the beneficiary. In order to protect the interests of the beneficiary, the express trustee is held to a stringent standard; the trustee is under a duty to act in a completely selfless manner for the sole benefit of the trust and its beneficiaries (Keech v. Sandford (1726), 25 E.R. 223) to whom he owes "the utmost duty of loyalty". (Waters, Law of Trusts in Canada (2nd ed. 1984), at p.31). And while the fiduciary relationship is no longer confined to the classic trustee-beneficiary relationship, the underlying requirements of complete trust and utmost loyalty have never varied.


[109] In Moffat v. Wetstein (1996), 29 O.R. (3d) 371 (Ont. Gen. Div.), Granger J. canvassed the duty to avoid conflicts of interest. At p. 390, he stated:             


Subsumed in the fiduciary's duties of good faith and loyalty is the duty to avoid a conflict of interest. The fiduciary must not only avoid a direct conflict of interest but must also avoid the appearance of a possible or potential conflict. The fiduciary is barred from dividing loyalties between competing interests, including self-interest".


The Court also found, therefore, that the defendant breached those duties of loyalty to the plaintiff.  At paragraph 128 of the judgment, the Court concluded that the case law is clear and therefore that the defendant was liable to the plaintiff.


[128] "The case law is clear that liability in cases of breach of fiduciary duty is not subject to tort concepts such as causation, foreseeability and remoteness. Once the court finds that the trustee's breach of duty resulted in the property being in a situation to occasion a loss, liability is established: see Canson Enterprises Ltd. v. Boughton & Co,  [1991] 3 S.C.R. 534 (S.C.C.); Guerin v. R., [1984] 2 S.C.R. 335 (S.C.C.); Blanco v. Canada Trust Co.  (2003), 173 Man. R. (2d) 247 (Man. C.A.). The case law also establishes that in situations where material facts were not disclosed by a fiduciary, speculation as to what may have happened if they had been disclosed is not relevant: see Commerce Capital Trust Co. v. Berk (1989), 68 O.R. (2d) 257 (Ont. C.A.); Jacks v. Davis (1982), 141 D.L.R. (3d) 355 (B.C. C.A.)".


The quantum of damages assessed by the Court was based on the well-established case law of putting the plaintiff into the position that he would have been in, but for the breach of fiduciary duty; and relied on the case of Guerin per above at paragraph 128.


The Court moreover found that interest was owed on the payment at the pre-judgment interest rate as set out in the Courts of Justice Act, Section 128.


The Message from the Court:


The message from this case is important to the application of many Estate-related cases where a fiduciary relationship is established absent the usual formalities we might see from a Power of Attorney relationship, guardianship relationship or formal trustee relationship.


Where money has been held for another and there is a loss, there appears to be a remedy even absent a formal relationship.

1. Malitza v. Iclanzan 2011 CarswellOnt 10946

2. Malitza v. Iclanzan 2011 CarswellOnt 10946, para 87 (e):

The facts and the positions of the parties give rise to the following questions:
i. Was the defendant a "trustee" for the plaintiff?
ii. Did the defendant owe a duty to the plaintiff once the Mortgage Agreements had been signed?
iii. If so, did the defendant breach that duty?
iv. Is there an amount owing by the defendant to the plaintiff, and if so, how much?
v. If the answer to (iv) is yes, is there interest owing on the amount owed to the plaintiff?
vi. Is the plaintiff's claim barred by acquiescence or laches?

Upcoming Programs


OBA Institute

February 9, 2012,

The Capacity to Make Personal Care Decisions and to Grant and Revoke Powers of Attorney for Personal Care - Ameena Sultan, Speaker

The Capacity to Marry and Divorce - Kimberly A. Whaley, Speaker

Info: http://www.oba.org/EN/cle_pdf/12TRU0209C.pdf


OSGOODE Professional Development, Advising the Elderly Client: Remarriages and Common Law Arrangements: Estate Claims by Spouses

February 15, and 16, 2012, 

Kimberly A. Whaley, Speaker

Info: http://www.osgoodepd.ca/cle/2011-2012Fiscal/2012_elder_law/index.html


OSGOODE Professional Development, Advising the Elderly Client: End of Life Decision Making

February 15, and 16 2012, 

Mark Handelman, Speaker 

Info: http://www.osgoodepd.ca/cle/2011-2012Fiscal/2012_elder_law/index.html


LSUC, Six-Minute Lawyer: 

Disputes over what REMAINS: Burial, fights over the ashes, liquification of remains

April 24, 2012

Kimberly A. Whaley, Speaker

Info: http://ecom.lsuc.on.ca/cpd/product.jsp?id=CLE12-0040601#Program


NAELA: Seattle Elder Law Conference: Topics - TBA

April 26-28, 2012,

Kimberly A. Whaley, Speaker



B'Nai Brith - Public Policy: Tataryn Ontario , Summary Trial

June 5, 2012, 

Kimberly A. Whaley, Speaker

Info: http://www.bnaibrith.ca/index.html


STEP Canada,14 Annual Conference
June 11-12, 2012,
Kimberly A. Whaley, Speaker

Info: http://www.step.ca/resources/conferenceRoundtable.asp


CLC CBA Vancouver, Blended Family Presentation: When Once is not Enough: Predatory Marriages

August 12-14, 2012,

Kimberly A. Whaley, Speaker

Info:  http://www.cba.org/CBA/sections_elder/main/


LSUC: The Administration of Estates 2012

September 13, 2012, Web repeat October 23, 2012

Chair, Kimberly A. Whaley

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This newsletter is intended for the purposes of providing information only and is to be used only for the purposes of guidance.  This newsletter is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.


Newsletter Contents
Elder and Guardianship Mediation
Case Review: Malitza v. Iclanzan
Upcoming Programs
Newsletter Archive

Quick Links


Contact Info

10 Alcorn Avenue, 

Suite 301
Toronto, ON, M4V 3A9
Tel: (416) 925-7400 
Fax: (416) 925-7464

Kimberly A. Whaley
C.S., TEP.
(416) 355-3250

Mark Handelman
(416) 355-3254

Ameena Sultan
(416) 355-3258


Amy Cull
(416) 355-3256

Deborah Stade
(416) 355-3252

Bibi Minoo
(416) 355-3251

Joanne Brigmantas
(416) 355-3255

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Whaley Estate Litigation