LAW REVIEW: CASES AND OTHER LEGAL REVIEWS
1. In the matter of the Health Care Consent Act (the "HCCA"), S.O. 1996, c.2, Sch. A as amended, Consent and Capacity Board (the "CCB") Decision rendered April 17, 2013, Docket 3838, File #: HA-12 5027 and HA-12-5028
In this recent matter before the CCB, the issue being argued involved a motion for an Order removing Counsel for the client/patient (the subject matter of the proceedings).
The argument involved allegations of conflict of interest since the counsel representing the patient/client had put forward her own beliefs and views, as opposed to those of the client/patient.
Moreover, the argument for Counsel's removal also included that the counsel was not retained since it was admitted by the counsel that no instructions could be obtained from the client.
The hearing was commenced on an application by the patient's doctor. Counsel injected views in advising the doctor which were counsel's own views and not those of the client. The CCB determined that this was inappropriate given the views were proffered without the client's instructions.
The CCB ordered counsel be removed pursuant to section 81 of the HCCA and ordered new counsel for the client/patient and the application to start anew. The panel also recused itself and a new panel ordered to be constituted to hear the matter.
Generally speaking, counsel retained to act pursuant to section 81 of the HCCA and similarly section 3 of the Substitute Decisions Act, have a very careful role to play in advocating for clients where capacity is at issue in a proceeding.
Counsel cannot act "in the best interests" of a client, nor can counsel substitute its own views for the client -this is not counsel's role. For a comprehensive look at this issue, read "Between a Rock and a Hard Place: The Complex Role and Duties of Counsel Appointed under Section 3 of the Substitute Decisions Act, 1992" Kimberly A. Whaley and Ameena Sultan, Advocates Quarterly, Volume 40, Number 3, November 2012
2. Digital Assets and Digital Accounts
Estate administration and planning today necessarily must include considered thought regarding digital assets and digital accounts. Last month, Benjamin Arkin presented a paper by Kimberly Whaley and Erin Cowling entitled: "Digital Life After Death: the Next Level of Estate Planning and Estate Litigation". (Click to download the paper)
The paper highlights some of the potential litigious issues concerning digital assets and fiduciary liability.
It also reviews some recent court decisions. There is not a great deal of comprehensive legislation governing digital asset management after death.
In Canada, there is no specific legislation dealing with digital assets and digital accounts. Privacy law legislation however plays a part and will do so in the future, since privacy laws do protect personal information after death.
Protection of digital accounts and assets necessarily means taking stock of what you have and then subsequently planning with the audit conducted. The audit must be updated periodically.
In the NAELA Journal, National Academy of Elder Law Attorneys, Volume 9, Spring 2013, Number 1, appears an article by Gerry W. Beyer, entitled "Digital Planning: The Future of Elder Law" which is an instructive article on what is happening in the United States concerning digital planning.
The article addresses: the digital world, access, accounts, assets, social media, financial accounts, business accounts: the importance of planning for digital assets, including preventing identity theft; relevant legislation in various states in the U.S.A., and proposed state legislation; drafting documents, Wills, Powers of Attorney and Trusts, taking into consideration digital assets and accounts; obstacles to planning; and the future of digital planning.
The article addresses first generation statues enacted in certain U.S. states. Planning suggestions include taking a comprehensive inventory, drafting Wills, Powers of Attorney and in particular, trusts, to retain flexibility with respect to digital asset and account planning.
Similarly, in this month's STEP Journal (May 2013, pp 74-77) David Evans and Elaine Gray discuss the treatment of Digital Assets under Guernsey's unique Image Rights legislation and the impact and importance of planning.
Whether you litigate or are a drafting solicitor, or do administration, becoming familiar with digital assets and accounts is now becoming more important in the context of estate law.
3. Schwartz v. Schwartz
Justice O'Connell, in January 2013, released an endorsement and reasons. On April 18, 2013, Justice O'Connell released additional reasons concerning costs.
When advising clients, predictability as to costs can often be difficult given the wide discretion afforded to a judge.
Increasingly, we are seeing awards of substantial indemnity costs being ordered and even full indemnity costs being awarded where conduct warrants it in the judge's discretion.
Schwartz v. Schwartz is one such case. Substantial indemnity costs were sought by one of the parties who had served three offers to settle, all of which were not accepted. The judge determined having regard to the offers, and the findings of the court, that the costs submitted were fair and reasonable and ordered costs payable to Vast on a substantial indemnity basis.
The position of Ms. Schwartz was that she should not bear any costs ordered against her since she alleged to be impecunious. Moreover, Ms. Schwartz's income was alleged to be nominal. Other factors included Ms. Schwartz supports the child of the marriage and rules of the Family Law Court which cite financial circumstances as a factor in determining costs under rule 57 of the Rules of Civil Procedure. The offers to settle made by Vast were argued not to be in conformity with the Family Law Rules.
The court, relying on Boucher v Public Accountants Council for the Province of Ontario,  O.J. No. 2634 (Ont. C.A.) and reiterated in Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 45084 (Ont. C.A.), (2002) 164 O.A.C. 234 (Ont. C.A.), determined appropriate costs in this case, which included full reimbursement of disbursements and HST; a review of clear dated dockets, the offers to settle which the court viewed as fair and reasonable, and conduct.
On conduct, the court made reference to the fact that Ms. Schwartz made an appearance in Family Court and obtained a consent order while an appeal was still pending, which transferred Mr. Schwartz' interest in the property to her exclusively. Ms. Schwartz then used this fact to try to dislodge Vast from the Court of Appeal which was to determine the trust interest of Ms. Schwartz in the property. The court viewed that these actions increased the complexity of the motion before the court.
The court described Ms. Schwartz as having acted with blind zeal. "Her conduct, I find, continued to exhibit the consistency of disregard for the court's process. it was egregious... this conduct further undermines Ms. Schwartz' suggestion that she should not be held accountable for the costs incurred by Vast for the motion heard on July 31, 2012, because of her alleged impecuniosity".
In the result, not only did the court order costs on a substantial indemnity scale payable by Ms. Schwartz to Vast, but the order made was that costs shall be paid within 30 days.
While costs are always difficult to determine and to speculate on when advising a client, certainly conduct is increasingly being viewed by the courts as a means to, not only provide some relief to litigants who are caught up in proceedings where one party's conduct is only serving to escalate costs, but it is also sending a clear message to litigants.
Hopefully, this clear message continues, such that litigants and counsel alike are aware of the severe costs penalties that can follow. Too, hopefully, these sorts of costs orders or awards will act as a deterrent such that parties have no incentive to delay proceedings through conduct.