Whaley Estate Litigation
 Whaley Estate Litigation Newsletter Vol.3 No. 10 January 2014
 

   

    

HAPPY NEW YEAR TO ALL OUR FRIENDS AND COLLEAGUES FROM WHALEY ESTATE LITIGATION

 

Thank you for your continued feedback, comments, enquiries and contributions that you wish to share: 

 

Whaley Estate Litigation provides litigation, mediation and dispute resolution services to you or your clients in the following practice areas:

  • Will, Estate, Trust Disputes
  • Advising Fiduciaries
  • Dependant Support Claims
  • Passing of Estate, Attorney, Guardian and Fiduciary Accounts
  • Capacity Proceedings
  • Guardianships
  • Power of Attorney Disputes
  • Consent and Capacity Board Proceedings 
  • End of Life Decisions
  • Treatment Decisions
  • Elder Law
  • Elder Financial Abuse
  • Solicitor's Negligence
  • Opinions
  • Agency Services
  • Substitute Decisions Act, S.3 Counsel
  • Mediation 

 

Please Enjoy, 

 

Kimberly A. Whaley
Whaley Estate Litigation

I. WEL NEWS   

 

1. AJAG  Conference, January 14, 2014, Markham Event Centre - Estate Planning to Avoid Litigation

 

Kim Whaley, Heather Hogan and Brian Wilson spoke on January 14, 2014, in Markham, at the Markham Event Centre on Estate Litigation. Our presentation was 3 hours and covered: Applicable Criteria for Determining Testamentary Capacity; Capacity to Make Testamentary Disposition Other Than Wills; Capacity to Grant or Revoke a Continuing Power of Attorney for Property; Capacity to Grant or Revoke a Continuing Power of Attorney for Personal Care; Role of the Estate Trustee; Duties and Liabilities of a Trustee;  Duty to Inform and Account; The prudent Investor Rule; Protections Afforded to the Trustee; Expert Advice; Delegation Principles; Exculpatory Clauses; Application for Advice or Direction; Good Faith Reliance Defense; Who to Appoint; Drafting Wills; and case study.

 

The program was attended by Accountants with an audience of approximately 300.

 

Link to program materials (PDF, 126 pages)

 

2. Federated Press, Inaugural Elderly Client, January 21 and 22, 2014, Novotel Toronto Centre Hotel, Toronto

 

Kimberly Whaley spoke on January 22, 2014: Powers of Attorney and Undue Influence: Planning for Incapacity - What did the Courts say in 2013?

 

Link to presentation

 

3. OBA Trusts and Estates Section Executive Looking at Bill 151, amending Pension Benefits Act in light of Carrigan

 

On December 11, 2013, the Ontario Government House Leader introduced Bill 151, An Act to amend various Acts.  Among the acts to be amended, and of interest to estate lawyers, is the Pension Benefits Act, R.S.O. 1990, c.P.8 in light of the Court of Appeal decision in Carrigan v. Carrigan Estate, 2012 ONCA 736.

 

As the Carrigan decision addressed the definition of a "spouse" as set out in the PBA and whether an individual can have two spouses for the purpose of a death benefit, the amendments seek to clarify the definition of a "spouse" for the purpose of receiving pension benefits.  The amendments specifically seek to address a situation such as the facts in Carrigan, where a deceased is living separate and apart from a married spouse, but is living with a common-law spouse, such that the common-law spouse would be defined as the "spouse" for the purpose of entitlement to benefits.

 

The OBA Estates and Trusts Section Executive, along with other OBA Sections, has been invited to provide comments on Bill 151 as it affects the PBA.

 

Link to Bill 151

 

Link to Carrigan

 

 

4. Joint Centre for Bioethics, February 12, 2014

 

Mark Handelman and Dr. Michael Gordon, chief of Palliative Care at Baycrest Hospital, will be giving a presentation at the Joint Centre for Bioethics on February 12.  Titled, "Cuthbertson v. Rasouli, Doors Left Open"

 

Mark and Michael will examine methods of achieving ethical decision-making for incapable patients at end of life.

 

5. Global Law Experts International Awards 2013

 

Kimberly Whaley was nominated and awarded Trust & Estate Law Firm of the Year in Canada for 2013.

 

Link to profile in GLE Awards publication

 

6. Best Lawyers 2014

 

Kimberly Whaley was nominated best lawyer by Best Lawyers in Canada, 2014 in Estates and Trust.

 

Link to listing on bestlawyers.com

 

7. The Honourable Mr. Jamie K. Trimble

 

Congratulations from Whaley Estate Litigation to our colleague, Jamie K. Trimble, who was just really appointed as the Honourable Justice Jamie K. Trimble and will be sitting as a Judge of the Superior Court of Justice in Ontario based in Milton.

 

8. University of Toronto

 

Kimberly Whaley will be presenting with her colleagues, Ian Hull, Douglas Melville, and Laura Watts, at the University of Toronto, lecturing on: "Financial Issues - What's Money Got to do With It?" on January 27, 2014.  Materials to be posted on our blog shortly. 

II. LAW REVIEW: CASES AND OTHER LEGAL REVIEWS

 

1. Blair v Reijers et al, 2013 ONSC 4279, (CanLII) 

 

http://canlii.ca/t/g03dj

 

The case of Blair v. Reijers et al [1] deals with a common scenario in POA disputes: sibling rivalry over an elderly parent's personal and/or financial care.
 

Facts

 

In Blair, a daughter commenced an "urgent" application before the courts to have her elderly mother declared incapable of managing her property and personal care and to be appointed as guardian in both instances.

 

At the initial "urgent" hearing in June of 2012, the Court appointed the daughter as interim guardian. However, the daughter failed to serve her mother, the subject matter of the proceedings and her siblings with the application. The Court ordered the daughter to serve the application on her family as well as the Office of the Public Guardian and Trustee (the "PGT"). The daughter, perhaps, more importantly also failed to advise the Court that the mother had already executed a POA for Property and a POA for Personal Care in 2005 appointing the daughter and her brother as co-attorneys.

 

Moreover, the appointee attorneys under the POAs were also unknown to the rest of the family and to the PGT who had been previously appointed as guardian of the mother's property when she was admitted to a hospital in April of 2012. It is unclear if the daughter advised the court of this appointment as well.

 

In an appearance before Justice Greer on May 13, 2013, the daughter's siblings brought a cross application seeking an order removing their sister as interim guardian as well as removing her as an attorney under the 2005 POAs.

 

They also made allegations of elder abuse against their sister, with evidence of the mother having severe bruises and a broken wrist. The sister did not deny the allegations. [2]

 

Her Honour held that the sister's application for guardianship must be dismissed based on the existence of the 2005 POAs. She also found that based on the son and daughter's appointments as co-attorneys under the 2005 POAs it was evident that the mother always wanted more than one attorney. [3]

 

The PGT, however, was already acting as the statutory guardian of Helena and Her Honour found that the 2005 POAs had not been activated.  Notably, pursuant to Rule 1.04 of the Rules of Civil Procedure, which states that the rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on it merits, Justice Greer held that the court had the power to find that:

  • the daughter was not an appropriate person to act as guardian for property or personal care;
  • the daughter should be removed as co-attorney for property and personal care to be replaced by other siblings; and
  • That the new attorneys may take the appropriate steps (set out in s.16.1(1) of the SDA) to have the PGT's statutory guardianship terminated. [4]

Costs Warning

 

To individuals considering POA litigation is the corresponding costs decision which serves as a clear warning of risk.[5] Justice Greer ordered that the daughter to pay the costs of her siblings and the PGT personally on a substantial indemnity basis in the total amount of over $75,000.00. Her Honour based this finding on the daughter's "scandalous conduct" throughout the proceedings including:

  • her propensity to dismiss her counsel on the eve of an application or motion;
  • her failure to disobey court orders made against her;
  • allegations made against her of elder abuse; and
  • her removal of Helena's household goods without authority. [6]

 

2. Wercholoz v. Tonelloto, 2013 ONSC 1106, (CanLII)

 

http://canlii.ca/t/fwfcd

 

This decision involved a ruling on costs based on a settlement of the issues outside of court.  Justice Glithero canvassed the background and facts of the dispute prior to settlement in providing a costs judgment. 

 

Facts
 

In this case an elderly mother named two of her four children, a son and a daughter, as joint attorneys under a power of attorney for property in 1994.

 

From 2006 to 2010 the son had not been in contact with his mother.

 

In March of 2010, the mother's house was sold with the attorneys signing the sale documentation and the mother moved into a retirement home.

 

In July of 2010, unbeknownst to the son, the mother executed a new power of attorney naming the daughter and her daughter's husband as joint attorneys and removing the son. The mother had also decided that she did not want to live in the retirement home anymore and wanted to move in with her daughter.

 

After learning about the new POA from an investment advisor in August of 2010 the son commenced an Application against his sister seeking 23 different heads of relief.

 

The primary issue before the court was the determination of who would act as attorney or guardian of the mother's property and personal care. 

 

The son brought an ex parte motion which resulted in an order that temporarily suspended the POAs granted to the daughter and her husband and appointed the son as acting attorney with some limitations. The son made no attempts to speak to his siblings about the POAs or to work out a settlement of the issues before commencing litigation.

 

In November 2010, the mother was assessed for capacity and the assessor concluded that the mother did not have the mental capacity to execute a POA for property or to manage property but that she could execute a POA for personal care, and that she was incapable of instructing counsel. [7]

 

During the litigation the son, as acting attorney, was very uncooperative. For example:

  • The daughter had been looking after her mother for 24hrs a day for almost two years and requested respite assistance so she could have a break. The son ignored the request initially and only several months later agreed to the request;
  • When the daughter would request funds from the mother's accounts to pay for ordinary day-to-day living expenses the son would agree and then change his mind;
  • He challenged the need for hearing aids for his mother and their expense; and
  • He hired an accountant for his mother's finances when the daughter had already advised him that the mother had an accountant who was 5-6 times cheaper.

The Court also found that the son had made several unfounded, "serious" and "hurtful" allegations which required the daughter to prepare significant materials in response to the application.

 

Eventually the application settled on the grounds that the original 1994 POA appointing both son and daughter as attorneys would be declared valid. This settlement only occurred after multiple settlement offers were rejected by the son as he wanted to act as sole attorney.

 

Costs Warning

 

In deciding the costs award, Justice Glithero opined that "this case represents a sad example of the hefty amounts that can be spent by siblings who choose to litigate rather than negotiate their differences in respect of a parent's wellbeing". [8]

 

His Honour noted that had the daughter advised the son that his mother was drafting new POAs and had the son spoken with his sister before he commenced litigation that it was "highly likely that most of these issues could have been resolved in a less combative and less costly manner. . .Certainly when viewed from [the mother's] perspective, and what was in her best interests, the commencement of these proceedings and the bringing of the ex parte motion escalated the contest in a manner inconsistent with [the mother's] best interests"[9]

 

Ultimately, after reviewing the factors set out in Rule 57 of the Rules of Civil Procedure the Court ordered the son to pay costs on a substantial indemnity basis of $40,000.00 to the daughter. The daughter sought the remainder of her costs to come from her mother's funds. However the Court found that "much of the effort and costs spent on litigation here were not of benefit to [the mother], I decline to order that the balance of [the daughter's] costs be paid out of her assets." [10]

 

3. Decisions adding clarity to the Ontario Evidence Act, Section 13 and Section 14, in Estate and Related Matters

 

(i) Brisco Estate v Canadian Premier Life Insurance Co., 2012 ONCA 854 (CanLII) 

 

http://canlii.ca/t/fv1rh

 

In the Ontario Court of Appeal decision in Brisco Estate, an in-depth analysis of evidence, hearsay and exceptions was made. Focus of the treatment of section 13 of the Ontario Evidence Act is the subject of this brief review.

 

In brief, the facts were as follows:

 

The Deceased was the insured, and had purchased an accidental death insurance policy from defendant insurer. The Insurer claimed that the Deceased cancelled the policy. The Deceased later died in plane crash,  which if policy was in effect entitled the Deceased's estate to $1 million. The Deceased made several statements between the alleged cancellation and his death as to his belief in the insurance that he held with insurer. The Estate sought to have these statements admitted under the "state of mind" exception to the hearsay rule in evidence. The Estate also sought to have expert evidence of the insurer's practices admitted. This trial was a jury trial. Ultimately, the jury found in favour of the Estate. The insurer appealed. The appeal was ultimately dismissed. 

 

The statute in question, the Ontario Evidence Act, Section 13: [11]

 

Actions by or against heirs, etc.

13.  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 essence, the appellant at appeal, submitted that the evidence was inadmissible, even under the state of mind exception to the hearsay rule; and in the alternative, that there was no corroboration as required by section 13 of the Ontario Evidence Act.

 

Regarding the hearsay statements, Mr. Brisco's children and brother testified to statements he made to them after the alleged cancellation of the policy, speaking to the deceased's understanding that the life insurance policies were still in place and had not been cancelled.

 

The trial judge held that section 13 did not apply, because the action was not by or against an estate, but an action by the beneficiaries under an insurance policy. 

 

The trial judge found that, if he was wrong, there was corroboration from the evidence of Paul Brisco (Mr. Brisco's brother) and from the absence of a letter from the insurance company confirming the cancellation.

 

The relevant excerpts from the decision as they pertain to section 13 are reproduced below:

 

[58]          The appellant submits that the trial judge erred in holding that s. 13 of the Ontario Evidence Act did not apply and that, in any event, there was evidence to corroborate the testimony of the children and Paul Brisco. In my view, s. 13 only applied to the evidence of the executor, Paul Brisco, and not to the evidence of the children. Stripped of the unnecessary language, s. 13 provides as follows:

 

In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an ... interested party shall not obtain a verdict ... 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.

 

[59]          Section 13, which is similar to provisions in other provinces, is an exception to the general rule in most common law countries that the evidence of one witness is capable of meeting the burden of proof in civil or criminal proceedings: see R. v. Vetrovec, [1982] 1 S.C.R. 811 (S.C.C.), at pp. 819-20. Most 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. Section 13 thus now stands as something of an anomaly in the law of evidence. Professor Wigmore was critical of these survivor disqualification statutes, especially when their effect was to wholly bar the testimony of the survivor. As he said, at Wigmore on Evidence, vol. 2 (Chadbourn rev. 1979), at para. 578, p. 821:

 

The truth is that the present rule is open, in almost equal degree, to every one of the objections which were successfully urged nearly a century ago against the interest rule in general. Those objections may be reduced to four heads: (1) That the supposed danger of interested persons testifying falsely exists to a limited extent only; (2) That, even so, yet, so far as they testify truly, the exclusion is an intolerable injustice; (3) That no exclusion can be so defined as to be rational, consistent, and workable; (4) That in any case the test of cross-examination and the other safeguards for truth are a sufficient guaranty against frequent false decision. Every one of the first three objections applies to the present rule as amply as to the old and broader rule. The fourth applies with less apparent force, because the opponent's testimony is lacking in contradiction. And yet, upon what inconsistencies is based even this support for the rule! For its defenders in effect declare the lack of this opposing testimony to be the sole ground for an exceptional rule adapted to that particular situation; and yet, since the deceased opponent is a party, he would have been by hypothesis a potential liar equally with the disqualified survivor; so that the rule rests on the supposed lack of a questionable species of testimony equally weak with that which is excluded. There never was and never will be an exclusion on the score of interest which can be defended as either logically or practically sound. Add to this, the labyrinthine distinctions created in the application of the complicated statutes defining this rule, and the result is a mass of vain quiddities which have not the slightest relation to the testimonial trustworthiness of the witness.

 

[60]          That said, Wigmore was of the view that if there needed to be some safeguard, a compromise in the nature of a corroboration requirement was better than an absolute exclusionary rule, although he still considered this compromise to be "misguided". As he said, at Wigmore on Evidence, vol. 7 (Chadbourn rev. 1978), at para. 2065, p. 488:

 

The danger against which this proposal attempts to guard is plausible. The same danger led most states to adopt the rule of absolute exclusion of such testimony. But the obnoxious character of that rule has been already noticed (578 supra). It remains only to observe that the present proposal, though decidedly an improvement over the rule of exclusion, and though lacking the peculiar vices of the latter, is nevertheless a misguided one:

 

In the first place, it favors the dead above the living, for it would rather see an honest survivor unjustly lose his claim than an honest decedent be made unjustly to pay; yet, the equities being equal, the living person should rather be favored.

 

In the next place, it is based on a mere contingency - the contingency that the claim will be dishonest and that there will be no means of exposing its dishonesty; and so, for the sake of defeating the dishonest man who may arise, the rule is willing to defeat the much more numerous honest men who are sure to possess just claims.

 

Finally, there is always an abstract impropriety and injustice in any rule which interposes a technicality to prevent judicial action upon testimony which is in fact completely believed and trusted.

 

[61]          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. That point is made by Corliss J. in St. John v. Lofland (1895), 64 N.W. 930 (U.S. N.D. S.C.), at p. 931, which is referred to in Wigmore on Evidence, vol. 2, at para. 578, p. 821:

 

But those against whom a dishonest demand is made are not left utterly unprotected because death has sealed the lips of the only person who can contradict the survivor, who supports his claim with his oath. In the legal armory, there is a weapon whose repeated thrusts he will find it difficult, and in many cases impossible, to parry if his testimony is a tissue of falsehoods, - the sword of cross-examination. For these reasons, which lie on the very surface of this question of policy, we regard it as a sound rule to be applied in the construction of statutes of the character of the one whose interpretation is here involved, that they should not be extended beyond their letter when the effect of such extension will be to add to the list of those whom the act renders incompetent as witnesses.

 

[62]          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.

 

(a) The Application of s. 13 in the Present Case

 

[63]          In considering the meaning of the phrase "heirs, next of kin, executors, administrators or assigns of a deceased person", it is my view 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. Under the Canadian Premier policy, Mr. Brisco's wife was the beneficiary. If she was not living, the benefits were to be paid "equally to your then living lawful children". Mr. Brisco's spouse waived her right under the policy, leaving the children as next beneficiaries on the contract. It appears that Paul Brisco brought the action on behalf of the estate because the children had all signed an "authorization" for the estate to deal with contractual insurance matters on their behalf. As executor, he is caught by s. 13 and his evidence requires corroboration. However, such corroboration is available, both in the testimony of the children and in other independent evidence.


[64]          Since s. 13 has no application to the Brisco children, there is no need for corroboration of their evidence. The fact that the estate is involved does not mean that the evidence of the children must be corroborated: Anderson v. Bradley (1921), 51 O.L.R. 94 (Ont. C.A.), at p. 104, Middleton J.; and Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuerst, The Law of Evidence in Canada, 3d ed. (Markham: LexisNexis, 2009), at para. 17.51.In any event, it is my view that there is evidence that, when considered cumulatively, is capable of corroborating both the evidence of the children and that of Paul Brisco.


[65]          In Sands Estate v. Sonnwald (1986), 9 C.P.C. (2d) 100 (Ont. H.C.), Watt J. considered at some length the nature of the corroboration requirement in s. 13. He held, at p. 110, that "corroboration should be such as to enhance the probability of truth of the suspect witness' evidence upon a substantive part of the case raised by the pleadings". As he pointed out, at p. 119:

 

[S]everal pieces of circumstantial evidence, taken together, may potentially corroborate the evidence of an opposite or interested party, notwithstanding that each item or piece of evidence viewed in isolation may not be so capable, provided that cumulatively the pieces or items satisfy the test of corroboration, that is to say, independent evidence which renders it probable that the evidence of an opposite or interested party upon a material issue is true.

 

[66]          In considering the admissibility of Mr. Brisco's statements under the principled approach to hearsay, I have set out the evidence that I consider to be confirmatory of Paul's and the children's evidence of Mr. Brisco's statements, at para. 56 above. In my view, that same evidence, viewed cumulatively, is capable of satisfying the corroboration requirement in s. 13. Circumstantial evidence of a similar nature was found to be corrob. In that case, the issue was whether the transfer of a very large sum of money to the deceased's friend was intended as a gift. Laskin J.A. found corroboration in the fact that no mention was made of this money in the deceased's will and that the deceased refused to give his daughters an explanation for the transfer.


[67]          In this case, the following evidence supports the truthfulness of Paul's and the children's evidence. No letter confirming the cancellation of the accidental death policy was found in Mr. Brisco's papers or in the appellant's own files, and it is somewhat improbable that Mr. Brisco would have retained the older (1993) Abbey Life hospitalization policy (instead of the $1,000,000 accidental death policy) when he already had a similar hospitalization policy from Heritage, purchased in 1996. It is also somewhat improbable that Mr. Brisco would cancel the Canadian Premier accidental death policy in August 1998, only months after having purchased it in January of that year. Finally, records of the conversations concerning the Heritage policies show discussion about cancelling both of the accidental death policies with Heritage: the $1,000,000 policy and the $250,000 policy. As I have said earlier, it seems highly improbable that Mr. Brisco would discuss cancelling the $1,000,000 policy if he had just cancelled the Canadian Premier $1,000,000 policy. Thus, in my view, this evidence, when viewed cumulatively, is capable of corroborating the evidence of the children, if that were necessary. This evidence, along with the evidence of the children, also corroborates the evidence of Paul Brisco.

 

Accordingly, the Court has gone some way to clarify the use of section 13, in that it only applies to interested parties who make a claim as contemplated by the express provision of section 13 itself.  Section 13 in this case only applied to Brisco's brother, Paul, in his capacity as estate executor and not to Brisco's children, because even though they were beneficiaries they were bringing a claim under a contractual right as beneficiaries under a contract of insurance.  Nevertheless in this case, the court did find in the end, that the evidence of Brisco's brother and his children corroborated each other.

 

(ii) 
Anten v. Bhalerao, 2013 ONCA 499 (CanLII)   

 

 

http://canlii.ca/t/fztr3

 

The appellant in this matter appealed the decision of the Ontario Superior Court of Justice, which dismissed her appeal from the decision of the Consent and Capacity Board.  The Ontario Court of Appeal allowed the appeal and set aside the order of the Consent and Capacity Board.

 

The issues in brief involved the contention that the evidence was not sufficient to support a finding of incapacity and notably what I intend to focus on in this short review is the contention that the appeal judge erred in finding there was corroboration within the meaning of section 14 of the Ontario Evidence Act supporting the appellant's case that the reasons of the Consent and Capacity Board were inadequate.

 

Section 14 of the Ontario Evidence Act reads as follows:

 

Actions by or against incapable persons, etc.

 

14.  An opposite or interested party in an action by or against one of the following persons shall not obtain a verdict, judgment or decision on the party's own evidence, unless the evidence is corroborated by some other material evidence:

 

1. A person who has been found,

i. incapable of managing property under the Substitute Decisions Act, 1992 or under the Mental Health Act,

ii. incapable of personal care under the Substitute Decisions Act, 1992, or

iii. incapable by a court in Canada or elsewhere.

2. A patient in a psychiatric facility.

3. A person who, because of a mental disorder within the meaning of the Mental Health Act, is incapable of giving evidence.

 

To be clear, I will not be substantively reviewing this case at any court level, only comment on the issue as it relates to section 14 of the Ontario Evidence Act.

 

The Ontario Court of Appeal made a finding that the decision of the CCB finding incapacity was unreasonable and could not stand.

 

Insofar as the corroboration component pursuant to section 14(1) of the Ontario Evidence Act, the Ontario Court of Appeal opined that it was common ground that the section applied in this case. In other words, in order for the CCB to uphold the respondent physician's finding of incapacity, the respondent's evidence had to be corroborated.

 

The CCB did not expressly consider the requirements of section 14 of the Ontario Evidence Act, but the issue of corroboration was considered by the appeal judge. The appellant submitted that the appeal judge erred in finding that the respondent's evidence was corroborated. The appeal judge's conclusion on corroboration was simply that the CCB "was in the best position to hear the evidence and observe and assess the demeanour and comportment of both witnesses, all of which served to corroborate the respondent's testimony." The Ontario Court of Appeal accepted that in an appropriate case, a physician's evidence can be corroborated, within the meaning of section 14, by a patient's own evidence. On the record from the CCB, it is not readily apparent to a reader how the appellant's evidence could be said to have corroborated the respondent's evidence, notwithstanding it was accepted by the Ontario Court of Appeal that a patient's own evidence could constitute evidence of corroboration.

 

At paragraph 31 of the Ontario Court of Appeal decision it was noted:

 

[31]      The respondent's evidence of the appellant's mental illness stood alone, except for a peculiar comment at the conclusion of his testimony when, in his words, he was "just going to throw in" that:

[T]here is a fair amount of collateral evidence from her sister who supports this paranoia and the worry. There is evidence from the previous nursing home before we did get collateral, and there is evidence from the general internal medicine people on this floor. The social workers on this floor as well as there is material in the chart I guess, from the nursing staff as well, that support that the paranoia is very I guess diverse.

 

[32]      While hearsay may well be admissible on this type of hearing, see Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 15, there must be some basis for finding that the evidence is sufficiently reliable: see Starson, at para. 115. This testimony from the respondent was so entirely lacking in detail that it provided no basis upon which the Board could make a reasonable decision.

 

The Ontario Court of Appeal in the end, given the conclusions on the insufficiency of evidence to support a finding of incapacity, did not deal further with the issue of corroboration or the adequacy of the CCB's decisions in this regard.

 

The important point being that section 14(1) of the Ontario Evidence Act does apply in cases of this nature to a person who has been found incapable of managing property under the Substitute Decisions Act, 1992, or under the Mental Health Act, to a person found incapable of personal care under the Substitute Decisions Act, 1992, or incapable by a court in Canada or elsewhere.

 

The evidence of corroboration of the doctor's evidence was insufficient by the evidence of the patient. No other corroborative evidence was rendered on the face of the decisions.

 

As it turns out, neither on the CCB record, or the Ontario Superior Court of Justice record, are we able to understand whether or not corroboration existed, it is  important to note that in these types of hearings that section 14 of the Ontario Evidence Act is applicable.



[1] Blair v. Reijers et al, 2013 ONSC 4279 ("Blair").

[2] Blair at para. 17.

[3] Blair at para. 15.

[4] Blair at para.31-32.

[5] 2013 ONSC 6021.

[6] 2013 ONSC 6021 at para. 10-11.

[7] Wercholoz at para.13.

[8] Wercholoz at para. 37.

[9] Wercholoz at para. 39.

[10] Wercholoz at para. 61.

[11] Ontario Evidence Act,  R.S.O. 1990, Chapter E. 23


III. UPCOMING PROGRAMS

 

1. University of Toronto

Kimberly Whaley will be a guest lecturer at the University of Toronto

January 27, 2014, on: "Financial Issues - What's Money Got to do With It?"

 

2. STEP Canada - Toronto Branch

February 13, 2014

Current Cases and CRA Developments

Speakers:  Robert Kepes, BCL, LL.B. TEP, Morris Kepes Winters LLP

Clare Burns, LL.M. TEP, WeirFoulds LLP

Eric Hoffstein TEP, Minden Gross, LLP

http://www.step.ca/programs.asp?b=Toronto

 

3. Osgoode Professional Development

February 20, 2014

Advising the Elderly

Speaker: Kimberly Whaley, Spousal Claims Against the Estate and Other Claims Arising Out of Remarriage; and

Speaker: Mark Handelman on "Rasouli"

Brochure Link

 

4. University of Toronto, March 2014

Kimberly Whaley will be a guest lecturer at the University of Toronto

March 3, 2014, on: "Capacity! Understanding and Assessing - Yours and Theirs".

 

5. STEP Canada - Toronto Branch

April 17, 2014

Building Your Competencies Beyond Your Professional Skills

Speaker: TBA

http://www.step.ca/programs.asp?b=Toronto

 

6. LSUC - The Six-Minute Estates Lawyer 2014

April 29, 2014 - Undue Influence

Speaker:  Kimberly Whaley

http://ecom.lsuc.on.ca/cpd/product.jsp?id=CLE14-0040701

 

 7. STEP Canada - Toronto Branch

May 8, 2014

Estate Trustee Liability

Speaker: TBA

http://www.step.ca/programs.asp?b=Toronto

 

8. Senior Practitioner's Forum, Estate Planning and Litigation Forum

May 12-14, 2014

Langdon Hall, Cambridge, Ontario

Speaker, Kimberly Whaley

 

9. B'Nai Brith Seminar

June 2, 2014 - Rasouli Case and the issues arising from same

Speaker:  Kimberly Whaley

 

10. STEP National Conference

Toronto

June 16-17, 2014

 

11. 2014 CBA Legal Conference

St. John's, Newfoundland

August 15-17, 2014

 

12. Practice Gems: The Administration of Estates 2014

September 23, 2014

Chair: Kimberly Whaley

IV. Newsletter Archive

Past issues of our Newsletter can be viewed on-line by following this link to our Newsletter Archive:

http://whaleyestatelitigation.com/blog/newsletter-archive/ 

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We continually add articles and posts to our blog and will post update notices via Twitter and on LinkedIn.  If you would like to follow our blog via our RSS feeds here is the link: 

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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
I. WEL News
II. Law Review
III. Upcoming Programs
IV. 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.
Principal
(416) 355-3250
 
Mark Handelman
Firm Counsel
(416) 355-3254

Ameena Sultan
Associate
(416) 355-3258

 

Benjamin D. Arkin
Associate
(416) 355-3264 

Heather B. Hogan
Associate
(416) 355-3262
 
Deborah Stade
Office Manager
(416) 355-3252
 
Bibi Minoo
Estates Clerk
(416) 355-3251
 

Marylin Tait 

Legal Assistant

(416) 355-3255

 

Leigh Wallace 

Legal Assistant

(416) 355-3253

 

 

 

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Whaley Estate Litigation