VIII. Endnotes

VIII. Endnotes2017-03-03T18:35:37+00:00

[1] Rodney Hull , Q.C., and Ian M. Hull, Macdonnell, Sheard and Hull on Probate Practice, 4th ed., (Toronto: Carswell, 1996), 1-2.
[2] Hull, note 1, 1-2.
[3] Ontario Law Reform Commission, Report on Administration of Estates of Deceased Persons (Toronto: 1991), 7.
[4] Ontario Law Reform Commission, note 3, 7.
[5] Hull, note 1, 2.
[6] Ontario Law Reform Commission, note 3, 9-10.
[7] Ontario Law Reform Commission , note 3, 10.
[8] Hull, note 1, 2.
[9] Law Commission of Ontario, Simplified Procedure for Small Estates in Ontario Consultation Paper (Toronto: September 2014), 7-8.
[10] See, for example, Leopold Amighetti Q.C. and Darrell Wickstrom, “Claims Against the Estate for Debts”, in Carmen S. Theriault, ed., Widdifield on Executors and Trustees, 6th ed. (Toronto: Carswell, 2002-), 3-1 – 3-4.
[11] Wendy Templeton, Wills, Trust and Estate Administration: Step Diploma for Canada, 1st ed. (Toronto: Society of Trust and Estate Practitioners, 2010), 8-4.
[12]  Templeton, note 11, 8-7.
[13]  Templeton, note 11, 8-6
[14]  Templeton, note 11, 8-4.
[15]  Templeton, note 11, 8-5.
[16]  Templeton, note 11, 8-5.
[17] Templeton, note 11, 8-5.
[18]  The main exception to this is Quebec, which is not covered by this discussion as it does not follow a common-law system.
[19]  Ontario Superior Court of Justice Form 74.8
[20]  Rules of Civil Procedure, O.Reg. 170/14.
[21]  Rules of Civil Procedure, note 20, 74.04(1)(c)
[22]  In my practical experience in the Yukon, however, a judge may request further information on this point if, after review of the file, he or she deems it necessary.
[23]  I confirmed this in a phone call with John Delaney, Barrister and Solicitor specializing in wills and estate administration with Tradition Law LLP in Winnipeg, Manitoba, on 20 November 2014. The only form in Manitoba that must be sent to beneficiaries is that which lists the tariffs that lawyers may charge for acting for the estate representative. He did not have any insight into why Manitoba does not require notice to be sent to all the beneficiaries, and was surprised to learn that this is a requirement in the other common law jurisdictions across the country. John told me that, when acting for an estate representative, he personally has a practice of sending a copy of the will and a letter to residuary beneficiaries advising them of the death, of roughly what they may be entitled to, and whether or not he anticipates, at that preliminary stage, any issues of abatement. He includes a caution that the entitlement is subject to the debts and tax liabilities being resolved, and therefore the final amount may be quite different. However, there is no statutory requirement to send any kind of notice whatsoever in Manitoba; John does it as a best practice, because he feels it assists the estate representative later on if the beneficiaries have some awareness of the process and their potential entitlement. He may alter the content of the notice if the estate representative objects, for example, if the estate representative does not wish all the beneficiaries to have a copy of the will and therefore know what all the other beneficiaries are entitled to.
[24]  Nova Scotia Probate Court Practice, Procedure and Forms Regulations, S.N.S. 2000, c.31, O.I.C. 2001-450, s.44(1).
[25]  Nova Scotia Probate Regulations, note 24, s.44(2).
[26]  Yukon Supreme Court, Form 73.
[27]  Supreme Court of Prince Edward Island, Form 65X.
[28]  Ontario Superior Court of Justice, Form 74.4.
[29]  Yukon Form 73, note 26.
[30]  Alberta Surrogate Court Form NC 19.
[31]  Nova Scotia Probate Court Form 24.
[32]  Ontario Form 74.4, note 28.
[33]  Ontario Form 74.4, note 28.
[34]  See, for example, Yukon Supreme Court Form 72.
[35]  Saskatchewan Probate Court Statement of Property.
[36]  Yukon Form 72, note 34.
[37]  Manitoba Court of Queen’s Bench Form 74B.
[38]  Similar to that in Ontario’s Form 74.4, note 28. Nova Scotia Probate Court Form 8.
[39]  Probate Act, S.N.S. 2000, c.31, s.57(1), and Nova Scotia Probate Court Regulations, note 24, s.45.
[40]  I confirmed this in an email conversation with Bianca C. Krueger, Barrister and Solicitor specializing in estate administration at Cox & Palmer, Halifax, Nova Scotia, 13 November 2014.
[41]  Ontario Superior Court of Justice Form 74.11.
[42]  In Ontario, Consent to Applicant’s Appointment as Estate Trustee with a Will is Form 74.12, and Consent to Applicant’s Appointment as Estate Trustee without a Will is Form 74.19.
[43]  In Ontario, this is double the amount of the estate: Estates Act, R.S.O. 1990, Chapter E.21, s.37(1), unless reduced by the judge under s.37(2)
[44]  see Ontario Ministry of the Attorney General, “Frequently Asked Questions About Estates: What Is a Bond?” online: http://www.attorneygeneral.jus.gov.on.ca/english/estates/estates-FAQ.asp#s7 (last accessed 12 December 2014).
[45]  In Ontario, this is ss.35-43 of the Estates Act, note 43, and Rule 74.11 of the Rules of Civil Procedure.
[46]  Templeton, note 11, 8-19.
[47]  Templeton, note 11, 8-18.
[48]  Templeton, note 11, 8-19.
[49]  Roderick A. Macdonald, “Access to Justice in Canada Today: Scope, Scale and Ambitions” in Julia Bass, W.A. Bogart and Frederick H. Zemans, eds., Access to Justice for a New Century – The Way Forward (Toronto: Law Society of Upper Canada, 2005), 19.
[50]  Shelley McGill, “Small Claims Court Identity Crisis: A Review of Recent Reform Measures”, (2010) 49 Can. Bus. L.J. 213, 214, 217.
[51]  Seana C. McGuire and Roderick A. Macdonald, “Small Claims Courts Cant” (1996) 34 Osgoode Hall L.J. 509, 510.
[52]  McGill, note 50, 215-216.
[53]  Macdonald, note 49, 19.
[54]  Jane Bailey, “Digitization of Court Processes in Canada” Cyberjustice Laboratory Working Paper No.2 (23 October 2012), 3, online: http://www.cyberjustice.ca/wordpress/wp-content/uploads/webuploads/WP002_CanadaDigitizationOfCourtProcesses20121023.pdf (last accessed: 18 November 2014).
[55]  Macdonald, note 49, 35.
[56]  Macdonald, note 49, 20.
[57]  Macdonald, note 49, 20-21.
[58]  Bailey, note 54, 3.
[59]  Mr. Justice David M. Brown, “A View From the Bench”, in Melanie A. Yach, ed., Key Developments in Estates and Trusts Law In Ontario, 2010 edition (Aurora: Canada Law Book, 2010), 1.
[60]  Justice Brown, note 59, 1.
[61]  Carole J. Brown and Steven Kennedy, “Changing the Rules of the Game: Rewinding the First Ten Months of the New Rules of Civil Procedure” (2010-2011) 37 Advoc. Q. 443, 462-463.
[62]  Rules of Civil Procedure, note 20.
[63]  Courts of Justice Act, R.R.O. 1990, Regulation 194.
[64]  See, for example, the discussion in C. Brown, note 61, 463-464.
[65]  Szeto v. Dwyer, 2010 NLCA 36, 297 Nfld. & P.E.I.R. 311, para.53, as quoted in Hryniak v. Mauldin, [2014] 1. S.C.R. 87, 2014 SCC 7, para. 31.  The Supreme Court of Canada in Hryniak, above, used this quote to explain the proportionality principle and how it is to be applied by courts.
[66]  Susan A. Easterbrook, “Costs in Estate Litigation” in Melanie A. Yach, ed., Key Developments in Estates and Trusts Law In Ontario, 2010 edition (Aurora: Canada Law Book, 2010), 155.
[67]  The Honourable Coulter A. Osborne, Q.C., “Summary of Findings & Recommendations”, Civil Justice Reform Project (November 2007), 134, online: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/cjrp/CJRP-Report_EN.pdf (last accessed 22 November 2014).
[68]  As discussed in Justice Brown, note 59, 5.
[69]  Justice Brown, note 59, 7.
[70]  Justice Brown, note 59, 7.
[71]  Justice Brown, note 59, 7.
[72]  Easterbrook, note 66, 161.
[73]  Easterbrook, note 66, 159.
[74]  On cost as an issue and how it can arise, see Gerald L. Gall, “Efficient Court Management”, in The Canadian Institute for the Administration of Justice, Expeditious Justice: Papers of the Canadian Institute for the Administration of Justice (Toronto: Carswell, 1979), 108.
[75]  Emphasis added.
[76]  Hryniak v. Mauldin, note 65, paras. 28-30.
[77]  This topic has already been examined in the LCO’s Consultation Paper for this project: see Law Commission of Ontario, note 9, 20-21, 25-27.
[78]  Straight quantum of value, however, may not accurately reflect the proportional value of the loss to the individual beneficiary.
[79]  see McGill, note 50, 234-235, for criticisms of the Ontario Small Claims Court in this regard.
[80]  McGill, note 50, 234.
[81]  I expect that the public consultation process undertaken as part of this project may provide rich source material for this discussion.
[82]  Gall, note 74, 108-109.
[83]  Macdonald, note 49, 27.
[84]  Macdonald, note 49, 27-28.
[85]  Macdonald, note 49, 28.
[86]  See, on this topic in California, Charles P. Kindregan, “The California Crawl: Reforming Probate Administration in California”, (1979) 19 Santa Clara L. R. 1., 5.
[87]  See, for example, the doctrine of the executor’s year, or the duty not to waste assets, which may be impacted if the estate representatives delays in dealing with them: James F. Kennedy, “Bequests and Beneficiaries”, in Carmen S. Theriault, ed., Widdifield on Executors and Trustees, 6th ed. (Toronto: Carswell, 2002-), 5-1, 5-6; Elena Hoffstein, “Resignation, Removal and Appointment of Trustees” in Carmen S. Theriault, ed., Widdifield on Executors and Trustees, 6th ed. (Toronto: Carswell, 2002-), 15-17.
[88]  Telephone conversation with Wendy D. Templeton, Barrister and Solicitor specializing in Estate, Trust and Tax Planning, 27 October 2014.
[89]  In-person conversation with Donna Neff, Barrister and Solicitor, Neff Law Office, LSUC Certified Specialist in Estate and Trust Law, 5 November 2014.
[90]  See, on this topic, British Columbia Law Institute Succession Law Reform Project, Interim Report on Summary Administration of Small Estates (Vancouver: December 2005), 7-8.
[91]  Gall, note 74, 108.
[92]  Legal Aid Ontario, “Are you looking to settle a will, an estate matter, or an inheritance?” on the Legal Aid Ontario website, online: http://www.legalaid.on.ca/en/getting/type_civil.asp (last accessed 4 November 2014). There may, however, be other pro-bono legal services available that will provide advice on estate application matters. The presence of such a service at the 393 University Avenue court in Toronto was suggested to me by Heather Hogan, Barrister and Solicitor at Whaley Estate Litigation, in a telephone call on 24 November 2014, although it is not clear from the Pro Bono Law Ontario website that this is a service that they actually offer.
[93]  Macdonald, note 49, 28.
[94]  Macdonald, note 49, 28.
[95]  http://www.ontariocourtforms.on.ca/english/civil/pre-formatted-fillable-estates-forms (last accessed 14 November 2014).
[96]  I heard this comment many times from clients in practice, and heard it repeated by all the Ontario practitioners I spoke to: Wendy Templeton, note 88, Donna Neff, note 89, and Heather Hogan, note 92.
[97]  Again, this is based on my experience as a practitioner.
[98]  Ontario Form 74.4, note 28. The following is based on my own reading of the Form, attempting to place myself in the position of someone with no previous familiarity with the process.
[99]  Constance Backhouse, “What Is Access to Justice?” in Access to Justice for a New Century: The Way Forward (Toronto: Law Society of Upper Canada, 2005) 121-122.
[100]  Macdonald, note 49, 29-30.
[101]  Backhouse, note 99, 122.
[102]  Macdonald, note 49, 27.
[103]  Macdonald, note 49, 27.
[104]  Macdonald, note 49, 27.
[105]  Chief Judge Heino Lilles, Territorial Court of the Yukon, “Some Problems in the Administration of Justice in Remote and Isolated Communities”, presentation to the C.I.A.J. Conference, October 11-14, 1989, 7.
[106]  Lilles, note 105, 6.
[107] Lilles, note 105, 8.
[108]  Lilles, note 105, 8.
[109]  Lilles, note 105, 23-24. It is unclear to me how much First Nations communities in Ontario are affected by accessibility to the probate application system, since the estates of First Nations citizens still covered by the rubric of the Indian Act are administered under that Act by Aboriginal Affairs and Northern Development Canada. Only First Nations which are not covered by the Indian Act, or which have settlement or self-government agreements that exempt the estates of their citizens from being administered by the Indian Act, would have any interaction with the civil probate system in Ontario. A comprehensive study of the First Nations in Ontario and their estate administration scheme(s) is far outside the scope of this paper, though it remains an interesting topic for further exploration. I mention First Nations communities here only to highlight that, where applicable, First Nations communities do face increased and particularized barriers to accessing the probate application system that must not be forgotten in the development of any simplified probate application system. This is especially so as economic conditions, cultural values and norms regarding money and death, as well as familial or beneficiary distribution schemes, may dictate that, where a community or First Nation participates in the civil probate application scheme, the number of small value estates within a First Nations community is likely to be higher than average.
[110]  This is a question I heard several times from clients, the named or entitled estate representatives of particularly small value estates, once the magnitude and complexity of the job was explained to them. A feeling of moral obligation to the deceased was often cited to me as the other factor influencing the estate representative to act in light of the fact that the amount of money that may, after debts and taxes were dealt with, be available to beneficiaries was minimal or non-existent compared to the time and stress needed to get to the stage of distribution.
[111]  McGuire, note 51, 3
[112]  McGill, note 50, 216.
[113]  Macdonald, note 49, 58.
[114]  Macdonald, note 49, 58.
[115]  Ministry of Attorney General, “Before Making a Claim in Small Claims Court” website, online http://www.attorneygeneral.jus.gov.on.ca/english/courts/scc/b4aClaim.asp, (last accessed 22 November 2014).
[116]  Macdonald, note 49, 59.
[117]  McGill, note 50, 220.
[118]  McGuire, note 51, 510-512.
[119]  McGill, note 50, 226.
[120]  McGill, note 50, 218.
[121]  Macdonald, note 49, 59.
[122]  Ontario Ministry of the Attorney General, “What is Small Claims Court?” (2014), 2, online: http://www.attorneygeneral.jus.gov.on.ca/english/courts/guides/What_is_Small_Claims_Court_EN.pdf, (last accessed 22 November 2014).
[123]  Ontario Ministry of the Attorney General, “What is Small Claims Court?”, note 122, 6.
[124]  McGill, note 50, 218.
[125]  McGill, note 50, 230-231. Ontario eliminated the cap on counsel fees in 2006, reducing the effectiveness of this self-representation mechanism.
[126]  Macdonald, note 49, 61.
[127]  Ontario Ministry of the Attorney General, “Small Claims Court: Increase in Monetary Limit from $10,000 to $25,000” (December 09, 2010), 1, online: http://www.attorneygeneral.jus.gov.on.ca/english/courts/scc/Guide_to_transferring_a_claim_from_SCJ_to_SCC-EN.pdf (last accessed: 22 November 2014).
[128]  Macdonald, note 49, 61; McGill, note 50, 231.
[129]  For example, see the Ontario Ministry of the Attorney General’s Small Claims Court website generally, which has several informational and instructional guides available: http://www.attorneygeneral.jus.gov.on.ca/english/courts/scc/ (last accessed 24 November 2014).
[130]  McGill, note 50, 224.
[131]  Macdonald, note 49, 59-60.
[132]  McGill, note 50, 223.
[133]  Ontario Ministry of Attorney General, “Small Claims Court – Increase”, note 127, 1.
[134]  Macdonald, note 49, 60.
[135]  McGuire, note 51, 515; McGill, note 50, 228-229.
[136]  McGill, note 50, 214, 217.
[137]  McGill, note 50, 214, 216.
[138]  Macdonald, note 49, 58.
[139]  Macdonald, note 49, 61-62.
[140]  McGill, note 50, 220.
[141]  McGill, note 50, 219.
[142]  Ontario Ministry of the Attorney General, “What’s New? Changes to the Rules of Civil Procedure”, website online: http://www.attorneygeneral.jus.gov.on.ca/english/courts/civil/changes_to_rules_of_civil_procedure.asp (last accessed: 22 November 2014); Ontario Ministry of the Attorney General, Fact Sheet: Simplified Procedure under Rule 76 of the Rules of Civil Procedure (January 1, 2010), online: http://www.attorneygeneral.jus.gov.on.ca/english/courts/civil/fact_sheet_simplified_procedure_76.pdf (last accessed: 22 November, 2014).
[143]  Lesly Joseph, “Rule 76 – Costs, Benefits and Implications for Access to Justice” (2008) 34 Advoc. Q. 88, 89.
[144]  Joseph, note 143, 92.
[145]  Joseph, note 143, 92-93.
[146]  Joseph, note 143, 97-98.
[147]  Joseph, note 143, 88.
[148]  Joseph, note 143, 90.
[149]  Joseph, note 143, 88.
[150]  Joseph, note 143, 88-90; C. Brown, note 61, 461.
[151]  Julius H. Grey, Genevieve Coutlée and Marie-Eve Sylvestre, “Access to the Justice and the New Code of Civil Procedure” (2004) 38 R.J.T. 711, 715.
[152]  Grey, note 151, 713.
[153]  Grey, note 151, 714-715.
[154]  Grey, note 151, 715.
[155]  Macdonald, note 49, 64.
[156]  Macdonald, note 49, 64-65.
[157]  C. Brown, note 61, 461. Examinations for discovery were originally prohibited under the simplified procedure, but were added back in this limited capacity when the rule was overhauled in 2010, to help facilitate parties’ full knowledge of the case before trial, as a means to encourage settlement. Joseph, note 143, 93, 99; C. Brown, note 61, 461.
[158]  Joseph, note 143, 93.
[159]  Joseph, note 143, 93.
[160]  Joseph, note 143, 94-95.
[161]  Joseph, note 143, 94.
[162]  Joseph, note 143, 94.
[163]  Joseph, note 143, 95.
[164]  Joseph, note 143, 94.
[165]  Joseph, note 143, 95.
[166]  Joseph, note 143, 91.
[167]  Macdonald, note 49, 65.
[168]  Catherine Piché, “Judging Fairness in Class Action Settlements”, (2010) 28 Windsor Y.B. Access Just.111, 115.
[169]  Piche, note 168, 115.
[170]  Macdonald, note 49, 68.
[171]  Macdonald, note 49, 67.
[172]  Justice Warren K. Winkler, “Civil Justice Reform – The Toronto Experience” from The Warren Winkler Lectures on Civil Justice Reform (2007-2008) 39:1 Ottawa L.R. 99, 112.
[173]  Grey, note 151, 716-718.
[174]  Grey, note 151, 718-719.
[175]  Winkler, note 172, 112.
[176]  Grey, note 151, 722-723.
[177]  Winkler, note 172, 112.
[178]  Grey, note 151, 722-723.
[179]  Grey, note 151, 735-736.
[180]  Grey, note 151, 724-727.
[181]  Joseph, note 143, 90.
[182]  Joseph, note 143, 90.
[183]  Macdonald, note 49, 66.
[184]  Winkler, note 157, 106.
[185]  Winkler, note 157, 106.
[186]  Backhouse, note 99, 121-122.
[187]  Macdonald, note 49, 66.
[188]  Macdonald, note 49, 67.
[189]  Macdonald, note 49, 68.
[190]  For criticisms of the Connecticut model in this regard, see Margaret E. St. John, “The Connecticut Probate Court System Reform: A Step in the Right Direction” (2011) 24 Quinnipiac Prob. L. J. 290, 299.
[191]  David J. Mullan, Administrative Law: Cases, Text and Materials 5th ed. (Toronto: Emond Montgomery, 2003), 3; David W. Elliott, “Scope and History of the Administrative Process”, in David W. Elliott, ed., Administrative Law and Process, Revised 3rd ed. (Concord: Captus Press Inc., 2003), 10.
[192]  Elliott, note 191, 10.
[193]  Mullan, note 191, 20.
[194]  Mullan, note 191, 20-23.
[195]  David Phillip Jones, Q.C., and Anne S. de Villars, Q.C., Principles of Administrative Law 6th ed. (Toronto: Thomson Reuters Carswell, 2014), 3.
[196]  Jones, note 195, 3.
[197]  Jones, note 195, 6.
[198]  Lesli Bisgould, “Twists and Turns and Seventeen Volumes of Evidence, or How Procedural Developments Might Have Influenced Substantive Human Rights Law,” (2012) 9 J.L. & Equal. 5, 10.
[199]  Bisgould, note 198, 11-12.
[200]  Sara Blake, Administrative Law In Canada, 5th ed., (Markham: LexisNexis Canada Inc., 2011), 5.
[201]  Lorne Sossin, “Access to Administrative Justice and Other Worries” Papers from the Future of Adminstrative Justice Symposium (January 2008), 10, online: http://www.law.utoronto.ca/documents/conferences/adminjustice08_Sossin.pdf (last accessed 17 November 2014).
[202]  Sossin, note 201, 8.
[203]  Richard A. Feldman, Residential Tenancies, 10th ed. (Toronto: Thomson Reuters Carswell, 2014), 45.
[204]  Lorne Sossin and Jamie Baxter, “Ontario’s Administrative Tribunal Clusters: A Glass Half-Full or Half-Empty for Administrative Justice?” (February 2012) Osgoode Hall Digital Commons, All Papers, Paper 28, 11, online: http://digitalcommons.osgoode.yorku.ca/all_papers/28, (last accessed 18 November 2014).
[205]  Blake, note 200, 5.
[206]  Blake, note 200, 5.
[207]  Saleh v Canada (Minister of Employment and Immigration), [1989] F.C.J. No 1015, para 23 (F.C.T.D.).
[208]  Sossin, note 201, 8.
[209]  Sossin and Baxter, note 204, 9.
[210]  Sossin, note 201, 8-13.
[211]  Social Justice Tribunals Ontario, “Executive Chair’s Message” online: http://www.sjto.gov.on.ca/english/ChairsMsg/index.htm (last accessed: 17 November 2014).
[212]  Sossin and Baxter, note 204, 20.
[213]  Sossin and Baxter, note 204, 26-27.
[214]  Sossin and Baxter, note 204, 4.
[215]  Sossin and Baxter, note 204, 7.
[216]  Sossin and Baxter, note 204, 12.
[217]  Sossin and Baxter, note 204, 5.
[218]  Sossin and Baxter, note 204, 11.
[219]  Sossin and Baxter, note 204, 8, 11.
[220]  Sossin and Baxter, note 204, 8, 11.
[221]  Social Justice Tribunals Ontario, Common Rules, online: http://www.sjto.gov.on.ca/english/Resources/Commonrules/index.htm (last accessed: 18 November 2014).
[222]  See, for example, Rule A4.2, which states: “The tribunal may vary or waive the application of any rule or procedure, on its own initiative or on the request of a party, except where to do so is prohibited by legislation or a specific rule.” SJTO Common Rules, note 222, rule A4.2.
[223]  SJTO Common Rules, note 222, Rule A3.
[224]  Feldman, note 203, 46.
[225]  Feldman, note 203, 47.
[226]  Feldman, note 203, 48.
[227]  Feldman, note 203, 49.
[228]  Feldman, note 203, 50.
[229]  Feldman, note 203, 52.
[230]  Feldman, note 203, 59-65.
[231]  Mary Truemner, “A Closer Look at Seemingly Pro-Tenant Provisions in the Residential Tenancies Act”, (2009) 22 J.L. & Soc. Pol’y 27, 27-28.
[232]  Feldman, note 203, 1-2.
[233]  Feldman, note 203, 2.
[234]  Feldman, note 203, 2.
[235]  Feldman, note 203, 2.
[236]  Feldman, note 203, 2.
[237]  Feldman, note 203, 2.
[238]  Feldman, note 203, 2. This was Reference Re: Amendments to the Residential Tenancies Act (N.S.), [1996] 1 S.C.R. 186, which determined that it was not solely federally appointed judges who had jurisdiction to decide landlord-tenant issues.
[239]  Feldman, note 203, 3.
[240]  Feldman, note 203, 3.
[241]  Feldman, note 203, 4. Some topics of this criticism, such as how the TPA and the Tribunal dealt with rent control and so-called “vacancy decontrol”, are not relevant to our discussion and have been omitted here, although they were significant causes of the push for reform of the TPA regime. See, for further reference, Truemner, note 231, 27-28.
[242]  Feldman, note 203, 5.
[243]  Truemner, note 231, 29.
[244]  Feldman, note 203, 5; Truemner, note 231, 28.
[245]  Truemner, note 231, 29.
[246]  Truemner, note 231, 29.
[247]  Feldman, note 203, 5.
[248]  Truemner, note 231, 29.
[249]  Truemner, note 231, 30.
[250]  Landlord and Tenant Board, “Reasons a Landlord Can Apply to Evict a Tenant”, Instructions for Landlords: How to Serve the Application and Notice of Hearing (January 2007), online http://www.ltb.gov.on.ca/en/Key_Information/STEL02_111601.html (last accessed: 15 November 2014).
[251]  Marguerite E. Moore, Title Searching & Conveyancing in Ontario, 6th ed. (Markham: LexisNexis Canada Inc., 2010), 10.
[252]  Brian Bucknall, “Real Estate Fraud and Systems of Title Registration: The Paradox of Certainty” (2008) 47 Can. Bus. L.J. 1, 9.
[253]  Moore, note 251, 18.
[254]  Moore, note 251, 18.
[255]  Moore, note 251, 18.
[256]  Moore, note 251, 19.
[257]  Bucknall, note 252, 10-11.
[258]  Moore, note 251, 16.
[259]  Moore, note 251, 19.
[260] Bucknall, note 252, 13.
[261]  Bucknall, note 252, 42-43.
[262]  Service Ontario, “Compensation for loss from the Land Titles Assurance Fund” (July 10, 2014) online: https://www.ontario.ca/home-and-community/compensation-loss-land-titles-assurance-fund (last accessed 15 December 2014).
[263]  Service Ontario, “Compensation”, note 262.
[264]  Moore, note 251, 16.
[265]  Moore, note 251, 16.
[266]  Moore, note 251, 21.
[267]  Moore, note 251, 19-20.
[268]  Moore, note 251, 19-20.
[269]  Bucknall, note 252, 4-6.
[270]  Moore, note 251, 24.
[271]  Moore, note 251, 24.
[272]  Macdonald, note 49, 56.
[273]  Bailey, note 54, 3.
[274]  Ministry of the Attorney General, Office of the Children’s Lawyer (October 27, 2014), online http://www.attorneygeneral.jus.gov.on.ca/english/family/ocl/default.asp (last accessed: 23 November 2014).
[275]  Rules of Civil Procedure, note 20, rules 74.04(4) and 74.05(3).
[276]  Ministry of the Attorney General, Office of the Children’s Lawyer, “Frequently Asked Questions”, (October 27, 2014) online: http://www.attorneygeneral.jus.gov.on.ca/english/family/ocl/faq/civil_litigation_estates_and_trusts.asp (last accessed: 23 November 2014).
[277]  The first is the Companies’ Creditors Arrangement Act, which allows a financial restructuring process different than that outlined in the Bankruptcy and Insolvency Act where the total debts of a company exceed $5,000,000.00. The second is National Instrument 45-106, proposed for incorporation by the Ontario Securities Commission, which has already been incorporated in other jurisdictions. It proposes an exemption from the requirement to become a reporting issuer and issue prospectuses to potential investors if private investors that meet a net income test are used.
[278]  Piche, note 168, 116.
[279]  Macdonald, note 49, 65.
[280]  Macdonald, note 49, 65.
[281]  Hearings at the Landlord and Tenant Board are still adversarial in nature, even if they take place outside the court system.
[282]  St. John, note 190, 295.
[283]  McGill, note 50, 219.
[284]  C.D. Freedman, “Misfeasance, Nonfeasance, and the Self-Interested Attorney”, (2011) 30 Est. Tr. & Pensions J. 303, 303.
[285]  Freedman, note 284, 325.
[286]  Freedman, note 284, 319-320.
[287]  Law Commission of Ontario, Legal Capacity, Decision-making and Guardianship: Discussion Paper (Toronto: May 2014), 165.
[288]  Kimberly A. Whaley and Helena Likwornik, “Powers of Attorney and Financial Abuse” (2007-2008) 27 Est. Tr. & Pensions J. 379, 386.
[289]  Freedman, note 284, 319; Whaley and Likwornik, note 272, 387.
[290]  Freedman, note 284, 318; SDA s.32(1).
[291]  Freedman, note 284, 319-320, 326.
[292]  Whaley and Likwornik, note 288, 390.
[293]  Whaley and Likwornik, note 288, 387.
[294]  Whaley and Likwornik, note 288, 390.
[295]  Telephone call with Heather Hogan, note 92.
[296]  Whaley and Likwornik, note 288, 387 – in practice, however, we see that this is not always the case.
[297]  This may well be because POAs are a more recent legal invention than wills, and therefore people have less experience hearing about, or dealing with, POAs. However, it still speaks to a lack of education generally regarding POAs – including, unfortunately, among both grantors and attorneys themselves.
[298]  LCO Discussion Paper, note 287, 142.
[299]  Whaley and Likwornik, note 288, 383.
[300]  Freedman, note 284, 336.
[301]  LCO Discussion Paper, note 287, 165.
[302]  LCO Discussion Paper, note 287, 165.
[303]  Whaley and Likwornik, note 288, 381-383.
[304]  Freedman, note 284, 326, 329.
[305]  LCO Discussion Paper, note 287, 174.
[306]  LCO Discussion Paper, note 287, 173.
[307]  In the Yukon, attorneys are required to sign a certificate acknowledging that they have been named and understand the duties of an attorney, and agreeing to undertake those duties, before the document is validly completed. I remain surprised that no such requirement exists in Ontario. Yukon Enduring Power of Attorney Act, R.S.Y. 2002, c.73, s.3(1)(c).
[308]  Whaley and Likwornik, note 288, 388.
[309]  LCO Discussion Paper, note 287, 166.
[310]  The list of persons included in the legislation who have automatic standing includes the attorney, the grantor, the grantor’s guardian of the person or attorney for personal care; a dependant of the grantor or incapable person; the Public Guardian and Trustee; the Children’s Lawyer; a judgment creditor of the grantor or incapable person; any other person, with leave of the court. Substitute Decisions Act, S.O. 1992, c.30, s.42.
[311]  Telephone call with Heather Hogan, note 92.
[312]  Whaley and Likwornik, note 288, 393-395.
[313]  In-person meeting with Donna Neff, note 89.
[314]  Freedman, note 284, 325.
[315]  As estate representatives may be or become informed, either by the content of the application or through the process of completing the application, although estate representatives are not strictly required to obtain this information as part of the application process.
[316]  Whaley and Likwornik, note 288, 381.
[317]  LCO Discussion Paper, note 287, 197-198.
[318]  Whaley and Likwornik, note 288, 380.
[319]  LCO Discussion Paper, note 287, 204.
[320]  LCO Discussion Paper, note 287, 200.
[321]  Whaley and Likwornik, note 288, 400.
[322]  Whaley and Likwornik, note 288, 401.
[323]  LCO Discussion Paper, note 287, 204-205.
[324]  LCO Discussion Paper, note 287, 200-201.
[325]  LCO Discussion Paper, note 287, 205.
[326]  LCO Discussion Paper, note 287, 170.
[327]  LCO Discussion Paper, note 287, 201-202.
[328]  LCO Discussion Paper, note 287, 204.
[329]  It is also, of course, possible that the reverse is true, and that fraud is more prevalent under estate administrations than under POAs. More empirical evidence is needed before any definitive claim could be made. However, as discussed, the general feeling among practitioners seems to be that POAs are more widely misused or abused than estate administrations, and that mishandling of an estate is easier to catch.
[330]  Where complex issues exist, however, legal advice may still be necessary. Even if the system itself is accessible, the world of estates will likely always include complex issues that cannot be solved without legal advice, whether the estate is large or small. As stated regarding POAs, it is my opinion that good, specific legal advice can be invaluable, even when the procedure is easy or the issues non-complex. It provides an opportunity for the estate representative to receive information, education, and tailored advice that simply cannot be provided by a guidebook or website. Furthermore, it offers pro-active advice on how to prevent issues from beginning or from becoming bigger. However, as a practitioner, I admit my bias in this regard.
[331]  For an Application With a Will, this is Ontario Superior Court of Justice Form 74.7; on intestacy it is Form 74.17.
[332]  Telephone call with Wendy Templeton, note 88, and in-person meeting with Donna Neff, note 89.
[333]  This can be especially so when they are residuary beneficiaries, and therefore only know they are entitled to a share of the estate. However, having no knowledge of the size of the estate, they are incapable of understanding the relative value of their share. Human nature being what it is, they may imagine large numbers where only small numbers exist.
[334]  Certainly, what constitutes small value may be relative to the circumstances of each beneficiary. Nevertheless, there is a vast difference between $1,000.00 and $10,000.00 or more.
[335]  Telephone conversation with John Delaney, note 23.
[336]  Friction would be further reduced if Ontario adopted a model, similar to the Northern territories, of providing a net value of the estate, rather than simply the gross value, so that there is no misunderstanding of what value beneficiaries are sharing in. It remains doubtful, however, that the government would ever move towards calculating the Estate Administration Tax on the net value of the estate. Nevertheless, that would not prevent the form from requiring both values to be listed for the benefit of interested and entitled parties. Alternatively, Ontario could move towards the model of Nova Scotia, which requires a more comprehensive inventory of the estate after the grant is obtained. The inventory could then be served on the beneficiaries, to provide a more complete accounting of the estate up front. This, however, creates additional paperwork, rather than reducing paperwork.
[337]  The Alberta statement reads: “Once the court issues the grant, the personal representative(s) will collect in the property, pay the debts, and complete the administration of the estate and anything else required of the personal representative(s). Then they will be in a position to account to you before distributing any estate left after payment of all debts and expenses. By issuing the grant, the court is not approving the figures submitted in the application for a grant of probate. It is the responsibility of the beneficiary(ies) to supervise the actions of the personal representative(s).” Alberta Form NC19, note 30.
[338]  Jones, note 195, 99.
[339]  Blake, note 200, 3.
[340]  Jones, note 195, 100.
[341]  For example, see the discussion of Connecticut’s vast network of probate court offices, which essentially serve as “community courts”, which, prior to reforms, created an easy to access system for citizens: St. John, note 190, 293-294.
[342]  Grey, note 151, 713.
[343]  McGill, note 50, 216-220.
[344]  McGill, note 50, 221.
[345]  Grey, note 151, 713-714.
[346]  Federal Court; Tax Court; BC, Alberta, and Newfoundland Provincial Courts; BC, Alberta, Saskatchewan and Newfoundland Courts of Appeal. Bailey, note 54, 5.
[347]  Macdonald, note 49, 55.
[348]  Much in the same way that you cannot purchase something online without accurately completing your billing or shipping address.
[349]  Bucknall, note 252, 4.
[350]  Law Commission of Ontario, note 9, 52-53.
[351]  Such as opening an estate bank account, paying any debts in the order listed in the law, and distributing any assets left over to the distributees.
[352]  This is an interesting aspect of the New York model that may, in and of itself, greatly increase access to the probate application procedure by reducing a common source of frustration and confusion for estate representatives, as well as cost and delay. However, it does beg the question of how the process is managed by court staff and whether it absorbs an unsustainable amount of staff time and resources. Those questions could not be answered within the online program.

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