Articles 2021

Please find below our summaries of the civil decisions of the Ontario Court of Appeal for the week of October 4, 2021. There were ten substantive civil decisions this week.

Following the refinancing and repayment of first-ranking debt during a restructuring under the BIA, one of the subsidiaries in the debtor group, Down Under Pipe and Cable Locating Ltd., was solvent again, its only remaining creditor being a related party. Despite its return to solvency, Down Under still faced bankruptcy since the BIA prevents related parties from voting in favour of proposals.

In a Will challenge, it is essential to understand which party bears the burden of proof on which issues, and in what circumstances. It is equally important to understand what kind of evidence will be needed, and the sources of evidence. In part two of this series of articles, Charlotte Hobson shares some information in this regard as imparted at the second session of a recent CPD program dealing with Will challenges.

Will challenge claims arise frequently, and lawyers who practice in the area of estates are certain to encounter them. It is important to have the tools and knowledge necessary to approach Will challenges with confidence. A recent CPD program series addressed various aspects of Will challenges and provided a comprehensive guide. In this first of a six-part series, one attendee shares a summary of the first session of the program, which deals with preparing the application.

A holograph Will may seem like a good alternative to a formally executed Will, particularly in the time of COVID-19 lockdowns, when clients and counsel were at times unable to meet in person. The recent decision in Re: Lacroix Estate serves as a reminder that holograph Wills must still meet certain requirements in order to be valid, and highlights the importance of ensuring that all testamentary documents comply with the statutory writing and signing formalities.

BBLers kicked off the new term with an interesting September Brown Bag Lunch. Topics included codicils, and some unique and creative ways of dealing with vendor take back mortgages in estate planning, and with unclaimed tax benefits in an estate administration.

At the June Brown Bag Lunch meeting, participants discussed current and relevant topics including the ability to obtain sealing orders after the SCC’s decision in the Sherman Estate matter, Wills dealing with cryptocurrency, and the principal residence exemption for residences owned by a testamentary spousal trust.

In Tran v. The Queen, the Appellant successfully disputed a director's liability assessment by challenging the underlying assessment. The Appellant proved that the T4s relied upon by the Minister were overstated. The Crown did not challenge this evidence. As the Crown failed to adduce evidence to reduce the underlying assessment, the Tax Court concluded that the underlying assessment was incorrect and found in favour of the Appellant.

This edition contains updates on new Ontario and Federal legislation, including the implementation of the Federal budget, extension of temporary tax relief for pension plans, and changes to the Canada Labour Code. Also covered is new policy guidance and updates from FSRA, OSFI, and CAPSA as well as recent case law.