Author: Trevor Todd

BC Estate Lawyer -Dysfunctional Families-Emotional Manipulation

Emotional Manipulation in Dysfunctional Families

Vancouver lawyer Trevor Todd has 50 years experience in understanding and getting justice for parties disinherited from dysfunctional and often toxic families.

Emotional manipulation refers to the attempt to indirectly or directly influence or control someone else’s behavior or actions, and is commonly found in dysfunctional families.

In estate litigation, I commonly hear my clients complain of being subjected to various forms of psychological and emotional manipulation, particularly in their childhood, that continues into adulthood through various means of abusive, deceptive or underhanded tactics.

The victims have commonly grown in dysfunctional families that have not provided the support for the growth of high self-esteem, the recognition of healthy boundaries and emotional maturity, that are often caused by the unhealed abuse of family members, especially non-loving and unsupportive parents.

Why people engage in emotional manipulation

There are many reasons why people, commonly parents or siblings, feel compelled to control others, places and things to fulfill whatever they believe to be their personal needs, desires and wishes.

Manipulators are typically very controlling people that utilize an array of manipulative tactics.

Manipulators generally take the time to learn the characteristics and vulnerabilities of their victims.

Who better is in a position to know those vulnerabilities than parents or siblings of the manipulated person.

Typically the manipulator has a number of possible motivations that are generally along the lines of the need to feel in control, the desire to gain the feeling of power over others, the need to advance their own purposes for personal gain, and sociopathic tendencies that target the victims financial assets.

There are many identifiable techniques of emotional manipulation, some of which are as follows:

Lying that is done frequently, subtly and well. The manipulator is often an expert at simply not telling the truth, either by outright lying, or by withholding a significant amount of the truth, or denial of ever having done anything wrong;
Rationalization and minimization of harmful or irresponsible behaviour which could be as simple as a hurtful insult was only meant “as a joke”;
Diversion or refusal to discuss the matter. The manipulator may simply not want to hear about the victims concerns, nor talk about them and simply changes the conversation or the topic;
Threats both subtle, indirect or implied, thus causing the victim to become defensive and anxious;
Evasion by giving irrelevant, vague or rambling answers that mean nothing and cause more confusion in the mind of the victim;
Guilt – the guilt trip is probably one of the most common and effective devices used by manipulator that is very effective in keeping the victim in a self doubting anxious and submissive position;
Shaming– somewhat similar to the guilt trip, but typically involves more sarcasm and putdowns to make the victim feel unworthy and therefore defer to the manipulator;
Blaming others, especially the victim, so that the victim believes that he or she has done something wrong when they simply have not. The ultimate goal is to make the victim believe that the victim deserves to be treated in the manner that the manipulator chooses. A simple example is to label the victim as crazy or paranoid;
Flattery – many manipulators can be very charming, even seductive, in order to cause the victim to lower their defences and give more trust and faith in the manipulator;
Playing the victim – this is where the manipulator falsely portrays him or herself as the actual victim of circumstances in order to gain pity, compassion and sympathy from the actual victim;
Feigning confusion or innocence – the manipulator continues to tell the victim that any harm done was totally unintentional, even to the point of playing dumb or pretending that he or she does not know of what the victim is talking about. The goal is to intentionally confuse the victim to doubt his or her own accuracy of perception;
Displaying anger or rage is an effective way to shock a victim into submission. Threats may be used to emotionally blackmail the victim to scare and intimidate the victim into submission, causing the victim to focus more on the anger instead of the actual manipulation tactic.

Conclusion

Almost all of the above tactics are used in combination with the other and are designed to exploit vulnerabilities that exist in the victims such as his or her low self esteem, naiveté, or emotional dependency.

The victim can often become the family scapegoat after years of suffering various forms of emotional manipulation.

Non Binding (Precatory) Words In Will Not a Trust

Non Binding (Precatory) words in a will were found not to create a trust that was legally binding on the trustee, but instead that the words were non binding ( precatory) and thus only morally binding an thus an outright bequest.

Killam v Killam 2017 BCSC 175 contains an exhaustive review of the rules of construction in deciding whether the following provision of a will creates a trust that is legally binding to use for the bequest for the health, support and maintenance” of the beneficiary, or whether the words “ it is my desire but I do not direct “are merely morally binding ( precatory) and not legally binding:

The provision in dispute is worded differently than those concerning the other relatives. It reads:

Provided HUMPHREY HUBBARD KILLAM should survive me, then in such event I give and bequeath ONE (1) SHARE to EUGENE HUMPHREY KILLAM, provided, should he predecease me, then to LAWRENCE HEBB KILLAM. It is my desire, however, I do not direct, that said share shall be used for the health, support and maintenance of HUMPHREY HUBBARD KILLAM, for as long as he should live or as long as said funds are available for such purpose.

After an exhaustive review of the rules of construction of the court concluded that the words do not form a trust for the beneficiary and instead is an outright bequest.

Precatory Language

63 Professor Waters, in his authoritative work, Waters’ Law of Trusts in Canada, 4th ed. (Toronto, Ont.: Carswell, 2012), provides an interesting historical context to what some have referred to as “precatory trusts”. He notes, first of all, that the prime question of whether a trust has been created is still one of construction (at 145):

The question which gives rise to most litigation is whether a testator intends to create a trust, or merely impose some kind of moral obligation upon the legatee when he bequeaths personalty or devises land in confidence that the legatee will use the property in certain ways. He may speak, for instance, of his “expectation”, “fervent wish”, “desire”, “firm belief” or “purpose” that this will be done. Such words may give rise to what has been called “a precatory trust”, though, as Rigby L.J. pointed out in the English Court of Appeal, and his words have been echoed in Canada, this title is awkward and incorrect; “a misleading nickname”. If language, once construed, is held to intend a trust, then whether the language is precatory or otherwise, the trust which is thereby set up is the same as any other express trust, and no different rules apply.

64 There was a profound shift in the judicial approach to these sorts of cases starting in the nineteenth century, caused by an English statutory change (at 145 – 147):

Prior to the latter half of the nineteenth century the courts bent over backwards to find that testamentary language of a precatory kind revealed the intention to transfer on trust. By imposing a binding obligation upon the recipient of the property, the wishes of the testator were held to be safeguarded, concerning those who were to benefit from his property. Moreover, before 1830, the executor in English law took the residue of the estate beneficially, if it were not otherwise disposed of; and where it was incumbent upon the executor to respect only the wishes, hopes, desires, and belief of the testator that others would be benefited, the temptation of the executor to ignore those moral obligations was considerable. Then, in 1830, that right of the executor was statutorily taken away, and thereafter, the pace picking up after 1870, the courts became gradually less inclined to discover trust intention in mere precatory words. It is generally agreed that the climate of judicial attitude changed noticeably with the case of Lambe v. Eames and Canadian courts have joined in this new attitude. In 1889, in Bank of Montreal v. Bower, Chancellor Boyd of the Ontario High Court Chancery Division stated:

It would be an otiose undertaking to go through all the cases, for they are numerous, and cannot be reconciled. But since Lambe v. Eames . . . . there has been a new departure in favour of confining language supposed to create a trust for the children [of the testator and the widow] within much narrower limits, than in some of the earlier cases. If the entire interest in the subject of the gift is given with superadded words expressing the nature of the gift, or the confident expectation that the subject will be applied for the benefit of particular persons, but without . . . terms cutting down the interest before given, it will not now be held . . . that a trust has been thereby created.

And in Johnson v. Farney, Meredith C.J.O. adopted the view of Cozens-Hardy M.R. in the leading English case of Re Atkinson that every care has to be taken not to make mandatory words from those which are the mere indication of a wish or request, and that to construe the true intention of the testator, the courts must examine the trust instrument as a whole and not be mesmerised by particular words. Earlier, in Renehan v. Malone, this same view had been expressed by Barker J. On many occasions, Trench v. Hamilton has been approved in Canadian courts. In that case, Lindley L.J. pointed out that the meaning which a court derives must prevail even if judges in the past have drawn different conclusions from more or less similar language.

65 Professor Waters concludes as follows (at 147):

Whether a trust has been created is simply a matter of construction; this principle has not changed. What has changed is the tendency found in the earlier cases to discover imperative meaning in various word formulae, like “wish and direction” or “trusting that” and expressions of that nature.

Striking Out a Court Pleading

A court pleading may be struck out by the Court pursuant to Rule 9-5 ( 1) which states:

1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of pleading, petition or other document on the ground that:

a) it discloses no reasonable claim or defence, as the case may be,

b) it is unnecessary, scandalous, frivolous or vexatious,

c) is otherwise an abuse of the process of the court,

And the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs.

In Johnston Estate v Johnston 2017 BCCA 59 the trial judge’s decision was upheld by the Court of Appeal when the court struck out the plaintiff’s claim on the basis that his claim that the solicitor who drew a new will for his deceased father, changing the previous will in which the plaintiff would inherit, owed him a duty of care as a beneficiary to not change the will as it was inconsistent with the previous will.

The Court struck out the claim on the basis that” it was “bound to fail” as it disclosed no reasonable claim as the solicitor did not owe him, as a prior beneficiary, a duty of care at law.

In Carhoun & Sons Enterprises Ltd. v. Canada (Attorney General), 2015 BCCA 163 (CanLII), Madam Justice Garson reviewed the test generally to strike a pleading on the basis it fails to disclose a reasonable cause of action:

[16] The test to strike a pleading on the basis that the claim fails to disclose a reasonable cause of action was described in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959. Madam Justice Wilson, writing for the Court, emphasized that, in an application to strike pleadings, “[n]either the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case”: Hunt at 980.

Claims should only be struck out if it is plain and obvious they will fail or the case is “beyond reasonable doubt”: Hunt at 980. She said, “when a statement of claim reveals a difficult and important point of law, it may well be critical that the action be allowed to proceed”: Hunt at 990.

Legal Procedures

Mental Incompetency and the Patient’s Property Act

Re Silkstrom 2017 BCSC 206 involved a contested application under the Patient’s Property Act to be appointed the committee of the person of an elderly mental incompetency patient.

A Trust company had earlier been appointed to manage the elderly woman’s financial affairs pursuant to a Power of Attorney that she signed when she was still mentally competent.

The applicants were a close friend who had cared for the patient for several years, and the opposing applicant was a niece and her husband.

The patient had no close family.

The Court reviewed the various factors to be considered , found there was potential for conflict of interest with the niece and granted committee-ship of the person to the good friend.

Committeeship of the person would allow the friend to make health care decisions for the patient, while the trust company would continue to mange her financial affairs.

The Applicable Law

17 The test for determining who is appropriate to act as a committee invokes the parens patriae jurisdiction of the court and is governed by the assessment of who will serve the patient’s best interests, including a consideration of who can best deal with the patient’s financial affairs, nurture her estate, and see that her income and estate are applied for her greatest benefit.

18 Although each case must be decided on its particular facts, in Re Bowman, 2009 BCSC 523 at para. 33, the court set out a number of considerations which guide the court’s decision-making:

(a) the proposed committee’s previous involvement with the patient or her family;

(b) the proposed committee’s knowledge and understanding of the patient’s situation and needs;

(d) the plan of the proposed committee for the management of the patient; and

(e) any potential conflict of interest between the proposed committee and the patient.

19 More recently, in Stewart (Re), 2014 BCSC 2321 at para. 29, Justice Masuhara summarized additional criteria from a number of decided cases. I set out only those criteria relevant to this decision which relates only to appointing a committee of the person. They are:

(a) whether the appointment reflects the patient’s wishes, obviously when he or she was capable of forming such a wish;

(b) whether immediate family members are in agreement with the appointment;

(c) whether there is any conflict between family members or between the family and the patient, and whether the proposed committee would be likely to consult with immediate family members about the appropriate care of the patient;

(d) the level of previous involvement of the proposed committee with the patient, usually family members are preferred;

(e) the level of understanding of the proposed committee with the patient’s current situation, and will that person be able to cope with future changes of the patient;

(f) whether the proposed committee will provide love and support to the patient;

. . .

(i) who is best to advocate for the patient’s medical needs;

(j) whether the proposed committee has an appropriate plan of care and management for the patient and his or her affairs and is best able to carry it out; …

Legal Procedures mental capacity power of attorney

The Purpose of Obituaries

Obituaries are news article that report the recent death of a person that typically accounts for the person’s life, family members, glowing tributes , noteworthy achievements and information about an upcoming funeral service.

It could be said that the main purpose of an obituary is to honour and even aggrandize the life of the deceased. They typically subtly guide human behaviour as how to behave in life and how to be favourably remembered.

Three coincidental matters relating to obituaries came to my attention yesterday.

One was a review of the New York Times setting comprehensive and glowing life tributes of various socialites and significant individuals.

The second was an obituary of an elderly man who died in Texas, whose daughter and family wrote a vitriolic obituary stating amongst other things that he lived “much longer than he deserved”;

The third was a forthcoming movie entitled “The Last Word”, starring Shirley MacClain who as a controlling businesswoman hires a journalist to pre-write her obituary, only to find that the typical comment offered by her “friends” and associates is that they hope she dies soon. This results in a life altering experience for Ms. MacLain’s character.

Most of us are familiar with what an obituary is and have probably seen or even written a “typical” obituary in local newspapers as well as perhaps reviewed the more refined,expensive and extensive obituaries that appear in publications such as the New York Times. Many magazines such as MacLeans or the Economist publish one full page obituary each week typically reflecting on the subject’s life and influence on world history. It is not uncommon for major world figures, heroes, entertainers, and such to have “pre written” obituaries for quick publication in the event of that person’s demise.

In my experience as an estate litigation lawyer I frequently ask my clients to bring in the obituary as it is common for me to note that they are not always “accurate” in that often certain members of the family are not mentioned at all or some other hurtful comment is made or omitted about them.

The vitriolic Texan obituary was so newsworthy that it made international news for stating such things as ” his hobbies included being abusive to his family, expediting trips to heaven for the beloved family pets, his life serve no obvious purpose, he did not contribute to society or service the community and he possessed no redeeming qualities besides sarcasm.

Not content to stop there, the writer further stated that there would be no funeral service, no prayers for eternal peace and no apologizes to the family he tortured.

His remains would be cremated and kept in the barn until the family donkey’s wood shavings run out. His passing proved that evil does in fact die and hopefully marks a time of healing and safety for all.

The writer stated that the deceased appreciated honesty and that it would have been offensive to portray him dishonestly.

Media News

BC Wills Variation: Severance of Court Actions

Severance of Court Actions Upheld On Appeal

The Court of Appeal in Johnston v Johnston Estate 2017 BCCA 59 upheld the trial decision found at 2016 BCSC 1388 where an action seeking that a will was invalid, or alternatively if it was valid it should be varied under the wills variation provisions , should be severed into two court actions, with the validity of the will to be determined firstly.

The Appeal Court expanded upon the reasons of the trial judge in ordering a severance of the two claims as follows:

A discretionary decision of a lower court will be reversible where that court misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustice: Elsom v. Elsom, [1989] 1 S.C.R. 1367, at p. 1375. Reversing a lower court’s discretionary decision is also appropriate where the lower court gives no or insufficient weight to relevant considerations: Friends of the Oldman River Society v. Canada . . . [At para. 27.]

(See also: Rise & Shine Grocery & Gas Ltd. v. Novak, 2016 BCCA 483 at paras. 36 — 37.)

43 The standard of review for discretionary decisions is one of deference.

44 As noted by the PGT, in addition to the court’s jurisdiction under Rule 22-5, it may temporarily stay a proceeding pursuant to its inherent jurisdiction or under s. 8(2) of the Law and Equity Act, R.S.B.C. 1996, c. 253, or both: Zurich Indemnity Co. of Canada v. Western Delta Lands Inc. (1997), 38 B.C.L.R. (3d) 273, 95 B.C.A.C. 165 at para. 14 (C.A.), leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 469. In exercising its discretion to grant or deny a stay, the court must weigh the potential benefits and prejudice at play and fairly balance the parties’ competing interests.

45 The court’s jurisdiction under Rule 22-5, s. 8(2) of the Law and Equity Act, and its inherent jurisdiction are exceptions to the principle stated in s. 10 of the Law and Equity Act as to the general avoidance of multiplicity of legal proceedings “as far as possible”.

46 I would endorse the judge’s non-exclusive summary of the key considerations relevant to an application to sever and the general principles governing severance:

[68] The key factors engaged in a general sense on an application to sever were canvassed in Schaper v. Sears Canada, 2000 BCSC 1575[Schaper] at para. 19:

1. . . . the party making the request must show that hearing the claims together would unduly complicate, delay the hearing, or otherwise be inconvenient. If a party applying does not meet this threshold, the court need not go further in any analysis and the application should be dismissed.

2. Have the actions of any party in the proceeding been unreasonable and have they contributed to the complication, the delay, or the inconvenience alleged by the party applying? If this found [sic], that would strengthen the argument to sever.

3. Are the issues between the plaintiff and defendant and the issues between the defendant and the third party sufficiently distinct so as to allow them to be tried separately? If so, that strengthens the argument to sever off third party proceeding.

4. Is the relief claimed by, or the potential obligation of, any party best determined by hearing the evidence of all parties at one hearing? If so, that weakens an application to sever.

5. Does the prejudice to the party applying, prejudice based on undue complication, delay or inconvenience, outweigh any benefit of matters being heard together, or outweigh any considerations related to the overall objective of the rules to ensure a just, speedy and inexpensive determination of every proceeding on its merits, including the avoidance of a multiplicity of proceedings for the benefits of litigants and having concern to congestion in the courts generally?

[69] Guidelines that focused attention more keenly on the efficacy of the trial process were helpfully laid out in O’Mara v. Son, Kim et al., 2007 BCSC 871[O’Mara] at para. 23:

1. whether the order sought will create a saving in pre-trial procedures;

2. whether there will be a real reduction in the number of trial days taken up by the trial being heard at the same trial;

3. whether a party may be seriously inconvenienced by being required to attend a trial in which the party may have a marginal interest;

4. whether there will be a real saving in expert’s time and witness fees;

5. whether one of the actions is at a more advanced stage than the other;

6. whether the order sought will result in delay of the trial of any one of the actions and, if so, whether any prejudice which a party might suffer as a result of that delay outweighs the potential benefits which a consolidated trial might otherwise have;

7. the possibility of inconsistent findings and common issues resulting from separate trials.

[70] Severance may well be appropriate where the determination of one issue will render another one moot: Lawrence v. ICBC, 2001 BCSC 1530[Lawrence].

[71] The judicial discretion to sever trials or hearings is to be exercised sparingly: Morrison Knudsen Co. v. British Columbia Hydro & Power Authority, 1972 CarswellBC 62, 24 D.L.R. (3d) 579 (S.C.); Lawrence at para. 43. The test for severance is not applied in a vacuum; it is to be considered against the backdrop of the nature of the particular case at hand: Wirtz v. Constantini, 137 D.L.R. (3d) 393, 1982 CarswellBC 588 (S.C.). Because the determination involves an individualized assessment of the unique case before the Court, there is no closed list of uniformly applied considerations that inform the exercise of the Court’s discretion.

47 The judge also identified specific principles relevant to the nature of the case before her. In particular, she recognized limitations on the powers of a committee and on the nature of claims that can properly be included in a counterclaim to a proof of will in solemn form proceeding. Citing Re: Langford and The Patients Property Act, 2000 BCSC 721, she said:

[77] There is no question but that as the executor named in the Impugned Wills, the PGT is entitled to bring the Proof of Will Action. On the surface, s. 24 of the PPA suggests that in its capacity as committee of Norman’s estate, the PGT would have the authority to defend against the other claims. However, in Re: Langford and The Patients Property Act, 2000 BCSC 721 [Re: Langford], the Court reasoned that the legislature could not have intended to invest a committee with all of the powers of an executor or administrator such as obtaining title to the deceased’s assets or winding up and distributing the estate of the deceased patient. It held that because s. 24 expressly contemplates that probate or administration will be taken out after a patient’s death, it is intended to be operative only in the intervening period. In the result, Re: Langford held that s. 24 simply authorizes a committee of a deceased patient to maintain the status quo of the deceased patient’s estate during the hiatus period pending the issuance of letters probate or administration.

And as to Clark v. Nash, [1986] B.C.J. No. 1655, 39 A.C.W.S. (2d) 375 (S.C.), aff’d [1987] B.C.J. No. 304, 3 A.C.W.S. (3d) 412 (C.A.), the judge reasoned:

[83] . . . there is case authority that has placed some limitation on the nature of claims that can properly be included in a counterclaim to a proof of will in solemn form proceeding. In Clark v. Nash, [1986] B.C.J. No. 1655 (S.C.) aff’d [1987] B.C.J. No. 304 (C.A.) [Clark], the Court held that the procedure and hearing involved in a proof of will in solemn form proceeding should be limited to the aspects of the will execution, testamentary capacity, want of knowledge and fraud. The Court reasoned that a counterclaim to vary a will that is alleged to be invalid is therefore premature, and hearing it at the same time or before the action involving the proof of the challenged will is neither just nor convenient

[84] Since its pronouncement, Clark has stood for the general proposition that it is improper to include a wills variation claim in an action for proof of will in solemn form on the footing that a valid will is a condition precedent to a variation proceeding. Although I believe that, on occasion, this Court has heard such claims together (presumably without being taken to Clark), Clark nonetheless strengthens the application to sever, at least vis-a-vis David’s claim to have the Impugned Wills varied.

contested wills Legal Procedures probate wills variation wills variation act BC Wills Variation Acts

Relationship Between Parent and Child Is Fiduciary

A (LS) v A. ( WH) Estate 2014 BCSC 1910 (Antrobus v Antrobus) discusses that the relationship of parent and child is fiduciary in nature, and that parents have an obligation to care for, protect and rear their children .

This line of authority was also established by the BC Court of Appeal in in M (M.) v F (R.) 1997 BCJ 2914.

The traditional focus of breach of fiduciary duty is breach of trust. A child is particularly vulnerable to her at the mercy of the fiduciary holding the discretion of power. Morelli v Morelli 2014 BCSC 106.

In the A (LS) v A. (WH) Estate case a 62-year-old female plaintiff was awarded in excess of $400,000 damages against her parents who knowingly allowed their child to be sexually abused by her grandfather and his friend as a child, who were both deceased by the time of trial.

The plaintiff’s evidence was accepted that her parents permitted her grandfather to have opportunity to sexually assault and sexually abuse or even though they knew the grandfather was a child molester .

The Court found such behavior to be a breach of the parent’s fiduciary duty owed to their, as well as negligent in their parental duties.

The court held that the parents owed their child a duty of care to take reasonable care to protect her from the danger that they knew of and that their failure to take such reasonable care was responsible for damages caused to the plaintiff daughter.

But for the negligence of the parents, the injuries that the plaintiff suffered would not have occurred.

The plaintiff was able to prove that the defendant’s negligence caused or materially contributed to her injuries.

The primary test for causation asks ” But for” the defendant’s negligence, would the plaintiff have suffered the injury.

The “but for” test recognizes that compensation for negligent conduct should only be made where there is a substantial connection between the injury and the defendant’s conduct. Hanke v Resurface Corp. 2007 SCC 7

The plaintiff also sued her father for the intentional infliction of harm or mental suffering, alleging that he verbally psychologically and physically abused her and intentionally inflicted mental suffering on her by inappropriate and cruel forms of discipline.

The elements of the tort of intentional infliction of mental suffering are set out in the Ontario Court of Appeal decision Prinzo v Baycrest Centre For Geriatric Care (2002) 60 O.R. (3d) 474 at paragraph 48, as follows:

1) flagrant or outrageous conduct;
2) calculated to produce harm; and
3) resulting in a visible and provable illness.

Dysfunctional Family Fiduciary Fiduciary Relationships

Court Costs Awarded Against Lawyer Personally

The Supreme Court of Canada dismissed an appeal of the Ontario Court of Appeal upholding a a substantial award of court costs against a lawyer personally for his handling of a case found to be vexatious and an abuse of process. The client was also jointly liable for the costs award (see Paul Slansky v Kingsland Estates Ltd et al February 2,2017 case # 37175).

The amount was assessed at $160,000 at the Superior Court level by Justice Healey 2015 ONSC 6269.

Mr. Slansky was further ordered to pay an additional $30,000 for costs of the appeal.

Justice Healey applied Ontario Rule 57.07 of the Rules of Court that allows the Court to order lawyers to pay costs personally when they ” cause costs to be incurred without reasonable cause or to wasted by undue delay, negligence or other default.”

The trial justice stated that ” Mr. Slansky counselled the plaintiff or otherwise allowed his client to proceed with a series of unmeritorious steps and to take unreasonable positions to achieve goals in this action.”

The Justice stated that the second action did not have a ” scintilla of merit” and that it was the most ” vexatious and abusive” claim she had ever ruled upon.

In 2007 the client Donald Best , before he was represented by Mr. Slansky sued 62 defendants for negligence and economic loss.

In the course of the proceedings Mr. Best was found to be in contempt of court and served 60 days in prison.

Mr. Best continued to assert allegations that were found to be baseless and vexatious and an award of full indemnity for costs was ordered against him (2013 ONCA 695).

Mr. Best then commenced a second action against 39 defendants where he was represented by Mr. Slansky, who alleged misconduct on the part of the opposing lawyers, police and private investigators.

Many of the allegations in the second law suit were similar or identical to the first court action that was found to be baseless, vexatious and an abuse of process.

Many in the legal profession are concerned about the reasoning of the court as it may act to deter and punish lawyers who take on “difficult cases”.

The decision has pointed out the fine line between lawyers taking on unpopular or difficult cases that might require the lawyer to adopt aggressive tactics, so that lawyers will therefor have to constantly evaluate whether their actions are consistent with their ethical obligations.

Lawyer Negligence Legal Costs

A Little Humour: Get Your Will Done (Joke)

This joke is especially for Seniors but also for those who have not prepared their Will!

Mr. Smith is on his deathbed and knows the end is near.

The nurse, his wife, daughter and 2 sons, are with him.

He asks that 2 witnesses be present and a camcorder in place to record his last wishes, and when all is ready he begins to speak:

“To my son, Bernie, I want you to take the Mayfair houses.”

“My daughter Sybil, you take the apartments over in the east end.”

“My son, Jamie, I want you to take the offices over in the City Centre.

“Sarah, my dear wife, please take all the residential buildings on the east bank of the river.”

The nurse and witnesses are blown away as they did not realize the extent of his real estate holdings, and as Mr. Smith slips away, the nurse says,

“Mrs. Smith, your husband must have worked very hard to have accumulated so much property”.

To which the wife replied, “The idiot had a paper route.”

Misfeasance of Public Officials

It occasionally occurs in estate litigation that a party has complaints about the misfeasance of public officials, (usually against the Public Guardian and Trustee), as a result of perceived deliberate unlawful actions on the part of the public official against the complainant

The tort of misfeasance is the legal remedy when appropriate to seek compensation for such unlawful conduct on the part of the public official.

In my experience, such actions rarely succeed except in the most egregious instances where it is proved that the official abused his or her powers to the detriment of the ordinary citizen.

The Supreme Court of Canada has set out the elements of the tort of misfeasance in public office in Odhavji Estate v. Woodhouse 2003 SCC 69, [2003] 3 S.C.R. 263 (S.C.C.), at para. 23, and in St. Elizabeth Home Society v. Hamilton (City), 2010 ONCA 280, 319 D.L.R. (4th) 74 (Ont. C.A.), at para. 20, as follows:

(a) that a public officer, acting in his or her capacity as a public officer, engages in deliberate and unlawful conduct;

(b) the public officer is aware both that the conduct is unlawful and that it is likely to harm the plaintiff;

(d) the injuries suffered are compensable in law.

104 In Freeman-Maloy v. York University (2006), 79 O.R. (3d) 401 (Ont. C.A.), (sub nom Freeman-Maloy v. Marsden) 2006 CanLII 9693, at para. 10, leave to appeal refused, [2006] S.C.C.A. No. 201 (S.C.C.), Sharpe J.A. writing for the Court stated that “[t]he tort of misfeasance in a public office is founded on the fundamental rule of law principle that those who hold public office and exercise public functions are subject to the law and must not abuse their powers to the detriment of the ordinary citizen.”

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