The overwhelming majority of litigation disputes end by settlement prior to a trial or application hearing. Advocacy is therefore something best done throughout the process, to give the client the best opportunity to achieve a favourable outcome.
But where settlement attempts fail, or a hearing on the issues is otherwise necessary, it is important that your lawyer has a record of strong, effective advocacy. A good strategy is one that provides options. Our approach is two-fold: on the one hand, be aware of the opportunities to resolve a dispute through the settlement track, on the other hand, prepare for trial.
Again, most cases do settle. It is never too soon, or too late, to consider settlement: whatever a client can live with is, by definition, a good settlement. However, for the minority of cases where a settlement does not happen, we are ready to go to trial. Effective trial advocacy requires prudent planning, from the very beginning of a legal proceeding, for the possibility of a trial.
Settlement of a 20-year estate administration and professional negligence sagaOur client was one of two children whose parents died in a tragic car accident. Hard-working immigrants, his parents had arrived in Canada penniless. They went on to amass substantial business and real estate holdings. Compounding the tragedy of their deaths, their estates were mismanaged and the business and real estate assets depreciated, burned down, and wasted. As a result, our client, 13 years old when his parents died, would have received very little from his parents’ life work without litigation. After nine years of complex and hard fought litigation, on the eve of trial, a settlement resulted.
Dependant support and defence to evictionOur client was a gentleman who had lived common-law with his unmarried spouse for 20 years until her death. Two immigrants from Eastern Europe, together they had built a business and generated substantial wealth. Unbeknownst to him, she had been taking their joint savings for years and had willed everything to her children, including the house he had paid for. We acted in a dependant support application and asserted constructive trust and unjust enrichment. The estate trustees first agreed to negotiate before formal litigation, then forced a series of contested proceedings in an attempt to knock our client out of the litigation before his case could be heard. First, the estate trustees applied unsuccessfully for eviction from the house our client had been living in for 20 years. Then, we acted in a contested motion in which interim support was awarded and the estate trustees’ argument, that there was a statute-bar on dependant support, was dismissed. The court stated that the 6-month limitation in section 61 of the SLRA does not operate as a typical limitation to bar all proceedings; rather, it only limits an application for dependant support to the remaining, undistributed portion of the estate. After the estate trustees lost both contested proceedings, the case settled.
Motions court applies Supreme Court of Canada’s Hryniak decision to dependant support applicationOur client was a loving spouse who lived with her common law husband for 19 years. She brought a dependant support application, and the estate trustees refused to admit that our client had lived with the deceased and was a dependant spouse. A motions court applied the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7, to determine, on a contested basis but without a trial, whether our client qualified as a dependant and a spouse. The court stated that a trial was not required to justly and fairly resolve these issues and declared in favour of our client. Shortly after that, a settlement resulted with our client receiving a house and about $1 million from her common-law husband’s assets.
Ex parte termination and removal of abusive guardianshipOur client was a gentleman who had suffered a serious brain injury in a motor vehicle accident. A guardian of property and for personal care had been appointed to administer settlement funds from the accident and to see to our client’s rehabilitation. Our client regained capacity. The guardian – who controlled the settlement proceeds – reduced our client’s access to rehabilitation therapies and would not return to court to terminate the guardianship. Instead, the guardian used her position of control to abuse this gentleman and isolate him. We brought an urgent motion to terminate the guardianship ex parte. The court accepted the urgency of the motion, declared our client capable, terminated the guardianship, and stated that this was a circumstance where the Court could dispense with notice. The Court granted an order allowing our client to secure control of his property, remove himself to safer living arrangements, and take control of his own future.
Gridlocked estate trustees passed over in contested applicationOur client was one of two sisters named estate trustee of their father’s estate. The estate had been gridlocked for 3 years. We brought an application to pass over both sisters in favour of a professional estate trustee. The application was contested by the respondent sister and the third sibling. Our client was successful at the hearing of the application. The court found that the estate was put at risk by the prolonged history of animosity between the sisters, their estrangement, and the failure of both sisters to move matters forward in a timely manner. The named estate trustees were passed over and a professional estate trustee appointed.
Dying mother’s capable last wish to die with her son given effect in contested hearingWe represented a son trying to honor his mother’s wish to spend her last days in his home. The issue was opposed by other children, who argued that it would be expensive to provide palliative care at his home and that their mother would have wanted to die in a retirement home so as to maximize funds to be left to her estate. The Board found that the mother had expressed a capable wish and gave effect to that last wish: the mother was able to die in dignity in her son’s home, surrounded by family.
Will found valid despite suspicious circumstancesA father died with a Will leaving most of the estate to his one son and very little to his five daughters. Our client was the son. The daughters challenged the Will on the basis of undue influence and lack of testamentary capacity. At trial, our client was successful: the court found that despite suspicious circumstances surrounding the making of the Will, the Will was duly executed, there was testamentary capacity, and there was no undue influence. The Will represented the father’s true wishes – despite the fact that it was not what the sisters wanted, anticipated or thought was fair.
Where there is testamentary capacity, the legitimate and appropriate outcome may seem unreasonable or even cruel to survivors – but that is not the test. A testator has the right to treat hopeful beneficiaries unjustly.