Law Times

Page 4 December 3, 2018 • Law Times www.lawtimesnews.com NEWS Katz, a lawyer at Singer Kwin- ter in Toronto, says some aspects of the Cass decision were still concerning to him, particularly the judge's suggestion that the need for research was question- able given the lawyers' base ex- perience and knowledge. "If I'm hiring a lawyer for any- thing, I would hope the lawyer would research the law on my is- sue as needed," says Katz. LT focused on the hours billed by Lipetz and Michael Schmidt, another lawyer that worked on the file. Lipetz said he cannot provide comment on the ruling, and Book did not provide com- ment by deadline. One issue was with a $900 research fee. Whitten wrote: "$900.00 for legal research is problematic. One assumes that counsel grad- uated with the basic legal knowl- edge we all possess. This matter was unlikely his first blush with the world of 'occupier's liability,' and specifically the liability of landlords. . . . All in all, whatever this 'research' was would be well within the preparation for the motion. There was no need for outsider or third party research. If artificial intelligence sources were employed, no doubt coun- sel's preparation time would have been significantly reduced." In the rest of the decision, Whitten also cut the costs award- ed for an expert opinion, ham- mered the bill for use of a law stu- dent and said that 20 or 30 hours, not the 80 hours listed, was more appropriate for preparation for the summary judgment motion. "In this day and age of boiler plate pleadings and the instant availability of drafting prec- edent, the hours expended ap- pear to be excessive. The same could be said of the conduct of the examinations for discovery," Whitten wrote. Another recent decision, Drummond v. The Cadil- lac Fairview Corp. Ltd., 2018 ONSC 5350, released on Sept. 13, dealt with the issues of costs and said that using artificial in- telligence as a legal research tool should be encouraged. In that Ontario Superior Court of Justice case, Cadillac Fairview objected to the disburse- ment of $1,323 for legal research for costs incurred using WestLaw, according to Justice Paul Perell, who wrote the decision. "The case law is divided on whether a disbursement for legal research is recoverable on a party and party assessment of costs," wrote Perell. "The reality is that computer-assisted legal research is a necessity for the contempo- rary practice of law and comput- er assisted legal research is here to stay with further advances in artificial intelligence to be antici- pated and to be encouraged. " Isi Caulder, a partner at Bere- skin & Parr LLP in Toronto, who works on intellectual property law, says Whitten's comments ref lect a growing sentiment that lawyers need to get with the times. "Really, that judge was saying, 'If you can do this faster, why are you not doing it faster?'" she says. "Why are you charging your cli- ent for something that could be done more efficiently?" Legal research is an impor- tant practice of law, and using artificial intelligence can help make the research more efficient, as well as make the lawyer use their time better, says Shane Katz, who acted for plaintiff Stephen Drummond in Drummond v. The Cadillac Fairview Corp. Ltd., 2018 ONSC 5350 but was not involved in Cass v. 1410088 Ontario Inc., 2018 ONSC 6959. own, unique creature of the law." In particular, the confusion surrounds certain types of wills that were thrust into question by Dunphy earlier this year due to their use of language called a basket clause. Basket clauses, and a similar type of clause called disclaimer clauses, have the purpose of providing as much f lexibility as possible in apportioning the as- sets that don't need probate into a secondary will and, therefore, saving as much probate tax as possible, says Jordan Atin, coun- sel at Hull & Hull LLP, who was not involved in the case. "A basket clause basically says, 'Look, if I don't need probate for this asset, then put it in the sec- ondary will and don't pay tax on it,'" Atin says. "This disclaimer clause says, 'I'm going to list all the assets that go into the secondary will because they are all the assets that don't need probate, but if I'm wrong, and one of these assets do need probate, just have it fall back into the primary estate.'" The use of basket clauses in Ontario has existed since 1998, but Milne Estate (Re), 2018 ONSC 4174, released by Dun- phy in September, said a will us- ing a basket clause was invalid because it failed to "describe with certainty" any property that is subject to the will. Rather, the wills in the Milne case, which is being appealed, left the discretion to the trustees. The Panda wills used "simi- lar language" to the Milne wills, Penny wrote, although Aulis says the Panda wills did not have the same type of discretion granted to trustees. In the Panda primary and secondary wills, the estate trust- ees and the beneficiaries were the same in both wills. The secondary estate included shares in two companies that did not require probate as well as "any other assets for which my Trustees determine a grant of authority by a court of competent jurisdiction in not required for the transfer, disposition or realization thereof," Penny's decision said. The secondary will also au- thorizes the trustees to "dis- claim any property which would otherwise form part of the sec- ondary estate within 90 days following the death of the tes- tator" where "any property so disclaimed is to form part of the primary estate to be dealt with under the primary will." Penny wrote in the Nov. 13 de- cision that the will's estate trust- ees in the Panda case applied for a Certificate of Appointment of Estate Trustee in response to an endorsement by Dunphy, who had rejected the trustees pending a further motion. But Penny wrote that Dun- phy's assertion in Milne Estate (Re), 2018 ONSC 4174 was "in- correct as a matter of law." Penny wrote that there were "substantive issues" with Dun- phy's decision. First, Penny wrote in Panda, there was a procedural issue as to whether it was appro- priate to probe the way a will is constructed in an unopposed application that focuses on the validity of the document itself (such as, Atin says, getting the correct signatures in place). Penny also said there was an issue with whether the will must meet the "three certainties" trust test, as well as the issue of who should be able to decide whether to seek probate for certain assets. Aulis says that while wills usu- ally form trusts when they crys- tallize upon the death of the testa- tor, it's not always the case, such as when an estate is bankrupt. Atin says there are wills that deal with issues that are unre- lated to creating a trust for their property, such as instructions for the treatment of their re- mains or appointing guardians for young children. Stephen O'Donohue, princi- pal at O'Donohue & O'Donohue Barristers & Solicitors in Toron- to, says his understanding of the law is in line with Penny's deci- sion, but he says he still awaits the clarification from the Divisional Court on the Milne appeal. "I think [Panda] is an excel- lent decision," says O'Donohue, who was not involved in the case. "We are dealing with a very narrow concept: Do execu- tors have the power to make this determination after the testator has died? I'm of the view that yes, they do have that power." Until the Divisional Court weighs in, Atin says, neither Penny nor Dunphy's decision is binding on other cases within the same level of the Ontario Su- perior Court of Justice. "A lot of primary and sec- ondary wills have the same sort of basket clause that says the trustee has discretion, so a lot of them are vulnerable — most of them are vulnerable," says Au- lis. "Ultimately, we are all sitting around waiting for the appeal. . . . Most estate practitioners are hoping that the Milne case is overturned; probably that's quite likely." LT 'Substantive issues' with earlier ruling Continued from page 1 Continued from page 1 Lawyers must look at organizational needs LSUC_LT_Nov26_18.indd 1 2018-11-22 3:26 PM

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