Law Times

www.lawtimesnews.com LAW TIMES COVERING ONTARIO'S LEGAL SCENE | FEBRUARY 4, 2019 7 BY JONATHAN FRIEDMAN ON Jan. 1, 2004, the Limitations Act, 2002 came into force in the province of Ontario. It has since acted as a restriction to the com- mencement of proceedings in civil litigation claims, including estate litigation. If the discovery of the cause of action occurred prior to Jan. 1, 2004, the act does not apply. Ontario lawyers need to en- sure they are aware of the re- strictions of bringing specific applications in an estate litiga- tion matter in order to properly advise their clients. In particular, I will focus on will challenges and causes of action that are not subject to time restrictions specifically provided for by any other statute. Lawyers practising estate litigation need to be aware of the two-year period running from the date of death (subject to dis- coverability) because a failure to properly advise your client may result in the commencement of a costly, lengthy and ulti- mately useless application that is doomed to fail. Section 4 of the act estab- lishes a two-year basic limitation period from the discovery of the cause of action and an ultimate limitation period from the date the cause of action arose even if the cause of action was not dis- covered. To put it very simply, s. 5 of the act establishes that a person is presumed to discover a claim on the day the act or omission took place and operates to potentially extend the two-year limitation period subject to when the act or omission was discovered. One of — if not the most — cited decisions with respect to the applicability of the act in will challenges is Leibel v. Lei- bel 2014. On Sept. 5, 2013, more than two years after Eleanor Leibel's death and after her primary will had been probated, Blake Leibel, Eleanor's son, commenced an application seeking a declaration that her two wills dated April 9, 2011 were invalid on the basis of incapacity and undue inf luence in addition, and ancillary, to other consequential relief. In finding that the will chal- lenge brought by Leibel was stat- ute barred, the Ontario Superior Court judge referred to the word- ing and purpose of the act, which sets restrictions on when parties can commence proceedings. The judge found, in part, in response to Leibel's argument (that there is no limitation period in will chal- lenges) that to permit a will to be challenged at any time, if there are assets still undistributed or those that can be traced, it would put all estate trustees in peril of being sued at any time. As a result, the will challenge was found to be statute barred. In the course of rendering her decision, the judge stated that the two-year limitation period under s. 4 of the act runs from the date of the testator's death. The judge based this conclusion on the provisions of s. 5(2) of the act and the principle that a will speaks from the date of death. The two-year limitation pe- riod starting after the date of death was affirmed in Birtzu v. McCron by a judge of the On- tario Superior Court. In the de- cision, the judge considered the applicability of s. 5 of the act — the discoverability principle. In Leibel, the judge's decision was based on the reasoning that because a will is effective as of the date of death, there is a pre- sumption that an applicant has knowledge of the contents of the will on that date. Therefore, this would crystalize the discover- ability of the cause of action that would form the basis of a will challenge and/or claim of un- due inf luence. However, what if this presumption is rebutted by the applicant? What if the ap- plicant can prove that they were unaware of the contents of the will on the date of death of the testator? In that case, would the two-year limitation period still run from the date of death? These questions were con- sidered in the recent decision of Shannon v. Hrabovsky, 2018. In Hrabovsky, the respondent, Glenn Hrabovsky, asserted that applicant Gayle Shannon's claim was barred by the act on the basis that her claim was discovered on the date of the testator's death, regardless of when it was actually discovered. Shannon argued that the limitation period under s. 4 of the act was extended after the commencement of her applica- tion, being more than two years after the testator's death, based on the fact that she did not dis- cover the existence of the 2007 will and its contents until some time in January 2015. The judge found that in the case where an individual can establish that they did not know of the matters re- ferred to in s. 5(1)(a) of the act on the date of death, the presump- tion in s. 5(2) of the act would be rebutted and the "discoverabil- ity principle" would be opera- tive. He ultimately affirmed that the discoverability principle ap- plied to will challenges, that the limitation period was extended in Shannon's circumstance and that the will being challenged by Shannon was invalid. In Leibel, the judge also con- sidered the applicability of s. 16(1)(a) of the act, which estab- lishes that there is no limitation period for applications seeking only declaratory relief and where no consequential relief is sought. However, the analysis of s. 16(1) (a) will have to be part of a sepa- rate, much larger, article. The act and its applicability to will challenges is strict and unforgiving. In Leibel and Mc- Cron, the will challenge pro- ceedings were commenced ap- proximately three months after the two-year anniversary of the testator's death. Counsel must always consider the applicabil- ity of the Limitations Act when consulting with prospective cli- ents and advise accordingly. LT Jonathan M. Friedman is an estate litigation lawyer practising with Heft Law PC in the Greater Toronto Area. BY DORON GOLD I t's no easy task writing a piece on how lawyers should avoid perfectionism. It's like writing about how a basketball player shouldn't make such a fuss about physical fitness. Perfection, to lawyer types, is generally seen as a goal to which one should aspire, not an unhealthy habit that one should curtail. But the truth is perfectionism is a futile, unreachable trap that, if practised in unhealthy ways, can result in an erosion of one's well-being. A few years ago, while on a wellness panel during the Osgoode Hall Law School orientation at the beginning of first year, I was struck by a comment by one of my co-presenters, as well as by the reactions of the f ledgling law students in the audience that day. The young woman sitting next to me, a leader of the third-year class, spoke of her strategy coming into law school. In essence, she imparted that she knew from the outset of law school that she would not be the best student in the building and de- cided to be guided by the mantra that "Cs get you degrees." Upon hearing this, there was a pal- pable collective gasp among the audience members. Did she just suggest deliberate averageness? In law school? Heresy, I say! Well, on the strength of that philosophy, that young woman went on to a spectacu- larly successful law school career and is now a successful lawyer. And, along the way, she didn't torture herself and even had a social life and a little fun, too. In essence, she approached law school hu- manely and mindfully. In a 2015 study of perfectionism in the Personality and Social Psychology Review, the authors identified two types of perfectionism — perfectionistic strivings and perfectionistic concerns. The former is about having high standards and working hard to reach those heights of per- formance. This type of perfec- tionism was not observed to have been linked to burnout, likely because it fosters in an individual a sense of personal accomplishment and adher- ence to personal values of ex- cellence. Self-efficacy is always good for self-esteem. The second type of perfectionism — that of perfectionistic concerns — is where the potential burnout issues arise. These involve worry and anxiety includ- ing the fear of making mistakes, fear of letting people down and the fear of failure generally. In addition, as is often the case with lawyers, there exists a persistent wor- ry about what people will think of them. As the authors stated, "It is the harsh self- evaluative processes central to perfection- istic concerns that are understood to fuel the perfectionism-burnout relationship." In my personal experience in my pre- vious life as a lawyer, I recall living this dynamic. Often, when beginning to think about preparing for a motion in civ- il or family court, I would aspire to cover every base and miss nothing in service of obtaining a positive result for my client. It's an admirable high standard. However, in pursuit of this lofty goal, I found myself never feeling that I could ever do enough. There was always another case to read, another review of the facts to do or anoth- er draft of my oral submissions to hone. I found it impossible to find a "good enough" zone. As a result of this futile ethos, I often found myself procrastinating throughout the entire process. Perfection- ism and procrastination fre- quently go together like peas and carrots, as Forrest Gump was heard to say. With my ex- ceedingly high standard in mind, I started thinking about the file enthusiastically, which eventually led to feeling that my lofty standard was unattainable and that I would, therefore, fail. In response, I decided to simply put the file aside and look at it later. Later became much later. And throughout that time of delay, the pres- sure would build and my internal cata- strophizing thought pattern about how badly things would go ballooned. It was only when I finally cracked open the file and started working on it that I realized everything would be OK. It was too late for it to be perfect, so that pressure was off. I just had to do my best, and that was usually more than enough to effect a de- sirable outcome for the client. It's too bad that perfectionism led me to torture my- self mercilessly along the way. In response to perfectionism and its inherent impossibility, some procrasti- nate while others beat a proverbial horse to death, never knowing when to stop, even for food or sleep. One doesn't have to guess why such a relentless practice might lead to eventual burnout. We're not ma- chines, we're humans. We need vacations and friends and fun and sex and sleep and food. Perfectionism demands that these needs be sacrificed at its altar. The fear of mistakes is construed as potential failure. Allan Mallinger, in his book Too Per- fect, points out that "the most serious effects of perfectionism can be seen in personal relationships." Such problems spring from fears of having other people see one's f laws, the need to be right about everything and a constantly critical atti- tude looking for f laws in others. Perfectionists are notoriously hard on themselves. That type of internally corro- sive, negative self-talk is stressful and un- healthy, potentially fostering depression, anxiety, addiction and/or burnout. The antidote is what that young Os- goode Hall student espoused, which is the philosophy of "good enough." It sounds like one is settling for something less than excellence when, really, it's about calibrat- ing one's effort and expectations to what is humane and possible. It's not letting the perfect be the enemy of the good, as has been said. If you strive for excellence while allowing for your own unavoidable human imperfection, you're not a heretic. In fact, you may be surprised how excel- lent the outcome may be not only for the client but for your mental health and resilience. And, along the way, you may learn something new as well. LT Doron Gold is a registered social worker who is also a former practising lawyer. He works with lawyers and law students in his role as a staff clinician and presenter with the Member As- sistance Program as well as with members of the general public in his private psychotherapy practice. He's available at dorongold.com. Speaker's Corner Act impacts estate litigation Perfect not the enemy of good COMMENT The Lawyer Therapist Doron Gold

• Cover