Law Times

Page 4 November 27, 2017 • Law Times www.lawtimesnews.com understands that advertising in a neo-Nazi tabloid is unacceptable for a lawyer." Susan Tonkin, an LSUC spokeswoman, says that the law society takes all complaints ser- iously and that they are all re- viewed and assessed. "If there is evidence of a breach of the Rules of Professional Con- duct or the Society's bylaws, the law society will investigate and take regulatory action as appro- priate," she says. "e lengths of investigations vary and may be impacted by a number of factors. In all matters, our focus as regulator is to pro- tect the public and its confidence in the professions." She adds that in circum- stances "where lawyer or para- legal conduct must be addressed but formal discipline proceed- ings are not warranted," the law society can authorize a regula- tory meeting. During such meetings, which are not held in public, the law society's Proceedings Authoriza- tion Committee will discuss the lawyer's conduct with them and remind them of their profession- al obligations. Your Ward News, which is based in eastern Toronto, claimed it had a circulation of 300,000 be- fore Canada Post stopped circu- lating it in May 2016 aer the fed- eral government stepped in. Faed, who declined to com- ment, continued to advertise in the publication while the LSUC conducted its investigation, and he did so as recently as this sum- mer. His advertisement lists his website and phone number, but it does not identify his name. A disclaimer at the bottom of the ad distances Faed from the New Constitution Party of Canada — the neo-Nazi pol- itical party of James Sears, the newsletter's editor. e disclaim- er says, "INDEPENDENT. I AM NOT INVOLVED WITH THE NEW CONSTITUTION PARTY OF CANADA." Warman's complaint said Faed's advertisement contra- vened a number of the law soci- ety's Rules of Professional Con- duct by financially supporting Your Ward News. is included s. 6.3.1-1, which requires lawyers to have "a special responsibility to respect the requirements of hu- man rights laws" and to "honour the obligation not to discrimin- ate." e regulator's rules only al- low a lawyer to market legal ser- vices if the advertising "is in the best interests of the public and is consistent with a high standard of professionalism." Tonkin says that if a lawyer re- fuses to attend a regulatory meet- ing, the Proceedings Authoriza- tion Committee would consider the matter. And if the lawyer re- peats the conduct aer the regu- latory meeting, "all courses of action that are open to the law society remain available to it," she says. LT was nowhere to be found, and a "trued up" copy was found in her apartment. Lionel Tupman, an estate lawyer who was not involved in the case, says the decision is consistent with a 2006 Court of Appeal decision in Sorkos v. Cowderoy, which sets out the test for proving a lost will. The Levitz decision was con- cerned only with the last part of the test, which was whether the presumption that the deceased intended to destroy the will had been rebutted. "It's important to know who bears the burden of proof with respect to rebutting the pre- sumption of revocation," says Tupman, a partner with WEL Partners. "The propounder of the loss will bear the burden of proof." The Succession Law Reform Act holds that, for a will to be revoked, it must be destroyed with the intention of revoking it. So, in order to rebut the pre- sumption, it must be shown that either the will was not destroyed or that there was no intention to revoke it. The judge also referred to s. 13 of the Evidence Act, which requires that evidence on mat- ters before the testator's death submitted by an opposite party must be corroborated by some other material evidence. Yasmin Vinograd, the lawyer who represented the executrix of Stoller's estate, says that the dis- cussion in the decision regard- ing the rules of evidence serves as a useful reminder of the re- quirement for corroboration. "As stated by the court, the corroborating evidence needs to be independent and must mate- rially enhance the probability of the truth of the statement," she says. If the judge had found the presumption had not been rebutted, a revocation of the will would result in intestacy, meaning her estate would go to her next of kin, her niece and nephew, Nancy-Lynn and Bryan Stoller. They had argued that the evi- dence showed that, in the weeks before their aunt's death, she was aware of and concerned about the state of her will and was con- sidering changes. But the judge rejected this argument, finding there was no evidence before her that Stoller intended to make substantive changes to her will in the weeks before her death. Lawyers say litigation could have been voided had the origi- nal will been found. It is a valuable reminder of the importance of safekeeping the original will and of advising the executor of the location. "However, wills can be in- advertently misplaced and it is important to remember that the Rules of Civil Procedure provide this mechanism to deal with a lost will," says Vinograd. Bryan Stoller, the deceased's nephew, says his lawyer advised him against filing an appeal of the decision. LT Continued from page 1 Wills case has important lessons for lawyers Determination after 20 months Continued from page 1 NEWS NEWS NEWS Tim Boland Darcy Romaine Tel: 905-841-5717 www.bolandhowe.com THE PROOF IS IN THE PRECEDENTS Pelletier v. Ontario Provincial Police, 2013 ONSC 6988 For further liability verdicts, ask for our Trial Report Card BICYCLE ACCIDENT? Consider referring your client to us Untitled-5 1 2017-09-06 2:17 PM

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