Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to Wills and Estates matters, you should seek professional assistance (e.g. make a post on Dynamic Lawyers). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you.

So are Living Wills in Ontario valid and enforceable here?  In other words, by having such a document – which talks about your wishes concerning your medical treatment when you can no longer communicate – is it possible to enforce it through the courts in case a dispute arises?

It’s an interesting issue.  At first glance, some might say ‘no’.  There is no Ontario statute that even mentions Living Wills or Advance Directives – like there are in other provinces.  For example, in British Columbia, under the Representation Agreement Act, you can appoint someone to make decisions on your behalf (when you can no longer do so) to give or refuse consent to specified kinds of health care, including life-supporting care or treatment: sections 9(1)(b) and (c).  In Alberta, the Personal Directives Act allows people to make personal directives respecting any person matter: section 7(1).  In Saskatchewan, The Health Care Directives and Substitute Health Care Decision Makers Act provides that, where a person has made a health care directive concerning future treatment for specific circumstances, that health care decision will be deemed to have the same effect as if it were made by that person (who at that point would be mentally incapable of making that decision). In Nova Scotia, the Medical Consent Act gives a person the ability to appoint another person to give consent or directions respecting the medical treatment of the person giving the authorization. So there ARE statutes that recognize Living Wills and Advance Directives and which presumably create rights, obligations, etc. in respect thereof.

But in Ontario, the Substitute Decisions Act (the legislation that comes closest to dealing with Living Wills) does not talk about medical treatment, personal directives, Living Wills, refusal to accept medical treatment, etc.  Instead, that Act allows a person to make a Power of Attorney for Personal Care.  This allows a person to appoint someone to make personal care decisions when they can no longer do so.   But what does “personal care” include?  It includes health care, nutrition, shelter, clothing, hygiene, or safety.  In light of this, could a Living Will or Advance Directive made in Ontario be included in a Power of Attorney for Personal Care?  Sure it could.  But are those provisions – regardless of whether they are made in a separate document called a Living Will or a Power of Attorney for Personal Care – enforceable?

Actually, it could depend on the context!  There are two (although somewhat dated) Ontario Court of Appeal cases that have actually found that making advance directives (orally or in writing) can actually override legislation and be used to successfully sue doctors!

In Fleming v. Reid, [1991] 4 O.R. (3d) 74, the Ontario Court of Appeal struck down provisions of the Mental Health Act that allowed a review board to impose neuroleptic drug treatment on schizophrenic patients who had previously protested against such treatment.   Those patients, when they were competent, refused to take those drugs despite their doctor’s view that taking them was in their best interests.  When those patients became incapable of making decisions on their behalf, the Official Guardian stepped in as their substitute decision maker and also refused to consent to the use of neuroleptic drugs.  But the Mental Health Act said that the review board (the body that makes the decisions) did not have to consider the prior capable wishes of patients in determining what was in their fair interests.   The Court of Appeal disagreed and found the review board’s powers to be unconstitutional.  The Court of Appeal upheld the patient’s prior views concerning their health treatment and struck down those provisions of the Mental Health Act that infringed on their section 7 Charter rights.   Importantly, the Court stated:

33          The right to determine what shall, or shall not, be done with one’s own body, and to be free from non-consensual medical treatment, is a right deeply rooted in our common law. This right underlies the doctrine of informed consent. With very limited exceptions, every person’s body is considered inviolate, and, accordingly, every competent adult has the right to be free from unwanted medical treatment. The fact that serious risks or consequences may result from a refusal of medical treatment does not vitiate the right of medical self-determination. The doctrine of informed consent ensures the freedom of individuals to make choices about their medical care. It is the patient, not the doctor, who ultimately must decide if treatment – any treatment – is to be administered.

34          A patient, in anticipation of circumstances wherein he or she may be unconscious or otherwise incapacitated and thus unable to contemporaneously express his or her wishes about a particular form of medical treatment, may specify in advance his or her refusal to consent to the proposed treatment. A doctor is not free to disregard such advance instructions, even in an emergency. The patient’s right to forego treatment, in the absence of some overriding societal interest, is paramount to the doctor’s obligation to provide medical care. This right must be honoured, even though the treatment may be beneficial or necessary to preserve the patient’s life or health, and regardless of how ill-advised the patient’s decision may appear to others.

These statements show that a Living Will or Advance Directive can actually trump legislation which says otherwise under section 7 of the Charter.

Furthermore, in Malette v. Shulman, (1987), 47 D.L.R. (4th) 18, the Ontario Court of Appeal found that a doctor who provided medical treatment to an incapable patient (who had expressly refused such treatment while capable of doing so) had committed assault and battery and should pay damages.  The patient was a Jehovah’s Witness and she carried a card that said she would refuse to accept any form of blood products in the event of an accident.  After a car accident, she was taken to the hospital.  She was semi-conscious and in bad condition.  The hospital staff and the doctor discovered the card.  The patient’s daughter also confirmed her mother’s intentions not to receive blood products. Nevertheless, the doctor administered a blood transfusion which saved the patient’s life.  She survived and sued the doctor.  The Court of Appeal found the doctor liable for damages and stated:

24… A doctor is not free to disregard a patient’s advance instructions any more than he would be free to disregard instructions given at the time of the emergency. The law does not prohibit a patient from withholding consent to emergency medical treatment nor does the law prohibit a doctor from following his patient’s instructions. While the law may disregard the absence of consent in limited emergency circumstances, it otherwise supports the right of competent adults to make decisions concerning their own health care by imposing civil liability on those who perform medical treatment without consent.

So, as you can see, in the context of a statute that violates the Charter (such as the Mental Health Act did in Fleming v. Reid) or in the context of a civil case for damages based on assault and battery (such as a doctor providing blood transfusions in Malette v. Shulman), it appears that Living Wills CAN BE ENFORCEABLE!

FYI, in case you’re looking for a Living Will in Ontario, then look no further:

Living Will (Ontario)

This document can be used by a person to communicate their final wishes concerning the medical treatment they would like to receive when they are no longer able to communicate. This is NOT a WILL or a POWER OF ATTORNEY FOR PERSONAL CARE (although the terms of one’s Living Will can be incorporated into one’s Power of Attorney for Personal Care). Here’s the sample Video Guide that comes with this Living Will (Ontario):

Remember: if you need an Ontario lawyer, go to Dynamic Lawyers and make a post.

written by admin \\ tags: advance directive, health care, ontario living will, ontario power of attorney for personal care, personal care, personal directive, power of attorney for personal care, valid and enforceable

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to drafting, negotiating, or resolving a dispute concerning an agreement, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Brampton, Hamilton, and other Ontario family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to your agreement.

As a follow up to my two other blogs on the topic of “Is My Legal Form Valid and Enforceable”, in this blog I’ll be discussing the various ways in which a party can challenge a legal form based on the process it was entered into.  Typically, a party will make an argument that there wasn’t sufficient consent or the agreement was not entered into freely or voluntarily.  This may be based on threats, special relationships, or an imbalance of power that allows a party to take advantage of the other party.  A party may also claim there was a mistake or misrepresentation which caused it to enter into the agreement.  So without further adieu, let’s get into it…

Duress
DURESS is a legal doctrine that allows a party to challenge an agreement on the basis that they were so seriously coerced by another’s party’s illegitimate exercise of power such that they could not freely consent to entering into the agreement. Examples of duress include threats or acts that are unlawful (e.g. criminal, tortuous, breaches of contract, etc.) or illegitimate (e.g. threatening to refuse to enter into a contract or to terminate a contract lawfully unless…). Basically, if there’s some kind of unlawful or illegitimate pressure that isn’t in the normal course of market forces, then it could amount to duress. Specific examples could include:

• A party threatening another party’s life or limb unless they enter into an agreement;
• A party threatening to sue another party unless they enter into an agreement; and
• A party threatening to call the police on another party unless they enter into an agreement.

Undue Influence
UNDUE INFLUENCE is similar to duress as it is concerned with the adequacy of a party’s consent to enter into the agreement. Unlike DURESS, however, undue influence may exist without violence or threats of violence against a party. Undue influence depends on the RELATIONSHIP between the parties which causes one party to confide in the other and leads the other to take advantage and exert a natural influence over the other. Undue influence can be used to challenge a contract on the basis that a weaker party was dominated by or unduly influenced by the other party. Examples of relationships that could lead to challenging contracts based on undue influence include: doctor-patient, parent-child, trustee-beneficiary, priest-churchgoer, etc. So there’s a special relationship that involves trust, confidence and influence. To get around this type of challenge, a party could try to argue that the other party received full disclosure, had independent legal advice, and had only a minor disadvantage when it came to unequal power.

Unconscionable Bargain
Agreements which amount to UNCONSCIONABLE BARGAINS can be challenged. This doctrine relates to an unfair advantage gained by an unconscionable use of power by a strong party against a weaker party. So there are substantive and procedural elements here. The substance is the contract itself: how fair were its terms? The procedural element has to deal with how it was entered into. The defence of unconscionable bargain may apply to situations where there is no unlawful threat (duress) or domination (undue influence). So to recap: there is an inequality of bargaining power and one party has taken undue advantage of that inequality. That inequality in bargaining power may result from poverty, age, ignorance, emotional vulnerability or mental infirmity of one party. This doctrine is not meant to simply undue bad bargains. It looks at factors such as fairness, relationship between the parties, their respective knowledge and weaknesses, sources of power, conflicts of interest, grossly inadequate consideration in the contract, etc.

Misrepresentation
A MISREPRESENTATION is a material statement which is false and which an innocent party reasonably relies upon to their detriment to enter into the contract. The false statement could have been made fraudulently (i.e. where a party knew it was false, but said it anyways with the intention of having the other party rely upon it as being true), negligently (where a party was careless or reckless in knowing the truth of the statement, but says it anyways), or innocently (a party was innocent of fault in making a misrepresentation). If there has been found to have been a misrepresentation, then the contract can be challenged and rendered invalid and unenforceable (in whole or in part).

So what’s with all the “in whole or in part?” Well, if the contract is not wholly undone or struck down as a result of its defect (and this will depend on how it is challenged and the degree to which that challenge is successful), then parts of it may survive. If you don’t want to leave it up to a judge to make that decision, then be sure to include a SEVERABILITY CLAUSE in your agreement. This clause generally says that it, if part of the contract is found to be invalid and unenforceable, the rest of the contract will still survive and be valid and enforceable.

Mistake
An agreement may be challenged in whole or in part on the basis that there was a mistake. Mistakes get made all the time. Sometimes, only one party makes the mistake (UNILATERAL MISTAKE). Other times, both parties make the same mistake (COMMON MISTAKE). And other times, both parties make mistakes but their mistakes are different (MUTUAL MISTAKE). Interestingly, a contract may actually contemplate that there is a mistake and how it ought to be dealt with. Sometime, the parties claim that there was a radical or fundamental difference between the document they thought they were signing and the document actually signed (in terms of character, contents or otherwise). But the signer cannot raise that defence if they failed to use reasonable care in signing the document.

So, overall, there are many ways that a contract can be challenged and struck down – in whole or in part. Specific examples include (but are not limited to):

• Vague or missing terms
• Lack of Consideration
• Duress
• Undue Influence
• Unconscionable Bargain
• Misrepresentation
• Mistake

Note, that there are other ways in which a contract can be challenged – for example pursuant to the doctrines of promissory estoppel (i.e. where a party makes a clear and unequivocal promise or representation to another party that it will not insist on its strict legal rights under the contract, and the other party alters its position in reliance on the promise or representation, the first party may be estopped from asserting its strict legal rights) or frustration (i.e. something outside the parties’ control makes it impossible for one or all of them to carry out their obligations in the agreement).

If you have any concerns over the validity and enforceability of your legal form – in whole or in part – based on the principles of contract law outlined above or otherwise, you should consult with a lawyer (e.g. by making a post on Dynamic Lawyers). Remember: an ounce of legal prevention can save you a pound of pain later on.

written by admin \\ tags: canada legal form, canadian legal forms, common mistake, duress, frustration, legal form, legal forms, misrepresentation, mistake, ontario legal form, promissory estoppel, unconscionable bargain, undue influence, unilateral mistake, valid and enforceable

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to drafting, negotiating, or resolving a dispute concerning an agreement, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Brampton, Hamilton, and other Ontario family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to your agreement.

As a follow up to my previous blog introducing the topic “Is My Legal Form Valid and Enforceable?”, in this blog I’ll be talking about 3 big SUBSTANTIVE issues which could allow a party to challenge an agreement (in whole or in part) and have it struck down by a court.  Those 3 substantive issues have to deal with the actual terms and conditions of the agreement and are: (1) clear, complete, and complete terms, (2) consideration, and (3) against public policy.  So let’s go…

Clear, Complete, and Certain Terms
First, the terms that are in the contract itself must be clear, complete, and certain enough to be enforceable. Long-winded, incomplete, and vague terms can be challenged and perhaps rendered invalid and unenforceable by a court. So if you’re adding provisions of your own to a legal form, always ask yourself: “Is this term or condition clear enough for a reasonable person to understand?” and “Are important terms – such as price, timeline, consequences, etc. – missing”? Worth noting is that an agreement to agree about some critical part of the contract at a future time could also be challenged and struck down by a court. If significant terms are left out of a contract and the parties simply agree to come up with an agreement about them later, then the entire contract may be challenged! An agreement to agree is generally not enforceable!

Consideration
For any contract to be valid and enforceable, there must be an element of what is called “CONSIDERATION”. Consideration means that there has been a real and fundamental exchange between the parties. Consideration is generally defined as an act, forbearance (i.e. not doing something you’re legally entitled to do), or promise by the promisee (i.e. the party receiving the promise) undertaken IN EXCHANGE for the promise. Consideration requires that some benefit flow from the promisor (i.e. the party making the promise) or that there is some detriment to the promisee in exchange for the promise. Consideration must move from the promisee. The party seeking to enforce the promise must show consideration. Motive or desire to make a promise does not constitute good consideration. If a party is already under a pre-existing legal duty to do or not do something, that may be challenged as not being adequate consideration. Similarly, if a party is under a public duty to do something, then that is generally not considered to be adequate consideration. Finally, a pre-existing duty owed by one party to the other may not be adequate consideration unless something new of value is being provided. To wrap your head around it, just think about this example: if I promise to give you $1,000 if you like me more, there is NO consideration. Why? Because liking me more is not something that is recognized as having monetary value by our judicial system. It is not a promise that that can be enforced. So it’s lacking consideration and is not valid. Get it? Here’s another example of an agreement WITH consideration: in exchange for paying you $1,000, I promise not to sue you for the damage you did to my house. This time, I’m promising not to make a claim against you, even though I could. I’m giving up something of benefit in exchange for something valuable from you (i.e. money). There’s a real and fundamental exchange here so this agreement can be valid and enforceable.

Contrary to Public Policy
Contracts – in whole or in part – that are against public policy can be challenged and rendered invalid and unenforceable. Contrary to public policy means that there is some injury to public goods or morals (e.g. violating a statute, obstructing the administration of justice, etc.). There is no definitive list of what constitutes public policy as this is a legal question left for judges to determine. That said, example of contracts that may be contrary to public policy include:

• A party agrees to commit a crime;
• A party agrees to give false testimony; or
• A party agrees to not publish a story in a newspaper that ought to be published.

Overall, while there are MANY OTHER WAYS to challenge the actual SUBSTANCE of a contract, some of the more common ways are noted above. It is always recommended to speak with a lawyer (e.g. make a post on Dynamic Lawyers) if you have any questions about the substance of your legal form – particularly if you’re modifying the template yourself! Now onto the PROCESS of entering into the contract in the next blog…

written by admin \\ tags: legal agreement, legal form, legal forms, valid and enforceable

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to drafting, negotiating, or resolving a dispute concerning an agreement, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Brampton, Hamilton, and other Ontario family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to your agreement.

As part of our forthcoming legal forms + guides release, we will be including a DL Guide that addresses the issue of the validity and enforceability of legal forms.  So you’ve purchased a do-it-yourself legal form and you’re naturally wondering: “If I use this legal form instead of having a lawyer draft it, will it be valid and enforceable?”  The answer to that question, as it usually is in these situations, is going to be: “IT DEPENDS”.  Think of it like this…You download a template.  It is incomplete.  You read it over and finish it.  Perhaps you even add a few provisions of your own to take into account your particular circumstances.  Then you and all the other parties sign it and deliver it to each other.   So, is it a valid and enforceable contract?  Believe it or not, this simple situation still results in the answer: “IT DEPENDS”.

So what does it depend on?  Well, under contract law, for a contract to be valid, there are a number of basic requirements concerning the SUBSTANCE of the contract (i.e. the terms and conditions of the actual contract) and the PROCESS of how the contract was entered into (e.g. was it entered into fairly and freely).  If there are issues with either the SUBSTANCE or the PROCESS of how it was entered into, then the contract can be challenged in whole or in part.  In what is to follow, we’ll be touching on only SOME of the more important issues.  Bear in mind, however, that there ARE MANY OTHER WAYS a contract can be challenged outside of its terms and conditions and the way it was entered into.  For example, a statute may have minimal requirements that need to be met in order for a legal form to be valid.  For example, the Ontario Substitute Decisions Act, 1992 states that witnesses are required for the signing of a Continuing Power of Attorney for Property and specifies who cannot be a witness.  That’s just one tiny example.  At the end of the day, you should always speak to a lawyer about your particular situation to mitigate against potential challenges.  So here we go…

written by admin \\ tags: Dynamic Lawyers, legal form, legal forms, valid and enforceable

So when I tell people about the upcoming online legal forms project, a lot of people naturally respond: “Are they valid and enforceable?”  The answer to that question, as always, is going to be: “It Depends”.  Think of it like this.  You download a template.  It is incomplete.  You read it over and finish it.  Then you and another party sign it and deliver it to each other.   So, is it a valid and enforceable contract?  Believe it or not, this simple situation still results in the answer: “It Depends”.  It depends on how the contract was entered into.  For example, if the contract was entered into under duress, by undue influence, through a misrepresentation (negligent, fraudulent, innocent, etc.), or it was an unconscionable contract, then a party may claim that it is invalid and they might be entitled to undo the contract!  So, if procedurally, it was entered into properly, can the substance of the legal form make it unenforceable?  Sure!  If there’s something missing which typically makes a contract enforceable – such as an exchange (called “consideration”), clear and certain terms, an offer and acceptance, etc. – then the contract may be challenged as not being valid and enforceable.   So what does this have to do with online legal forms?  Well, not much.  you see, you could go to a book store or a library and see books with legal forms and use those legal forms. You could also ask a friend or relative for a sample of a legal form they’ve used in the past.  It makes no difference.  Legal forms are simply templates.  But the way in which the contract is entered into and the actual substance of the contract is what matters.  The substance will depend on the drafter, their skills, knowledge, and experiences.  The best legal forms are simple to understand, cover the basics, devoid of legalese, etc.   Each legal form we plan on offering has been drafted, reviewed, and revised over the course of a number of days to make sure that it covers the basics, that it is easy to understand and customize, etc.  So the answer is: as with any agreement that you can acquire, there’s always a chance it can challenged.  Even legal agreements drafted by lawyers are not necessarily bullet-proof.  Having a good lawyer, however, can help mitigate or eliminate the ability of other parties to challenge a contract.

written by admin \\ tags: customize, legal forms, online legal forms, reviewed, valid and enforceable