THE POSNER PAGE

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In This Issue of the Posner Page

WHAT A WEIGHT TO GO

LIABILITY TO ESTATE BY SEPARATED PARTY

WILL VARIATION IN BRITISH COLUMBIA

SHORE ROAD ALLOWANCE ISSUES

WHAT A WEIGHT TO GO

Recently in British Columbia, a lady who had undergone a type of weight-loss surgery without her consent, was awarded the sum of $145,000.00 in damages. The case, Cochran v. Hunter allowed the recovery of general damages of $90,000.00, $24,000.00 for the cost of future care, $20,000.00 for impairment of her capacity to earn income in the future and $6,000.00 for past loss of income. What she did not get was an order for punitive and exemplary damages. What happened here was that the Plaintiff, Cochran who was 5' 6" and weighed 280 pounds at age 29, decided to have the surgery. She did her homework on the subject and was aware that there were two types of surgery that were possible, the RNY(Gastric bypass) and the VBG (another long term). The VBG procedure has the effect of making a patient feel full after ingesting a small amount of food and is reversible. The RNY is similar but the potential for increased weight loss and at a speedier clip was the big advantage of this method. Yet, in spite of these advantages, the Plaintiff elected to go with the VBG process because she wanted to have children and this way supposedly would be better in improving her chances of becoming pregnant. Also, she was concerned that the VBG application could harmfully affect her fetus during a pregnancy. Sad to say, but the doctor forgot or erred in the kind of surgery ultimately performed. He failed to review her chart or in fact the hospital consent form and thus on December 4, 2000, he did the surgery but not the type the Plaintiff had selected. Nor did the doctor speak to the Plaintiff prior to the surgery since she was already anesthetized. The doctor admitted the error and was most contrite about this mistake. But, the result of it was that even though the Plaintiff did in fact lose a substantial amount of weight (she went down to 155 to 160 lbs}, she was also left with daily diarrhea, steady pain and discomfort. The judge summed it up very well as follows "the side effects attributable only to the RNY procedure, that Ms. Cochran experiences, are side effects that most morbidly obese patients who undergo bariatric surgery choose to experience, by selecting the RNY procedure, as the cost of a chance to lose a large quantity of weight. Ms Cochran did not choose these side effects, however, and she is entitled to be compensated for them (to make up) for the discomfort and inconvenience caused by these symptoms". So what is the moral of this case? Clearly there are risks in all types of surgery but in this case, the Plaintiff picked the risks she was willing to accept but she did not get what she asked for and she was entitled to be compensated for the resulting problems she encountered. As much as the doctor felt terribly about what had happened, it pointed out a failing in his system. He has since corrected the steps taken prior to surgery so that this kind of mistake cannot happen again.

LIABILITY TO ESTATE BY SEPARATED PARTY

A case in British Columbia recently dealt with the issue of the liability of a deceased's estate to a former spouse. In this case, the female spouse died and her administrator brought an action against the former husband asking the court to order him to pay to the estate the sum of $55,000.00. This amount was based on a separation agreement that the spouses had entered into prior to their marriage. At that time, the parties had dealt with the question as to the division of assets. The agreement provided that the husband (now the former husband) was to retain all of the real property and the wife (now deceased) was to get two payments of $55,000.00. The evidence shown at trial was that the first payment was made by the husband but not the second one. At the trial, the former husband advanced the position that the separation agreement never contemplated a clause requiring a payment to an estate after death but rather a personal payment to a live person. The fact that the person to whom the payment was to be made was now dead, he argued, caused the contract to be frustrated or impossible to be completed. In any event, he said, the former wife had been in breach of the contract to him by failing to provide certain chattels as required. Hence, her breach entitled him to break the contract also. The main thrust of his argument was that the payment to be made was for his ex-wife and not for the benefit of her estate. The court however concluded that the estate was entitled to be paid the amount of $55,000.00. The court interpreted the agreement to reflect the fact that the payment to the deceased was a part of a larger matrimonial settlement. Part of the settlement was for the husband to get the real property. And in fact the transfer was dependent on the husband making the first payment which he in fact did. Now, this agreement had a specific clause in it, that is, section 23, which dealt with the payment to the estate in the event of death. The court was loud and clear to state that the contract was not in fact frustrated by the death or by any failure to deliver chattels by the deceased to her former husband. The court did tell the husband that if the administrator of the deceased's estate failed to comply with the terms of the agreement, then he had a claim against the administrator of the estate.

WILL VARIATION IN BRITISH COLUMBIA

I was attracted to this case because it does something that I have not seen frequently in other jurisdictions. It may be that the court was able to be so interfering in this matter because of the provisions of the statute in British Columbia under the Will Variation Act. Whatever the reason, pay heed to this case. In this case of DRING v ZIEFFLIE et al, the court was asked to revisit the terms of a will and make changes to it. The Plaintiff was an adopted son of the deceased and the Defendant was the adopted daughter of the deceased. The testator had left the Plaintiff son the sum of $25,000.00 in a will dated 1993. But, the defendant was given the residue of the state in the same will. In 1996, the testator had actually transferred his home to the daughter as a joint tenant with himself. Moreover, the testator had a joint bank account with the Defendant of over $100,000.00 at the time of his death which meant she would get it all automatically on his death. The testator had given the son $35,000.00 prior to his death. And thus the battle lines were drawn. The son argued that he should get all of the bank account funds held by his father at his death and the daughter argued that her brother should only receive the $25,000.00 allocated to him under the will. Mr. Justice Dillon held that the Plaintiff son should get $60,000.00 over and above the $25,000.00 he received under the will. The court applied the judicious parent standard to determine the extent to which the court should redistribute an estate in favour of an adult child who was independent. The court asked the question. Was the $25,000.00 provided to the son adequate, just and reasonable given the totality of the estate and as well the standard of living of the Plaintiff. In reaching the decision, the court examined the distribution of assets by the testator prior to his death. The court felt that was important to do since so much of the wealth of the deceased was given away prior to death. As it turned out, both the Plaintiff and the Defendant were of modest means. As well, it was shown that the testator was close to both his children. Nor were there reasons expressed as to why there was unequal treatment of the children in the will. The court acknowledged that to evaluate competing claims like this one is difficult to do. The court added up what the Defendant was to get both from the house plus the residue and found she would get about $275,000.00 while the Plaintiff son would only receive $60,000.00 from the prior gift and the legacy in the will. The court was reluctant to interfere in the wishes of the testator to create equality where the testator had clearly decided to create inequality. But, to achieve a just reasonable and equitable distribution of the estate, the court did award the son $60,000.00 over and above what was given to him in the will. I will say that this kind of decision is not common and I have not seen evidence of other cases like this one in other jurisdictions. It is obviously a creature of the BC legislature and because it is there, it is used. In Manitoba and Ontario and other places, there are usually statutes that permit the court to intervene where there are dependents not properly cared for in the will but generally that is as far as the cases go.

SHORE ROAD ALLOWANCE ISSUES

A case in Ontario not too long ago dealt with some of the pertinent issues relating to the shore road allowance. In the summer of 2001, the applicant in court by the name of Uukkivi, erected a structure that was located on a shore road allowance owned by the respondent the Lake of the Bays Township. By building this structure, the applicant violated the existing zoning by law. On September 7, 2003 an inspector for the respondent issued a notice to the applicant to stop work pending an application for a building permit. In fact, the applicant did submit on December 1, 2002 such an application. Alas, no permit was given. The applicant then made personal submissions to council and as a result, the applicant was granted a lease for the property. Then on May 9, 2003 the respondent wrote to the applicant setting out the terms for the structure to remain. The applicant was not happy with these terms and got himself a lawyer. On September 11, 2003 the respondent told the applicant that because of the infraction, the structure had to be removed within 30 days. Moreover, on September 18, the township passed a by- law declaring the building to be a public nuisance. The respondent also said that the structure was an unauthorized obstruction on public property. The applicant sought two forms of relief. Firstly, he asked the court to order the respondent to convey to him that portion of the shore road allowance upon which the building was located or alternatively, require the Township to process his application for the permit. Secondly, he asked the court to quash the Town By- Law declaring his building to be a nuisance. The court dismissed both applications. Why you ask? The court acknowledged that the applications of this type were routinely granted by the Township. The applicant advanced the position that he was being discriminated against just because he did not get a permit to build prior to the construction. But the court stated that the policy manual of the township did create a procedure for making an application. The Township was under a duty to consider each application on its own merits even though the Township had discretion to place terms and conditions. The court did not attach much weight to the argument of the applicant that other people had existing encroachments on shore road allowances. What the court did find was that the Township had acted in the public interest when it enacted the by- law since the structure had caused complaints from the public. The court concluded that the Township could come to a conclusion that the building of the applicant was a nuisance because of the encroachment on to public land and that it was structurally unsound and was in contravention of the zoning by- law. What does one take away from a decision of this kind? Clearly, you are on not a strong footing when you act in violation of a zoning by- law. In this case, the applicant got himself into even more trouble when he seemed to proceed in view of real obstacles and opposition. He almost invited problems it seems to me. My best guess is that this particular applicant somehow or other did not endear himself to the township officials and that fact taken together with the fact that there had been complaints about his structure, caused the Township officials to vigorously prosecute the case. They probably felt they had to take this case on with full force or if not their by- laws were worthless. In any case, what this tells me is that it is not prudent to ignore the warnings of the Township or municipality. There are consequences and this case is illustrative of that fact.