“For it is in giving that we receive.” –Francis of Assisi
Many of us grew up hearing this mantra. Good people give back. Generous people are good people. But where is the limit? Is there a limit? If you’ve ever watched a loved one being taken advantage of, then you know the answer is yes. Bearing witness to exploitation is painful and even more so when you are powerless to help. Often times, out of desperation, people will turn to the law for answers. The doctrine of unconscionable procurement has resurfaced recently as Ontario’s response.
Typically, being able to demonstrate a lack of capacity and undue influence was the road map available to Canadians wishing to challenge the decision of a loved one to bestow a significant gift to another person (the typical “defence” for those exploiting others) in questionable circumstances. These types of situations typically involve the elderly population who are especially vulnerable to exploitation.
Financial abuse/exploitation and emotional abuse are the most prevalent form of abuse suffered by Canadian seniors, the vast majority of which occurs in the community – not in long-term care facilities as one may assume – and by family members or professional caregivers. Financial abuse is mostly perpetrated by family members. Unfortunately, financial abuse is often covert and insidious, making it difficult to spot and even harder to prove.
The Doctrine of Unconscionable Procurement
Founded in the concept of equity in the law, the doctrine of unconscionable procurement seeks to provide remedies in situations where justice and fairness require it, particularly in the context of gift-giving. Up until its revival by the Court of King’s Bench in Alberta in 2018 (and 2019 in Ontario), the doctrine of unconscionable procurement had last been applied at the Ontario Court of Appeal in 1913. Fundamentally, the core question remains the same today as it was over one hundred years ago: whether the gift was given with full knowledge and understanding of its effects, nature, and consequences.
The modern version of this century-old doctrine is broken down into a two-part legal test:
Part one:
The burden of proof rests with the party attacking the transaction to show that the transaction represents a significant benefit given to an individual who is actively involved in procuring that same benefit.
Part two:
The Court must then review the transaction through a moral lens and determine whether upholding the transaction would be fair, just, and reasonable under the circumstances. The donor must have been able to appreciate the effect, nature, and consequence of the transaction for it to stand.
Lack of capacity is not a requirement for the Court to deem the transaction void under the doctrine of unconscionable procurement, which makes it an important weapon in the fight against injustice and one that those involved in estates litigation will certainly be seeing more of.
If you or someone you know is experiencing elder abuse, please contact the Seniors Safety Line, a 24/7 confidential and free resources, at 1-866-299-1011,
This blog post was written by Sarah DelVillano, a member of the Commercial Litigation team. Sarah can be reached at [email protected] or 613-369-0372.
