Spiro Law
Insightful Legal Advice My
legal practice focusses on class actions, estates and estate planning, taxation
and advisory services related to civil litigation issues. PLEASE
NOTE: I am not accepting any new
individual clients at the present time.
I participate in some of the work of Rogerson Law, a firm with expertise
in estate litigation and planning: https://www.rogersonlaw.com/peter-spiro/ Research Support My
legal research acumen is above average.
I provide legal research and legal document writing services to law
firms. I assist Monkhouse
Law as Counsel with respect to legal strategy on employment class actions. I
have a law degree from Osgoode Hall Law School. At Osgoode, I won academic
prizes as the top graduate in estate law, estate planning, and debtor-creditor law.
I also have degrees in economics from the University of Toronto and University
of Chicago. Prior to becoming a lawyer, I worked in finance, economics, and
taxation. Selected Publications These
examples of my publications will give you an idea of the range of my interests
and expertise: 1. Estate and Trust Law “Disinheritance
and Will Challenges.” A parent is not
legally obligated to leave anything to all her children. However, when one sibling inherits at the
expense of another, it often leads to bitter litigation. “The
Only Evidence of Intention is in the Words of the Will.” A testator who had property in more than one
country wrote wills in both Spain and Canada.
The Canadian will had the effect of revoking the Spanish will. The court refused to consider evidence that
this was not the testator’s intention.
It is vital to think through the implications of all the words in the
will. “Could
the Charter be used to prohibit discrimination in a will?” There is
a long standing tradition of testamentary freedom in common law jurisdictions.
However, British Columbia has passed legislation that allows a court to vary a
will that provides an inequitable division of assets among the children of the
deceased. In Ontario, the Court of Appeal upheld a will that cut out one
daughter based on what appears to have been a racist motive. It's possible that
such a will could be challenged as a violation of the Charter of Rights and
Freedoms. “The
Supreme Court of Canada Approves the Henson Trust Principle.” Social
assistance programs don’t allow a disabled person to receive benefits if she
has financial assets. That would make it
futile for parents to leave a bequest to a disabled child. A generous lower court decision in 1989
allowed a work-around, known as a Henson Trust.
In 2019, the issue reached the Supreme Court, which gave its seal of
approval. "The
Common Law Treatment of Lost Wills," Estates, Trusts and Pensions
Journal, 2016. Dying without a will, referred to as dying intestate,
creates serious problems for your loved ones left behind. If the original will
cannot be found, the results may be disastrous. This issue is particularly
important if you are in a common law relationship. Ontario's Succession Law Reform Act for intestate
succession will provide nothing to the common law spouse you leave behind. Your
property might go instead to distant relatives. 2. Family Law and Equalization of Property After
Divorce or Separation “Splitting the
family home when common law spouses separate.” Common law spouses are not subject to the Family Law Act provisions that require
married couples to share family property equally. However, they often buy a home jointly, but
with unequal financial contributions.
That can create complications if they separate. “Enforcing
a Marriage Contract for a Middle Class, Middle Aged Couple.” These
contracts can override the property sharing and spousal support rules in family
law statutes. They are not only for the
rich. They can make sense for
individuals with children from prior
marriages, and assets they want to preserve for them. To be enforceable, the contract must have
been fairly negotiated with full disclosure of financial information. Each side must receive independent legal
advice to fully understand the implications of the contract. “A spouse not on title may
share the increase in value of the family home through a resulting trust."
The Court of Appeal re-affirmed the long-standing principle that a spouse can
own a beneficial interest in a property, in spite of not being a legal owner.
One of the spouses was a self-represented litigant. The judge has a duty to
assist, and help her understand court procedures, but not to bend the rules in
her favour. "Judgment
Creditors, Resulting Trusts and the Matrimonial Home." Canadian
Family Law Quarterly, 2016. A time-honoured strategy for a business person
is to put the family home in the name of the other spouse, in case the worst
happens and the business goes bankrupt. Unfortunately, that does not always
succeed in protecting the house. It can also backfire if the marital
relationship breaks down. “Property
Division for Common Law Spouses by Stealth?” The Family Law Act does not provide for an equalization of property for
common law spouses, but it does allow dependent support. Sometimes, the determination of the amount
can resemble an equalization of property. “A
Very Long Limitation Period for Unjust Enrichment Claims.” In real property
ownership disputes, the time period for bringing claims allowed by the Real Property Limitations Act is 10
years. A common law spouse who
contributed work to helping renovate a home owned by her ex-spouse claimed a
constructive trust interest to prevent his unjust enrichment. In McConnell
v Huxtable, the Court of Appeal ruled that the 10-year limitation period
applied to her claim. “The
Law on Relocation of Children after Divorce.” Quite often, after a divorce
the parent who has custody of the children wants to move to a different city,
or even a different country. That imposes a hardship on the other parent, and
creates difficult issues if a dispute comes to court. The operating principle
is the "best interests of the child," but that is quite hard to
define in this situation. In the leading Supreme Court decision on this issue,
a mother who wanted to learn orthodontics in Australia was allowed to take her
child away from the father in Saskatoon. 3. Real
Estate Disputes “Home Purchaser
Successfully Sues Nine Years Later for a Concealed Latent Defect.” The
willful concealment of known defects may constitute negligent
misrepresentation, or even fraud. If
this was discoverable only after the walls are ripped out, the buyer can sue
well past the usual two year limitation period. “Fraudulent
Conveyance and the Real Property Limitations Act.” A person in debt who
puts the family home in his spouse’s name may not escape the demands of his
creditors. “Can interest rate
penalties hidden in the fine print be enforced in failed real estate deals?” A principle of contract law is that unusually
onerous terms are not enforceable unless they are brought to the attention of
the buyer. This can apply to house
purchase agreements as well. “Restrictive Covenants
are not Forever in Ontario,” 2019.
If you sell a piece of land but still own neighbouring property, you
might want to put a restriction on what use the new owner can make of the land
(e.g., limit the size of buildings, or the type of business). These restrictive covenants need to be
carefully written to prevent a premature expiry. “Compensating the Buyer
in a Case of Real Estate Agent Negligence,” 2018. This family bought a
house with serious water damage due to negligent misrepresentation. The rule of
compensation is that the victim should receive monetary compensation to restore
him to his original position before the misrepresentation. In this case, that
led to a damages award of $450,000 even the original purchase price was only
$180,000. "Deposits and
Damages in Aborted Real Estate Deals", 2019. A buyer who fails to
complete a real estate transaction nearly always loses his deposit, even if the
seller can quickly re-sell the property at a higher price. Conversely, if the
market has fallen, the buyer is liable to pay damages for the seller's loss. "Canadian Mortgage Law and
Prepayment Penalties", Western Journal of Legal Studies, 2015.
Borrowers who need to prepay their mortgages often pay substantial penalties.
This paper suggests that the law is unclear and provides little protection for
consumers facing powerful financial institutions. 4. Class Actions: Employment Law and Consumer
Protection “No
Privilege for an Employer's Survey in a Class Action for Unpaid Overtime.” Solicitor-client privilege provides
confidentiality for the documents that
contain the legal advice given by lawyers.
It allows the client to get unfettered access to legal advice without a fear that the act of
seeking advice could backfire. However, some lawyers are trigger-happy and
label many documents as privileged when they do not really qualify. “Sick
and Dying Smokers in Quebec Class-Action Lawsuit May Not See a Dime,”
2019. This is the first Canadian case
that has come to trial for health damages caused by cigarettes. Consumers injured by smoking were awarded $15
billion. The multinational tobacco
companies have taken most of their profits abroad, and the Canadian
subsidiaries are insolvent. Winning a
lawsuit is often easier than collecting the money. "Class Actions in
Employment Related Disputes," Canadian Class Action Review,
2015. Class action lawsuits can fill part of the gap left by the union movement
in an era when that protection for workers has declined in the private sector.
Notable successes have been achieved for bank employees who were denied payment
for overtime work. “Class
Action Injustice,” Policy Options,
July 2015. Letting shareholders harmed by misrepresentations sue as a class
seems like a good idea, but the devil is in the details. The settlements often
have an adverse effect on innocent long-term shareholders, while the executives
who were responsible for the misrepresentation avoid paying a penalty. “Ontario
Students Succeed in Suing their College for Negligent Misrepresentation,”
2013. Colleges and universities should
take note and exercise due care in what they print in their course
descriptions. The Consumer Protection Act allows students to sue for damages if
the description misrepresents the qualification the course will give them. 5. Other Legal
Issues "Problems of Interpreting
Statutes of Limitations in Cases of Continuing Breach of Contract," Canadian
Business Law Journal, December 2013. Most authorities hold that a cause of
action for breach of contract crystallizes as soon as the breach has occurred.
Logically, for statutes of limitations, the time will start to run from that
point. Sometimes, courts will make exceptions when the breach relates to an
event that extends through a longer time period. "Clarifying
the Rules for Piercing of the Corporate Veil" The principle of
corporate limited liability emerged in the early 19th century in the United
States. It was a major legal and economic innovation that facilitated the
growth of large scale enterprise, without which the modern economy would not be
possible. Limited liability always protects the passive shareholders of large
companies. However, shareholders who are
active in the management of a company are treated differently, and risk being
held personally liable for unlawful acts of the company. I
regularly write comments on interesting legal cases for CanLII Connects. 6.
Public
Policy and Taxation "Rethinking
Municipal Finance for the New Economy," Mowat Centre, 2019
(co-author). The decline in bricks and
mortar business will have a hard impact on municipal governments dependent on
property taxes. Alternative sources of
revenue, such as user fees and other taxes, may need to be considered. “Tax
Exemptions for Investment Income: Boon or Bane?” Mowat Centre, 2017. Canada’s complex system of tax expenditures
and credits is inefficient. It creates
unfair preferences for some taxpayers at the expense of others. Limiting special credits would allow a more
efficient system with lower tax rates. “Regulatory Charge or
User Fee?” HST and GST (Goods and Services Tax) is a frequent source of tax
appeals. Some types of services are
exempt, which means that the buyer does not pay tax, but the producer doesn’t
get input tax credits for the HST on the goods and services it bought to
produce its service. The outcome often
hinges on fine shades of opinion on the category the service falls into. "The Social Discount
Rate for Provincial Government Projects,” in D. Burgess and G. Jenkins,
eds., Discount Rates for the Evaluation
of Public Private Partnerships (McGill-Queen’s University Press,
2010). Dollar amounts to be spent or
received in the future often need to be converted into a present value (e.g.,
to calculate a lump sum payment to compensate for all future damages). This paper proposes a method to derive a
discount rate to do that. "Tax Policy and the
Underground Economy," in Size,
Causes and Consequences of the Underground Economy (Ashgate Publishing,
2005). Not all taxpayers are honest, and some types of taxes are more likely to
be evaded than others. In addition to
evasion, taxes may also reduce productivity by encouraging do-it-yourself work
as opposed to buying services from specialists. “Evidence of
a Post-GST Increase in the Underground Economy.” Canadian
Tax Journal, 1993. Canada’s switch
to the GST in 1991 led to a noticeable increase in the cash economy. The GST brought in a new tax on many types of
services provided by small sellers. It
was an unpopular tax, and the resentment compounded the willingness of
customers to evade the tax. The problem
persists to this day.
Peter S. Spiro is a
Toronto lawyer and consultant. He practices law through Spiro Law Professional
Corporation and in association with other firms. He is licensed as a
lawyer by the Law Society of Ontario.