In recent weeks, Canadian politics has been rocked by the so-called “SNC-Lavalin Scandal.” One of the allegations has been whether former Attorney General Jody Wilson-Raybould was pressured or unduly influenced by the Prime Minister’s Office to resolve the corruption and fraud case against SNC-Lavalin in an effort to spare the engineering giant from criminal prosecution. In her February 27, 2019, testimony before the House of Commons, Ms. Wilson-Raybould suggested that the answer to this question is open to the court of public opinion. Ms. Wilson-Raybould stated:

I imagine Canadians now fully understand that in my view these events constituted pressure to intervene in a matter, and that this pressure – or political interference – to intervene was not appropriate. However, Canadians can judge this for themselves as we all now have the same frame of information.[1]

In the context of estate and trust law, expert evidence about whether a donor/testator was unduly influenced or vulnerable to undue influence is typically provided for the non-partisan benefit of the court. It is then up to the court to decide whether undue influence was actually exercised.[2] Similarly, it is not for me to provide an opinion on whether undue influence was imposed on Ms. Wilson-Raybould. However, this political scandal provides me grist for the mill to discuss some suggestions for assessing undue influence.

Generally, it is difficult to assess whether an individual is vulnerable to undue influence, particularly distinguishing “due” from “undue” influence. For example, based on Ms. Wilson-Raybould’s testimony, Canadians are now aware that the Prime Minister’s Office, among others, spoke to Ms. Wilson-Raybould (or members of her office) about a possible remediation agreement for SNC-Lavalin after the Director of Public Prosecutions rejected such a remediation agreement. The Prime Minister’s Office has denied that it exerted any undue pressure on Ms. Wilson-Raybould in that regard. Instead, it maintains that any dialogue was in the form of appropriate government business conversations and that no undue influence was applied. How do we, then, determine the difference between a dialogue and undue pressure or influence?

My understanding is that, in the context of estate and trust law, there is nothing reprehensible about persons in a relationship of trust or confidence exerting influence. Rather, the determination of undue influence depends on a party’s motivation for the influence and what they seek to achieve. The distinction between permissible “due” influence and impermissible “undue” influence is that the latter involves the substitution of the mind of the person exercising the influence for the mind of the person executing the instrument/decision, causing the person to make an instrument/decision that they otherwise would not have made.

To constitute vulnerability to undue influence, the influencer must be in a position of more than just confidence. Rather, the influencer must also be in a position of power or authority toward those vulnerable to undue influence. Their power may be based on professional authority, disproportionate strength or status, or the nature of the relationship such that there is the potential for domination.

Undue influence can also be carried out by proxy. I previously blogged about undue influence by an “unwitting proxy,” which is where a trusted party involves a seemingly neutral third party, even unwittingly, to advise or assist the donor/testator to convey a benefit to the beneficiary.

An international task force previously outlined risk factors for vulnerability to undue influence including:[3]

1. confidential relationships;
2. social, physical and/or psychological dependency, isolation and/or conflict;
3. cognitive impairment: dementia, delirium; and
4. psychological vulnerability such as that conferred by loneliness and/or illness.

As capacity decreases, the amount of pressure required to control a person’s actions also decreases (i.e. it takes a smaller amount of pressure to reach the level of undue influence). A capable person, however, may be resilient rather than vulnerable to withstand any undue influence. Estate practitioners may be confronted about where the “sliding scale” starts – i.e. how much influence is “undue” when a person has full capacity? Ms. Wilson-Raybould’s testimony makes us think about this.

[1] Read Jody Wilson-Raybould’s opening statement on the SNC-Lavalin affair, published by CBC on February 27, 2019. https://www.cbc.ca/news/politics/jody-wilson-raybould-opening-statements-1.5035785

[2] Shulman,K, Cohen, C and Hull, I, “Psychiatric issues in retrospective challenges of testamentary capacity” Int J Geriatric Psychiatry, (2005) 20: 63-69, 64.

[3] Peisah C, Finkel S, Shulman K, Melding P, Luxenberg J, Heinik J, Jacoby R, Reisberg B, Stoppe G, Barker A, Firmino H, Bennett H; The wills of older people: risk factors for undue influence. International Psychogeriatric Association Task Force on Wills and Undue Influence. Int Psychogeriatr. 2009 Feb; 21(1):7-15.