Should I Bring a Motion in the Estates Court Without Notice?

March 12, 2018 Noah Weisberg Estate & Trust, General Interest, Litigation, Passing of Accounts Tags: , , , , , , , , , , 0 Comments

When is it appropriate to bring a motion in the Estates Court without notice?   The answer requires consideration of both the statute and common law.

The starting point is Rule 74.15(1) of the Rules of Civil Procedure.  Here, a person who has a financial interest in an estate is permitted to seek an order for assistance.  Some of the more ‘popular’ orders for assistance include: requiring a person to accept/refuse an appointment as estate trustee; requiring an estate trustee to file with the court a statement of the nature and value of the estate assets at the date of death; and, requiring an estate trustee to pass accounts.

Subject to narrow exceptions, Rule 74.15(2) allows these motion to be made without notice (in latin, ex parte).

Notwithstanding this, the Court has not necessarily embraced ex-parte orders with open arms.

For instance, Corbett J. in Robert Half Canada Inc. v. Jeewan found that, before ordering an ex parte injunction, a party needed to demonstrate some element of ‘extraordinary urgency’.

Moreover, and specifically in relation to estates orders for assistance, Justice DM Brown in Ignagni Estate (Re), noted that orders for assistance are not mere administrative devices, and that the consequences of failing to abide by such an order is significant.  He went on to say that, “[m]embers of the Estates Bar may regard the requirement to give notice of a motion for an order for assistance unless “extraordinary urgency” exists as imposing undue costs on the administration of the estate.  Against that must be weighed the fundamental principle that a court should not issue an order against a person without affording that person an opportunity to explain the other side of the story.  Many estate disputes arise in the context of strained family relationships, or out-and-out family battles.  Courts should exercise great caution before granting an order that imposes obligations on one side in a family dispute.  Unless some extraordinary urgency exists, prudence and the principles of natural justice require a moving party to give notice of the order requested so that the respondent enjoys the opportunity of placing the rest of the story before the court.”

Given this, although permissible, parties who intend to seek orders for assistance without notice, must ensure there is ‘extraordinary urgency’ in doing so.

Noah Weisberg

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