Practical Tips from the Bench

May 2, 2019 Garrett Horrocks Estate & Trust, Estate Litigation, General Interest, Litigation 0 Comments

I recently had the good fortune of attending a dinner hosted by the Ontario Bar Association along with several members of the Toronto estates list Bench.  The judges were kind enough to share a few pearls of wisdom with respect to practice tips and elicit some of the dos and don’ts of appearing before them. A few of the most salient points are highlighted in this blog.

Confirmation Forms

The Rules of Civil Procedure provide that parties to a proceeding are to file a confirmation form with the court no later than 2:00pm three days prior to the hearing in order to ensure that a particular matter is properly scheduled.  The form allows sets out several options to be selected by counsel regarding the purpose or anticipated outcome of the attendance.

However, in order to improve judicial efficiency, the Bench has asked that if counsel will be seeking the court’s assistance in resolving certain minor contested issues, a short description of these issues should be attached with the confirmation form.  Particularly in the case of short scheduling appointments, which only typically last ten minutes, advising the court of relevant issues ahead of time will ensure a productive use of the attendance.

Case Conferences

The Bench has also professed the benefits of scheduling case conferences before a judge with a view to resolving or otherwise narrowing the issues to be tried in a given matter.  Case conferences typically follow the format of short scheduling appointments, though with significantly more time allotted to these attendances on the understanding that they are to be used to resolve substantive rather than procedural issues.

Ideally, the bench would like to see counsel attend such conferences prior to scheduling motions or hearings that would be dispositive of a proceeding or of certain issues, such as motions for summary judgment.  In most cases, the opportunity for counsel to obtain the advice and direction of a judge while avoiding the significant costs of preparing for a motion can be a helpful step towards resolution.

Probate Issues

On the administrative side, the Bench was kind enough to release a list of the most common errors in applications for certificates of appointment as raised by court staff.  In no particular order, the court strongly encourages the following practical tips:

  1. Ensure parties are correctly and consistently identified throughout the application, especially if a party identifies under a different name or a pseudonym.
  2. Ensure the names of parties and entities are spelled correctly.
  3. If a particular section of the application does not apply on the facts, do not leave that section blank.  Instead, expressly indicate that the section is not applicable.
  4. Ensure all exhibits included as part of the application, especially the Last Will and Testament that is the subject of the application, are stamped with an exhibit stamp and commissioned.
  5. Ensure the commissioner includes their full name below their signature.

These are only a few of the many tips shared by the judiciary, but they are as much to the benefit of the court as they are to counsel.  Great advocacy is equal parts assisting your client and assisting the court.

Thanks for reading.

Garrett Horrocks

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