It’s Never Too Late for a Change: Converting from Applications to Actions

December 23, 2019 Christina Canestraro Estate Litigation, Litigation Tags: , , , , , 0 Comments

Recently, Stuart Clark blogged on the procedural differences between Applications and Actions in the context of civil litigation. In his blog, he aptly describes key differences between the two proceedings, which rests largely on the manner in which evidence is heard. Applications are determined on a written record, meaning that evidence before the court is contained in affidavits sworn by the parties in advance of the hearing date. In contrast, actions are heard by way of viva voce evidence (i.e. parties are examined, and cross-examined in open court).

As parties inch towards their final hearing date, the benefits and disadvantages of proceeding by way of application versus action may sharpen into focus. As Stuart noted, parties may decide that there are strategic benefits to converting their application into an action, such as having a sympathetic witness. Parties are free to take steps necessary to effect that change.

However, if parties don’t convert their proceedings in advance of their hearing, Judges have the discretion to convert applications to actions, and can order a conversion at the hearing of an application. In other words, if a Judge decides that justice would best be served by hearing a matter by way of trial, they can order the conversion of a proceeding at the hearing of an application.

Such was the case in Halar v Bacic, wherein the court determined that there were significant and material facts in dispute relating to capacity, and that a trial was necessary to assess the credibility of the witnesses.

In that case, a mother appointed her son and daughter to act as her attorneys for property and personal care in 2017. Following execution of the POAs, she was diagnosed with moderate Alzheimer’s disease and dementia. Shortly thereafter, the mother and her husband sold their home and moved back to Croatia. The proceeds of sale of their home were deposited in their Canadian bank account, with the understanding that the son and daughter would send money from the Canadian bank account when funds were requested by the mother.

The daughter and son ran into some conflict with respect to how the Canadian bank account was managed, resulting in the mother executing a new Power of Attorney in 2018, which raised questions regarding whether the mother had capacity to execute the new Power of Attorney.

The Judge was not satisfied that the medical evidence before him supported the position of the applicants and was not satisfied that he was in a position to make the findings and orders requested of him on the evidentiary record before him.

Ultimately, the Judge converted the application to an action and ordered that a trial be directed pursuant to Rule 38.10(6).

Thanks for reading!

Christina Canestraro

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