When we are proceeding to request consent orders giving directions, counsel may sometimes assume that a judge will sign off on the order on the basis of the consent of all parties to the proceeding. 

Many of us will remember the Seepa v Seepa, 2017 ONSC 5368, decision from several years ago, however, in which an order giving directions requested on consent was not granted at first instance because the applicant was not considered to have met the “minimal evidentiary basis to support the order for directions sought.”

In our experience, judges will carefully review orders, even those requested on consent, to ensure that their terms are fair, reasonable, and appropriate in consideration of the evidence before the Court.  Judges will also often inquire whether there are individuals who will be affected by the order whose consent has not been provided.  An Ontario Superior Court of Justice decision released Thursday highlights the need to ensure that the consent of all parties, including those “informally” involved, has been obtained and is documented in the court record.

In Crowley v Jarvis et al, 2022 ONSC 3145, a consent to the order giving directions in a will challenge had been signed on behalf of the applicant, the only respondent who had filed a notice of appearance, and the non-party solicitor impacted by the terms of the draft order.  The Court declined to grant the order giving directions on the basis that “a more sufficient explanation as to why the requested relief [was] necessary and appropriate” was required.  Justice Leach reviewed the role of the Court in estate matters generally:

“…I think it should be remembered and emphasized that this court’s inherent jurisdiction over estate matters is one of its oldest and most closely guarded equitable jurisdictions, and that the court’s authority and powers in that regard are not to be exercised unthinkingly, on request, without the provision of an adequate justification.”

In addition to raising concerns over the proposed procedure and next steps in the matter (which included the conversion of the application to an action and the exchange of pleadings), the Court carefully considered whether all of the “parties” had truly consented to the order.  The three respondents with an interest in the outcome of the will challenge had failed to serve and file notices of appearance.  The Court was not prepared to disregard these respondents’ interests due to this technical point.  In this regard, Justice Leach wrote:

“12.        It may be that the applicant is willing to disregard the failure of her siblings to file notices of appearance, and accept/acknowledge may have been informally communicated indications of their positions and requests regarding the manner in which this litigation will proceed.   The provisions of the draft Order for Directions contemplating/indicating that one sibling will support the position of the applicant, one sibling will oppose the position of the applicant, and one sibling will take no position in that regard, suggest the possibility of some measure of informal communication or dialogue between the siblings in that regard.

13.          However, there is nothing in the relevant One Drive folder for the matter, (e.g., by way of a further supporting affidavit outlining further events between service of the application and its current return in writing before the court), to confirm such informal discussions and continued participation in the litigation by the respondent siblings, notwithstanding their apparent failure to file any notices of appearance.

14.          Moreover, if the respondent siblings are still participating in the litigation on an informal basis with the express or implicit agreement of the applicant, (notwithstanding their failure to deliver formal notices of appearance as required by the Rules), then their Consent to the proposed Order for Directions also should be confirmed by further documented consent of those respondent siblings.  The Consent that has been filed, signed only on behalf of the applicant and the deceased’s two former lawyers, otherwise would not adequately reflect the agreement of all agreed and de facto participants to the ongoing litigation who will be affected by the contemplated and requested Order.

15.          At a minimum, I therefore think the requested Order for Directions cannot be granted without the applicant presenting further information to the court, (in the form of a supplementary affidavit and/or oral submissions to be made after a notice of return of application – which need not be served on any respondents who have not filed a notice of appearance), addressing such concerns and making it clear why such an order is necessary and appropriate in the circumstances, having regard to the above realities.”

This decision may serve as an important reminder to ensure that the position of all parties, whether or not they have formally responded to a proceeding, on a draft order being requested “on consent” is before the Court and that the record includes sufficient explanation as to the appropriateness of the terms being requested in the circumstances.  In most cases, simply relying on the consent of the parties formally involved in the proceeding will not be enough.  

Thank you for reading,

Nick Esterbauer