“This is not ‘Nam. This is bowling. There are rules”. (The Big Lebowski, Gramercy Pictures, 1998).

As estates practitioners, we’re no strangers to recalcitrant estate trustees. What was once a straight-forward estate administration has now become a Gordian Knot of duelling disclosure requests, lengthy delays, and accusations of gamesmanship. A common approach undertaken to break the logjam is a Rule 74.15 motion under the Rules of Civil Procedure to compel the estate trustee to act in some fashion and, in certain circumstances, such a motion may even be brought ex parte.

If one does indeed bring such an ex parte motion, counsel would do well to take notice of the operation of Rule 39.01(6) of the Rules, which strictly requires “full and fair disclosure of all material facts… failure to do so is in itself sufficient ground for setting aside any order obtained on the motion or application” [emphasis added].

As the case of Ernst v. Ernst, 2022 ONSC 5662 illustrates, one should exercise a high degree of diligence on an ex parte Rule 74.15 motion and consider marshalling all material facts on such motions, even those facts that may not necessarily be helpful to your case, to ensure full compliance with the requirements under the Rules lest a Court end up setting aside its prior Order.

The facts of Ernst are unremarkable; the lattermost of three wills was being challenged by the deceased’s daughter on the grounds of testamentary incapacity or undue influence. Correspondence was exchanged between the daughter’s and son’s counsel with some periods of non-responsiveness on the part of the daughter’s counsel, but the daughter’s counsel did eventually indicate that they wanted to see the drafting solicitor’s file and suggested a joint request be made to obtain it before taking a position on the validity of the lattermost will. In response to their joint request for disclosure, the drafting solicitor advised that he would not be releasing his file absent a court order.

Additional correspondence was exchanged between counsel on obtaining an order for disclosure, and the daughter’s counsel advised that she would have to refer the matter to senior counsel as she was beginning her maternity leave. In response, the son’s counsel advised that he would be filing a motion on the same day seeking orders for assistance under Rule 74.15 of the Rules. An Order to compel the daughter to file an application for Certificate of Appointment of Estate Trustee with a Will was subsequently obtained.

What is important is the subsequent Rule 37.14(1)(a) motion brought by the daughter to set aside the Order, which revealed that the son’s affidavit materials did not disclose,

1. the daughter’s counsel was engaged and responded to the position stated by the son;
2. the daughter intended to move to seek production of the drafting solicitor’s file regarding the deceased’s wills;
3. the son had joined in this request but that it was declined by the drafting solicitor; and
4. the daughter sought an opportunity to obtain, review and consider the drafting solicitor’s file prior to taking next steps.

The motions judge went further to say that had it been necessary, the prior Order would have been set aside for failure to bring the Rule 74.15 motion on notice in the first place. The prior Order was accordingly set aside and costs awarded.

Thanks for reading.

Aaron Chan