To round off my previous post about creditors appearing to have a financial interest for the purposes of compelling an accounting pursuant to Rule 74.15(1)(h) of the Rules of Civil Procedure (the “Rules”), McKee v. Vlasiu 2023 ONSC 3942 contains a similar discussion in the context of Rule 75.03(1) of the Rules.

That rule provides standing to persons appearing to have a financial interest in an estates to give a notice of objection on an application for a Certificate of Appointment of Estate Trustee with a Will.

In Vlasiu, the Respondent objected to an application for a Certificate of Appointment of Estate Trustee with a Will by launching a number of allegations as against the deceased. In her court filings, the Respondent alleged to have been a victim of criminal acts and violations of her constitutional rights and sought an award of damages. The Respondent, however, objected to her characterisation as a creditor of the estate, arguing that she was a victim of criminal conduct seeking compensation and did not voluntarily provide goods, services or credit.

Accepting as a general rule that Rule 75 is not intended to be used by creditors to secure recovery of assets within an estate and therefore would generally not be afforded any standing in such proceedings, the Court found at paragraph 8 that “[a]s a person with claims against a deceased person and his estate, Ms. Vlasiu has no financial interest in the estate of the type needed to make an objection under Rule 75.03 on which she relies”.

More to the point, the Court continued at paragraph 46:

“Anyone who has a cause of action or a right to make a claim against another person is a creditor whether voluntarily or involuntarily so. For the purposes of Rule 75, the important distinction is that Ms. Vlasiu is not claiming as a person who has any rights under the will of the deceased or to share in the distribution of the estate according to the will. Ms. Vlasiu’s rights, if any, are as someone who might make claims against the estate whether for title to land that the estate claims to own or for money. That her claims have arisen involuntarily, even if true, is quite beside the point for the purposes of this proceeding and the assessment of a “financial interest” under Rule 75.01“.

The Court, however, stopped short of addressing the veracity of the Respondent’s allegations of criminal conduct as those claims were not properly brought before the Court. It’s therefore interesting to speculate whether the Court would have accorded the Respondent with standing had she obtained a restitution order under the Criminal Code and complied with the provisions for enforcement. As our readers might recall, in Shanthakumar v. RBC et al. 2023 ONSC 2209 a bank with a crystallised financial interest was regarded as a person who appeared to have a financial interest and was permitted to compel an accounting pursuant to Rule 74.15(1)(h).

Thanks for reading.

Aaron Chan