We recently blogged on Jurisdiction in Estate Litigation, but when a matter is squarely located in Ontario, what court should an estate litigation application be commenced at?
When a matter involves an application for a Certificate of Appointment under rule 74.04 and 74.05 of the Rules of Civil Procedure. , that application must be filed in “the county or district in which the testator or intestate had at the time of death a fixed place of abode” pursuant to section 7 of the Estates Act.
However, other estate related applications such as an application for directions under rule 75.06 may be filed at any courthouse as there is no statute, pursuant to Rule 13.1.01, requiring these applications to be filed in a particular region. For instance, if an applicant has counsel in Toronto but the deceased died outside of Toronto, it remains permissible to commence the proceeding based on the preference of the Applicant.
That said, a responding party may move to transfer the proceeding under Rule 13.1.02(2) and the principles under this rule apply in determining the appropriate venue such as:
- (a) that it is likely that a fair hearing cannot be held in the county where the proceeding was commenced; or
- (b) that a transfer is desirable in the interest of justice, having regard to
- (i) where a substantial part of the events or omissions that gave rise to the claim occurred
- (ii) where a substantial part of the damages were sustained
- (iii) where the subject-matter of the proceeding is or was located
- (iv) any local community’s interest in the subject-matter of the proceeding
- (v) the convenience of the parties, the witnesses and the court
Given the backlog in the Toronto courts, it may be difficult for the Applicant to argue that a matter should be heard in Toronto when there is otherwise no real connection to the city. It would be up to the responding party to bring this motion. Pursuant to the Consolidated Provincial Practice Direction, this is to be made in writing to the Regional Senior Justice at the court they wish to transfer the matter to, and a determination would be made at that stage as to whether a transfer is appropriate. It is also relevant at what stage in the proceedings the application has reached and whether a change of venue remains appropriate.
In an increasingly virtual environment, it is less important where a proceeding is commenced where counsel are able to attend court remotely. However, it is acknowledged that Toronto has a specialized estates bar with the Toronto Estates List being uniquely positioned to adjudicate complex estates and trusts matters. As described by Justice Brown in Hallman Estate (Re) at para 63:
“some litigants look outside of their home jurisdiction to select the lawyers whom they think possess the required expertise to best represent them. Choosing a lawyer who works in another city might well represent a very rational and considered business decision by a litigant, and not an attempt to play tactical games with the other side. A court conducting a change of venue analysis must be alive to the possibility of the reasonableness of such a choice.”
Thanks for reading.