Earlier this week, the Canadian Lawyer Magazine published an opinion by Daniel Waldman, addressing the severe delays and backlog that is currently impacting the courts. The conclusion was simple: until the system improves and additional judicial resource are added, it is our responsibility as litigators to do everything we can to resolve the matters we have and reduce the burden on the justice system.

Part of that is ensuring that we use the time that we have in court efficiently. The last thing we need is to have to come back to court multiple times in order to rework a draft Order.

In a recent decision from the Estates List, Drennan v. Drennan, 2024 ONSC 141, Justice Myers took the time to walk the parties through how to draft a formal Order, specifically an Order for an appointment of an Estate Trustee During Litigation (“ETDL”). The Endorsement even included the applicant’s draft order in Schedule “A”, which Justice Myers used for reference as a teaching tool. This is meant to simplify the process of drafting a formal Order following a hearing and carrying out the terms dictated by the court. While the endorsement is short, it provides helpful tips for litigators, articling students and even self-represented parties. Some of the guidelines include the following:

• Under Rule 59.03 (3), the order is to be in Form 59C.

• The party that drafted the order is required to send it to the other side for approval as to form and content. This step is meant to ensure that the parties collaborate to accurately reflect the terms imposed by the court, rather than debate the outcome of the decision.

• If the parties agree on the form of an order, the order can be submitted to court to be signed and issued. Alternatively, if the parties cannot agree, then they can bring the matter in front of the judge who made the order, pursuant to Rule 59.04.

• When seeking an Order to appoint an Estate Trustee During Litigation (“ETDL”), the Order must describe the position and the powers of the ETDL.

• A draft Order ought to recite the evidence that was considered by the court. It should include a listing of all affidavits, transcripts, and other forms of evidence filed for the hearing. The draft Order should not reference documents that are not in evidence, like: notices of motion, motion records, and factums.

• The draft Order includes standard wording to appoint an ETDL and to vest the assets of the estate in the ETDL.

• The parties should not add additional relief beyond what was included in the court’s endorsement.
  Paragraph 4 includes a comprehensive description of the powers of the ETDL. While a specific list of express powers is not legally required, it can help the ETDL deal with third parties.

While the draft Order does address the appointment of an ETDL, the Endorsement is a valuable resource for mastering the skill of drafting Orders and preventing unnecessary delays for the courts.

If you are looking for additional resources for drafting orders, you can also refer to this model Order Giving Directions that was prepared by members of the Estates List Users’ Committee.

Thank you for reading.  

Margarita Grup.