A court proceeding can come to an abrupt halt when certain events affect a party’s ability to participate in the case. Rule 11 of the Rules of Civil Procedure addresses these situations directly and imposes an automatic stay when a party’s interest or liability is transferred or transmissioned—including by death or bankruptcy—and sets out the steps required to move the proceeding forward.
This blogpost focuses on Rule 11: when the automatic stay arises, how an Order to Continue is obtained, and what litigants should keep in mind.
Automatic Stays Under Rule 11
Rule 11.01 provides that where, at any stage of a proceeding, the interest or liability of a party is transferred or transmitted to another person by assignment, bankruptcy, death, or other means, the proceeding is automatically stayed with respect to that party’s interest or liability. No court order is required to trigger the stay. The purpose of Rule 11 is to pause the proceeding until the proper person is identified to step into the affected party’s place.
While the most common trigger is death of a party, it is important to note that bankruptcy is also expressly listed in Rule 11 and brings an automatic stay. However, only a bankrupt plaintiff engages a Rule 11 stay. If a defendant becomes bankrupt, the stay is instead imposed by ss. 69.1 to 69.4 of the Bankruptcy and Insolvency Act.
In either case, the entire proceeding is not necessarily frozen by the stay. Only the portion of the proceeding involving the affected party’s interest or liability is stayed; other aspects may continue if they are independent of that interest.
The Order to Continue: Lifting the Stay
To lift a Rule 11 stay, an Order to Continue must be obtained under Rule 11.02. This order allows the proceeding to carry on by or against the person to whom the interest or liability has been transferred.
The Order to Continue is typically obtained from the registrar on requisition (using Form 4E), without notice to the other parties, and must be supported by an affidavit verifying the transfer or transmission of interest. In the case of a death, this affidavit will usually attach the death certificate and evidence of authority to act, such as the Will and/or the Certificate of Appointment of Estate Trustee. In the case of a bankruptcy, the affidavit should include proof of an assignment into bankruptcy or a deemed bankruptcy and proof of the bankruptcy trustee’s appointment.
Once the Order to Continue is issued, it must be served forthwith on all other parties.
Dispense with Rule 11 Order to Continue
Pursuant to Rule 2.03, the court may dispense with any rule if it is in the interests of justice to do so. Thus, the court issued an order to continue itself in Salzman v. Salzman, 2012 ONSC 1733. It was already sufficiently clear that the transmission of liability had occurred, and there was no reason to require an order to continue from the registrar.
Where No Appointment of Estate Trustee
Where no estate trustee has yet been appointed, or where entitlement to act is unclear or contested, additional procedural steps—such as the appointment of a litigation administrator under Rule 9.02—may be required before the proceeding can be properly continued.
Delay Can Have Consequences
Rule 11.03 addresses the potential consequences of inaction. Where the deceased or bankrupt party was a plaintiff and no order to continue is obtained within a reasonable amount of time, a defendant may move to have the action dismissed for delay. The defendant is required to show that they have been prejudiced by the inaction. However, it should be noted that there has been a general unwillingness of the courts to dismiss a proceeding under Rule 11.03 unless there has been a history of delay.
Legal Requirements vs. Best Practice
From a legal standpoint, the requirements are clear:
- Recognize when an automatic stay arises under Rule 11 when a party’s interest or liability is transferred by death or bankruptcy.
- Obtain an Order to Continue under Rule 11.02 before taking further steps in the proceeding (in Form 11A), if needed.
- Serve the Order to Continue on all other parties once it is issued.
Best practice, particularly in an estates context, goes further:
- Notify all parties promptly of the death.
- Confirm who is entitled to act and whether a Certificate of Appointment is required.
- Move quickly to obtain the Order to Continue to avoid delay arguments or procedural disputes.
- Avoid taking substantive steps in the proceeding until the stay has been lifted and the action is properly constituted.
The Takeaway
Rule 11 is designed to ensure continuity and fairness when a party can no longer participate in a proceeding in the usual way. Whether the trigger is death or bankruptcy, the automatic stay and the Order to Continue are central features of that process. Treating these issues as early procedural priorities helps ensure that litigation proceeds efficiently.
Thank you for reading, and have a great day.
By Jordyn Sanford