I have previously blogged about the procedural differences between an Application and an Action, noting that estate litigation exists in the relatively unique situation of most claims being commenced by way of Application due to statutory requirements. Although there are situations where it is entirely appropriate for an Application to remain an Application and proceed on a written record alone, there are similarly situations where matters which were commenced as Applications should be converted into an Action to allow oral evidence. But what happens when someone objects to converting an Application to an Action? Is it possible to convert an Application to an Action over and above the objections of one of the parties?
In Przysuski v. City Optical Holdings Inc., 2013 ONSC 5709, Justice Firestone notes that where the legislature has stipulated that a proceeding may be brought by Application there is a prima facie right to proceed by Application and the matter should not be converted into an Action without “good reason”. The considerations noted by Justice Firestone were summarized by Justice Kristjanson in Fountain Asset Corp. v. First Global Data, 2017 ONSC 4780, wherein the court lists the following criteria to consider in determining whether to convert an Application into an Action:
(a) An Application should be used when there is no matter in dispute and when the issues to be determined do not go beyond the interpretation of a document;
(b) A good reason to convert an Application into an Action is when the Judge who will hear the matter cannot make a proper determination of the issues on the Application Record;
(c) When issues of credibility are involved the matter should proceed by way of Action;
(d) Whether material facts are in dispute;
(e) The presence of complex issues that require expert evidence and/or weighing of evidence;
(f) Whether there is a need for pleadings and discoveries; and
(g) The importance and impact of the Application and of the relief sought.
If the matter meets enough of the criteria listed above it may be converted from the Application to an Action over and above the objections of any party.
Thank you for reading.