Category: PODCASTS / TRANSCRIBED

03 May

Amending Applications and the “Close of Pleadings”

Garrett Horrocks Estate Litigation, Executors and Trustees, Hull on Estates, Litigation Tags: , , 0 Comments

Litigation is a fluid exercise.  Often, proceedings are commenced by a party with only limited or rudimentary knowledge of the facts giving rise to a particular cause of action.  As additional information is discovered, parties may wish to particularize the details of certain claims, or introduce new claims altogether.

The Rules of Civil Procedure permit a claimant to do so without leave of the Court, but only so long as “pleadings are not closed.”  The close of pleadings is a term of art that, in the context of actions, is clearly defined by a plain reading of the Rules.  However, in the context of applications, the Rules are not so clear, and guidance from the Court is required.  The recent decision in Angeloni v Estate of Francesco Angeloni summarized the relevant authorities on this issue.

This case consisted of an application initially commenced by the alternate attorneys for property (eventually litigation guardians and, ultimately, estate trustees) for Concetta Angeloni, concerning the use of the proceeds of sale of a property by her deceased husband and prior attorney for property, Francesco.  At a time when Concetta was incapable of managing her property, Francesco, as her prior attorney for property, severed the joint tenancy in a property previously owned by them, sold the property and, it was later discovered, retained all of the net proceeds of sale personally.  In reviewing Concetta’s affairs following Francesco’s death, Concetta’s alternate attorneys for property soon realized that she did not appear to have received any share of the proceeds of sale, nor had Francesco made any provision for her in his Will.

Concetta’s attorneys for property commenced an application for dependant’s support against the Estate.  However, only after this application was commenced did they confirm that Francesco had retained the sale proceeds entirely.  The litigation guardians quickly amended the application seeking additional relief including an accounting as well as a declaration that Francesco had breached his fiduciary duty to Concetta.

The estate asserted that the relief sought in the amended application was not properly before the Court on the basis that the Notice of Application had not been “properly amended.”  The Court disagreed.  At the outset, the Court found that although a Notice of Application is not a pleading for the purposes of the Rules in the same vein as a Statement of Claim, the same rules with respect to the amendment of pleadings apply nonetheless.

The Court also noted that although Rule 25.05 defines the “close of pleadings” as being when the last Reply to a defence is served or the time to do so has expired, no equivalent definition in the context of applications is provided – a Reply is a pleading that may only be delivered in an action.

The Court considered the decision of the Court of Appeal in 1100997 Ontario Limited v North Elgin Centre Inc.  In that case, the Court held that the affidavit materials filed by the parties, and not the Notice of Application, are to be considered the “pleadings” for the purposes of Rule 25.05, as it is the affidavits that contain the relevant facts in support of the relief sought in the Notice of Application.  As such, a supporting affidavit would be considered part of an applicant’s pleadings, while a responding affidavit would be considered part of the respondent’s.

Accordingly, the Court found that at the time the Notice of Application was amended, pleadings had not yet closed as the Estate had not delivered a responding affidavit.  In any event, the Court noted that the responding affidavit eventually filed ultimately responded to the claims raised in the amended application and, as such, the Estate could not now take the position that those claims were not properly before the Court.

The Court concluded that the applicants did not require leave of the Court to amend the Notice of Application, that the Notice of Application had been properly amended, and that the additional claims could be (and were) determined by the Court.

Thanks for reading.

Garrett Horrocks

20 Apr

Hull on Estates #611 – Production Orders and Drafting Solicitor’s Files

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This week on Hull on Estates, Stuart Clark and Kira Domratchev discuss the recent decision of Grove v Simon Dirk Kenworthy-Groen as executor of the estate of William Grove [2021] WASC 70, pertaining to production of preceding Wills and a drafting solicitor’s records.

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06 Apr

Hull on Estates #610 – Inherent Jurisdiction and Standing in Trust Litigation

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 This week on Hull on Estates, Natalia Angelini and Garrett Horrocks discuss the recent Ontario Court of Appeal decision in Carroll v Toronto Dominion Bank, 2021 ONCA 38, pertaining to the issue of standing in trust litigation.

 

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09 Mar

Hull on Estates #608 – Bill 245: Upcoming Changes to the Succession Law Reform Act

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This week on Hull on Estates, Jonathon Kappy and Rebecca Rauws discuss Bill 245, and the upcoming changes to the law if the Bill is passed. Bill 245 includes, among other things, changes to the Succession Law Reform Act, the Substitute Decisions Act, 1992, and the Children’s Law Reform Act.

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23 Feb

Hull on Estates #607 – Capacity to Instruct Counsel and the Appointment of a Litigation Guardian

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This week on Hull on Estates, Paul Trudelle and Arielle Di Iulio discuss the test for capacity to instruct counsel and the appointment of litigation guardians in the recent decision of Susan Eng v. Elizabeth Eng2021 ONSC 464.

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09 Feb

Hull on Estates #606 – The Unorthodox Expansion of Pecore

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This week on Hull on Estates, Stuart Clark and Jennifer Philpott discuss the unorthodox use of Pecore v. Pecore, 2007 SCC 17, in the recent decisions PGT v. Cherneyko, 2021 ONSC 107, and Calmusky v. Calmusky, 2020 ONSC 1506.

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26 Jan

Hull on Estates #605 – Obligations of Attorneys

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This week on Hull on Estates, Natalia Angelini and Sanaya Mistry discuss the fiduciary duty and obligations of attorneys for property and the recent decision in Public Guardian and Trustee v. Cherneyko et al.2021 ONSC 107.

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22 Dec

Hull on Estates #604 – Use of Reproductive Material After Death: Written Consent Required

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This week on Hull on Estates, Jonathon Kappy and Sydney Osmar discuss a recent decision arising out of the British Columbia Court of Appeal which provides a definitive answer on when reproductive material may be used posthumously for the purposes of creating an embryo.

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08 Dec

Hull on Estates #603 – Updates to the Rules of Civil Procedure

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This week on Hull on Estates, Paul Trudelle and Nick Esterbauer review upcoming changes to the Rules of Civil Procedure as set out in O. Reg. 689/20, effective January 1, 2021.

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24 Nov

Hull on Estates #602 – Can You Appoint a Litigation Guardian for Unborn and Unascertained Beneficiaries?

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This week on Hull on Estate, Stuart Clark and Garrett Horrocks discuss the distinction between appointing a “litigation guardian” or seeking a “representation order” when dealing with the interests of unborn and unascertained beneficiaries in estate and trust litigation.

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