Category: Litigation

14 Sep

Adopting Remote Processes, Adapting to Win

Arielle Di Iulio In the News, Litigation Tags: , 0 Comments

While remote communication has become the norm for many, there continues to be resistance to using technology in the legal sphere. A recent decision by Justice Myers of the Ontario Superior Court of Justice suggests that, in 2020, the court will not easily acquiesce to such resistance.

In Arconti v. Smith, the plaintiffs sued their former lawyer and his partner for negligence, breaches of duty, and other causes of action in connection with the lawyer’s representation of the plaintiffs in a securities fraud case. In January 2020, Justice Myers ruled that a focused mini-trial was required to determine if summary judgment ought to be granted with respect to one of the issues. In a later case conference, he agreed with the plaintiffs that they should be entitled to further examination for discovery of the defendants prior to the mini-trial. An examination of one of the defendants was then scheduled for May 6, 2020.

However, at a case conference held on May 1, 2020, counsel for the plaintiffs advised that his clients did not want the examination of the defendant to proceed by video conference. He argued that because in-person examination is not possible due to the implementation of social distancing in response to the pandemic, the proceedings should be delayed until the requirement for social distancing is ended. The plaintiffs objected to a videoconference examination on the bases that:

  1. they need to be with their counsel to assist with documents and facts during the examination;
  2. it is more difficult to assess a witness’s demeanour remotely;
  3. the lack of physical presence in a neutral setting deprives the occasion of solemnity and a morally persuasive environment; and
  4. the plaintiffs do not trust the defendants not to engage in sleight of hand to abuse the process.

In his case conference endorsement, 2020 ONSC 2782 (the “Decision”), Justice Myers dealt with the issue of whether the plaintiffs ought to be required to conduct an examination out-of-court by video conference rather than in person. He ultimately held that if the plaintiffs wish to take advantage of the opportunity to examine the defendant out-of-court, before the upcoming mini-trial, they must do so remotely by video conference. The general sentiment of Justice Myer’s reasons is captured in paragraph 19 of the Decision:

“In my view, the simplest answer to this issue is, “It’s 2020”. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.”

Justice Myers further explained that the use of readily available technology is a necessary component of a civil litigator’s basic skillset. Like other tools at a lawyer’s disposal, technology does not produce perfection and parties ought to remain vigilant to the risks and shortcomings associated with remote processes. However, one’s own unfamiliarity with the technology is not a good basis to decline to use available technology, particularly where remote processes can help move a proceeding forward more efficiently and affordably.

As the Decision suggests, justice will not be served by sitting and waiting for the pandemic to pass. We must learn to accept our circumstances and adapt to the new normal. As Max McKeown wrote, “adaptability is about the powerful difference between adapting to cope and adapting to win.” It is becoming increasingly evident that in today’s legal system, adopting technological processes is adapting to win.

Thanks for reading!

Arielle Di Iulio

31 Aug

Modernizing Ontario’s Justice System: MAG’s Pilot Project with CaseLines

Sydney Osmar Litigation Tags: 0 Comments

Further to the Superior Court of Justice’s Supplementary Notice to the Profession dated August 5, 2020, the Ministry of the Attorney General is rolling out a new pilot project: CaseLines.

The SCJ has described CaseLines as a “user-friendly cloud-based document sharing and storage e-hearing platform for remote and in-person court proceedings.”

The pilot project began August 10, 2020 for selected civil motions and pre-trial conferences in Toronto, with an aim to incrementally expand to other practice areas and court locations. According to the SCJ’s website, the goal is to have CaseLines implemented province-wide in all SCJ court locations by December 31, 2020.

The SCJ is encouraging the bar to pre-register for CaseLines by signing up here.

I have had the opportunity to attend the CaseLines information session hosted by the SCJ, as well as the CaseLines webinar hosted by The Advocates’ Society. Below, I have summarized some of the main takeaways:

  • Once a new matter is initiated, court staff will open a CaseLines file and email a link to counsel and/or any self-represented parties. If counsel have pre-registered they will have immediate access to the file. If they have not yet registered, they will be re-directed to the registration page;
  • Counsel will be able to add their staff to the case, so that anyone involved in the matter from their office can have access to the case;
  • All briefs and documents relevant to the matter that counsel intend to rely upon at the hearing can then be uploaded to the open file in CaseLines. You cannot edit documents once they have been uploaded, so if an error is noticed, the document should be deleted with the corrected version uploaded in its place;
  • At this stage, CaseLines is not yet integrated with the Justice Services Online Portal so all relevant materials must be filed in accordance with the Rules (either physically or through Justice Services) and separately uploaded to CaseLines;
  • When the documentation is uploaded to CaseLines it is scanned by OCR technology and page numbered such that key word searches can be conducted;
  • Zoom is integrated with CaseLines such that counsel will be able to direct the judge, or witnesses etc. to pincites in their materials. There are also functions that allow counsel and the judge to take notes directly on the uploaded materials. Users have the ability to adjust their settings so that only they can see the notes taken onto the materials, or, so that they can highlight a particular reference to draw the necessary parties to its attention;
  • Because this is a cloud based document sharing technology, counsel will now be able to upload all electronic evidence, including photos, videos etc. CaseLines also enables you to cull up the metadata for the electronic evidence to speak to its veracity.

Above is a summary of just some of the main takeaways from the information sessions I have attended. However, the functionality of CaseLines goes well beyond what is described above and I would encourage counsel to watch the SCJ’s recorded information session, which can be located here.

Thanks for reading!

Sydney Osmar

28 Aug

Incapacity, Limitation Periods and Litigation Guardians: Complications Galore

Paul Emile Trudelle Litigation Tags: , , , , 0 Comments

Under the Limitations Act, 2002, most actions are subject to a two-year limitation period. However, the limitation period does not run during any time in which the person with the claim is incapable of commencing a proceeding AND not represented by a litigation guardian in relation to the claim. A person is presumed to be capable unless the contrary is proved.

What happens when a claim is commenced, but not all defendants are named? This issue arose in the recent decision of Wood v. David Mitchell et al., 2020 ONSC 4903 (CanLII). There, the plaintiff suffered a stroke. He sued a number of defendants in relation to his medical care. One doctor was referred to in the Statement of Claim, but not named as a party. Three years after the claim was started, the Public Guardian and Trustee was appointed as the plaintiff’s litigation guardian. The PGT moved to add the doctor as a defendant. The doctor moved to strike the claim on the basis of the passage of the limitation period.  The plaintiff resisted, taking the position that the plaintiff did not have capacity when the claim was commenced, and did not have a litigation guardian.

The doctor raised two main points. Firstly, the doctor sought information about communications between the plaintiff and his initial lawyers going to his capacity at the time. Secondly, the doctor argued that the plaintiff was represented initially by a “de facto” litigation guardian, a Mr. McQueen.

The decision addressed these issues from the perspective of a motion to compel answers to questions and further production. The plaintiff had refused to answer questions about his and Mr. McQueen’s communications with his initial lawyers and to produce the lawyers’ file on the basis of relevance and privilege.

At first instance, the Master disallowed the questions. On appeal, the court ordered that the lawyers’ files as they relate to the plaintiff’s capacity and to Mr. McQueen’s dealings with the lawyers must be produced, even if privileged.

The court held that on the first issue, as the plaintiff put his capacity in issue, information that his lawyers had about his capacity was to be produced. The court stated that the “elephant in the room” was “what were the plaintiff’s initial lawyers thinking” when they commenced the claim? Did they believe that the plaintiff had capacity? If so, what was that belief based on?

On the second issue, the court referred to the Court of Appeal decision of Azzeh (Litigation Guardian of) v. Legendre, 2017 ONCA 385 for the proposition that a de facto litigation guardian could recommence the running of the limitation period. In Azzeh, the court held that a person could be considered litigation guardian, even if not formally appointed, if they held themselves out as litigation guardian. In Wood, the court held that the definition of “litigation guardian” might even by broader.

As can be seen, the issues that arise in litigation where the capacity of a party may be in issue can be complex. The courts must walk a fine line of ensuring that the right to sue is not taken away from an incapable person, while ensuring that the rights of third parties, including the right to the protection of limitation periods, are safeguarded.

Thank you for reading.

Paul Trudelle

27 Aug

Notice of Objection: Now What?

Kira Domratchev Estate Litigation, Executors and Trustees, Litigation Tags: , , , , , 0 Comments

A testator appointed you as Estate Trustee of an Estate and a beneficiary filed a Notice of Objection to your appointment. What to do?

Typically, a Notice of Objection to an appointment of an Estate Trustee means that their authority is challenged such that before the administration of the Estate can be addressed, the Notice of Objection must be resolved, first and foremost.

Whereas in the case of a Notice of Objection, the party having filed it, is likely to commence a court proceeding to substantiate his or her claims, that is not always the case. As such, there are a couple of things that an Estate Trustee can do to force the Objector to move forward, in order to ultimately address the resolution of the objection.

  1. File a Notice to Objector

In accordance with Rule 75.03(4), an Estate Trustee can serve a Notice to Objector and file it with proof of service with the Court.

If the Objector does not serve and file a Notice of Appearance within 20 days of being served with a Notice to Objector, the Estate Trustee’s Application for a Certificate of Appointment is to proceed as if the Notice of Objection had not been filed.

If a Notice of Appearance is served on the Estate Trustee, they have 30 days to bring a motion for directions before the Court and if they do not do so, the Objector may seek directions, as well.

Essentially, the effect of a Notice to Objector is forcing the Objector to commence a claim or else abandon his or her objections.

  1. Commence an Application or Motion to propound the testator’s Will

Another option that exists for an Estate Trustee is simply skipping the steps that would follow the service of a Notice to Objector and seeking the directions of the Court, in accordance with Rules 14.05 and 75.06 of the Rules of Civil Procedure.

In this case, the Estate Trustee becomes the party commencing a court proceeding such that the costs associated with such a step ought to be considered, before proceeding. It is important to note, however, that proceeding with the first option will not necessarily save on legal costs to be incurred, if the Objector ultimately proceeds with a claim.

The option that is selected by an Estate Trustee will depend on the circumstances of each individual case such that it is important to consult with a lawyer as to which option is best.

Thanks for reading!

Kira Domratchev

Find this post interesting? Please consider these other related posts:

Another Will Challenge Threshold Case

Challenging Challenges

Requests for Notice of Commencement of Proceeding

26 Aug

The Novel Case of Calmusky v. Calmusky

Ian Hull Litigation Tags: , , , 2 Comments

There are relatively few circumstances in which a court will stifle, rather than vindicate, a deceased person’s testamentary intentions. If a testator wished to give all of his or her assets to a charity for cats, but did not leave adequate funds for his or her dependants, the testator’s will may be varied in order to support the dependants. When a deceased person assigned insurance policy proceeds to his spouse, but previously he had promised an ex-spouse that if she paid the insurance premiums, the proceeds would go to her, the courts interceded, in spite of the designation to the spouse, and awarded the proceeds to the ex-spouse on the basis of unjust enrichment.

In this blog we shall discuss Calmusky v. Calmusky, a recent decision which may have added another context in which courts can upset a deceased person’s testamentary intentions.

Gary and Randy were the sons of Henry, the deceased. In Henry’s last will, he left the residue of his estate to one of Randy’s children and his, Henry’s, nephew. Upon Henry’s death, his interests in bank accounts jointly held between he and Gary were transferred to Gary by right of survivorship. He also made Gary a joint holder of his Registered Income Fund (RIF).

Part of the court’s decision was conventional: since the account transfers were gratuitous transfers between a parent and an adult child, according to Pecore, there is a presumption of resulting trust (with the transferee, Gary, holding the accounts in trust for Henry’s estate) that must be rebutted, with evidence of a donative intent on behalf of the parent, before the transferee can retain the assets. Since Gary could not show donative intent, the bank account funds were to revert to Henry’s estate. And then came the unconventional: the court determined that the rule in Pecore applied to the RIF:

“I see no principled basis for applying the presumption of resulting trust to the gratuitous transfer of bank accounts into joint names but not applying the same presumption to the RIF beneficiary designation.”

By stretching the rule in Pecore to this new context, the court may have burst open floodgates which protect beneficiaries of RIFs, pension plans, life insurance policies, and more. And as was observed in our recent blog on Calmusky, there is “legislation that uniquely applies to beneficiary designations (e.g. the Income Tax Act, the Succession Law Reform Act or the Insurance Act)” that appears to conflict with the decision.

And then there is the policy dilemma arising from Calmusky: if the designation is not good enough, what is? Should an affidavit be executed to corroborate the designation, or should a testator put a provision in his or her will that crystallizes existing beneficiary designations? The trouble with the latter option, which ostensibly seems to be the surest option, is that the subject matter of the beneficiary designation may, since it is mentioned in the will, have to be listed in the probate application and the Estate Information Return – leading to heightened expenses.

 The last time that estate solicitors were put in such a dubious position, arguably, was when the court in Re Milne ruled that a will is a trust, thereby rendering “basket clauses”, a common estate solicitor’s tool, precarious or even invalid. Now, while Calmusky stands, there is no clear best practice with respect to bullet-proofing beneficiary designations. And sadly, Gary, who prior to Calmusky would have received the RIF funds, is left disinherited; and Henry, who prior to Calmusky would have had reason to trust in the RIF beneficiary designation, may have had his testamentary intentions frustrated.

Thanks for reading – have a great day,

Ian Hull and Devin McMurtry

24 Aug

Motions for Security for Costs in Estate Litigation

Kira Domratchev Estate Litigation, Litigation Tags: , , , 0 Comments

Motions for security for costs are means of ensuring that there is a sum in place to pay the defendant’s costs, should the defendant be entitled to costs. It is not a motion that is often brought, but it is typically considered when the plaintiff is not a resident of Ontario and there is concern that his or her case may not have merit.

Rules 56 and 61.06 of the Rules of Civil Procedure govern motions for security for costs. The test for obtaining security for costs is two-fold:

  1. The defendant must show that the plaintiff’s action or application fits into one of the categories specified in subrule 56.01(1) which include the following:

(a)  the plaintiff or applicant is ordinarily resident outside Ontario;

(b)  the plaintiff or applicant has another proceeding for the same relief pending in Ontario or elsewhere;

(c)  the defendant or respondent has an order against the plaintiff or applicant for costs in the same or another proceeding that remain unpaid in whole or in part;

(d)  the plaintiff or applicant is a corporation or a nominal plaintiff or applicant, and there is good reason to believe that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent;

(e)  there is good reason to believe that the action or application is frivolous and vexatious and that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent; or

(f)  a statute entitles the defendant or respondent to security for costs.

  1. If the plaintiff’s action or application does fit into one of the above-noted categories, the plaintiff has the option of attempting to prove that it would be unjust to order security, because they are impecunious, and the claim has merit.

An interesting consideration in the context of estate litigation that needs to be addressed is the fact that the party commencing a proceeding is not always the “plaintiff” or “applicant”, as defined by Rule 56. For example, a party may be propounding a Will in response to a Notice of Objection in which case although the propounder is technically the Applicant, the claim is made by the Objector. This issue has been considered by the Courts:

  • In Vout v Hay [1995] 2 SCR 876, Justice Sopinka commented on this issue allowing the Court, on a motion for security for costs, to cast the challenger as the real “plaintiff” such that the propounder could indeed move for security for costs.
  • In Boutzios Estate, Re (2004), 5 ETR (3d) 51 (Ont SCJ), Justice Greer, exercised her discretion under section 131 of the Courts of Justice Act, to order for security for costs and did not address the question of who had the burden of proof and rebuttable presumptions, as section 131 allows the Court to award the costs of and incidental to a proceeding or a step in a proceeding against any party at any time.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Consider these other related posts:

Motions for Security for Costs: What are they and when are they used?

Short Circuiting the Frivolous Will Challenge

17 Aug

Suspended Litigation Timings: A Friendly Reminder

Garrett Horrocks Estate Litigation, General Interest, Litigation, Uncategorized Tags: , 0 Comments

My colleague, Sydney Osmar, blogged in June on a summary of actions taken by the Ontario Legislature to issue, and later extend, the terms of certain orders issued in the days following the provincial state of emergency declared on March 17, 2020.  These orders were intended to provide direction in light of the procedural and administrative concerns arising as a result of the immediate suspension of courthouse operations that followed the declaration of the state of emergency and, in particular, the effect of the declaration on litigation time periods provided under the Rules of Civil Procedure.

The Legislature introduced two key regulations in an effort to provide guidance to the litigation bar. O.Reg 73/20, made on March 20, 2020, provided for an indefinite suspension of any limitation periods or period of time within which litigation steps were to be taken, as established by statute, by-law, or order of the Ontario government, for the duration of the state of emergency.

O.Reg 259/20, made on June 5, 2020, amended O.Reg 73/20 primarily in decoupling the suspension from the “duration of the emergency” to a fixed date of September 11, 2020, in order to provide certainty and predictability to members of the litigation bar.  The Emergency Management and Civil Protection Act provides that temporary suspensions by emergency order shall not exceed 90 days, hence the choice of a fixed date of September 11.  However, the Legislature remains empowered to issue further orders extending the suspension beyond the chosen date should such deferrals be required in light of the pandemic.

As of the posting date of this blog, no further guidance or direction has been delivered by the Legislature with respect to a suggested extension of the suspension period.  Although the circumstances are such that direction in that respect may be received on minimal notice, this blog is intended to serve as a mere reminder of the upcoming expiration of the suspension period or, in other words, the resumption of applicable litigation timings.

Thanks for reading.

Garrett Horrocks

12 Aug

Tilley v Herley and the Interim Distribution of Estate Funds

Ian Hull Litigation Tags: , , 0 Comments

The recent case of Tilley v Herley 2019 ONSC 5405 serves as a reminder that courts will not approve an interim distribution of the funds in an estate if there is the possibility of new testamentary documents coming to light.

Facts

In this case, the deceased had been estranged from her four children for much of their lives; however, she reconciled with one of her children, Roxanne, before her death in 2019. Roxanne was appointed as sole executrix and trustee and was named as the only beneficiary of the entire estate in the most recent will which was executed in 2008. Prior to her death, the deceased transferred the main asset of the estate, a residence in Mississauga, to herself and Roxanne as joint tenants. When she died, the residence passed to Roxanne by right of survivorship.

Two of the other children brought a challenge to the will on the basis that their mother lacked testamentary capacity, that she was unduly influenced by the Respondent Roxanne, and that the will was executed under suspicious circumstances. They also sought a declaration that the residence should be subject to the presumption of resulting trust and should not pass to Roxanne by right of survivorship. Roxanne had already sold the residence and both parties agreed that the proceeds of the sale would be held in trust pending litigation. Roxanne then brought a motion seeking an interim distribution of 25% of the funds held in trust. The rationale behind this was that even if the other siblings’ will challenge was successful and Roxanne lost at trial, she would still receive 25% of the estate as it would be divided up in equal parts amongst the four children.

Decision

The case turned on the fact that even though no will prior to 2008 had been located, there was evidence that an earlier will may have existed. This made it impossible to determine that the Respondent’s interest in the estate would be a minimum of 25% and the court found that making an interim distribution of the proceeds would be “premature and inappropriate”. Another relevant factor was that at this early stage in the litigation, there had not been an accounting with respect to the entire estate, including debts and liabilities, as well as future expenses including litigation costs, making it impossible to determine the value of 25% of the estate.

The court dismissed the motion, as there was a possibility that the deceased may have made an earlier will and until this will could be located or its existence could be discounted, it was impossible to know the extent of Roxanne’s entitlement should the will challenge be successful. The court also noted that it was conceivable that none of the deceased’s children would be beneficiaries under a previous will if the 2008 will were to be declared invalid by the court. This case demonstrates that applying for an interim distribution of estate funds can be ill-advised and will likely fail if there is evidence indicating the potential existence of an undiscovered prior will. This would make it impossible for the court to determine the minimum amount that either party may receive if the contested will is declared invalid.

Thanks for reading,

Ian Hull and Sean Hess

30 Jul

Interpretation of Settlement Agreements

Nick Esterbauer Estate Litigation, Litigation, Mediators, Wills Tags: , , , , , , 0 Comments

A recent decision of the Alberta Court of Queen’s Bench highlights the importance of carefully reviewing settlement agreements prior to their execution.

In Anderson Estate (Re), 2020 ABQB 428, the Alberta Court of Queen’s Bench revisited a settlement that had been negotiated during a judicial mediation.

Mr. Anderson had left a Last Will and Testament executed roughly one month prior to his death that directed that the residue of his estate be distributed to his three children, who were the parties to the litigation.  The Will addressed certain advances made to his children during his lifetime, the disposition of real property, and declared the testator’s intent that the parties be treated equally.

One son, who later brought the motion with respect to the interpretation of the agreement, had previously disclaimed real property gifted to him under the Will because the value assigned to the property in the Will itself was significantly higher than the appraised value of the property (with a discrepancy of $2 million), such that he would take a correspondingly lower distribution from the residue of the estate to reflect his acceptance of the gifted property.  The judicial mediation process had been initiated with the intention of resolving interpretation issues in respect of the Will arising from the son’s disclaimer of the property.  The terms of the Will and the settlement agreement were not straightforward, but the settlement provided in part that the son would receive at a value of $4 million a different property than that bequeathed to him under the Will that he had disclaimed.

Pursuant to the terms of the settlement agreement, the matter returned to the case management judge for the determination of its proper interpretation.  The son sought an interpretation of the agreement that provided that he had substituted his receipt of one property for the other at a notional cost corresponding to advances tied to the first property.

Justice Jones reviewed the law in general relating to ambiguities appearing in contracts, such as the settlement agreement that the parties had executed (at paragraphs 35 through 40, briefly summarized below):

  • true legal ambiguity arises where a phrase is reasonably susceptible on its face to more than one meaning;
  • courts can consider surrounding circumstances that include everything that affected the language of the document from the perspective of a reasonable person;
  • extrinsic evidence, however, is intended to serve “as an objective interpretative aid to determine the meaning of the words the parties used”, with limitations set out by the Alberta Court of Appeal in Hole v Hole, 2016 ABCA 34;
  • the goal of the courts is to give effect to the objective intentions of the parties, rather than to “second-guess the contract”;
  • even in the absence of ambiguity, a judge is to consider relevant surrounding circumstances in interpreting the contract.

The judge found that the settlement agreement was not susceptible to more than one meaning, stating as follows (at para 84):

A retrospective determination that one entered into an agreement on terms less commercially favourable that one now thinks should have prevailed does not evidence ambiguity.

This decision may serve as a reminder to take care in ensuring that the meaning of a settlement agreement is properly understood by all parties and clearly set out without room for ambiguity.  Remaining silent on certain points that should properly be addressed during the dispute resolution process may limit the rights of the parties to pursue them, even where the settlement agreement will otherwise lead to the distribution of an estate that may be perceived as unfair.

Thank you for reading.

Nick Esterbauer

29 Jul

Self-Represented Litigant Defeated by a Limitation

Ian Hull Litigation Tags: , , 0 Comments

Few would have the audacity (or the poor judgment) to perform surgery or fly an airplane without requisite training. The hero of The Simpsons, Homer, (a sad example of his namesake), can often be seen, rather comically, making errors on the job at the Springfield nuclear power plant – and yet there is nothing funny, in real life, about an untrained nuclear technician staring down a crisis. Our world is no longer one in which most people provide all their wants for themselves; instead, trades are highly specialized. Lawyers, for instance, will not typically build their own houses – most, indeed, would not know how to build their own tables. There is temptation, however, in self-sufficiency: one may save money in cutting one’s own hair and gain pride in cooking one’s own meals; and in case of failure, one may always pay one’s expert barber to salvage one’s botched haircut and scramble to one’s favourite restaurant to relieve one’s palate.

Whereas the consequences of conducting surgery or flying an airplane without training are readily apparent to the imagination, the risks associated with self-representation in court can be deceiving. Some think they are – or truly are – qualified to argue their own cases if they do some private research, study the procedures and access free legal resources at their disposal. They may find the endeavour exciting, a personal rite of passage or a challenge from which they may grow. It is a sad truth, as well, that many self-represented litigants simply do not have the financial means to afford legal counsel. Options available to litigants of more modest means – such as legal aid, pro bono and hiring a lawyer on contingency – are often imperfect (and, alas, sometimes unattainable), but they may be preferable to going into the legal fray alone. In any case, Bristol v. Bristol, [2020] O.N.S.C. 1684 (“Bristol”), is a stirring instance of what may go wrong with respect to legal self-representation.

The facts in Bristol are as follows: the matriarch of the Bristol family, Elizabeth, passed away on December 6, 2016, survived by ten children; in 2002, she executed a will in which she distributed her estate equally amongst the ten children; in 2004, she left another will by which she disinherited nine of the children and left her entire estate to Berry, the tenth child. Her stated purpose for disinheriting the nine others was that she had assisted them sufficiently throughout their lives.

On December 30, 2016, one of the disinherited children, Stephanie, filed a Notice of Objection, on behalf of herself and four of her siblings, alleging incapacity and undue influence with respect to the latter will. Berry filed his Notice to Objector on July 18, 2017, and then Stephanie filed a Notice of Appearance on July 25, 2017. After almost two years, during which time Stephanie was allegedly waiting for Berry to “take a step in the probate proceeding”, Stephanie brought a Motion for Directions. This was on April 23, 2019. The Court indicated that she should issue an Application within 45 days but without prejudice to Berry bringing a motion to dismiss on the grounds that the Application was statute-barred, for sections 4 and 5 of the Limitations Act prohibit a proceeding from commencing more than two years after the day on which the claim was discovered.

In its decision, the Court found that the steps Stephanie had taken, namely filing the Notice of Objection and Notice of Appearance, did not commence a proceeding; the former is merely a “caveat” or “caution”, not a proceeding, and the latter does not institute proceedings. She needed to issue an Application. It was next determined that the date of discoverability was either December 6, 2016 (the date of death) or at the latest December 30, 2016 (the date of the Notice of Objection), and that, therefore, the two-year limitation period had expired. As a last resort, Stephanie argued that she was seeking declaratory relief and that no limitation period thus barred her. The Court decreed that “will challenges cannot be framed as declaratory relief”.

There was sympathy for Stephanie’s position, but the Court declined to make an exception for her merely because she was self-represented:

“The Applicant insisted that because she was self-represented and because the Respondent had taken no steps, she was forced to bring a Motion for Directions in April 2019. It was only on the motion date that she learned that she was required to actually issue an Application. While all of this is unfortunate, it does not permit the Applicant to escape the presumption in ss. 4 and 5 of the Act.”

In consideration of Stephanie’s position, however, the Court opted not to order costs for Berry, to which he would have been entitled “in normal circumstances”.

In conclusion, we may finish with three observations. Firstly, as Berry won the case, the Court may have awarded costs against Stephanie. As was mentioned in the decision, estates litigants may have costs awarded against themselves personally – the estate no longer by necessity absorbs the legal costs for all parties. Secondly, had Stephanie hired counsel, it is likely that this procedural error would have been avoided and the will challenge determined on its merits. Engaging counsel would have perhaps carried greater financial risks, but the chance of gain (winning the case, settling) would have also sweetened the prospect. Lastly, Bristol is another lesson that litigants, both trained and untrained, must beware of time, and the limitations it summons, for it can be a stern and unconquerable foe.

Ian Hull & Devin McMurtry

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