Recently, Stuart Clark blogged on the procedural differences between Applications and Actions in the context of civil litigation. In his blog, he aptly describes key differences between the two proceedings, which rests largely on the manner in which evidence is heard. Applications are determined on a written record, meaning that evidence before the court is contained in affidavits sworn by the parties in advance of the hearing date. In contrast, actions are heard by way of viva voce evidence (i.e. parties are examined, and cross-examined in open court).
As parties inch towards their final hearing date, the benefits and disadvantages of proceeding by way of application versus action may sharpen into focus. As Stuart noted, parties may decide that there are strategic benefits to converting their application into an action, such as having a sympathetic witness. Parties are free to take steps necessary to effect that change.
However, if parties don’t convert their proceedings in advance of their hearing, Judges have the discretion to convert applications to actions, and can order a conversion at the hearing of an application. In other words, if a Judge decides that justice would best be served by hearing a matter by way of trial, they can order the conversion of a proceeding at the hearing of an application.
Such was the case in Halar v Bacic, wherein the court determined that there were significant and material facts in dispute relating to capacity, and that a trial was necessary to assess the credibility of the witnesses.
In that case, a mother appointed her son and daughter to act as her attorneys for property and personal care in 2017. Following execution of the POAs, she was diagnosed with moderate Alzheimer’s disease and dementia. Shortly thereafter, the mother and her husband sold their home and moved back to Croatia. The proceeds of sale of their home were deposited in their Canadian bank account, with the understanding that the son and daughter would send money from the Canadian bank account when funds were requested by the mother.
The daughter and son ran into some conflict with respect to how the Canadian bank account was managed, resulting in the mother executing a new Power of Attorney in 2018, which raised questions regarding whether the mother had capacity to execute the new Power of Attorney.
The Judge was not satisfied that the medical evidence before him supported the position of the applicants and was not satisfied that he was in a position to make the findings and orders requested of him on the evidentiary record before him.
Ultimately, the Judge converted the application to an action and ordered that a trial be directed pursuant to Rule 38.10(6).
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In today’s podcast, Stuart Clark and Garrett Horrocks review some of the main procedural differences between the two primary types of legal proceeding in Ontario: the application, and the action.
Should you have any questions, please email us at email@example.com or leave a comment on our blog.
Consider yourself warned. Notwithstanding the relatively mundane title referenced above, the within blog contains a (somewhat mild all things considered) rant about something that troubles me to my very core (more of a mild annoyance really). Individuals who confuse and conflate the procedural steps and processes of Applications and Actions. Turn back now ye of mild stomachs.
There are two basic ways that civil matters proceed before the court in Ontario, either by Application or by Action. The Action is the more common of the two, and is the stereotypical image that most people probably have when thinking of something being heard before the court. Evidence is put before the court in an Action by witnesses sitting in the witness box, with the lawyers cross-examining and putting questions to the witnesses much like they do in your favourite legal television show. Applications, on the other hand, proceed only on a written record, with any evidence that is put before the court being contained in affidavits that were sworn by the various parties before the hearing date. To the extent that there are any cross-examinations on these affidavits they will generally have taken place before the hearing, with the Judge only being provided with copies of the transcripts and not witnessing the cross-examinations first hand as they would with an Action.
The estates litigation world exists in this somewhat unique corner of the civil litigation world, as many of the statutes under which our claims are advanced provide that the claims are to be commenced by way of Application and not Action. Although this in theory should result in these proceedings advancing on affidavit evidence alone, as parties often believe that there may be a strategic advantage to having the matter heard by way of Action (i.e. a sympathetic witness appearing in person before a Judge rather than simply in writing) parties will often seek to convert their proceedings from an Application to an Action at an early stage. I imagine that this is probably where most of the confusion stems from when individuals conflate the procedural steps of Applications and Actions, with the Order Giving Directions often being issued at a time the matter is still an Application yet providing directions for how an Action is to proceed.
The procedural process and obligations imposed upon parties participating in an Application are very different than those participating in an Action. There are no “Affidavit of Documents” or “Discoveries” in an Application, with the only evidence and documentation that is generally produced being that contained in the affidavits (subject to any undertakings or further directions from the court). Conversely, once a matter has been converted into an Action from an Application the affidavits that may have historically been filed are in a way irrelevant, as the Judge should in theory no longer have them available at the ultimate hearing of the matter with any evidence now being produced “viva voce” (i.e. in person). Once a matter has been converted into an Action from an Application the process that is to be followed is that of an Action, with the parties no longer being expected to serve and file any responding affidavits, but rather the more typical pleadings and documentation required for an Action such as a Statement of Defence or an Affidavit of Documents.
So please. I beg of you. Do not ask me when my client will be producing their Affidavit of Documents in an Application to Pass Accounts or when my client will be producing their responding affidavit after a matter has been converted into an Action.
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Rule 48.14 Interpreted! When will the Registrar Dismiss an Action for Delay? How Does it Apply to Estate Matters?
As recently as November 25, 2016, the Associate Chief Justice of the Superior Court, the Hon. Justice Marrocco, released a written endorsement in Daniels v. Grizzell, 2016 ONSC 7351, interpreting portions of Rule 48.14 since administrative dismissals may now occur from and after January 1, 2017.
The Registrar will Not Dismiss for Delay When…
According to the Hon. Justice Marrocco, “the Registrar will not dismiss an action for delay if the following events take place at least 30 days before the expiry of the applicable period:
- a party files a timetable signed by all the parties; and
- a party files a draft order establishing the timetable;
In addition, if a consent timetable signed by all the parties, and a draft order is filed, the Registrar shall not dismiss the action pursuant to Rule 48.14.”
Motion for Status Hearing and Motion to Set Aside the Dismissal
If the parties are unable to reach a consent, a motion for a status hearing may brought before the expiry of the applicable period pursuant to Rule 48.14(5). The Hon. Justice Marrocco clarified that “the Registrar shall not dismiss the matter until the motion is heard even if the matter is heard after the dismissal date prescribed by the Rule.”
Moreover, “the dismissal of an action by the Registrar can be set aside under Rule 37.14”.
Rule 48.14 Does Not Apply to Applications and Applications Converted to Actions
As it pertains to those of us engaged in estates, trusts, and substitute decision making matters, Rule 48.14 “does not apply to proceedings commenced by an application. Accordingly, estate matters which are commenced by way of an action are subject to the Rule; estate matters commenced by application are not. For practical reasons grounded in the coding of actions and applications in the court’s information management system, the application of Rule 48.14 is determined at the time the proceeding is commenced. For the same reason, applications which are converted to actions are not subject to Rule 48.14.”
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The phrase “the expiry of the applicable period” is repeated in the various subrules to Rule 48.14 and we want to take this opportunity to illustrate the meaning of this particular phrase. This phrase is important because it pertains to when an action may be automatically dismissed by the Registrar pursuant to Rule 48.14(1).
Essentially, going forward, actions are given five years from the date of commencement before they may be dismissed for delay by the Registrar. “The expiry of the applicable period” is the expiration date that is referred to in Rule 48.14(1), in which,
48.14 (1) Unless the court orders otherwise, the registrar shall dismiss an action for delay in either of the following circumstances, subject to subrules (4) to (8):
- The action has not been set down for trial or terminated by any means by the later of the fifth anniversary of the commencement of the action and January 1, 2017.
- The action was struck off a trial list and has not been restored to a trial list or otherwise terminated by any means by the later of the second anniversary of being struck off and January 1, 2017.
The expiry of the applicable period for an action commenced on the date of this blog, i.e. November 29, 2016, will be November 29, 2021.
The expiry of the applicable period for an action commenced on the date Rule 48.14 came to force and effect, i.e. January 1, 2015, will be January 1, 2020.
The expiry of the applicable period for an action commenced on the date the Winter Olympic games began in Vancouver, i.e. February 12, 2010, will be January 1, 2017.
This is the case because January 1, 2017 is later than the fifth anniversary of an action commenced on February 12, 2010, whereas the fifth anniversary of the commencement dates in examples 1 and 2 are later than January 1, 2017.
Therefore, it is extremely important to keep in mind that any actions commenced before January 1, 2012 may be dismissed by the Registrar on January 1, 2017.
You are the Estate Trustee of an estate. In going through the Deceased’s personal belongings, you become aware that shortly prior to the Deceased’s death they had commenced a lawsuit, and that it appeared that such a lawsuit was still before the court. As you are the Estate Trustee of the estate, you begin to question whether it now falls to you, as the estate’s representative, to continue the lawsuit on behalf of the Deceased, and what steps, if any, are you required to take?
The death of a party during a court proceeding is considered a “transmission of interest” in accordance with the Rules of Civil Procedure, insofar as the interest of the party who has died has now been transferred to their Estate Trustee (or other duly appointed individual in accordance with the Rules of Civil Procedure). In accordance with rule 11.01 of the Rules of Civil Procedure, when there is a transmission of interest at any stage of a proceeding (whether as a result of the death of a party or otherwise), the proceeding is automatically stayed as against the party whose interest has been transferred. To this effect, upon the death of the individual in our example, the proceeding which they had commenced was automatically stayed as it relates to them.
In accordance with rule 11.02 of the Rules of Civil Procedure, in order for the proceeding to continue on behalf of the deceased individual, an “Order to Continue” must be obtained. To obtain the Order to Continue, the party to whom the interest has been transferred (i.e. the Estate Trustee) must file with the registrar an affidavit verifying the transmission of interest, together with a requisition. Upon the issuance of the Order to Continue, it must be served on all parties.
Notably, in accordance with rule 11.03 of the Rules of Civil Procedure, if an Order to Continue is not obtained within a “reasonable” amount of time following the transmission of the interest, a defendant may move to have the proceeding dismissed for delay. To this effect, if it is the intention of the Estate Trustee to continue the proceeding on behalf of the estate, it is important that they obtain the Order to Continue as soon as possible following the Deceased’s death, as otherwise they may risk the proceeding being dismissed for delay.
As with any matter regarding the administration of an estate, it is important that the Estate Trustee receive competent legal advice concerning the proceeding before deciding whether to continue it on behalf of the estate. While there could be cost consequences to the estate for not continuing with the proceeding, there is certainly no obligation that the Estate Trustee continue the proceeding on behalf of the estate if they consider it unwise to do so. Issues such as whether the proceeding has any merit, and exposure to cost consequences, are important factors for the Estate Trustee to consider.
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As of January 1, 2015, the Ontario Rules of Civil Procedure were amended such that all actions not set down for trial will be automatically dismissed within five years of their commencement. Pursuant to Rule 48.14(1), unless the court orders otherwise, the Registrar shall dismiss an action for delay if the action has not been set down for trial or terminated by the fifth anniversary of the commencement of the action (or by January 1, 2017 if the action was commenced prior to January 1, 2012) subject to a list of statutory exceptions.
The Applicant in Michie v. Turalinski, 2015 ONSC 5491, brought an application to require an Estate Trustee Without a Will to file a Statement of Assets of the Estate on March 17, 2011. Notwithstanding the court ordered timetable for next steps, cross-examinations did not occur and counsels’ attempts to schedule cross-examinations appears to have ceased in or about 2012.
Ultimately, the Court ruled against the Respondent’s motion for dismissal for delay and provided the following comments in respect of the statutory authority for this relief:
 Ronald has framed his motion under rule 24.01 of the Rules of Civil Procedure. That rule sets out the circumstances in which the court may dismiss an action for delay. The rule does not apply here, since the rule applies to actions but not to applications. Since this case is an application, r.24.01 does not apply.
 Ronald also relies on rule 48.14 to support his positon. Rule 48.14 deals with the circumstances when the Registrar is required to dismiss an action for delay. The rule was amended effective January 1, 2015, and now provides that the Registrar shall dismiss an action for delay if it has not been set down for trial within five years after the first defence is filed. Again, the rule deals with actions not applications, but even if it did, Susan’s application was commenced in March of 2011. Five years have not elapsed since then, and thus cannot have elapsed since delivery of any response to it. If this application were an action, rule 48.14 would not require the Registrar to dismiss it. In any case, Ronald has never really delivered a response to the application itself, which would be equivalent to a defence.
Please click here if you are interested in our podcast of the recent Regulations amending the Rules of Civil Procedure.
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On Monday I wrote about the importance of mentoring. Today I’d like to illustrate. A November 2008 report by former Superior Court Chief Justice Patrick LeSage and University of Toronto law professor (now Superior Court Justice) Michael Code questioned the adequacy of sanctions for courtroom misconduct.
Up until recently, judges had two options to deal with inappropriate behaviour in the courtroom: a finding of contempt or referral to the Law Society of Upper Canada for possible disciplinary action. Out of the Code/LeSage report has come the recommendation and recent implementation of mentoring as a third option for behaviour not serious enough to merit disciplinary action.
Mentoring has traditionally been a learning mechanism that is completely voluntary, in that it is sought out and arranged by mentor and mentee on a more or less informal basis. Mentoring is taken to the next level with the new LSUC Mentoring Referral Protocols, which invite Ontario Court and Superior Court judges to identify lawyers in need of mentoring.
Requests go to LSUC’s CEO, Malcom Heins. If mentoring is considered an appropriate response, the lawyer will receive a letter identifying the impugned behaviour together with a consent form. If the lawyer accepts mentoring, he or she will be referred to the Advocates Society, the Criminal Lawyers Association or the Ministry of the Attorney General to be paired with an appropriate mentor in his or her area of practice. For more information see this article in The Lawyer’s Weekly.
Many legal organizations offer mentoring on a casual, as needed or ongoing basis. Here are some for your reference, should you wish to be a mentee or a mentor:
- The Advocates’ Society
- The Criminal Lawyers’ Association
- The Law Society of Upper Canada
- The Ontario Bar Association
- The Women’s Law Association of Ontario
It is worth noting that although our regulator has reponsibility for those amongst us who do not act as we should, LSUC’s Mentorship Program extends far beyond the Mentoring Referral Protocols. It is comprised of three initiatives that match volunteer lawyers with those interested in becoming lawyers; students-at-law to provide assistance and advice with their careers; and practising lawyers in general need of advice.
Sharon Davis – Click here for more information on Sharon Davis.
Cy pres is the equitable doctrine under which a court interprets a document containing a gift to charity by substituting another charity to reflect as closely as possible the donor’s intention. Courts use cy pres when a donor’s original charitable purpose cannot be exactly fulfilled. When literal compliance is impossible, the general intention of the donor should still be carried out as nearly as possible (cy pres) so that the charitable bequest does not fail.
In our area of expertise, estate and trust litigation, cy pres applications are quite common to determine the proper beneficiary(s) of a subject testamentary bequest. Megan Connolly has blogged on the application of the cy pres doctrine to charitable bequests in Wills. Cy pres has been applied in other areas of the law.
In the context of class action proceedings, settlements increasingly include cy pres orders (as they are often called) where part of the settlement funds are paid to charitable and non-profit organizations, to be applied to activities that may reasonably be expected to benefit class members. In a recent decision approving the settlement of a class action against a financial institution involving alleged unauthorized charges for foreign currency transactions, Justice Cullity reviewed cy pres orders in class action settlements and ultimately made an order for the Law Foundation of Ontario to receive $14.2 million to create a trust fund “for the purpose of advancing public access to justice in Canada”. Justice Cullity noted that access to justice had been used as a ground for certifying the proceeding. Class members and other members of the public would benefit from enhanced access to justice in the future.
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Bianca La Neve
Bianca La Neve – Click here for more information on Bianca La Neve.