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.
Thank you for reading.
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.”
Thank you for reading!
This week on Hull on Estates, Paul Trudelle and Noah Weisberg discuss the recent Ontario Superior Court of Justice decision of Keller v. Wilson, 2015 ONSC 6962, pertaining to applications for directions by Attorneys and passing of Attorney accounts pursuant to the Substitute Decisions Act.
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.
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.
Thanks for reading and for listening!
In estates matters, geography can become a challenge. The Estates Act provides at section 7 that an application for a certificate of appointment of estate trustee with respect to the will of a person resident in Ontario shall be filed in the court office for the county or district in which the deceased had “a fixed place of abode” at the time of death.
Sometimes, the deceased’s last place of residence is inconvenient for the parties to proceedings involving the estate and their lawyers. The deceased may have retired to a small town or a rural setting that is far away from Bay Street in Toronto. This can mean additional travel time, added cost, and other logistical issues in any legal proceedings relating to the estate.
In Re Pearsall Estate, the deceased had lived in Leamington at the time of her death. One of the deceased’s daughters sought to bring an application to compel another daughter to pass her accounts for her dealings with the deceased’s property as attorney for property and as estate trustee. The applicant encountered difficulty with the Toronto Region Estate Office, who argued that the notice of application should be filed in the court responsible for Leamington.
The matter was referred to Justice D. M. Brown, as he then was. He directed the Estates Office to issue the application.
Justice Brown’s decision looked to the Trustee Act, which had once required that an application to pass accounts by an estate trustee must be filed in the office of the surrogate court by which probate of the will was granted. However, this provision was amended in 1990 and no longer contains this requirement. Similarly, Justice Brown held that a guardian of property may commence an application to pass accounts in a county different from the one in which the guardianship proceedings took place. The result is that generally, aside from an application for a certificate of appointment, most estates proceedings can be brought in any region in Ontario.
The rules are different for motions. When considering a motion within an existing application, the motion should be heard in the county where the application is taking place.
If a proceeding is already taking place, rule 13.1.02 of the Rules of Civil Procedure sets out the criteria and the process for bringing a motion to transfer the proceeding to another region.
The rules about where to start various kinds of estates proceedings can be somewhat tricky. The Pearsall case, together with the relevant statutory provisions and the Rules of Civil Procedure, do allow for some flexibility.
We have blogged previously on section 35 of Ontario’s Trustee Act, which relieves a trustee who has committed a technical breach of trust but has otherwise acted honestly and reasonably. This provision may not be available to a trustee who, confronted with an ambiguous situation, fails to seek the advice and direction of the court, as is the trustee’s right under section 60(1) of the Trustee Act. Section 60(1) states:
60. (1) A trustee, guardian or personal representative may, without the institution of an action, apply to the Superior Court of Justice for the opinion, advice or direction of the court on any question respecting the management or administration of the trust property or the assets of a ward or a testator or intestate.
Justice Cullity describes the applicable principles in Merry Estate v. Plaxton, 2002 CanLII 32496 (ON S.C.) at paragraph 35:
" On the question of costs, I am satisfied that no criticism can properly be directed at Mr. Meredith for bringing this application. Section 60 of the Act entitles trustees to seek the opinion, advice and direction of the court with respect to the administration of a trust and, in cases where significant doubt exists as to the scope of their powers and responsibilities, they may not be protected under section 35 if they fail to do this. Although such applications must not be made frivolously – and not merely to relieve applicants from making decisions that are part of their responsibilities under the terms of the trust – they are entitled to have their costs paid out of the trust property if, in the opinion of the court, the application was properly brought. I believe this is such a case."
Merry Estate v. Plaxton also contains a discussion of a trustee’s right of indemnity with respect to costs properly incurred, and the relationship between this right of indemnity and litigation cost awards for trustees from trusts. In that application for the court’s advice, the trustee Mr. Meredith was awarded full indemnity for his legal expenses in bringing the application.
Have a great day,
Chris M. Graham – Click here for more information on Chris Graham.
I recently read an article composed by The Children’s Lawyer, Debra Stephens, named Minor Settlements: How to Ensure Court Approval. I found this article to be particularly helpful as the article speaks to the role of The Children’s Lawyer in litigious matters and explains the common issues that arise during settlements involving minors.
Fundamentally, it is important to understand the role of The Children’s Lawyer with respect to their involvement in settlements concerning minors, which Ms. Stephens describes as: “The Children’s Lawyer is not a party to the proceeding and is not in an adversarial role with any of the parties. Rather, The Children’s Lawyer acts as an advisor to the court, making recommendations to assist the judge in determining whether to approve the proposed settlement”.
In her article, Ms. Stephens talks about a few issues that commonly arise during settlements involving minors. One of those issues that Ms. Stephens touches on is legal fees. Ms. Stephens states that legal fees are an important factor in determining whether to approve a settlement on behalf of a minor. Factors that are relied on when considering the reasonableness of a solicitor’s account are set out in the Court of Appeal decision Cohen v. Kealey and Blaney and include:
1. time spent;
2. legal complexity;
3. degree of responsibility assumed by the lawyers;
4. monetary value of the matter in issue;
5. the importance of the matters to the client;
6. degree of skill of the lawyers, results achieved;
7. ability of the client to pay; and
8. expectation of the client with respect to the fee.
Also, another factor not mentioned in the case above is ensuring that access to justice is obtained for parties under a disability. I found Ms. Stephens’ article to be particularly useful in my practice and I would certainly recommend it to any practitioner who ordinarily runs into issues involving The Children’s Lawyer.
Thank you for reading.
Rick Bickhram – Click here for more information on Rick Bickhram.
I have learned that only a small percentage of applications for certificate of appointment of an estate trustee, filed in Toronto, are approved without being sent back for correction.
Some common problems associated with these types of applications are, incorrect or inconsistent references to the deceased’s name, problems concerning the mailing of the application to beneficiaries who have an interest in the subject estate, incorrect calculations of estate administration tax and in cases involving holographic wills, a missing affidavit attesting to the handwriting of the deceased. Needless to mention, most of these errors can be avoided if the application is carefully reviewed.
But what happens if the deceased’s name is spelled incorrectly in the Will? If there is an error in the deceased’s name in the Will, the heading on all of the documents should reflect the correct name, followed by a statement stating "incorrectly referred to in the Will as (insert the name is it appears in the Will). It is also important to remember, that the names of beneficiaries shown in the notice of application must be identical to the way in which their names appear in the Will.
Thanks for reading,
As this is the beginning of the week, I would like to take this opportunity to visit two of the rules from the Rules of Civil Procedure, which are frequently used by estate litigators.
Rule 14.05(3)(a) states that "a proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is, the opinion, advice or direction of the court on a question affecting the rights of a person in respect of the administration of the estate of a deceased person or the execution of a trust". In contrast, Rule 75.06(1) states that "any person who appears to have a financial interest in an estate may apply for directions … as to the procedure for bringing any matter before the court".
It is clear from the language of these rules that an Applicant may use either rule to apply for directions from the court. The difference between the two rules lies in the relief that the Applicant seeks.
Rule 14.05(3)(a) is a substantive remedy that addresses the rights of a person with respect to the administration of an estate or the execution of a trust. Therefore an Applicant who relies on Rule 14.05(3)(a), is asking the court to make a determination of his or her rights in the context of an estate. For example, whether or not an Applicant has an interest under the deceased’s Last Will and Testament.
Rule 75.06(1) is a procedural remedy. In essence, Rule 75.06(1) provides the road-map for "any matter before the court". Therefore an Applicant who utilizes Rule 75.06(1) may seek a court order that permits the disclosure of relevant documents to their matter and establish time-lines for the completion of a specific phase in their court proceeding. For example, the court may decide that mediation should be completed within 90 days and as such, include a mediation clause in a court order.
In summary, both rules can may be used to apply to the court for direction, however with Rule 14.05 (3)(a), the Applicant is asking the court for a specific answer to a question affecting his or her rights, whereas with Rule 75.06(1), the Applicant is requesting that the court provide them with a guideline to their court proceeding.
Have a Great Day!
Listen to Experts in Estate Matters.
This week on Hull on Estates, Craig Vander Zee and Sarah Fitzpatrick discuss expert evidence in estate matters. In this episode they outline circumstances when one should use expert evidence, different types of experts, timing of reports, limitations of experts and the court appointed expert.