Tag: Approval Motion

18 Aug

Lawyer’s Affidavits on Approval Motions: What’s Required?

Hull & Hull LLP Estate Litigation, Guardianship Tags: , , , 0 Comments

The court’s authority to approve settlements of claims that impact the interests of persons under a legal disability, including minors and incapable persons, is well-known.  Rule 7.08 of the Rules of Civil Procedure provides that any settlement of claims made by or against a person under disability is not binding unless approved by a judge.  Implicit in this Rule is that the court is to ensure that a settlement impacting the rights of individuals who cannot legally consent to such a settlement is, in fact, in the best interests of those individuals.

Rule 7.08(4) lists the court material that must be delivered as part of any such motion for court approval and includes, among other items, an affidavit of the lawyer acting for the litigation guardian of the incapable person “setting out the lawyer’s position” vis-à-vis the proposed settlement.  In the recent decision of the Superior Court of Justice in Grier v Grier, the Court grappled with the extent of the lawyer’s obligations in preparing such an affidavit, particularly when questions of privilege are invoked.

In the Grier decision, the parties to the litigation had agreed on terms of settlement.  However, as they were both under a legal disability, the parties brought a motion seeking court approval of the settlement not only on their behalf, but also on behalf of two non-parties whose interests were impacted by the settlement.  One of the non-parties, S, brought a subsequent motion seeking copies of the materials exchanged by the parties in the litigation generally, as well as on the motion for court approval.

The court denied the former on the basis that the non-party was not entitled to service of any court material exchanged by the parties unless otherwise ordered by the court, as she had not filed a Notice of Appearance.  As to the latter, the parties had previously agreed to an order that the two non-parties would be entitled to service of materials relating to settlement.  As such, the court found that S was entitled to service of the materials for the motion for court approval.

However, the main issue before the court related to the adequacy of the materials produced.  The parties had each served the non-parties with incomplete motion materials, including affidavits of counsel for the litigation guardians which had select sections omitted on the basis of privilege.  S, as moving party, sought disclosure of the complete motion materials inclusive of the omissions.

The Court considered the authorities, including the Rivera and Boone decisions, and held that lawyers delivering affidavits pursuant to Rule 7.08(4) ought to be more than capable of doing so without breaching privilege.  The lawyer’s obligation in that respect is to simply provide assurance to the court that they advised their client as competent counsel would and that the settlement is in their client’s best interests.

Should counsel go further than is required under the Rule, then as the judge in Boone pithily held, “that is counsel’s problem.”  If necessary, alternative relief, such as sealing orders, may be considered, but at first instance, it is clear that the court will expect counsel to be able to draft materials in such a way so as to discharge their obligation without butting up against questions of privilege.

Thanks for reading.

Garrett Horrocks

03 Sep

Motions to approve a settlement – Are they brought in writing or in person?

Stuart Clark Estate Litigation Tags: , , , , , , , , , , , 0 Comments

I have previously blogged about the need to have any settlement which affects the interests of a party under a “legal disability”, whether on account of them being a minor or otherwise, to be approved by the court in accordance with rule 7.08 of the Rules of Civil Procedure before the settlement is binding upon the party under a disability. Although rule 7.08 is clear what materials need to be included in any Motion to approve a settlement, with affidavits being required both from the incapable person’s litigation guardian as well as the litigation guardian’s lawyer outlining why they believe the settlement should be approved, what is less clear is the actual procedure by which such a Motion is brought before the court.

There has been some debate recently about whether in Toronto a Motion to approve a settlement should be brought in writing or if they should be brought before a Judge in person. The apparent confusion appears to be caused by what appear to be competing instructions that are contained in the practice direction for the Toronto Region as well as the practice direction for the Estates List, with one appearing to tell you to bring the Motion in writing and the other appearing to tell you to do the opposite.

The general practice direction for the Toronto Region provides the following regarding an approval Motion under rule 7.08:

A motion under Rule 7.08 must be brought in accordance with the Best Practice’s Guidelines and Checklist for rule 7.08 matters.”

The Best Practice’s Guidelines and Checklist in turn provides:

Rule 7.08 requires the approval of a judge for any proposed settlement on behalf of a party under a disability. This is done by way of a motion made in writing or if no action has been commenced, then the approval of a judge is obtained by way of an application. In Toronto, Rule 7 motions and applications are to be filed as in-writing motions through the civil intake office, in the motions department.” [emphasis added]

The checklist appears clear that if you are bringing a motion to approve a settlement in Toronto that it is to be done in writing. As a result, if your matter is subject to the general Toronto practice direction, it would appear fairly clear that your approval Motion must be brought in writing.

Although the general Toronto practice direction appears clear that approval Motions are to be brought in writing, many, if not most, estates matters in Toronto are adjudicated on the specialized Estates List. The general Toronto practice direction notes that it does not apply to matters on the Estates List unless it is specifically mentioned, stating:

This Practice Direction does not apply to motions or applications heard on the Commercial and Bankruptcy Lists, Estates List, or under the Class Proceedings Act, 1992, unless specifically mentioned.” [emphasis added]

There appears to be no reference in the general Toronto practice direction that the “in writing” rule for approval Motions is to apply to matters on the Estates List. As a result, it would appear that such a rule does not apply to matters on the Estates List, and that we are to revert to any direction provided in the Estates List practice direction regarding approval Motions.

The Estates List practice direction provides the following regarding how approval motions are to be brought before the court:

Where the settlement of a proceeding on the Estates List requires court approval, the motion for approval of the settlement and the application for the appointment of a guardian of property should be brought before a judge on the Estates List.” [emphasis added]

There is no reference in the Estates List practice direction to the approval motion having to be brought in writing, with the practice direction simply stating that it has to be brought “before a judge”. Although a technical reading of such a direction may suggest that a matter could be brought “before a judge” in writing, in the absence of any specific bar to bringing the approval Motion before a Judge in person, and as Judges often have questions about a settlement before granting their approval, it would appear that absent any additional direction from the court that approval motions on the Estates List can (and probably should) still be brought before a Judge in person.

The result of all of this appears to suggest that if you are seeking the approval of a settlement in Toronto and your matter is on the general civil list that you have to bring the approval motion in writing. If you matter is on the Estates List however it would appear likely that you can continue to bring your approval Motions in person before a Judge. Matters in jurisdictions outside of Toronto should consult with your local practice direction for any direction regarding how they may want you to bring any approval Motions.

Thank you for reading.

Stuart Clark

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