A motion to transfer an estate matter that was commenced in the Brantford Superior Court of Justice to the Toronto Estates List was recently considered in the Estate of Byung Sun Im, 2018 ONSC 2223.
The procedure to be followed in a Rule 13.1.02 motion to transfer is set out in the Consolidated Provincial Practice Direction (at Part III, B) when the request to transfer pertains to a proceeding in the Central East, Central West, Central South and Toronto Regions. Motions to transfer should be brought, in writing, to the court location which the moving party is seeking to transfer the matter. Therefore, if you are seeking to transfer a matter to the Toronto Estates List, then the written motion should be filed with the Toronto Estates List.
Given that the plaintiff (or applicant) has a prima facie right to select the venue of a proceeding (subject to any applicable statutory requirements), the onus is on the party that seeks a transfer to satisfy the test set out in Rule 13.1.02(2).
In this particular case, the action was predominately based on an estate trustee’s dealings with estate assets. The deceased, the estate trustee, the majority of the beneficiaries, and the main estate assets were located in Toronto. The one person in Brantford was the plaintiff.
However, various interim orders and smaller issues were dealt with in Brantford. Prior proceedings related to this Estate were also decided and disposed of in Brantford. Justice Firestone agreed that the location of the assets had little bearing on how the assets ought to be divided. He also noted that there was an absence of evidence related to the convenience of the witnesses in addition to the convenience and location of the parties themselves. The convenience of counsel is not a basis to order the transfer of a proceeding.
Ultimately, the moving party failed to satisfy the test set out in Rule 13.1.02(2):
“… the court may, on any party’s motion, make an order to transfer the proceeding to a county other than the one where it was commenced, if the court is satisfied,
(a) that it is likely that a fair hearing cannot be held in the county where the proceeding was commenced; or
(b) that a transfer is desirable in the interest of justice, having regard to,
(i) where a substantial part of the events or omissions that gave rise to the claim occurred,
(ii) where a substantial part of the damages were sustained,
(iii) where the subject-matter of the proceeding is or was located,
(iv) any local community’s interest in the subject-matter of the proceeding,
(v) the convenience of the parties, the witnesses and the court,
(vi) whether there are counterclaims, crossclaims, or third or subsequent party claims,
(vii) any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits,
(viii) whether judges and court facilities are available at the other county, and
(ix) any other relevant matter. O. Reg. 14/04, s. 10.”
Thanks for reading! For those of you who are also interested in the Practice Directions for the Toronto Estates List, you may access them here.
Ontario is a jurisdiction where parties are encouraged to settle their legal disputes well before reaching the ultimate hearing of a matter, and as such it is not uncommon for opposing parties to exchange offers to settle throughout the duration of the dispute.
An additional incentive provided for under the Rules of Civil Procedure to settle the matter is what is called a “Rule 49” offer to settle. Generally, it operates by ensuring a costs award that is favourable to a party who:
(i) makes an offer to settle that complies with the specifications of Rule 49; and
(ii) achieves a more favourable result at the hearing than offered under the offer to settle.
An offer to settle under this rule can be served by a plaintiff, defendant, applicant or respondent in an action, application, counterclaim, third party claim, crossclaim or motion. This means that this rule is applicable to motions on discrete issues within a legal dispute and is not limited only to offers made to settle the entire dispute.
In order to be eligible for the benefits provided under Rule 49, the following requirements must be met:
(i) the offer to settle must be made at least 7 days prior to the commencement of the hearing;
(ii) the offer to settle must be fixed, certain and understandable; and
(iii) it cannot be withdrawn or expire before the commencement of the hearing.
In deciding whether or not to make an offer to settle under this rule, it is important to take into account the fact that the court, in exercising its discretion with respect to costs, may take into account any offer to settle made in writing, the date the offer was made and the terms of the offer.
Where a plaintiff or applicant makes an offer under this rule and the judgment is as or more favourable to that party than the offer to settle, the plaintiff or applicant is entitled to the following:
(i) costs on a partial indemnity basis to the date of the offer to settle; and
(ii) costs on a substantial indemnity basis from that date forward.
Where a defendant or respondent makes an offer under this rule and the judgment is as or less favourable to the plaintiff or applicant than the terms of the offer to settle, the following applies:
(i) the plaintiff or applicant is entitled to partial indemnity costs to the date that the offer to settle was served; and
(ii) the defendant or respondent is entitled to partial indemnity costs from that date forward.
In the event that a party that made an offer to settle under this rule wishes to withdraw it, such withdrawal must be clear and unequivocal.
For more information on the manner in which Rule 49 operates, the Ontario Bar Association summarized the general rules and case law related to it here: https://www.oba.org/getattachment/Sections/Civil-Litigation/Resources/Resources/Litigation-Fundamentals-Sunrise-Series/Offers-to-Settle/Rule49OffersToSettle.pdf
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When is it appropriate to bring a motion in the Estates Court without notice? The answer requires consideration of both the statute and common law.
The starting point is Rule 74.15(1) of the Rules of Civil Procedure. Here, a person who has a financial interest in an estate is permitted to seek an order for assistance. Some of the more ‘popular’ orders for assistance include: requiring a person to accept/refuse an appointment as estate trustee; requiring an estate trustee to file with the court a statement of the nature and value of the estate assets at the date of death; and, requiring an estate trustee to pass accounts.
Subject to narrow exceptions, Rule 74.15(2) allows these motion to be made without notice (in latin, ex parte).
Notwithstanding this, the Court has not necessarily embraced ex-parte orders with open arms.
For instance, Corbett J. in Robert Half Canada Inc. v. Jeewan found that, before ordering an ex parte injunction, a party needed to demonstrate some element of ‘extraordinary urgency’.
Moreover, and specifically in relation to estates orders for assistance, Justice DM Brown in Ignagni Estate (Re), noted that orders for assistance are not mere administrative devices, and that the consequences of failing to abide by such an order is significant. He went on to say that, “[m]embers of the Estates Bar may regard the requirement to give notice of a motion for an order for assistance unless “extraordinary urgency” exists as imposing undue costs on the administration of the estate. Against that must be weighed the fundamental principle that a court should not issue an order against a person without affording that person an opportunity to explain the other side of the story. Many estate disputes arise in the context of strained family relationships, or out-and-out family battles. Courts should exercise great caution before granting an order that imposes obligations on one side in a family dispute. Unless some extraordinary urgency exists, prudence and the principles of natural justice require a moving party to give notice of the order requested so that the respondent enjoys the opportunity of placing the rest of the story before the court.”
Given this, although permissible, parties who intend to seek orders for assistance without notice, must ensure there is ‘extraordinary urgency’ in doing so.
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When someone composes an obituary for a loved one who has passed away, carefully selecting the photograph to go along with it, one would suppose that the last thing on their mind is the copyright they may hold in that obituary and photograph. Of course, few people expect that an obituary could be the subject of republication or possible copyright infringement.
However, one website has been reproducing obituaries in their “database of deceased people”, leading to questions about ownership of the obituaries themselves, as well as the photographs accompanying them. The website reproduces obituaries and photographs, apparently without permission from the individuals who originally created and posted the obituaries. As reported in this Global News article, one family even states that an obituary for their loved one, which had not been written by their family and contained a number of errors, was posted on the website less than a day after their loved one passed away. The family did not know who wrote the obituary, although the website released a statement that all of the obituaries they re-post are already on the internet.
A recent article in The Lawyer’s Daily discusses an application for certification of a class action copyright claim against this obituary database website. The application claims that the website is infringing copyright and moral rights in respect of the obituaries and photographs. The moral rights claim relates to the website’s monetization of the obituaries by offering options to purchase flowers, gifts, or virtual candles, through affiliate retailers. Some funeral homes offer a similar service, but the article notes that the unsavoury nature of the website’s business model, which consists of “scraping” obituaries from elsewhere on the internet, without permission or notice, and making money by doing so through advertisements or the selling of flowers or virtual candles, could provide some support for the moral rights claim.
In relation to the copyright infringement claims, there may be some obstacles to overcome, particularly in relation to ownership of the copyright. According to The Lawyer’s Daily article, under the Copyright Act, R.S.C., 1985, c. C-42, the person claiming a copyright infringement must be the owner, assignee or exclusive licensee of the work in question. An assignment of copyright must be in writing. As mentioned in the article, this could create an issue if the photograph used in the obituary was taken, for instance, by a stranger.
Damages in the event of liability are also uncertain. In a recent case with similar facts, where the defendants were found to have infringed on the plaintiff’s copyright, the court awarded statutory damages of only $2.00 per image because the cost of capturing the images in that case was low. However, given the emotional aspect of obituaries, it is possible that the facts in this case could lead to a larger damages award.
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Aside from the seminal yet apparently unreported decision of The State of New York v. Kris Kringle, which was dramatized in Miracle on 34th Street, there have been numerous other mentions of Santa Claus in judicial decisions. In honour of the season, I take this opportunity to note the following:
- In Frasko v. Saturn 121, Inc. et al, which the judge described as “a novel application”, the plaintiff sued 115 shell corporations. (The plaintiff was said to be in the business of buying and selling shelf companies.) The plaintiff noted the 115 defendants in default, and moved for default judgment. In support of the noting in default, the plaintiff filed a 100 page affidavit of service. In it, as stated by the judge, the plaintiff claimed to have served or attempted to personally serve the 115 corporate defendants at a wide variety of locations throughout Ontario in only three days, plus 10 other corporate defendants in another proceeding. The judge questioned the accuracy of the affidavit of service, stating: “While Santa Claus has perfected the art of visiting millions of homes in a single night, [the plaintiff’s] affidavit of service makes no claim to have enlisted such assistance in effecting such a miracle of personal service.”
- In Royal Bank v. Edna Granite & Marble Inc, the defendants argued that they had not made payments on a loan for a number of years, and thus the claim was statute-barred. Payments were, however, made by the guarantors of the loan. The bank argued that it did not matter who made the payments: whether they were made “by the borrower, by the Guarantors, or by Santa Claus”. The court accepted this argument.
- In v. Liu, referred to in R. v. Sipes at para. 718, the accused was charged with first-degree murder. Upon his arrest, scratches were observed on his neck and chest. Expert evidence established that the scratches were consistent with ancient Chinese medical treatment. For some reason, the accused sent one of the investigating officers a Christmas card depicting Santa Claus with scratches on his back, being looked at incredulously by Mrs. Claus. The front of the card read “I swear, Honey – I scratched it going down a chimney. Inside the card read “Sometimes, even Mrs. Claus has a hard time believing in Santa.” There, the Crown was unsuccessful in adducing the card as evidence at trial, as its probative value was “tenuous”, yet the potential prejudice was high.
- In v. M.J.O., the judge had difficulty believing the accused’s evidence. “I have read the Mr. M.J.O.’s statement on several occasions. I cannot imaging circumstances that would lead me to believe it. To believe that version of events, in the face of the objective evidence, I would have to believe in Santa Claus and the tooth—fairy.”
There are many other reported reference to Santa Claus on CanLII. Many of them are in sad or disturbing contexts, and are not appropriate for a Friday, pre-Christmas blog.
We have previously blogged on Fraudulent Conveyance. This cause of action can, on occasion, be met with a defence that the conveyance of property was in furtherance of an estate plan and, therefore, without fraudulent intent. As with most cases, the specific facts of the case will determine whether the defence can succeed.
In Bank of Montreal v. Real Marleau, the Saskatchewan Court of Queen’s Bench was prepared to entertain the notion that the defendant’s assertion might actually be true, but nonetheless, determined that the conveyance ought to be aside.
The estate planning defence was considered and again rejected in Re Whetstone, 1984 CarswellOnt 157. In this case, the estate planning defence relied on evidence from the family’s solicitor. The court noted, at paragraph 28,
“In the circumstances, it is not material that the family’s solicitor recommended the conveyance based on general principles and not on actual knowledge of the company’s financial position; the intent we are concerned with is not that of the family’s solicitor, but of [the defendant].”
Lastly, in an unreported decision of the Ontario Superior Court of Justice, RBC v. Nicolau, the defence was considered but not accepted:
“In this case, Mr. Nicolau testified that the transfer was for estate planning purposes. He submits that there was therefore no fraudulent intent.
RBC referred the Court to jurisprudence in which the estate planning defence was raised. I agree with the submissions of RBC that this defence must fail. While the transfer may have also satisfied Mr. Nicolau’s estate planning goals, this explanation is not, in my view, sufficient to displace the inference of fraudulent intent given the timing of this estate planning and the presence of the badges of fraud. Accordingly, I find that the April 16, 2012 conveyance of 1 Lister Drive to Gabriel Nicolau was fraudulent, and the provisions of the Act are therefore applicable.”
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I was able to attend a recent CPD program by the Advocate’s Society titled “Supreme Court of Canada Advocacy.”
A powerful keynote address was presented by the Honourable Madam Justice Suzanne Côté of the Supreme Court of Canada. Justice Côté’s remarks included an inside look at what lies behind the Supreme Court of Canada’s “big mahogany doors,” as she so eloquently phrased it. The Honourable Marshall Rothstein, Q.C., then spoke about the unwritten rules to getting leave to appeal.
Debate was had over the need for a script. Most panelists supported coming prepared with a script but cautioned against being married to it. When it comes to answering questions, advocates should see this as an opportunity to get off their script and engage in a dialogue with the bench. As Justice Côté points out, an oral argument is not supposed to be a monolog.
After discussion on the power of oral advocacy, the discussion shifted to the importance of the written argument. Although the factum is a critical component of any appeal, parties are under no obligation to reach the maximum page length. It was suggested that some of the most successful arguments can be made in 25 pages or less.
In addition to the factum, the Condensed Book can be a vital tool for advocates appearing before the Supreme Court. Under the Supreme Court rules, the Condensed Book may contain a two page outline of the oral argument. Preparing the this two page outlines forces advocates to truly narrow down their key points.
The panelists also spoke about the important role interveners can have in a case. Within the confines of a 10 page factum, and 5 minutes of oral argument, an intervenor can illustrate why a matter is of public interest, and provide supplemental answers to questions posed to the parties by the Justices. Interveners can play a critical role, and should not be overlooked.
Finally, the panel highlighted the power of a moot. Practice moots are one of the most valuable tools an advocate can use to prepare their case. The Supreme Court Advocacy Institute offers moot sessions where participants have the opportunity to moot their case before a panel of experienced litigators and retired justices.
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Litigation surrounding the estate of a deceased person can be protracted and emotional for the parties involved. Unfortunately, given the high costs of litigation, it can also be incredibly costly and onerous for the parties to litigate their dispute all the way to a trial.
Rule 20 of the Rules of Civil Procedure offers one procedural mechanism by which a party can bring an expeditious end to a litigation matter. Pursuant to Rule 20.04, the Court shall grant summary judgment where it is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence, or the parties have agreed to have all or part of the claim determined by a summary judgment and the Court is satisfied that it is appropriate to grant same.
Rule 20 was amended in 2010 in order to improve access to justice, providing the Court with broader evidentiary powers on a motion for summary judgment. However, as demonstrated by a recent decision, the Court may still conclude that it is not appropriate to grant summary judgment in view of the litigation as a whole.
The Facts in Bazinet v CompuCom Canada Co., e al.
In Bazinet v CompuCom Canada Co., et al., 2017 ONSC 5194, Robert (the “Deceased”) died without a Will. There was a dispute over life insurance proceeds that were available to the Deceased as part of an employee benefits package. The parties had not produced a designation form naming a beneficiary to the insurance proceeds.
The plaintiff, the Deceased’s common-law spouse, claimed that she was entitled to the life insurance proceeds. She asserted that she had witnessed the Deceased signing a beneficiary designation in her favour, and that the Deceased had confirmed that she was the beneficiary of the policy after their separation. The plaintiff’s claim sought declaratory relief against all of the defendants, punitive damages and general damages against the Deceased’s employer CompuCom Canada Co. (“CompuCom”).
The Deceased’s Estate Trustees denied the plaintiff’s claims and advanced a counterclaim on behalf of the Estate, seeking a declaration that there was no designated beneficiary and that the proceeds were thus payable to the Estate. As the plaintiff was the Deceased’s common-law spouse, she was not entitled to a share of the Deceased’s Estate on an intestacy.
The Estate Trustees moved for summary judgment, seeking an order dismissing the plaintiff’s claims against the Estate and granting the declaratory relief sought on their counterclaim. The plaintiff, in turn, requested that partial summary judgment be granted in her favour.
Justice Corthorn’s Decision
In response to the motion for summary judgment, CompuCom argued that the matter was not an appropriate case for summary judgment in the context of the litigation as a whole. CompuCom asserted that findings of credibility were necessary for the determination of the issues, that summary judgment would not be dispositive of the entire proceeding and that a trial was required for the fair and efficient determination of all of the issues.
Justice Corthorn agreed with CompuCom’s position, concluding that summary judgment would not dispose of the entire action, including the plaintiff’s claim for monetary damages. Justice Corthorn also held that there was a risk of duplicative proceedings and inconsistent findings.
Given the nature of the plaintiff’s claims, Justice Corthorn held that a majority of the claims would remain to be determined at trial even if summary judgment was granted in the Estate Trustees’ or the plaintiff’s favour. Justice Corthorn also noted that she was not confident that it would be possible to assess credibility and reliability without the benefit of a trial, with the risk that the trial judge would make different findings of credibility and fact or reach inconsistent conclusions upon hearing the oral evidence of the affiants.
Accordingly, the motion for summary judgment was dismissed. The Court also refused to grant the relief that the plaintiff was seeking in response to the motion.
Proceeding With Caution
Justice Corthorn’s recent decision reiterates the importance of carefully considering whether a motion for summary judgment is appropriate before proceeding. If unsuccessful, the parties incur the cost of an interim motion in addition to the costs of a trial.
In addition, motions for summary judgment can have significant cost consequences. Rule 20.06 of the Rules of Civil Procedure provides the Court with the ability to order payment of costs of motion for summary judgment on a substantial indemnity basis if a party acted unreasonably by making or responding to the motion or acted in bad faith for the purpose of delay.
Thank you for reading,
Umair Abdul Qadir
The commencement of litigation requires a Plaintiff to have standing to sue; and Probate (or a Certificate of Appointment of Estate Trustee With (or Without) a Will) is required if an Estate Trustee wishes to obtain Judgment against a Defendant.
While an action can technically be commenced without probate (see the remedial provisions of Rule 9 of the Rules of Civil Procedure discussed below), the Court will not grant Judgment in favour of an Estate unless the Estate Trustee has been granted authority to administer the Estate.
The rationale for this requirement is nicely explained by Professor Oosterhoof (in Oosterhoof on Wills and Succession Chapter 2):
The grant of probate is only evidence (really, the only evidence) which a court will recognize that a person has authority to administer the assets of the deceased. For this reason, while an executor can do many acts of office before obtaining a grant he or she cannot obtain judgment before that time, although he or she can commence an action. Similarly, no action can be maintained against a named executor unless he or she has obtained a grant of probate.
This position was supported by the Ontario Court of Appeal in Re Eurig Estate (appealed on other grounds to the Supreme Court of Canada) where Morden A.C.J.O. stated:
Further, apart from the general legal duty to administer the estate promptly and efficiently, which almost invariably requires the executor to obtain probate, the law imposes the requirement that an executor must have probate to prove his or her title when an estate matter is before the court. Letters probate are the only evidence of an executor’s title which a court will receive (see Hull and Hull, Macdonnell, Sheard and Hull, Probate Practice, 4th ed. (1996) at pp.185 and 188), even in a case where the defendant is willing to concede that the executor has title without evidence of probate: Re Crowhurst Park; Sims-Hilditch v. Simmons,  1 W.L.R. 583 (Ch), (at p. 792)
Moreover, the Estates Act ensures the estate trustees named in a Certificate of Appointment of Estate Trustee have sole authority in respect of the estate:
- After a grant of administration, no person, other than the administrator or executor, has power to sue or prosecute any action or otherwise act as executor of the deceased as to the property comprised in or affected by such grant of administration until such administration has been recalled or revoked.
In the event that the Certificate of Appointment of Estate Trustee is obtained subsequent to the commencement of the Action, the Rules of Civil Procedure, contain a remedial provision:
9.03 (1) Where a proceeding is commenced by or against a person as executor or administrator before a grant of probate or administration has been made and the person subsequently receives a grant of probate or administration, the proceeding shall be deemed to have been properly constituted from its commencement.
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Today on Hull on Estates, Natalia Angelini and Umair Abdul Qadir discuss Justice Myer’s recent decision in Mayer v Rubin, 2017 ONSC 3498, regarding the Court’s discretion to appoint an Estate Trustee During Litigation.