Tag: mandatory mediation
In the estates regime, mediations occur regularly, particularly in Toronto, where mediations are a mandatory part of the litigation, in accordance with Rule 75.1.02(1)(a)(i) of the Rules of Civil Procedure.
A mediation is always an opportunity to attempt to settle a matter without resorting to costly and time consuming litigation. At mediation, the parties will each stay in separate rooms and the mediator (that is usually chosen by the parties to the litigation), will shuttle between the rooms seeking a more in-depth understanding of the parties’ positions as well as probing opportunities for settlement. Sometimes, before the mediation begins, the mediator will do an introduction to all the parties before they break off into separate rooms, explaining how the day will go.
An important aspect of mediation is the fact that a mediator has no decision-making power. He or she cannot force the parties to settle but can provide his or her opinion on the issues. As such, settlement at mediation can only be reached upon the agreement of the parties themselves.
Another means of dispute resolution (other than litigation) that is not often resorted to in estate litigation, is arbitration. Before agreeing to attend an arbitration, however, it is important to consider whether this form of dispute resolution would be helpful in the particular circumstances of the matter.
Arbitration, unlike mediation, is an adversarial dispute resolution process (similar to litigation) determined and controlled by a neutral third party. The arbitrator can make a final decision, called an “award”, contrary to a mediator, who cannot. The most significant aspect of arbitration, however, is that the courts generally do not interfere in a dispute that is subject to an arbitration agreement. As such, there is a risk that should a decision be made by an arbitrator, the court would then refuse to hear the matter further, leaving arbitration as the ultimate medium of resolving the particular matter.
Why is that so important?
In a situation where the parties have already engaged in settlement negotiations and there appears to be a gap between their respective positions, an arbitration may be worthwhile to pursue, particularly should litigation be untenable to the parties given the cost involved and/or if the matter in dispute does not involve a lot of money. In such a situation, a final arbitral award may bring finality and allow the parties to move on, particularly if the gap between the parties’ positions is not significant.
If, however, the parties had not yet engaged in negotiations and no offers to settle were made, pursuing arbitration may be a serious gamble. That is so because the issues to be arbitrated are set out by the parties and though the arbitration process is similar to traditional litigation, the arbitrator will not have an opportunity to hear all the relevant evidence. As a result, agreeing to arbitrate in a situation like that may cause prejudice to a client who may then not be able to appeal the “award” made by an arbitrator, outside of the regime put in place by the Arbitration Act, 1991, SO 1991, c 17.
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This week on Hull on Estates, Natalia Angelini and Umair Abdul Qadir discuss the new Rule 75.2 of the Rules of Civil Procedure. Rule 75.2 provides the Court with the authority to order a mediation in certain estate litigation matters even when mandatory mediation under Rule 75.1 does not apply, and came into force on January 1, 2016.
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As discussed in yesterday’s post, a new regulation has been filed that provides for changes to the Rules of Civil Procedure, affecting, among other things, the practice on Applications for Certificates of Appointment of Estate Trustee and mandatory mediation of estates matters. The changes will also affect Applications to Pass Accounts when most of the operative provisions in the new regulation come into effect on January 1, 2016.
One of the amendments clarifies the rules for service where there is a person under disability with an interest in the estate, who is represented by an attorney for property or guardian of property. The Rules will clarify that an attorney or guardian will need to be served with the application materials.
Another change relates to timing of objections. A Notice of Objection to Accounts will need to be served and filed with proof of service at least 35 days before the hearing date specified in the notice of application. The current requirement is 30 days before the hearing date.
A new form has been introduced that can be filed in response to an Application to Pass Accounts – a Request for Further Notice in Passing of Accounts (Form 74.45.1). This Request entitles the person who files it, unless the Court orders otherwise, to receive notice of any further steps, to receive copies of any further documents, and to file materials relating to costs. In the event of a hearing, it also entitles the person filing it to be heard, to examine witnesses, and to cross-examine on affidavits, but only with respect to a request for increased costs.
The procedure for seeking costs on an Application to Pass Accounts has changed as well. This procedure was revised only a few years ago and the new revisions clarify and streamline the procedure further. Filing requirements and timing are set to change as of January 2016, so care will have to be taken to ensure that the correct procedures are being followed.
New subrules to be introduced under Rule 74.18 will set out the Court’s authority to order a trial and to provide directions with respect to its conduct at the hearing of an Application to Pass Accounts. The Court can also order a mediation under the new Rule 75.2, even in places where mandatory mediation under Rule 75.1 does not apply.
As January approaches, it’s important to be mindful of these changes in the Rules.
A new regulation, O. Reg. 193/15, was filed on July 9, 2015 under the Courts of Justice Act. The new regulation affects the Rules of Civil Procedure and the existing estates rules in particular (74, 75, and 75.1). The regulation also introduces a new Rule 75.2 Court-Ordered Estates Mediation. There are some changes that come into effect sooner, but most of the important changes that affect estates matters come into effect on January 1, 2016.
One of the major changes pertains to the rules for mediation in estates matters. At present, mediation in estates matters is mandatory in Toronto, Ottawa, and Essex County, unless waived by a judge, under the terms of Rule 75.1. In other parts of the province, mediation is not required, but remains a useful and often successful process in resolving estate disputes. The new regulation sets out that the Court has power to direct the parties to attend mediation in an Order Giving Directions under Rule 75.06 or on a contested Application to Pass Accounts under Rule 74.18, even where mediation is not mandatory under Rule 75.1. Court-ordered mediation in estates matters will be governed by a brand new Rule 75.2.
Also being introduced is Rule 74.14.1. This Rule allows a person to make a written request to the registrar for authentication of a Certificate of Appointment that has been issued. The registrar will issue a “certificate of grant” for use within Canada and an “exemplification certificate” signed by a judge if the authentication is intended to be used outside of Canada.
Rule 74.14.2 is brand new as well. This rule addresses difficulties associated with confirming the authority of an estate trustee where there has been a change due to the death of an estate trustee named in the will (whether the sole surviving executor or not) or due to removal of an estate trustee by the Court. It can also be used when there has been no change of estate trustees. By making a written request to the registrar and upon filing the necessary documents, a court status certificate can be obtained which confirms the authority of the estate trustees.
The regulation makes a series of other changes to the Rules of Civil Procedure as well, including procedural changes on Applications to Pass Accounts and a number of new forms when applying for a Certificate of Appointment. Some of the new forms are already in effect. The bulk of the changes will be effective in the new year.