Tag: Ontario Rules of Civil Procedure
A Certificate of Pending Litigation is common in estate litigation, where claims often involve an interest in land.
In order to obtain a Certificate of Pending Litigation (“CPL”), the moving party must demonstrate a triable issue as to whether the party has a reasonable claim to an interest in the land. The threshold is a low one: the moving party does not have to show that they are likely to succeed. See Natalia Angelini’s blog on CPLs, here.
Rule 42.01(3) of the Rules of Civil Procedure provides that a motion for an Order granting a CPL may be made without notice. Having said that, the question becomes should the motion be brought without notice. The recent decision of Justice Myers in Moses v. Metro Hardware and Maintenance Inc., 2020 ONSC 6684 (CanLII) suggests that parties should strongly consider bringing the motion on notice.
There, the plaintiffs moved for and obtained a CPL without notice. The defendants moved to set it aside. They were successful.
In setting aside the CPL, Myers J. found that the plaintiffs failed to make full and fair disclosure of all material facts, did not identify any of the defendants’ likely responses, and relied improperly on inadmissible evidence.
Myers J. observed that the plaintiffs did not need to bring the motion without notice. There was no urgency. However, by proceeding without notice, the plaintiffs voluntarily and knowingly undertook the extra obligation to make full and fair disclosure of facts and law to the court. Myers J. referred to Rule 39.01(6), which provides that “Where a motion or application is made without notice, the moving party or applicant shall make full and fair disclosure of all material facts, and failure to do so is in itself sufficient ground for setting aside any order obtained on the motion or application.”
Myers J. noted that ex parte motions are an exception to the adversarial system and require special considerations. “The regular zeal that is perfectly appropriate in the face of an equally zealous adversary does not apply when a party chooses to go before a judicial officer without anyone else present to keep his or her zealousness in check.” The duty to make full and fair disclosure replaces the checks and balances of the adversarial system. As another judge observed, “There is no situation more fraught with potential injustice and abuse of the Court’s powers than an application for an ex parte injunction.”
In concluding, Myers J. stated:
I wish to be clear as well that I am not undermining in the least the law that accepts that moving without notice for a CPL is the norm. However, parties must be mindful of the nature of the enhanced and exacting duties that they undertake when they decide to do so. Sometimes, in face of true urgency, one has no practical alternative. However, parties often do have a choice as to whether they truly need to proceed ex parte. If they do not really need to do so, they may wish to consider whether it is worth the risk.
The test for a CPL is not a difficult test to meet. A plaintiff starts from the position of an aggrieved party seeking the court’s protection. That is a favourable strategic position to occupy. However, on a motion to set aside an order obtained without notice due to a breach of the duties to make full and fair disclosure, the plaintiff is no longer seen as the aggrieved party facing a light test. Rather, it becomes the alleged wrongdoer facing a very high standard of performance. While it may be tempting to move without notice to obtain an order without opposition, in my view, it is a questionable strategy to voluntarily undertake the exacting duties of full disclosure and fair disclosure where it is not absolutely necessary to do so.
The consideration of whether to bring a motion without notice applies to other types of motions in addition to motions for CPLs. For example, Orders for Assistance under rule 74.15 can be made without notice. However, the court has cautioned that just because you can, doesn’t mean you should. See our blog on these types of motions, here.
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Like many institutions, Ontario’s justice system was directly impacted by the COVID-19 pandemic. Although the courts did not close, they were required to accommodate the public health measures taken to combat the pandemic. Beginning in March 2020, the Ministry of the Attorney General (the “Ministry”) and the Superior Court of Justice (the “Court”) moved diligently to adopt and normalize the use of technology including video and teleconferencing for hearings, electronic signatures, and online platforms for document sharing.
On November 30, 2020, the Attorney General for Ontario announced amendments to the Rules of Civil Procedure (the “Rules”) to solidify these changes effective January 1, 2021. This significant step toward modernization has been met with great enthusiasm from many legal professionals and advisory bodies who view the changes as long-overdue. The amendments to the Rules will ensure continued access to the courts, and enable legal professionals to serve their clients with greater efficiency and cost-effectiveness.
I have summarized several noteworthy changes to the Rules below:
Virtual Hearings are Here to Stay…
Given that between March and September 2020, the Court had heard over 50,000 hearings virtually, it should come as no surprise that the Ministry has opted to make virtual hearings a permanent option for litigants.
Rules 1.08 and 1.08.1 are revoked and replaced with Rule 1.08, which requires a party seeking a hearing or step to specify the method of attendance: in person; by telephone conference; or by video conference. This rule does not apply to proceedings at the Ontario Court of Appeal, or in respect of case conferences (which are to be held by teleconference unless the Court specifies an alternative method). The new Rule 1.08 also applies to the rules for mandatory mediations and for oral examinations, with necessary modifications.
If a party objects to the proposed method of attendance, they must do so before the earlier of 10 days or seven days before the hearing. The objection will be dealt with via case conference. When hearing an objection, the Court must consider various factors such as :
- the availability of telephone conference or video conference facilities;
- the general principle that evidence and argument should be presented orally in open court;
- the effect of telephone or video conferencing on the Court’s ability to establish the credibility and observe the demeanor of witnesses; and
- the balance of convenience between parties for and opposed to a remote attendance.
Rule 57.01(1) of the Rules is amended to allow the Court to consider whether a party unreasonably objected to proceeding by telephone or video conference under Rule 1.08 in determining costs.
Furthermore, the Rules no longer assume that hearings will be heard in the county where the proceeding was commenced (Rules 37.15(1), 38.11(2)(b), 60.17(b), and 62.01(6)) or that parties will participate in person (Rules 37.03, 38.03(1.1), 50.05(1), 50.13(2), 54.05(2), and 76.05(2)).
… As is the Virtual Commissioning of Affidavits
Effective August 1, 2020, section 9 of the Commissioners for Taking Affidavits Act was amended to permit virtual and remote commissioning of affidavits. What was initially enacted as a temporary measure has now become permanent, and Rule 4.06(1)(e) is amended to permit virtual commissioning.
Fare Thee Well, Fax Machine – Service by Email is the New Normal
References to the service and delivery of documents by fax have been struck from Rules 16, 37, and 38. Rule 51.01(c) is also amended to strike the reference to service by telegram – yes, you read that correctly. Rule 16.01(4)(b)(iv) and Rule 16.05(1)(f) are amended to permit the service of documents by email without the consent of the other party/parties or obtaining a court order. Rule 16.09(6), which required a certificate of service to prove service by email, is revoked.
Use of Electronic Signatures
A new rule, Rule 4.01.1, provides that documents that may or must be signed by the court, a registrar, a judge, or an officer under the Rules may be signed with an electronic signature.
Official Guidelines for Using CaseLines
We previously blogged about the Ministry ’s adoption of CaseLines, a cloud-based document sharing and storage e-hearing platform for remote and in person court proceedings.
The new Rule 4.05.3 outlines the requirements for using CaseLines, the deadlines for filing documents through CaseLines, and formatting requirements for documents submitted through CaseLines. Any part who submits a document through CaseLines is required to retain the original document until the 30th day after the expiry of the period for an appeal in the proceeding. On request of the court, registrar, or another party, the party must make the original document available for inspection within five days of such a request.
Inconsistencies between the information provided in a document in the court file and the information provided in a document through CaseLines will be resolved in favour of the information in the court file. Furthermore, submitting a document through CaseLines does not amount to filing or service of that document.
Rule 4.01 is revoked and substituted with a new Rule 4.01 that specifies document standards for filing in both paper and electronic formats.
Rule 4.05.3(7) requires that documents submitted to CaseLines be in PDF format and include bookmarks and section headings where appropriate. References to authorities must be hyperlinked to websites they can be viewed free of charge (i.e. CanLII, e-Laws, etc.). If the authority is not publicly available, the relevant excerpt from the cited authority must be included in the document.
Thank you for reading.
This week on Hull on Estates, Paul Trudelle and Nick Esterbauer review upcoming changes to the Rules of Civil Procedure as set out in O. Reg. 689/20, effective January 1, 2021.
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.
A testator appointed you as Estate Trustee of an Estate and a beneficiary filed a Notice of Objection to your appointment. What to do?
Typically, a Notice of Objection to an appointment of an Estate Trustee means that their authority is challenged such that before the administration of the Estate can be addressed, the Notice of Objection must be resolved, first and foremost.
Whereas in the case of a Notice of Objection, the party having filed it, is likely to commence a court proceeding to substantiate his or her claims, that is not always the case. As such, there are a couple of things that an Estate Trustee can do to force the Objector to move forward, in order to ultimately address the resolution of the objection.
- File a Notice to Objector
In accordance with Rule 75.03(4), an Estate Trustee can serve a Notice to Objector and file it with proof of service with the Court.
If the Objector does not serve and file a Notice of Appearance within 20 days of being served with a Notice to Objector, the Estate Trustee’s Application for a Certificate of Appointment is to proceed as if the Notice of Objection had not been filed.
If a Notice of Appearance is served on the Estate Trustee, they have 30 days to bring a motion for directions before the Court and if they do not do so, the Objector may seek directions, as well.
Essentially, the effect of a Notice to Objector is forcing the Objector to commence a claim or else abandon his or her objections.
- Commence an Application or Motion to propound the testator’s Will
Another option that exists for an Estate Trustee is simply skipping the steps that would follow the service of a Notice to Objector and seeking the directions of the Court, in accordance with Rules 14.05 and 75.06 of the Rules of Civil Procedure.
In this case, the Estate Trustee becomes the party commencing a court proceeding such that the costs associated with such a step ought to be considered, before proceeding. It is important to note, however, that proceeding with the first option will not necessarily save on legal costs to be incurred, if the Objector ultimately proceeds with a claim.
The option that is selected by an Estate Trustee will depend on the circumstances of each individual case such that it is important to consult with a lawyer as to which option is best.
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To most, it may seem obvious that an order from the court is not merely a recommendation. The terms of a court order must be followed. Disobeying the terms of an order may result in a finding that a litigant is in contempt. This was a lesson the defendant in Jensen v. Jensen had to learn the hard way.
In Jensen v. Jensen, Sterling Jensen was married to Betty Jensen. It was a second marriage for both of them and they both had children from prior marriages. Sterling passed away in 2014. Prior to his passing, Sterling appointed his son, Randall, as his Attorney for financial and personal care decisions and his other son, Murchie, as his Executor. Following Sterling’s death, Betty commenced an action against Sterling’s estate and his sons, claiming various forms of relief, including ownership of the matrimonial home.
Betty passed away and the trial was adjourned following her death. Betty’s heirs obtained an order to continue the action on behalf of her estate. A motion requesting an order to continue was heard on November 23, 2017. Following the hearing, Justice Petrie issued an order which provided the following, among other terms:
Until judgement is rendered in this action no further assets of the Defendant Estate shall be transferred or disposed of except as necessary to pay the property taxes and other such expenses or as required by law or further order from this Court.
Despite Justice Petrie’s order, in February 2018, Murchie wrote cheques to the beneficiaries of Sterling’s estate amounting to $7,000. In May 2018, land was transferred from Sterling’s estate to one of Sterling’s other sons who was also a beneficiary in the estate. In July 2019, the plaintiffs filed a motion seeking an order to declare the defendant in contempt of court due to his disobedience in following Justice Petrie’s order. The plaintiffs also wanted the defendant to pay back to the estate the amounts that he hastily distributed.
The defendant stated that although Justice Petrie’s order was not respected, he did not believe that he was violating the “spirit of the order”.
In her Judgment, Justice DeWare noted that it was clear that the defendant did not follow Justice Petrie’s order and in not doing so, he was in contempt of court. Justice DeWare went on to state that if the executor felt it was necessary to issue partial payments to the beneficiaries, he should have obtained a further court order which allowed him to do so. Justice DeWare emphasized that court orders are not suggestions and that they must be followed. Pursuant to Rule 76.06 of the New Brunswick Rules of Court, Justice DeWare ordered the defendant to return $35,000 to the estate and pay $1,000 in costs to the plaintiffs.
In summary, Jensen v Jensen provides one simple, yet clear, instruction: always follow court orders. The failure to do so can carry a host of potential detriments. Although Jensen v. Jensen is a New Brunswick case, it can be applied in Ontario as per Rule 60.11(5) of the Rules of Civil Procedure. It states that if the court finds a party in contempt, the judge may order that the litigant be imprisoned, pay a fine, refrain from doing an act, pay costs or comply with any other order that the judge considers necessary. As this provision is similar to the provision in New Brunswick’s Rules of Court, it is likely that had the case been heard in Ontario, the outcome would have been comparable.
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Ian Hull and Celine Dookie
I recently attended a panel discussion with judges of Toronto’s Commercial and Estate Lists, the purpose of which was to explore tips for effective practice and advocacy. A key takeaway from this discussion was that case conferences are a valuable tool in a litigator’s toolbox, particularly when litigation becomes contentious.
Case conferences are governed by Rule 50 of the Rules of Civil Procedure. The purpose of Rule 50 is to promote settlement of some or all of the issues in dispute without a hearing, and to obtain orders or directions to ensure that any necessary hearing is expeditious, orderly, and efficient.
Rule 50.13 dictates that a judge may direct a case conference before a judge or case management master, in either an action or application, on his or her own initiative or at a party’s request. A judge can direct a case conferences at any stage of the litigation. Pursuant to Rule 50.13(5), at a case conference, the judge or case management master may:
- identify the issues, noting those that are contested and those that are not;
- explore methods to resolve the contested issues;
- if possible, secure the parties’ agreement on a specific schedule of events in the proceeding;
- establish a timetable for the proceeding; and
- review and, if necessary, amend an existing timetable.
As discussed by my colleague, Kira Domratchev, in her blog on Rule 49 offers to settle, Ontario is a jurisdiction where parties are encouraged to settle their legal disputes prior to reaching the ultimate hearing of a matter. Case conferences are a valuable tool for parties who are looking to narrow the issues before the court, establish a timetable, or potentially reach a full and final settlement.
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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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Earlier this week, I blogged about a recent decision of the Ontario Superior Court of Justice that highlighted the factors the Court will consider when a party seeks to rebut the presumption of revocation when a testator’s Will cannot be located upon death.
Today, I will be highlighting the litigation procedure in Ontario for an Application to prove a lost or destroyed Will.
Pursuant to Rule 75.02 of the Rules of Civil Procedure, the validity and contents of a Will that has been lost or destroyed must be proved by way of an Application before the Court.
As noted in my previous blog post, the party who seeks to prove a lost Will bears the onus to:
- prove due execution of the Will;
- provide particulars tracing possession of the Will to the date of the testator’s death;
- provide proof of the contents of the Will; and
- rebut the presumption that the Will was destroyed by the testator with the intention to revoke it.
However, Rule 75.02(a) provides that a Will may be proven by way of affidavit evidence only if all persons with a financial interest in the testator’s estate consent to the proof. If the appropriate consents can be obtained, the validity and the contents of the Will can be proved without the need for Court appearances.
It is important to note that Rule 75.02(a) appears to require the agreement and consent of all persons with a financial interest. In addition, it is strongly recommended that a person contemplating an Application pursuant to Rule 75.02 obtain legal advice as to who may have a financial interest in the Estate.
For instance, if the result of the Will not being proved would be an intestacy, careful consideration should be given to the consents required from any intestate heirs. Legal advice should also be obtained if there are persons with a financial interest who are not sui juris, such as minors or persons under disability.
If all of the individuals with a financial interest do not consent to proof, Rule 75.02(b) states that the Application will proceed “in the manner provided by the court in an order giving directions made under rule 75.06.” Rule 75.06 provides the Court with the ability to direct the procedural conduct of the litigation.
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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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With the amendments to the summary judgment rules made some time ago, we are seeing more of these types of motions being brought with a view to terminating litigation short of a trial. The trouble with these motions is that they often involve costly and time-intensive steps, resulting in an exercise that may take several months and cost tens of thousands of dollars. Hence, it is a motion brought in select cases applying careful consideration to the facts, law and risks.
Although there are certain other mechanisms available to us to attempt to narrow the scope of litigation or terminate it altogether, I have found that none is more swift than Rule 2.1 of the Rules of Civil Procedure. The process is, unless the court orders otherwise, conducted entirely in writing. It is simple:
· After the initiation of a lawsuit a defendant/respondent can write a letter to the registrar setting out why the proceeding ought to be dismissed (alternatively, the court may, on its own initiative, stay or dismiss a proceeding);
· The court may either decide the matter based upon such letter alone or after seeking further information e.g. the court can direct the registrar to give notice to the plaintiff/applicant that the court is considering making the order;
· The plaintiff/applicant can then file written submissions within 15 days responding to the notice (no more than 10 pages in length);
· The court may direct the registrar to give a copy of the submissions to any other party (this is not mandatory, so you may obtain an outcome without ever seeing the opposing side’s argument); and
· The defendant/respondent can file written submissions within 10 days responding to the plaintiff’s submissions (no more than 10 pages in length), and shall give a copy of the submissions to the plaintiff/applicant.
After all is said and done a decision can be rendered within a few weeks and with minimal expense. I have seen no other mechanism that can achieve as quick and cost-effective an outcome in clear cases of frivolous, vexatious or abusive proceedings, making Rule 2.1 a most welcome addition to the Rules.
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