Tag: order for assistance
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.
Thank you for reading.
Need a little help from the court to move an estate matter along? Then Rule 74.15 is the rule for you!
Found under Rule 74: “Estates – Non-Contentious Proceedings”, Rule 74.15 allows “any person who appears to have a financial interest in an estate” to move for various forms of relief. Often, such a motion is required due to the failure of a party to take a required step. Despite the name of the rule, these matters are often contentious.
Under Rule 74.15, a number of various orders can be sought. These include:
- An Order to accept or refuse an appointment as estate trustee. This can be useful where a person is named as Estate Trustee in a Will, but is not taking any steps to administer the estate. The Order usually provides that if the person does not make an application for a Certificate of Appointment within a certain time, they are deemed to have renounced as Estate Trustee, opening the door to the appointment of an alternate;
- An Order to consent or object to a proposed appointment. If an Order appointing an estate trustee is required, either because there is no estate trustee appointed in the Will, or the person appointed in the Will cannot act, or if there is no Will, then usually the beneficiaries receiving the majority of the estate can consent to the appointment of an estate trustee. If such consent cannot be obtained, then a motion for an Order that the person consent or object can bring the matter to a head;
- An Order requiring the estate trustee to file with the court a statement of the nature and value of the assets of the estate as at the date of death. Can’t get information about the estate from the estate trustee? Then this is the Order you need;
- An Order for further particulars. If you get an Order requiring that the estate trustee file a statement of assets, but are still in the dark, then obtaining this Order will require the estate trustee to provide further particulars;
- An Order requiring a beneficiary who is also a witness to satisfy the court that the beneficiary or the beneficiary’s spouse did not exercise improper or undue influence on the testator. Normally, under s. 12(1) of the Succession Law Reform Act, a bequest to a person who witnesses the Will or that person’s spouse is void. The court, however, can find that the bequest is not void if it is satisfied that the person or spouse did not exercise any improper or undue influence. If an estate cannot proceed because the estate trustees do not know if a certain bequest is void or not, this type of Order can break the log jam, and put the person to the test of disproving improper or undue influence;
- An Order to Pass Accounts. If you want an estate trustee to “show their work”, then an Order requiring the estate trustee to pass their accounts will give you a good look into the estate records.
Although Rule 74.15(2) provides that a motion for an Order for Assistance may be brought without notice, case law has established that notice should be given in most cases. See Noah Weisberg’s blog on that topic, here.
There is also significant case law on who can apply for an Order for Assistance; that is, who “appears to have a financial interest in an estate”. That is a discussion for another day.
Have a great weekend.
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.
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