You would be forgiven for thinking that the entire process for an Application to Pass Accounts is set out in rule 74.18 of the Rules of Civil Procedure as the rule appears to provide a comprehensive step by step guide to how an Application to Pass Accounts is to proceed before the court. Although rule 74.18 likely contains the most cited to and fundamental steps and principles for how an Application to Pass Accounts is to proceed, you would be wise to remember and consider the applicable provisions of section 49 of the Estates Act as they may offer additional insights and tools for a passing of accounts beyond those found in the Rules of Civil Procedure.
Yesterday I blogged in part about section 49(4) of the Estates Act, and the general availability to convert more complex objections that are raised in the Notice of Objection into a separate triable issue thereby potentially opening up more typical litigation processes such as discovery and the calling of witnesses at the eventual hearing of the matter. Although the ability to direct certain complex objections to a separate trial is an important tool under section 49(4) of the Estates Act, it is not the only potential tool or thing to consider under section 49 of the Estates Act when involved in an Application to Pass Accounts.
These additional tools and considerations for an Application to Pass Accounts as found in section 49 of the Estates Act include section 49(3), which provides the court with the ability to consider any “misconduct, neglect, or default” on the part of the executor or trustee in administering the estate or trust within the Application to Pass Accounts itself, and may make any damages award against the executor or trustee for such misconduct within the Application to Pass Accounts itself without a separate proceeding being required. As a result, if, for example, a beneficiary should raise an allegation of negligence in the Notice of Objection against the executor for something such as a complaint that certain real property that was owned by the estate was sold undervalue, the court under section 49(3) of the Estates Act has the power to consider such an allegation and, if ultimately proven true, may order damages against the executor for any loss to the estate within the Application to Pass Accounts process itself. Without section 49(3) the beneficiary may otherwise have been required to commence a new and separate Action against the executor to advance these claims and/or be awarded damages.
Section 49 also contains answers to numerous procedural questions which may come up in an Application to Pass Accounts which otherwise are not mentioned in the Rules of Civil Procedure, including section 49(9) which provides what the executor is to do when an individual has died intestate and you are unable to locate any next of kin to serve, and section 49(10) which provides the court with the ability to appoint an expert to review and opine on the accounts on behalf of the court when the accounts are particularly complex.
Thank you for reading.
As the province of Ontario slowly emerges from the strict measures in place to prevent the spread of Covid-19, businesses and organizations alike are considering what workplaces will look like moving forward. Modernizing technology in workplaces is a fundamental aspect of these considerations, and Ontario courtrooms are no exception.
On Thursday, May 28, 2020, Chief Justice Geoffrey Morawetz, Senior Family Justice Suzanne Stevenson and Regional Senior Justice Michelle Fuerst answered questions posed by members of the legal profession on the Superior Court’s response to the Covid-19 pandemic and the future of the courtroom as we know it. The overarching message conveyed by Chief Justice Morawetz was that the courts have acknowledged the need to modernize and that great efforts are being made to adapt to new technologies and integrate those technologies into our justice system.
I will briefly highlight some of the key takeaways from the Ontario Bar Association’s (OBA) webinar, although I encourage all those who are interested to watch the full webinar, which is free and accessible to the public on the OBA website. To watch the webinar, click here.
- Currently, the Superior Court of Justice has suspended in-person hearings until July 6, 2020, at the earliest. It is expected that the next phase of modernization will see a hybrid of both in-person and video or telephone conferencing. Courts will likely not return to “normal” operations (i.e. in-person hearings of all matters) until a vaccine is widely available.
- It was acknowledged that the courts moved quickly to allow for remote hearings of matters that were easily suited to a virtual hearing, such as matters that were unopposed, on consent, or in writing. Over the course of the pandemic, the courts have twice expanded the scope of matters it will hear. Moving forward, it is expected that the courts will continue to expand the virtual courtroom to be able to hear contentious matters that require oral advocacy.
- In conjunction with the Minister of the Attorney General’s office, the courts are aiming to increase availability to video conferencing across all regions.
- Given that the courts have not been operating at their full capacity since mid-March, and the backlog that existed prior to Covid-19, it is expected that there will be a significant backlog of matters that will have to be heard. In an effort to resolve this issue, judges from different regions will likely hear matters virtually in order to bring the court system back up to speed.
- We can expect to see an expansion of matters that that are being overseen by a case management judge.
- It is expected that eventually, there will be electronic scheduling platforms in place that will allow counsel to schedule attendances online.
Thank you for reading!
Ontario has officially declared a state of emergency amid the COVID-19 pandemic, and efforts to quell the spread of the coronavirus are now stronger than ever. Indeed, the Federal Government is urging everyone to engage in social distancing, and the courts are no exception.
On March 15, 2020, the Superior Court of Justice published a Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings (the “Notice”), wherein it announced the suspension of Superior Court of Justice regular operations.
Specifically, the Notice states that all criminal, family and civil matters scheduled to be heard on or after March 17, 2020 are adjourned except for urgent and emergency matters. Matters considered to be “urgent” are set out in the Notice and include motions and applications related to public health and safety and COVID-19; the safety of a child or parent; and time-sensitive civil motions with significant financial repercussions if not heard, among others.
To bring an urgent matter, the motion and application materials can be filed with the court by email. Notably, where it is not possible to email a sworn affidavit, an unsworn affidavit can be delivered as long as the affiant participates in any telephone or videoconference hearing to swear or affirm the affidavit. Urgent matters may be heard and determined in writing, by teleconference or videoconference, unless the court determines that an in-person hearing is necessary and safe.
Although people are being advised to avoid unnecessary attendances at Court, they nevertheless remain open and parties can continue to process “regular filings”. However, the flexible procedures that have been put in place for urgent matters do not extend to regular filings, which remain subject to the Rules of Civil Procedure.
The court’s response to COVID-19 is a prime example of how the legal system as a whole is being forced to lean on technology in these unusual and uncertain times. While many legal professionals have already adopted digital practices, the courts continue to be behind the times. The Auditor General’s latest audit of Ontario’s court system found that “the Ministry’s pace in modernizing the court system remained slow, and the system is still heavily paper-based, making it inefficient and therefore keeping it from realizing potential cost savings”. Perhaps this period will give the much-needed impetus for courts to modernize their operations by using electronic service, filing, hearings, and document management more routinely. This would likely be a welcome change for all.
Thanks for reading and stay safe!
Consider yourself warned. Notwithstanding the relatively mundane title referenced above, the within blog contains a (somewhat mild all things considered) rant about something that troubles me to my very core (more of a mild annoyance really). Individuals who confuse and conflate the procedural steps and processes of Applications and Actions. Turn back now ye of mild stomachs.
There are two basic ways that civil matters proceed before the court in Ontario, either by Application or by Action. The Action is the more common of the two, and is the stereotypical image that most people probably have when thinking of something being heard before the court. Evidence is put before the court in an Action by witnesses sitting in the witness box, with the lawyers cross-examining and putting questions to the witnesses much like they do in your favourite legal television show. Applications, on the other hand, proceed only on a written record, with any evidence that is put before the court being contained in affidavits that were sworn by the various parties before the hearing date. To the extent that there are any cross-examinations on these affidavits they will generally have taken place before the hearing, with the Judge only being provided with copies of the transcripts and not witnessing the cross-examinations first hand as they would with an Action.
The estates litigation world exists in this somewhat unique corner of the civil litigation world, as many of the statutes under which our claims are advanced provide that the claims are to be commenced by way of Application and not Action. Although this in theory should result in these proceedings advancing on affidavit evidence alone, as parties often believe that there may be a strategic advantage to having the matter heard by way of Action (i.e. a sympathetic witness appearing in person before a Judge rather than simply in writing) parties will often seek to convert their proceedings from an Application to an Action at an early stage. I imagine that this is probably where most of the confusion stems from when individuals conflate the procedural steps of Applications and Actions, with the Order Giving Directions often being issued at a time the matter is still an Application yet providing directions for how an Action is to proceed.
The procedural process and obligations imposed upon parties participating in an Application are very different than those participating in an Action. There are no “Affidavit of Documents” or “Discoveries” in an Application, with the only evidence and documentation that is generally produced being that contained in the affidavits (subject to any undertakings or further directions from the court). Conversely, once a matter has been converted into an Action from an Application the affidavits that may have historically been filed are in a way irrelevant, as the Judge should in theory no longer have them available at the ultimate hearing of the matter with any evidence now being produced “viva voce” (i.e. in person). Once a matter has been converted into an Action from an Application the process that is to be followed is that of an Action, with the parties no longer being expected to serve and file any responding affidavits, but rather the more typical pleadings and documentation required for an Action such as a Statement of Defence or an Affidavit of Documents.
So please. I beg of you. Do not ask me when my client will be producing their Affidavit of Documents in an Application to Pass Accounts or when my client will be producing their responding affidavit after a matter has been converted into an Action.
Thank you for reading.
Most estate lawyers are already familiar with the Notice of Objection to the Issuance of a Certificate of Appointment of Estate Trustee, a document that operates to prevent a probate application from successfully being filed with the court. Fewer may be aware that there is another option for individuals who wish to remain updated of the status of the filing of a probate application or other proceeding commenced in respect of an estate but do not, necessarily, object to the appointment being sought and/or the administration of an estate in accordance with the last will and testament.
Rule 74.03 of the Rules of Civil Procedure describes a Request for Notice of Commencement of Proceeding. Such a document, in Form 74.3, may be filed by any individual who appears to have a financial interest in an estate and will allow him or her to receive notice of any proceeding that is made in respect of the estate, including the filing of a Notice of Objection or a probate application.
A Request for Notice of Commencement of Proceeding typically expires after three years (in which case a subsequent Request may be filed) and does not apply to proceedings that are initiated after a Certificate of Appointment has been issued.
Filing a Request for Notice may be a good option for beneficiaries who wish to be apprised of any developments in the early stages of the administration of an estate (at least in situations where probate or other court proceedings are required) without objecting to the issuance of a Certificate of Appointment. The ability to receive such updates may be especially beneficial in situations where there may is no communication with a named estate trustee or updates on the status of probate are not otherwise forthcoming.
In January 2016, a similar form in respect of applications to pass accounts was introduced through an amendment to the Rules of Civil Procedure. As previously discussed on our blog, a Request for Further Notice in Passing of Accounts allows an individual entitled to service of an application to pass accounts to receive notice of any further step in the application, without the need to file a Notice of Objection to Passing of Accounts, which had been previously required in order to retain the ability to respond to the proceeding at a later stage.
Forms like these allow for a class of participants in pre-probate proceedings and applications to pass accounts who may not want to become actively involved, but nevertheless wish to remain updated of any developments.
Thank you for reading.
In keeping with modern advances in our society, The Honourable Coulter Osborne (former Associate Chief Justice of Ontario), was asked to propose some options that would assist in making our civil justice system more accessible and affordable. The Honourable Coulter Osborne submitted his findings and recommendations and in December 2008 The Civil Rules Committee filed amendments, which are scheduled to come into effect on January 1, 2010 (amendments can be found here). It is important to note that there is no transitional stage with respect to the amendments coming into force.
The following are a few amendments that caught my eye:
1. Rule 1.04 (1.1) provides that the court shall make orders and give directions that are proportionate to the importance and complexity of issues, and the amount involved, in the proceeding.
2. Rule 1.08 will permit the court, on its own initiative, to hear matters by telephone or video conference.
3. Pursuant to Rule 20 (summary judgment), the general test to obtain judgment is the moving parties ability to show that there is "no genuine issue for trial". Rule 20 has now been amended which imposes the burden on the moving party to show that there is "no genuine issue requiring a trial".
4. In actions commenced in Toronto, Ottawa and Essex County, mandatory mediations are to take place within 180 days, rather than from 90 days of filing the first defence unless the court orders otherwise.
5. Where the discovery tools are likely to be implemented in a litigious matter, Rule 29.1 now requires the parties to agree to a discovery plan before the earlier of 60 days after the close of pleadings or such longer period as agreed. The discovery plan must be in writing and it must include the intended scope of documentary discovery, taking into account relevance, costs and the importance and complexity of the issues.
6. With respect to examinations for discovery, regardless of the number of parties or other persons to be examined, no party is allowed to examine for more than seven hours unless the party has obtained the consent of the parties or has obtained a court order.
7. The monetary jurisdiction of the Small Claims Court will be increased to $25,000.00.
Again, these amendments were made with a view that it would make our civil justice system more accessible and affordable. For instance, permitting courts to hear matters via telephone or video conference will free up judicial resources, and reduce Lawyers fees. Increasing the monetary jurisdiction of Small Claims Court to $25,000.00 will provide access to justice for many in need and at the same time eliminate the demanding obligations that are imposed upon parties under the Rules of Civil Procedure. I will be looking on with interest as these amendments take effect in the new year.
Thank you for reading and have a great day.
Listen to Deductions from Compensation.
This week on Hull on Estates and Succession Planning, Ian and Suzana finish up the discussion on the question of accounting by reviewing deductions from compensation and briefly sum up the procedure of the passing of accounts.
listen to The Ontario Civil Justice Reform Project
This week on Hull on Estates, Chris and Justin discuss the Ontario Civil Justice Reform Project and the steps being taken by Mr. Justice Colter Osbourne and Attorney General Michael Bryant.
Section 131 of the Courts of Justice Act establishes the authority for the Court to award costs. Section 131 states that the Court has absolute discretion in awarding costs, subject to the provisions of an Act or the rules of court.
Before July 2005, the Rules of Civil Procedure provided some sense of certainty to the Court’s broad discretion in awarding costs as the Rules provided a costs grid. The costs grid suggested that costs were to be determined by an hourly rate multiplied by the time spent. In 2004, the Court of Appeal in Boucher v. Public Accountants Council set forth the general principle as to the fixing of costs pursuant to Rule 57.01 and the costs grid. With respect to costs, the Court stated that the overall “objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”. Subsequently, in July 2005, the Rules were amended.
The amendment to the Rules abolished the costs grid and expanded on the list of factors, set out in Rule 57.01, which the Court may consider before making a cost award. Rule 57.01 was now expanded to include the principle of full indemnity and the reasonable expectations of an unsuccessful party to pay a cost award.
The principle of the reasonable expectations of an unsuccessful party to pay a cost award appears to provide the parties with some flexibility in obtaining the maximum cost award by permitting the successful party to establish the reasonable expectations of the unsuccessful party.
Thanks for reading, and have a great day!
Listen to Experts in Estate Matters.
This week on Hull on Estates, Craig Vander Zee and Sarah Fitzpatrick discuss expert evidence in estate matters. In this episode they outline circumstances when one should use expert evidence, different types of experts, timing of reports, limitations of experts and the court appointed expert.