Earlier this week I blogged about rule 9.01 of the Rules of Civil Procedure and the circumstances in which beneficiaries must be named as parties to estate litigation. Although rule 9.01(2) provides a fairly comprehensive list of the claims for which beneficiaries must be named as parties, the list is not exhaustive, as there are additional claims not mentioned by rule 9.01(2) for which the beneficiaries must be named as parties. Amongst these claims are claims for support as a dependant under Part V of the Succession Law Reform Act (the “SLRA”), which require you to serve all beneficiaries and other interested parties before any order for support may be made.
The requirement to serve all beneficiaries with any claim for support is directed by s. 63(5) of the SLRA, which provides:
“The court shall not make any order under this section until it is satisfied upon oath that all persons who are or may be interested in or affected by the order have been served with notice of the application as provided by the rules of court, and every such person is entitled to be present and to be heard in person or by counsel at the hearing.”
The phrasing in s. 63(5) that you must serve all persons “interested in or affected” by the support order is broader than the phrasing under rule 9.01, as it could apply to individuals other than beneficiaries depending on the financial circumstances of the estate. I have previously blogged, for example, about the priority of support orders under s. 2(3) of the Creditors’ Relief Act over all other judgment debts other than those owed to the crown when an estate is insolvent. Should the circumstance arise in which funds which otherwise would have paid a debt or liability of the estate are instead paid to a dependant for support under the authority of the Creditors’ Relief Act you would arguably be required to have first served such affected creditors under s. 63(5) of the SLRA as an individual “interested in or affected” by the order.
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Canada is currently in the midst of a postal strike. Although the strike is currently “rotating” in nature, with different communities being subject to the strike on different days, it is possible that the strike could become country wide should negotiations remain unsuccessful. Although concern may immediately turn to the potential impact of a full strike upon online holiday shopping, a full national strike could also have an impact upon the legal world in relation to the service of documents.
Canada Post remains a vital service to the legal community, amongst other things remaining one of the official means of service upon a lawyer of record pursuant to rule 16.05 of the Rules of Civil Procedure. Although there are alternate service mechanisms available to serve documents upon a lawyer of record should the strike become national, such as potentially using a courier, there are certain documents which the Rules of Civil Procedure provide may only be served by mail.
Rule 74.18(3) of the Rules of Civil Procedure contemplates that an Application to Pass Accounts is to be served by regular lettermail, providing:
“The applicant shall serve the notice of application and a copy of a draft of the judgment sought on each person who has a contingent or vested interest in the estate by regular lettermail.” [emphasis added]
Although such a rule typically assists the Applicant in serving the Application to Pass Accounts in a streamlined and cost effective manner, as otherwise personal service of the Application to Pass Accounts would be required pursuant to rule 16.01 as an “originating process”, the rule does not contemplate what is to occur in the circumstance that service by regular lettermail is not possible (i.e. in a full work stoppage). In such circumstances, how can the Applicant ensure that the Application to Pass Accounts is properly served as required by the Rules of Civil Procedure?
From a common sense standpoint there are likely alternatives readily available to serve the Application materials other than by regular lettermail, including potentially by courier or by personal service. From a strict reading of rule 74.18(3) however, service of the Application to Pass Accounts by any means other than “regular lettermail” is not proper service, such that it is possible that a beneficiary may argue that they have not been properly served should you serve them by any other means. Should this occur, it is possible that an Order validating service and/or substituting service for alternative means under rule 16.04 may be required.
Thankfully at present the strike is only “rotating” in nature, such that we can continue to mail out documents such as Applications to Pass Accounts to be served in accordance with the Rules of Civil Procedure (subject to any potential daily interruptions should your community be striking on a particular day). Should circumstances change however, and there is a full work stoppage, it is possible Orders may have to be sought validating and/or substituting service for service in a manner other than by regular lettermail for those items such as Applications to Pass Accounts which the Rules provide may only be served by mail.
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