A recent master motions in the Estate of Robert William Drury Sr., 2019 ONSC 6071, considered the issue of an extension of time to serve a statement of claim.
Robert Sr. owned a property where the defendant Shirley lived with her spouse Hugh Drury. When Hugh Drury died, Robert Sr. sought vacant possession of his home. Robert Sr. died on September 8, 2016. Days later there was a fire on the property on September 24th and Shirley was criminally charged with arson.
Almost two years later, the estate trustee for Robert Sr.’s Estate issued a statement of claim for malicious and intentional arson damage, or gross negligence causing loss of enjoyment of life, or damages for loss of property. That claim was issued on September 19, 2018 while Shirley’s criminal proceedings were underway. Pursuant to Rule 14.08(1), Robert Jr. had 6 months to serve the civil claim on Shirley which expired on March 19, 2019. Shirley was not served until June 14, 2019 when Robert Jr. brought a motion for an extension of time.
In applying the test that was set out by the Court of Appeal in Chiarelli v Wiens, 2000 CanLii 3904, the extension of time was ultimately allowed by Master Sugunasiri.
The delay was only three months and the prejudice to Shirley was minor. Robert Jr. explained that he acted on the advice of counsel when the decision was made to serve Shirley after the conclusion of the criminal proceeding. This decision was not personal or contemptuous. As for Shirley, while memories fade over time, the criminal proceeding was found to be an ameliorating factor that preserved her evidence for the civil proceeding.
In reaching this decision, Master Sugunasiri also considered an instance where an extension of time was denied because the delay was caused by the Plaintiff’s decision not to serve the claim until he had enough money to fund the proceeding. In that case, the Court found that the Plaintiff ought to bear the consequences of the risk that he took under the Rules.
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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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You are the Estate Trustee of an estate in which the testator left a substantial portion of the residue to certain specifically named charities. The charities who are named as beneficiaries are well established large charitable organizations whom you have corresponded with directly. Such charities have retained counsel to represent them concerning their interests in the estate, and such counsel have in turn requested that you commence an Application to Pass Accounts regarding your administration of the estate.
In preparing the Application to Pass Accounts you turn your mind to who you should serve with the Application. Rule 74.18(3) of the Rules of Civil Procedure provides that an Application to Pass Accounts shall be served on “each person who has a contingent or vested interest in the estate“.
Although you are aware of the general supervisory role that the Office of the Public Guardian and Trustee (the “PGT”) has over charities in the Province of Ontario, as the charities in this instance are well established and represented by counsel, you question whether you need to serve the PGT in addition to the charities with the Application to Pass Accounts. It is, after all, the charities themselves who have a “contingent or vested interest in the estate“, and as the PGT and the charities would be representing the same financial interest you question whether it is necessary.
The requirement to serve the PGT with any Application to Pass Accounts where a charitable bequest is involved is established by section 49(8) of the Estates Act, which provides:
“Where by the terms of a will or other instrument in writing under which such an executor, administrator or trustee acts, real or personal property or any right or interest therein, or proceeds therefrom have heretofore been given, or are hereafter to be vested in any person, executor, administrator or trustee for any religious, educational, charitable or other purpose, or are to be applied by them to or for any such purpose, notice of taking the accounts shall be served upon the Public Guardian and Trustee.” [emphasis added]
The requirement to serve the PGT with any Application to Pass Accounts when a charitable bequest is involved as established by section 49(8) of the Estates Act exists in addition to the general requirement to serve all individuals with a “contingent or vested interest” as established by rule 74.18(3). To this respect, when a Will leaves a bequest to a specifically named charity, the Application to Pass Accounts must be served upon the specifically named charity as well as the PGT. Although from a practical standpoint the PGT’s active participation in an Application to Pass Accounts where a charity is representing itself is unlikely, with the PGT deferring to the charity to protect their own interest, the service requirements remain nonetheless, and both entities could in theory participate in the Application to Pass Accounts, and both could in theory file separate Notices of Objection to Accounts.
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The Public Guardian and Trustee (PGT) is often appointed to review accounts where they are submitted to the court for approval by guardians of property, attorneys and estate trustees. I recently happened across Richard Coutinho’s paper on the involvement of the PGT in passings of accounts. While he addresses varying aspects of this topic, for today’s blog I review the issue of service on the PGT, in respect of which the rules are sometimes unclear.
Mr. Coutinho reminds us that the PGT should be served with an application to pass accounts and other required material in the following circumstances:
- When the PGT represents a person with an interest in the estate;
- When there is a charitable beneficiary of the estate or trust (pursuant to ss. 49(8) of the Estates Act); and
- When the PGT is acting on behalf of parties under disability when their guardians/attorneys apply to pass their accounts, unless a close relative or other suitable person would agree to act as litigation guardian in priority to the PGT.
The paper also clarifies for us when the PGT does not get involved in a passing of accounts. Some examples provided of when the PGT does not need to be served are:
- When a guardian of property has been replaced, and the former guardian is applying to pass accounts – this is because the new guardian can review the accounts;
- When the attorney for property is applying to pass accounts and the grantor of the Power of Attorney is not incapable;
- When the incapable person has died – that person’s estate trustee (unless the estate trustee is the PGT) can review the accounts;
- When the accounts are served in draft form – the PGT can only review a formal application to pass accounts; and
- When the PGT has a conflict of interest (e.g. when there are two incapable beneficiaries and the PGT is the guardian of property of only one of them).
Thanks for reading and have a great weekend!
A recent review of case law, helpfully summarized here, highlights the increasing use of social media with respect to the service of Court documents.
According to Rule 16.04 of the Rules of Civil Procedure, “Where it appears to the court that it is impractical for any reason to effect prompt service of an originating process of any other document required to be served personally or by an alternative to personal service…the court may make an order for substituted service…”. Therefore, the Court’s ability to approve service by a non-conventional manner is found here.
Unreported in Ontario, the 2014 decision of Juzytsch v. Terlecki, discussed in the Law Times, notes that Justice Healey of the Superior Court of Justice ordered substituted service of a statement of claim via Facebook. This relief was granted on certain criteria being met, including establishing that the person’s whereabouts are unknown despite diligent investigation.
Service by Facebook has also been relied upon in the United States of America. A recent 2015 reported decision from the Supreme Court, New York County, permitted the plaintiff to serve the defendant with a divorce summons “…using a private message through Facebook”. Certain criteria also had to be met including: the inability to serve the summons personally; that it would be “impracticable” to serve the defendant by substitute service on a person of suitable age and discretion or by using “nail and mail”; and it must be shown that service through Facebook can reasonably be expected to give the defendant actual notice that they are being sued.
Since it appears to be the case in New York County, as litigants are prohibited from serving other litigants, the plaintiff’s lawyer was required to log into the plaintiff’s Facebook and identify themselves before sending the summons, either by attachment or hyperlink. Additionally, the plaintiff and their counsel were required to call and text the defendant advising of the delivered summons via Facebook.
As of January 1, 2015, the Ontario Rules of Civil Procedure have permitted service by e-mail in certain instances, details of which can be found in our prior blog. Although the Court seems to be embracing technology to effect service, given the limited situations as to when such non-conventional ways are permitted, the Courts nonetheless ensure that litigants be made aware of any such claim which requires service on them.
This is the first time I have ever contributed to a blog, legal or otherwise, so you can imagine my delight when I noticed an article in the June 11, 2010 issue of Lawyers Weekly entitled "Legal blogs that work”.
The article, written by Geoff Kirbyson, discusses the benefits of legal blogging and includes helpful hints on running effective law-blogs.
Mr. Kirbyson points out that legal-blogging has become more common amongst law firms. This assertion comes as no surprise to me. My colleague, Sharon Davis, recently discussed the growing popularity of blogging amongst members of our profession. She noted that blogging is not an alien concept for lawyers as writing has always been a large part of our professional lives. You can find her blog here.
The increased attention given to on-line media makes sense when you consider the number of individuals who rely on social media for their information. A 2009 study by CNW Group and Ledger Marketing found that 50% of those surveyed accessed social media tools once per day.
So, what makes a legal blog effective? A managing partner of a Winnipeg-based firm opined that an effective blog showcases activity at a law firm, highlights developments in particular legal areas, demonstrates a firm’s knowledge and expertise, and enables a firm to engage in client service through social media. This is certainly true.
In my opinion, however, there is one more necessary component to effective legal blogging. In addition to being accurate, relevant, and current, a legal blog should be FUN.
Happy blogging everyone! I know that we’ll talk again soon.
Kathryn Pilkington – Click here for more information on Kathryn Pilkington.