Tag: Superior Court of Justice
As many are aware, the Superior Court of Justice has essentially shut down operations, subject to certain narrow exceptions, in light of COVID-19.
On May 13, 2020, a Consolidated Notice to the Profession, Litigants, Accused Persons, Public and Media was published regarding “Expanded Operations of Ontario Superior Court of Justice, effective May 19, 2020”. The Notice can be read in its entirety here. Below, I discuss some of the highlights relevant to the estates list.
- The Notice specifically denotes that the Superior Court of Justice has not closed and that it continues to expand its operations virtually – in writing, or by telephone or video conference hearings. It is further highlighted, that during the suspension of regular in-court operations, lawyers and parties are expected to actively move cases forward.
- Although the requirement to gown for a Superior Court of Justice appearance is suspended, parties participating in video conferences are expected to dress in appropriate business attire and should have an appropriate technical set-up and observe etiquette appropriate to the nature of remote hearings. In fact, some guidance from the Superior Court of Justice on the issue of technical set-up can be found here.
- On the issue of filings, the Notice indicates that factums should be hyperlinked to relevant cases (instead of filing a Brief of Authorities) and there is a very specific format of the email that is to be sent to the Court to request dates or file materials. Importantly, the size of emails has been expanded to 35MB, however, it is also noted to limit filed materials to only those necessary for the hearing (in addition to the restrictions related to the length of material, already in place).
- Although materials are being filed electronically, given the pandemic and the need to isolate, the Superior Court of Justice expects that all materials filed electronically be later filed in hard copy with the Court and the requisite filing fee be paid. That means, that it is important to keep track of all materials filed electronically, as there is a positive obligation to deliver hard copies and payment for the filing, at a later time.
- Service via email is permitted such that it is not necessary to obtain consent or a court order to serve a document by email where email service is permitted.
- Whereas, urgent matters continue being heard (subject to the Superior Court of Justice’s discretion to decline to schedule for immediate hearing any particular matter listed in the Notice), the following Toronto Commercial and Estate List matters are being heard (the Notice to Profession – Toronto, can be found here):
- Select motions;
- Select applications;
- Case management conferences;
- Pre-trial conferences; and
- Judicial settlement conferences.
Reviewing this Notice shows that court services are expanding. Certainly, one positive effect of the pandemic has been the overall embrace of various technologies by the Superior Court of Justice, that had not been in place before.
Here is to hoping that the restrictions associated with COVID-19 are soon lifted and the pandemic blows over. At the same time, I am certainly excited to see whether we will see a significant change in court operations moving forward, as a result of this involuntary technological leap forward.
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If you are anything like me you have previously struggled with how you are to refer to Masters in court. Referring to them as “Master” always felt a little bit awkward, while at the same time you were always not sure if the more formal “Your Honour” was reserved solely for Judges.
If you have ever experienced similar uncertainty wonder no more, as the Consolidated Practice Direction for the Ontario Superior Court of Justice was recently amended to clarify how you are to refer to Masters in court. In accordance with the revised item 114 of the Practice Direction, it is confirmed that you are to refer to Masters as “Your Honour” in English and “Votre Honneur” in French.
Now that the potential embarrassment of using the incorrect honorific in referring to Masters has been resolved, now may also be an opportune time to provide a reminder that in accordance with item 58 of the same Consolidated Practice Direction lawyers are not required to gown when appearing before a Master.
So in summary, in accordance with the updated Consolidated Practice Direction you are to refer to Masters as “Your Honour” when appearing before them, while at the same time you are not required to gown. Consider yourself properly prepared for you next appearance before a Master.
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The Honourable Susan E. Greer has been involved in the world of estate law for many years, as both a lawyer and as a recently retired Superior Court Justice. During that time, and particularly during her 23 years as a Superior Court Justice, she has observed a number of changes as she observes in this article for Advocate Daily.
Some of the changes discussed by The Honourable Ms. Greer are relevant to the practice of law generally. In particular, she mentions civility, and the fact that counsel have become less courteous over time, including in interactions with court staff, each other, and witnesses. She also refers to the increasing use of emails as exhibits to affidavits. In this regard, of note is the concern that many emails are “sent in haste, without careful consideration as to how they read or how they could be misinterpreted” as opposed to the thought that usually goes into the drafting of letters. These comments are applicable to lawyers generally, not solely the estates bar, and are important points to consider.
Specifically with respect to estate law, The Honourable Ms. Greer notes that there have been changes in several areas, including sibling rivalry increasingly being brought to the courts, and increasingly heavy scrutiny of jointly held assets. One particularly interesting development discussed in the article is the increase in will challenges commenced by children prior to the death of their parent. As noted by The Honourable Ms. Greer, this is not an issue unique to Ontario or Canada, citing a French case in which the daughter of Liliane Bettencourt, heir to the L’Oreal cosmetics company, successfully challenged the validity of her mother’s will, while her mother was still alive.
Relevant to many of the changes that have been seen in estates, according to The Honourable Ms. Greer, is the issue that the “greed factor has become more pronounced, causing bitter divisions in families that seem impossible to heal.” That being said, given that courts have moved away from awarding all costs of litigation to be paid from the estate, the possibility of being responsible for one’s own costs, as well as the costs of other parties, may serve as a disincentive for potential litigants with more frivolous claims that may be driven by greed.
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