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Estate Litigation During the COVID Crisis

Published on: April 2020 | What's Trending

Legal scales on a black background

As many people now know, the impact of COVID-19 has affected court proceedings in Ontario in numerous ways. Within the area of estate litigation, although not all issues have been addressed, the Superior Court of Justice has provided some guidance with respect to how both urgent and non-urgent matters can move forward.

Hearings

On March 15th, a notice was issued by the Chief Justice of the Superior Court of Justice, suspending the hearing of all non-urgent matters in the Superior Court of Justice. All non-urgent matters scheduled after March 17th were adjourned sine die. The Court indicated that these matters would be rescheduled after June 1st, however it is unknown how the re-scheduling will be handled. It is possible that counsel will need to agree on a new hearing date and submit revised scheduling forms.

With respect to urgent matters, the March 15th notice provided guidance on the type of matters that would be considered urgent, and set out the procedure to bring an urgent matter before the court.

Initially, the hearing of civil, commercial and estate matters was limited to matters in which immediate and significant financial repercussions would result if a hearing were not held. Preservation orders, where there could be irreparable harm without hearing, would fall into this category. Other matters would be determined on a case-by-case basis. Disputes involving capacity and substitute decision-making will likely be considered urgent.

Pursuant to a notice posted April 2nd, the court has expanded the type of matters that will now be heard to pretrial hearings and certain applications and motions. The court has indicated that it will prioritize the hearing of pretrial conferences that had been scheduled from March 16th through May 31st, and has set out a specific procedure for service and filing of required documents. As well, applications and motions under Rule 7, involving parties under disability will also be heard.  This includes the appointment, removal and substitution of litigation guardians, discontinuance by or against a party under disability, and the approval of a settlement involving a party under disability.  These are to be filed electronically, in writing. Lastly, matters proceeding on consent of all parties will also be heard, and must be filed electronically.

Limitation periods and procedural deadlines

Retroactive to March 16th, 2020, limitation periods and procedural time periods have been suspended by a provincial Order in Council under the Emergency Management and Civil Protection Act. The maximum duration of the current order is 90 days, and may be renewed for a period of up to 90 days.

Any limitation period created by statute, regulation, rule, bylaw or order of the Government of Ontario is suspended for the duration of the COVID crisis. This would apply to the commencement of dependant support claims, Will challenges, constructive trust and other equitable claims, spousal election under the Family Law Act, claims against estate trustees and trustees for breach of fiduciary duty, as well as proceedings commenced by estate trustees for rectification, negligence claims against drafting solicitors, and tort claims.

With respect to procedural time periods in estate matters, this would include timelines for steps to be taken in the passing of accounts, motions for directions pursuant to the filing of a Notice of Objection to the issuance of a Certificate of Appointment, service and filing of claims pursuant to sections 44 and 45 of the Estates Act, and more general procedural time limits related to the conduct of a proceeding, including service of Notices of Application, service and filing of records, as well as procedural steps relating to actions, including the service and filing of statements of claim, defences, commencement of cross-claims and counterclaims and dismissal under rule 48.14. The suspension may be lifted by order of the court, tribunal or other decision-maker responsible for the proceeding. The suspension does not apply to timelines established by Court order.

Electronic Filing

One of the positive changes that has occurred within the court system is the expansion of electronic filing in civil claims. A complete list of documents that may be filed online is found here. The only originating processes that can be filed and issued electronically are statements of claim and notices of action. All of the documents that may be filed online relate to proceedings commenced by way of action.

Unfortunately, most estate matters proceed by way of application, rather than by action. Currently, there is no ability to have a Notices of Application issued electronically, nor is there the ability to file application records, Notices of Appearance, or any other document related to applications.

Applications

It appears that Notices of Application can be issued by the court, however no return date shall be provided. Instead the Notice of Application will indicate that the matter will be heard “on a date to be fixed by the Registrar”. Notices of Application for issuance can be sent by mail with the applicable fee. Some courthouses also have limited hours during which packages can be delivered by courier.

Under the section 9 of the Commissioners for Taking Affidavits Act, oaths and declarations must be taken in the presence of the commissioner. However, the Law Society of Ontario has announced that it will interpret this statutory requirement as not requiring the affiant and the commissioner to be physically present. As a result, affidavits in support of applications may now be sworn or affirmed virtually. The jurat should provide specific details as to how the document was sworn or affirmed. The Law Society has posted guidance with respect to both virtual commissioning generally and as part of the Frequently Asked Practice Management Questions portion of its COVID Statement.

As of the date of this blog, there have been no changes to the requirements for personal service, required for originating processes and certain other court documents.

Toronto Estates List

As with civil proceedings, urgent estate matters are being heard.

According to a memo posted by the Office of the Chief Justice for the Ontario Superior Court of the Justice, certain other matters on the Estate List, including motions, applications, conferences, pretrials, and judicial settlement conferences may be heard. There is no specific guidance yet as to how these are to be scheduled, but based on the memo, it does not appear that the matters must be urgent. There is no information as to how the court will determine which matters will be heard.

Matters are heard by teleconference using ZOOM or another teleconference facility and can be scheduled for maximum of 4 hours.

Filing of court documents relating to urgent matters may still be filed with the Estates Office by mail, or by courier, during the court’s limited hours of 10:00 to 12:00 and 2:00 to 4:00.