On June 10, 2024, I had the opportunity to attend the Ontario Bar Association’s annual Evening with Your Estates List Judges event, put on by the OBA’s Trusts and Estate Law section, chaired by Matthew Furrow of Arkin Furrow Estates Law LLP and Angelique Moss of Casey & Moss LLP.
This event is an annual favourite, where the Estate Bar gets to not only mingle with fellow colleagues, but also has the opportunity to hear directly from the Estate list judges on an array of topics.
This year did not disappoint, with The Honourable Justice Gilmore, Justice Dietrich and Justice Faieta sharing their insights.
Some key take aways are below:
- As we know, the Estate list judges are extremely busy, with their days booked back-to-back. Counsel were encouraged to not book placeholder scheduling appointments, limiting such bookings to only when the appointment is required;
- Scheduling appointments should remain for scheduling and non-complex consent matters. Even if a matter is on consent, but will require some review of material and submissions (such as a guardianship application), counsel were asked to book such matters for a 10:00am appearance;
- Counsel were reminded that vesting orders under the Estate Administration Act (Ontario) are not to be used as a means to avoid probate fees;
- Counsel were encouraged to review the many recent decisions dealing with s. 21.1 of the Succession Law Reform Act (Ontario) for insights on how and when this section should be used;
- Counsel were reminded to hyperlink their materials and ensure that they are uploaded in a timely manner – if they are uploaded late, there is a high risk the judge will not have time to review the materials in advance of your appearance;
- The judges will be looking for the confirmation form, the participant information form and an aide memoire. It is also helpful to have prior endorsements and orders uploaded so that the judges can have a quick review of what has happened in the matter, and
- Counsel were reminded that the court continues to look for volunteers to act as amicus curiae (a discussion of which follows).
The Estate List Amicus Pilot Project
For those of the Estate Bar who were not aware, they learned of the Estate List’s Amicus Pilot Project. The Project is intended to improve the efficiency and effectiveness of Ontario’s civil courts by providing access to volunteer counsel when requested. The Pilot Program on the Estate list is being coordinated by Matthew Rendely of Loopstra Nixon LLP and Holly Cunliffe of Aird & Berlis LLP. The tandem Pilot Program on the Commercial List is led by Daniel Schwartz and Rachel Fielding of Thornton Grout Finnigan, and Jeremy Opolsky and Alexandra Shelley of Torys LLP.
In its most simple and direct definition, amicus curiae means, “friend of the court”. However, the role of amicus has changed over time. Some descriptions include “a friend of the Court. A person who calls the attention of the Court to some point of law or fact which would appear to have been overlooked,” and, “barristers who assist the court, usually at the court’s request, and are disinterested” and, “a person, usually a barrister who, with the court’s permission, may advise the court on a point of law or on a matter of practice.”
The amicus’s sole “client” is the Court, all that an amicus does is in the public interest for the benefit of the Court in the correct disposal of the case.
The Supreme Court of Canada set the precedent governing the appointment of amicus in its 2013 decision, Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43 (“CLA”), where it set out the following:
- Courts may appoint amicus only when they require assistance to ensure the orderly conduct of proceedings and the availability of relevant submissions;
- Once appointed, the amicus is bound by a duty of loyalty and integrity to the Court and not to any of the parties to the proceedings, and
- There are situations where the appointment of amicus might be warranted, such as when a self-represented party is ungovernable, refuses to participate, disrupts proceedings, or who’s lack of sophistication risks injustice.
The SCC set a two-tiered test for appointing amicus:
- The assistance of amicus must be essential to the judge discharging his or her judicial functions in the case at hand, and
- The authority to appoint amicus should be used sparingly and with caution, in response to specific and exceptional circumstances.
Some further guiding factors were provided by the SCC in CLA:
- A party has a right to self-represent, however, the trial judge is responsible for ensuring that the trial progresses reasonably;
- Amicus may assist in the presentation of evidence, but they cannot control a party’s litigation strategy;
- Because amicus does not represent a party, the party may not discharge amicus;
- The trial judge must consider whether he or she can personally provide sufficient guidance to an unrepresented party in the circumstances of the cases to permit a fair and orderly trial without the assistance of amicus, and
- The order appointing amicus must be clear, detailed and precise in specifying the scope of amicus’s duties. The activities of amicus must be actively monitored by the trial judge to prevent mission creep, so that amicus stays within the defined limits.
The Estate List Amicus Pilot Program is in its early days, however, the judges of the Estate List have shared that the cases that have proceeded with amicus have been of immeasurable assistance to the court, so much so that they continue to look for more volunteers.
If you are interested in volunteering for the program, please contact Matthew Rendely at mrendely@LN.Law and Holly Cunliffe at hcunliffe@airdberlis.com.
The Evening with Estate Judges was a great success, with many thanks to the organizers of the event, and to The Honourable Justice Dietrich, Justice Gilmore and Justice Faieta for spending their evening with the Bar.
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