Ontario Estates Bench-Bar Liaison Committee

January 15, 2024 4:30 PM Zoom

Facilitator:

Justice Dietrich, Chair

Note taker:

Mina Moser, Judicial Law Clerk

Attendees:

Justice Dietrich (Chair) Justice Woodley Justice Fowler Byrne Laura Craig (Counsel, Office of the Chief Justice) Mina Moser (Judicial Law Clerk) Michelle Chen (Manager, Civil Trial Office) Roxanne Parris (Manager of Trial Coordinators) Nicole Fielding (CAMH Representative) Monica Simion (MAG – Manager, Court Operations) Jove Ponniah (MAG – Supervisor, Court Operations) Caroline Abela (The Advocates’ Society representative) Lou-Anne Farrell Andrea M. Hill Ian Hull Alison Lester (Federation of Ontario Law Associations representative) Kathleen McDormand (OBA representative) Mitchell Rattner (OBA representative) Susan Stamm (Counsel, Office of the Children’s Lawyer) Marshall Swadron Barry Corbin, on behalf of Marni Whitaker (Estates Subcommittee of the Civil Rules Committee)

Regrets

Justice Sheard Justice Wilson Angelique Moss (OBA representative) Kavina Nagrani (OBA representative) Linda Omazic (Counsel, Court Services Division) Michele Warner (CAMH representative) Kimberly A. Whaley Marni Whitaker

1.

Welcome

Presenter:

Justice Dietrich

Justice Dietrich welcomed Committee members and took attendance.

 

2.

Approve Minutes

Presenter:

Justice Dietrich

Discussion

The minutes of the meeting held on October 16, 2023, were approved.

 

3.

Questions from the bar

Presenter:

M. Rattner/ L. Craig/ I. Hull

 

Discussion

1. Filing Notice of Objection for a Certificate of Appointment in the Civil Filing Portal (M. Rattner/ L. Craig)

A question was raised about whether filers should be permitted to file a Notice of Objection electronically using the Civil Submissions Online filing portal. This was raised previously at the June 12, 2023 meeting. This is not possible currently because the Civil Submissions Online portal is integrated with the FRANK case-tracking system only, and not the Estates System which is used for conducting clearance searches prior to issuing certificates of appointment of estate trustee. The question of whether improvements in electronic filing can be made will be raised with L. Omazic.

[Post-meeting note:  L. Omazic confirmed that a Notice of Objection can be filed by email to the Superior Court of Justice, rather than through Civil Submissions Online (CSO). CSO is not integrated with the Estates System database. The ministry is working on the Courts Digital Transformation initiative, which will support the modernization of court processes and technology and will move more services online. CSD is considering whether any improvements can be made related to electronic filing of probate documents in the interim.]

 

2. “Declarations” section of the Certificate of Appointment form (M. Rattner)

A question was raised regarding whether an affidavit is required to address whether any secondary (or other) Will has revoked the Will intended to be probated, if the box under the “Part 8 – Declarations” section of the Certificate of Appointment form is checked.

That box, which states “confirm that the secondary (or other multiple) Will(s) has/have not revoked the Will I am seeking to probate”, was intended to replace the use of an affidavit to address revocations. An affidavit is no longer required if this box is checked.

 

3. Can a Statement of Claim can be issued directly onto the Estates List (M. Rattner)

A question was raised about whether a Statement of Claim can be issued on the estates list, or whether it must be issued in the civil system and then transferred to the estates list. It appears to be possible at times if the file has a CV number.

L. Craig and M. Chen will look into this an provide an update at the next meeting.

 

4. How to best address administrative errors on documentation issued by the court (M. Rattner)

A question was raised about how best to address minor administrative errors on documentation that has been received from the court without going to the back of the line. For example, if an error is made on a document by court staff, how can the error be most efficiently addressed? At this time, the process for addressing these issues is to send an email to the general estates list, which puts the email at the back of the line.

J. Ponniah advised that he is canvassing ways to improve the process for these applications, but in the meantime, if staff make an error that requires correction, please email him at Jove.Ponniah@ontario.ca.

[Post-meeting note: Where an administrative error is made by court staff and requires correction, the applicant or applicant’s lawyer may contact the Supervisor of Court Operations with a covering letter or email describing the error. The Supervisor can consider the issue and how it can be most efficiently addressed. In some cases, for example, where a Certificate of Appointment of Estate Trustee is issued and contains an administrative error, court staff may seek judicial direction.]

 

5. Technical issue with accessing the model order for directions (I. Hull)

The link to model orders in the Consolidated Practice Direction Concerning the Estates List in the Toronto Region was not working. L. Craig will follow up with the webmaster.

[Post meeting note: the link has been reactivated. Users can also bookmark the following page and scroll down to the Estate List forms: https://www.ontariocourts.ca/scj/practice/regional-practice-directions/toronto/].

 

4.

Update regarding amendments to the Consolidated Provincial Practice Direction for Civil Proceedings

Presenter:

L. Craig

Discussion

1. Notice to the Profession regarding amendment to Practice Directions (L. Craig)

As discussed at previous meetings, estate-related amendments to the Consolidated Provincial Practice Direction for Civil Proceedings are proposed for provincewide application. A revised version of the amendments will be circulated to the committee for discussion. Once finalized, it will be submitted to the Regional Senior Judges Council for approval. 

The proposed next steps are as follows:

1. Final bench-bar committee review of the practice direction changes;
2. Seek approval of amendments at the May RSJ Council meeting;
3. Circulate practice direction amendments to bar associations and legal organizations 2-3 weeks in advance of the amendment’s in-force date;
4. Consider hosting separate lunch-hour webinars to review the changes and to answer questions from:
   1. Bar and public;
   2. Trial scheduling staff
   3. Judiciary
5. Post the amended practice direction online and monitor.

 

5.

Other Business

Presenter:

Open

Discussion

1. Possible Rollout for Calendly (M. Chen)

Justice Dietrich, M. Chen and R. Parris will meet with the project teams to discuss the possibility of using Calendly for chambers appointments or scheduling appointments. The Calendly online self-scheduling tool allows parties to select their own court date instead of contacting the Trial Coordinator’s Office. The parties would select a mutually agreeable date and answer several questions. The trial coordinator would then review the information provided and, if approved, schedule the appointment in FRANK. If not approved, the parties will receive a “decline” notice with reasons. Using Calendly for scheduling is working well in other court locations and practice areas.

 

2. Issue with deadlines for notice of withdrawal of objections and request for increased costs (M. Whitaker)

The following issue was raised at the October 16, 2023, Estate Bench-Bar Liaison Committee Meeting. The Estates Subcommittee last met in September, and their subsequent meeting is scheduled for February 29, 2023. This issue will be brought forward and discussed at the next meeting.

As summary of this issue is as follows:

Currently, under the Rules of Civil Procedure, the deadline for serving the notice of withdrawal of objections and the deadline for serving the request for increased costs in a passing of accounts are the same day. If the objections are not withdrawn, then the passing of accounts is likely to be contested, and the costs will be greater than the tariff. It would be helpful to have some time between the two deadlines. Otherwise, counsel may need to prepare them in anticipation of the matter being contested, which adds to the legal costs of the matter.

The Estates Subcommittee of the Civil Rules Committee has established a working group to review this issue. If an amendment to the Rules of Civil Procedure is recommended, it will be forwarded to the Civil Rules Committee for consideration. An update will be provided at the next quarterly meeting.

 

3. Agenda item to discuss at next meeting (S. Stamm)

S. Stamm raised a topic to be addressed at the next meeting. It is with respect to motions to dispense with the requirement to file a bond. S. Stamm has been serving as the bond review counsel in the Office of the Children’s Lawyer and has noticed that these motions are brought in a variety of ways, and there does not appear to be any consistency. Some issues include:

1. Part 10 of Form 74.1A includes the following: “none of the estate beneficiaries are minors or mentally incapable adults without a Guardian or Attorney with authority to act in this proceeding.…”. The capitalized word “Guardian”, which is not defined in the form, appears to cause some applicants to falsely believe that a parent/guardian (who may also be the applicant trustee) has authority to consent to bond dispensation on behalf of a minor. The language could be clarified to read “Court Appointed Guardian of Property or Attorney for Property with authority to act in this proceeding”.
2. On the bond form, there is another box that states, “I will file a motion under rule 37 to seek to reduce amount of bond”. Should a person who is seeking to do this include their motion material in the application?
3. Motions to dispense with a bond should be served on the OCL, but sometimes they are not. Sometimes the OCL is served but there is not enough time to respond. Perhaps a box can be included to indicate whether the OCL and/or PGT has been served. The affidavit of service for this is unhelpful.
4. There is a work-around when dealing with lower value estates. If the bond is not dispensed with, the applicant’s lawyer can provide an undertaking, but this requires the lawyer to stay on the file and usually they are only retained to obtain the certificate.
5. When the OCL has consented to an order dispensing with the requirement to file a bond, there is no proper procedure for getting this information to the judge. An email from the OCL could be forwarded to the court, or attached to an affidavit, but there is no proper approach to get this information to the court right now. Perhaps an option might be to have the OCL sign a formal letter indicating that they are not opposing the bond.  

It is very difficult to respond to these motions, and they move too fast. The OCL is not requesting a rule change but is seeking direction on how to address these motions (i.e., what do the judges need before granting orders where children are involved).  

 

4. Section 3 appointments and concerns respecting LAO raised by the Mental Health Legal Committee (MHLC) (M. Swadron)

The purpose of the below information is to alert the Estate Bench-Bar Liaison Committee to the issue so that the Superior Court can play a role in helping to craft a sustainable solution that ensures representation of alleged incapable persons in Substitute Decisions Act, 1992 (“SDA”) proceedings.

Legal Aid Ontario (LAO) has undertaken a tariff reform project. It has yet to address the need for reform of the legal aid tariff for representation of alleged incapable persons in proceedings brought under the SDA. As of now, the LAO issues certificates to financially eligible clients who then approach lawyers in private practice willing to accept the certificates. However, in the case of s. 3 counsel, the PGT plays a larger role in the process of locating a lawyer willing to act. Lawyers accepting a certificate cannot accept payment for a case other than from LAO. If costs are awarded to the alleged incapable person, LAO is entitled to that award, even where it exceeds what LAO has paid.

Certificates are subject to a tariff or maximum number of hours that may be billed depending on the subject matter of the case. The tariff established by LAO for representation in SDA proceedings permits payment for 15 hours of lawyer preparation time plus hearing time, subject to LAO’s discretion. The tariff is not affected by how many years the proceeding may take or the number of application, motion or mediation appearances a lawyer may need to prepare before the case is resolved. The hourly rates paid by LAO start at $114.60 and top out at $143.25 for lawyers with ten or more years of experience. These hourly rates are scheduled to increase by 5% on each of April 1, 2024 and April 1, 2025, but they remain very low.

Even in cases where LAO is secured by a payment agreement or a lien against the alleged incapable person’s home and/or where judicial approval of counsel’s fees at legal aid rates has been obtained, LAO does not consider itself bound unless it receives notice of the approval hearing. There is no established mechanism for providing LAO with notice such that LAO tends to disregard correspondence giving it notice of court approval hearings and then disregards the resulting order. In addition, LAO requires that certificates be billed at least annually and will refuse to review accounts settled more than 60 days prior to a review request. As such, where an SDA proceeding concludes after three years, at which time the court approves the fees of s. 3 counsel, LAO will refuse to revisit fees that it disallowed in the first two years of the case as a result of the inadequate tariff.

LAO issues relatively few certificates in this practice area such that it is unfamiliar with what can be involved in SDA proceedings. The MHLC has sought to address the problem with LAO over a number of years without results. Increasingly, the PGT is unable to locate lawyers in private practice who are willing to accept legal aid certificates in SDA proceedings because of the unsustainably low tariff, low hourly rates, and manner in which LAO treats lawyers’ accounts.

Under the Legal Aid Services Act, 1998, LAO generally needed regulatory approval from the province to effect changes to the tariff. The Legal Aid Services Act, 2020, grants LAO greater authority in such matters. The MHLC will again be seeking to address the tariff in SDA matters and the procedural challenges posed by the rigid application of its rules with LAO in the coming weeks.

There is precedent for Superior Court and Court of Appeal judges participating in the efforts of LAO and the bar to reach sustainable solutions to similar problems. The best examples are the reforms to the legal aid tariff in respect of appeals to the Superior Court from the Consent and Capacity Board and appeals to the Court of Appeal from the Ontario Review Board. If LAO needs support to understand the issues that these persons are facing in the court system, it may be helpful for the bench to become involved so that this meaningful public service can be useful and effective.

 

5. Privacy concerns arising from the Notice of Application for the Application for Certificate of Appointment (L. Farrell)

This is not a new concern, however, there have recently been complaints from beneficiaries about the extent of their private information that must be provided as part of the main application. Various issues include that beneficiaries can see the private information of other beneficiaries, including addresses which can be a concern in situations of domestic violence, and all beneficiaries can see other information including the size of the estate.

[Post-meeting note: L. Omazic shared that where a beneficiary address is not indicated but an email address is indicated in a probate application form, a filer can submit a covering letter or email explaining the reason for the missing beneficiary address and the rationale for the view that the address is not needed (for example, that service is permitted by email under r.74.04(7)(b) and the application was served by email).  The issues relating to privacy concerns will be canvassed with the Estates Subcommittee.]

 

6.

Standing Agenda Items

Presenter:

Justice Dietrich

Discussion               

1. Changes to the Succession Law Reform Act – tracking decisions (s. 21.1)
   1. Kertesz v Kertesz, 2023 ONSC 7055 – October 25, 2023

Justice Myers recognized as a valid will under s. 21.1 of the SLRA, a note prepared by a deceased person who knew his death was imminent. The note was unsigned. But it demonstrated on its face that the deceased person intended it to be a will; that he understood the scope of his assets; he understood the pool of possible beneficiaries; and that he understood how each of the foregoing interrelated. There was also no question as to the fact that the note demonstrated the deceased’s fixed and final expression of their testamentary intentions at the time it was created.

2. White v. White, 2023 ONSC 3740 – June 2, 2023

This is the first decision in the White trilogy.

This endorsement addressed an application for disclosure of the deceased’s solicitor’s file for the purpose of determining whether the deceased solicitor had prepared a draft will for the deceased testator, which might constitute as an expression of his testamentary intention sufficient to revoke or alter her 2014 will. If such a document existed, the applicant would then endeavour to have the court recognize and validate the draft, as a will, pursuant to s. 21.1 of the SLRA.

In the endorsement, Justice Myers commented that it sounded like this draft was not ready for signing, and if that were the case, the draft will would simply be a draft and likely would not meet the threshold for demonstrating a fixed and final intention.

However, this endorsement was about the application for disclosure, and not the applicability of s. 21.1. Justice Myers deferred his decision on the issue of production and asked that counsel return to argue the availability of “pre-lawsuit” discovery, based on applicable research.

3. White v. White, 2023 ONSC 7286 – December 18, 2023

This is the second decision in the White trilogy.

The issue was whether the court should grant production of the deceased solicitor’s file pertaining to the deceased testator. After reviewing s. 21.1 and noting that “no one knows with certainty yet whether there are any limits on the types of documents that might be recognized as wills or what limits may apply”, the court’s primary concern was that such applications could become a way for disgruntled relatives to inflict costs and delay and could amount to a fishing expedition.

However, based on the facts of this case, Justice Myers concluded that the request was not an abuse of process or a fishing expedition. There was also other evidence that the solicitor had indeed brought a draft document to the hospital for execution, as opposed to there being an electronic draft on the solicitor’s computer.

The court was also satisfied that solicitor-client privilege was not in issue, since the particular draft document in question would be enshrined with the deceased’s testamentary intentions, and therefore, like a will, could not be privileged. This lack of privilege did not extend to any other documents such as the solicitor’s notes, however, the other beneficiaries in this case were not opposing the production of the solicitor’s notes. This was a very significant fact for Justice Myers, who noted that if the beneficiary and estate trustee had opposed the production of the solicitor’s notes, the court might have had to consider any privilege claims asserted against the documents other than the draft will.

This decision does not widen the scope of the applicability of s. 21.1 to solicitor’s’ notes. If that issue were to arise on the facts of another case, that will be an issue for the court to decide at that point in time. Nor does this case support an application to access a deceased testator’s solicitor’s files in hopes to find a previously unknown document that might be the subject to a claim under s. 21.1.

 

2. Toronto Estates Office (scheduling, court bookings)
   1. Staffing Issues

Jove Ponniah has replaced Debra Dykstra as Supervisor of Court Operations.

Roxanne Parris is replacing Michelle Chen in the position of Manager of Trial Coordinators.

Christine Irwin will not be returning as a trial coordinator.

No permanent group leader to manage the ex-parte applications.  

2. Scheduling issues and probate application processing

Issuing probate certificates has been taking less time than in recent months.

 

3. Estate Bench-Bar Committee (members)

Susan Easterbrook will not continue as a member of this committee and suggests a practitioner from the Windsor area fill the position (perhaps Owen Thomas).

There has been some interest from other lawyers in joining this committee.  

 

• Next meeting: April 8, 2024, at 4:30 PM

[Post-meeting note: Meeting date changed to April 15, 2024]

 

Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.