Rule Changes Affecting Estate Litigators in Ontario

Written on May 1, 2012 – 8:57 am | by Angela Casey

Important changes have been made to Rule 74 of the Rules of Civil Procedure (“Rules”) governing applications to pass accounts, unopposed judgments on passing of account applications, and requests for increased costs.

Rule 74.18 – The timelines for serving an application to pass accounts have been extended.  You now need to serve an application to pass accounts on all persons with a contingent or vested interest in an estate at least 60 days in advance for parties in Ontario and/or at least 75 days in advance for parties served outside Ontario.  (The deadlines used to be 45 days and 60 days respectively.)

Importantly, the deadline for serving objections has also been changed.  Notices of Objection must now be served at least 30 days before the hearing date (as opposed to 20). 

As in the past, if the application proceeds on an unopposed basis, the estate trustee or a party with a financial interest in an estate who has incurred legal costs in respect of the application is entitled to costs in accordance with Tariff ‘C’.   The good news is that Tariff ‘C’ costs have also been modernized. 

Amount of Receipts Old Tariff C Amount of Costs New Tariff C Amount of Costs
Less than $100,000 800.00 -
$100,000 to $299,999 1,750 2,500 (up to $300,000)
$300,000 to $499,999 2,000 3,000
$500,000 to $999,999 2,500 3,500
$1,000,000 to $1,499,999 3,000 5,000 (1 million to 3 million)
$1,500,000 to 2,999,999 4,000 5,000 (1 million to 3 million)
$3,000,000 and up 5,000 7,500

If a party seeks costs in excess of the amounts set out in Tariff ‘C’, (s)he can file a Request for Increased Costs pursuant to Rule 74.11.  Borrowing largely from the guidance in Justice Brown’s decision in Re: Mitchell, Rule 74.11 now sets out in detail exactly what is required from a party seeking increased costs and the timelines for those materials.  The new process is set out below:

Deadline Step
At least 20 days before hearing Party seeking increased costs serves (a) Request for Increased Costs and (b) Costs Outline on every other party
At least 12 days before hearing Responding parties must file any objections to increased costs or consent to increased costs
At least 10 days before hearing Party seeking increased costs files supplementary record containing (a) the documents set above, together with affidavits of service for each and (b) an affidavit setting out (i) the responses received from each party (ie consent, objection, no response) and (ii) the factors that contributed to the increased costs

While the old regime required a hearing every time there was a request for increased costs, the new Rules now provide that the Court may grant judgment without the need for a hearing on the basis of the materials set out above.  Presumably, the Court will have to review requests for increased costs within the 10 day period prior to the hearing date and advise the parties prior to the hearing date whether judgment has been granted without a hearing. Otherwise, the parties would have to attend at the hearing.

There are other changes to Rule 74 as well. The full text of Ontario Regulation 55/12 made under the Courts of Justice Act can be accessed here.  The rule changes will be in force effective July 1, 2012.

Happy litigating,


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