All About Estates

MORE SUMMARY JUDGMENT MOTIONS IN ESTATE PROCEEDINGS

In the recent yet to be reported decision, the Estate of Bessie Orfus (2010 ONSC 5204), the Ontario Divisional Court confirmed the wide jurisdiction of Superior Court judges to manage estate cases, including ordering that a matter proceed by way of summary judgment before an order for directions.

Briefly, a summary judgment motion is a way to expedite a matter when “there is no genuine issue requiring a trial” by asking for the matter to be dismissed.  It had been the norm in estate litigation to request summary judgment only after an order for directions had been made as an order provided for the necessary disclosure.

In this case, the moving party had filed a Notice of Objection to the issuance of a certificate of appointment of estate trustees.  A motion for summary judgment was brought by the estate trustees before a motion for directions.  Wilson J. hearing the motion for summary judgment applied the reasoning in Smith Estate v. Rotstein and found that she had the jurisdiction to order a summary judgment motion prior to a motion for directions.  Leave to appeal to the Divisional Court of Wilson J.’s order was sought.  The moving party contended that in estates matters, a Superior Court judge has no inherent jurisdiction to order a matter proceeded by way of summary judgment.

The Divisional Court dismissed the motion for leave to appeal.  The Divisional Court found that a Superior Court judge does have jurisdiction to order a motion for summary judgment without the requirement that the motion be anticipated for in an order giving directions.  The Divisional Court referenced the recent Abrams v. Abrams decision and noted the inherent jurisdiction judges have to manage the cases before them.

As this was a Toronto matter, the parties were ordered to attend the summary judgement scheduling court.  In Toronto, the new regime requires the completion of a comprehensive case management information sheet that assists in obtaining the necessary disclosure through the summary judgment process.

Summary judgment motions will only become more popular and those practicing estate litigation will have to familiarize themselves with the new procedural norms. 

Enjoy your weekend,

Diane Vieira

About Diane Vieira
Diane has practiced in the area of estate, trust and capacity litigation since she was called to the Ontario Bar in 2006. Diane obtained her law degree from Queen’s University after completing an Honours Bachelor of Arts degree from the University of Toronto. She also recently received the Certificate in Elder Law from Osgoode Hall Law School. She is a member of the Trusts & Estates Section of the Ontario Bar Association, the Advocates’ Society, and the Toronto Lawyers Association. Diane has chaired various continuing legal education programs regarding estate, trust and capacity matters. She can be reached at dvieira@devrieslitigation.com