All About Estates

Are the Rules of Civil Procedure at times to rigidly applied?

In June an application for a certificate of appointment of estate trustee with a will was referred to hearing when a deficiency notice was issued by the estate registrar as the applicant had only sworn one affidavit that included the affidavit of execution and explaining the hand writing on the will.  The deficiency notice was issued as the affidavit of execution and the required information was not presented in two separate forms (affidavits) as prescribed. 

Justice Brown pointed out that while one should be careful of sanctioning any departure from the Rules, no danger was posed to the “integrity” of the court’s process in permitting an applicant to combine the information contained in each prescribed form into one document.  In this case the affidavit submitted met the requirements of both required forms. 

He gave three reasons for this rationale (although none were the obvious one – that there was no logic to not allowing the content of the “forms” to be combined): (1) there was a three week delay in mailing out the deficiency notice which should have been sent by email, (2) the applicant was dying of cancer and therefore there was urgency in processing the application, and (3) the Ontario public “deserves” an electronic filing system to save time and paper.

Justice Brown also commented on the lack of use of technology by the courts commenting that the courts are still using an antiquated paper based system instead of allowing online filing of documents and email correspondence, and that the government who has the power to make the much needed changes to make the system more efficient should do so and thereby enhance access to justice for the Ontario public.

Lesson Learned: while the Rules were, in part, revamped barely a year ago, more changes are still being championed by at least one branch of the system – the judiciary – which seems to experience, from time to time, a similar level of frustration as the rest of us.

Until next time,

Jasmine Sweatman

About Jasmine Sweatman