Section 13 of the Charities Accounting Act, R.S.O. 1990, c. C.10, as amended (“CAA”), is a useful tool for both estates and charities practitioners alike. The section provides that certain draft orders or judgments that could have been made by the Superior Court of Justice will be deemed to be an order of that court if the Public Guardian and Trustee (“PGT”) and every other person who would have been required to be served in a proceeding to obtain the order or judgment provide written consent to the order or judgment. A “section 13 application” can be used to obtain an order or judgment that could have been made by the Superior Court of Justice under the CAA, under any other Act dealing with charitable matters, or in the exercise of that court’s inherent jurisdiction in charitable matters.
The PGT has helpfully published a document entitled Procedures for Obtaining an Order Under s. 13 of the Charities Accounting Act (“Procedures”) which is available online. The Procedures provides several examples of the types of orders that can be obtained under section 13. For estates practitioners, of particular interest are cy-près orders (i.e. where it has become impossible or impracticable to carry out a charitable purpose) and orders under the court’s inherent scheme-making power (i.e. where the means of carrying out a charitable purpose do not work). As the Procedures note, the benefits to our clients of using a section 13 application are that it offers a simplified procedure, there is no court appearance or commencement of a formal court proceeding, and there is no requirement for an Application Record or a factum.
Anyone considering a section 13 application should review the Procedures carefully, as they clearly set out the process and requirements to request the consent of the PGT. The following is not a comprehensive review of the Procedures but an overview of some of the highlights:
- The PGT will not consent to a section 13 application unless all of the required written consents are provided.
- The request for the PGT’s consent must be in writing and must be accompanied by certain identifying information about the applicant (see Procedures, par. 10), a supporting affidavit, any other affidavit on which the applicant intends to rely, 4 copies of the draft order, 2 signed consents from the applicant and all other persons who are required to provide their consent, and a cheque or money order for $500.00 payable to the PGT.
- The supporting affidavit must contain a complete, true, and plain statement of all material facts that are relevant to the matter, relevant documents, and a copy of the draft order. It must also contain certain mandatory statements that are related to the requirements in section 13. For example, the applicant must swear that there are no other persons who would have been required to be served in a proceeding and confirm that all persons who are required to consent were provided with the materials and given a reasonable opportunity to review them an obtain independent legal advice. See Procedures, paras. 10 and 11.
- If a person who is required to provide his, her or its consent cannot be located, the section 13 process is not available.
- If requested to do so, the PGT will review the terms of the draft order before the necessary consents are signed (since the consents would otherwise need to be re-signed if the PGT requests amendments to the draft order). The sworn supporting affidavit and the $500.00 fee must be submitted with this request along with the draft order.
- The PGT can invite other parties to submit their views if such other parties may have been given status as an intervenor by the court or the court may have required such other parties to be served in a proceeding. If the PGT believes that a court would have required such other parties to be served in a proceeding, it will not consent to the section 13 order if such other parties do not consent.
- Although rare, the PGT can require an affiant to be examined on his or her affidavit.
- If the PGT consents to the draft order, the PGT will file the draft order and consents with the court and the draft order is effective once it is filed with the court. The PGT will send a copy of the filed order to the applicant (or the applicant’s counsel).
As noted above, the Procedures are essential reading for anyone considering a section 13 application. Where it is possible to obtain the necessary consents and the order falls within the subject matter of section 13, such applications can potentially reduce our clients’ costs and also save them valuable time.