In theory, obtaining a judgement should mark the end of litigation. In practice, it can be the beginning of the just as tedious process of collecting on the judgement by way of enforcement proceedings.
The plaintiff in the case of Akhavan v Taheri found this out the hard way. On December 24, 2020, the plaintiff, Akhavan, obtained a judgement in the amount of some $2.4 million dollars plus costs. The appeal brought by the defendant, Taheri, was dismissed in 2022, with a judgement for additional costs to be paid to the applicant.
Though Taheri had now lost at trial and their appeal was dismissed, no funds came Akhavan’s way. Later, Akhavan discovered that Taheri had passed away shortly after the appeal was dismissed.
When a party dies during litigation
Due to the outstanding orders against them Akhavan is considered a creditor and entitled to collect on their judgement out of the now deceased Taheri’s estate, including by way of enforcement proceedings.
When a party dies, their interest in the litigation is transferred to their estate. Under Rule 11.01 of the Rules of Civil Procedure if the interest or liability of a party is transferred or transmitted to another person by way of death or other means, the proceeding is stayed until a notice to continue is obtained. This means that Akhavan would have to bring a motion seeking an order to continue the litigation against the estate before they could begin enforcement proceedings. As regular readers of this blog will know this means the estate trustee needs to be notified and served. As the representative of the estate, it is up to the estate trustee to continue the litigation on behalf of the estate. This is all well and good, but for Akhavan, there was a problem: they did not know the identity of the Taheri’s estate trustee.
Order to Continue in the Absence of an Estate Trustee
In an attempt to ascertain who to contact regarding Taheri’s estate, Akhavan made inquiries with their trial lawyer, appeal lawyer, and the deceased’s family. Akhavan also conducted searches on the Ontario Gazette and Notice Connect, where estate trustees publish notices to creditors of estates, to no avail. Seeing no alternative, Akhavan brought a motion to continue the action in the absence of a representative of the estate.
The judge presiding over the matter, Justice Papageorgiou, granted the relief sought. In her reasoning, Her Honour referred to Rule 10.02, which allows a judge to order that a proceeding continue in the absence of a person representing the estate where there is no estate trustee or appoint a person to represent the estate for the purpose of the proceeding.
Making note of the “extensive efforts” made by Akhavan to identify the estate trustee and the absence of any response to Akhavan’s inquiries from the deceased’s family or his most recent lawyer over the course of a year, Her Honour found that “where a judgement creditor has a significant judgement and no one representing the deceased has sought an order to continue, and furthermore where likely beneficiaries provide no information on who the executor or administrator is, is a circumstance where it is desirable to make an order to continue in the absence of a person representing the estate.” Her Honour went on to find that were it otherwise, the judgement creditor, in this case Akhavan, would have no ability to recover his judgement.
Although the order to continue was granted, Her Honour also directed the order be served on Taheri’s children and his lawyer, leaving an opportunity for them to bring a motion seeking a variation of the order if necessary.