Because applications are not necessarily contentious affairs, it is common for one or more of the named respondents to choose not to participate. As a result, rule 38.07 directs any respondent who intends to participate in the application to file a “notice of appearance.”[1] A respondent who does not file a notice of appearance is not entitled to the following (unless a court orders otherwise):

• Receive further notice of any step in the application;
• Receive any further documents in the application;
• File responding material, examine a witness or cross-examine on an affidavit; or
• Be heard at the hearing of the application.

This rule saves the applicant from having to track down any non-responsive respondents in order for the application to move forward. It also means named respondents who do not wish to participate in the litigation do not incur any expense as a result of being named in the application.

However, there are occasions when an application will impact someone who was not named as a respondent. In those cases, the court may direct that the non-party is given notice of the application before it move forward. Nevertheless, absent any court order to the contrary, the non-party’s right to participate in the proceeding is still dependant on filing a notice of appearance. Such was the case in Grier v Grier, 2020 ONSC 4799.

Background

James Grier died in 2013. He was survived by his three children: David, Janet, and Sandra. David and Janet were engaged in litigation over which of their father’s wills were valid. Under the earlier will, James left his estate equally between his three children: Janet, David, and Sandra. In the second will, David is disinherited and his 1/3 share of the estate passes to Sandra’s son, Garret.

Despite being beneficiaries (or potential beneficiaries) of the estate, neither Sandra nor Garret were named as respondents or participated in the litigation. Nevertheless, in 2014, an Order Giving Directions was issued directing how service of any documents in the proceeding, including notice of a settlement or judgment obtained, would be effective on Sandra and Garret (for example, the court ordered that Garret could be served by email).

Seven years after their father’s death, David and Janet reached a settlement. However, both David and Janet were under a disability so the settlement had to be approved by a judge on their behalf.

The litigation guardians for David and Janet sent Sandra and Garret some, but not all, of the materials in their motions to approve the settlement. Sandra requested the full motion record, but only Janet’s litigation guardian complied. As a result, Sandra brought a motion to hold David and Janet in contempt of the Order Giving Directions for failure to serve her and David with all materials filed in the proceeding since 2014. In the alternative, Sandra sought the immediate disclosure to her of all materials filed in the proceeding since the 2014 Order Giving Directions was issued.

Contempt

As set out in rule 60.11(2), a motion for contempt must be served personally on the person against whom the contempt order is sought. Having failed to personally serve David with the contempt motion, the motion judge dismissed Sandra’s request for contempt.

Request for Service of All Pleadings

The motion judge then turned to Sandra’s request to be provided with copies of all the materials filed since the 2014 Order Giving Directions. The judge held that Sandra and Garret had had notice of the proceedings since the summer of 2014, when they were served with the Order Giving Directions. However, neither Sandra nor Garret filed a notice of appearance, attempted to file materials or their own, or participate in the proceeding in any other way since that time.

Relying on rule 38.07(2), the judge held that, having chosen not to file a notice of appearance, neither Sandra nor Garret were entitled to receive further notice of a step in the proceeding or further documents “unless a court ordered otherwise.” In this case, the Order Giving Directions did not create a stand-alone obligation to serve Garret and Sandra with materials; rather, it simply confirmed how Sandra and Garret would be served if they chose to participate in the litigation.

Accordingly, the judge held that Sandra was not entitled to receive copies of all the materials filed over the six years since the Order Giving Directions was issued.

Service of the Motion to Approve the Settlement

The judge held that the motion for court approval of the settlement should be treated differently than Sandra’s request for service of the other pleadings.

The Order Giving Directions directed that Sandra and Garret are entitled to “notification of settlement.” While they received notice of the motions to approve the settlement, they were not provided copies of the full motion record.

The judge held that there is an obligation on the moving party to serve opposing counsel with the full record on a motion to approve a settlement (i.e. opposing counsel is entitled to receive the notice of motion and any supporting affidavits). This requirement has been endorsed by the Ontario Court of Appeal in Poulin v Nagdon, [1950] OR 219, and several more recent decisions of the Ontario Superior Court.[2] While steps can be taken to protect privileged solicitor-client communications, the default remains that the full record should be served on all parties.

Accordingly, the motion judge held that the obligation imposed by the Order Giving Directions to provide Sandra and Garret with “notice” of the approval motions meant that they had to be provided with the full motion record.

Estate disputes often have respondents numbering in the double digits. This case is a good reminder to keep careful track of who has been served and who has filed a notice of appearance. It is also a reminder to carefully review any orders giving directions regarding service and the right to participate in the proceeding.

[1] An exception is made for applications to pass accounts, which follow a unique procedure set out in rule 74.18.

[2]           Burns Estate v Falloon, 2007 CanLII 38558 (ON SC); Catanzaro v Kellogg’s Canada Inc., 2014 ONSC 5691; and Boone v Kyeremanteng, 2020 ONSC 198.