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Goodbye to the standard Order Giving Directions?: SCC’s Hryniak shakes up the Estates List

In the recent Hryniak decision, the Supreme Court of Canada introduced civil litigators to a rare and unusual tool: the tailor-made order for directions that sets an appropriate procedure for a summary judgment motion.

Estates litigators could be forgiven for thinking that this aspect of Hryniak was just an affirmation that civil litigation should be a little more like estate litigation — on the Toronto Estates List, Orders Giving Directions based on a standard draft order in wide circulation have been de rigeur for a long time.

This illusion did not take long to shatter. On March 27, Justice Brown released his decision in Re Estate of Ireni Traitses. Right from the get-go, the court makes it clear that things have changed in the estates bar too:

In light of Hryniak, I see little use in continuing to use the standard Estates List Order for Directions. The appropriate process for will challenge proceedings now must incorporate the Hryniak principle of proportionality.

In this case, which involved an estate worth only about $800,000, the court said that standard orders were disproportionately expensive.

Instead of ordering examinations as a matter of course, the court allowed each party to submit a list of 50 questions for written interrogatories. Instead of ordering a trial of issues, the court directed a hybrid trial with affidavit evidence in-chief and time-limited cross-examinations.

The court ordered the parties to schedule a case management conference only three months away to set a date and make directions for trial in September or October of this year – just another 3 or 4 months later.

Justice Brown seized himself as case management judge and included his detailed case management directions as a schedule to the decision.

This decision is ground-shifting for day-to-day practice on the Estates List. It is unreported as yet, but it is required reading.

Download a copy of the case here (pdf)


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