Death in the Middle of Litigation
Litigation is a complicated business. This complication is magnified where a party dies in the middle of it.
In Ontario where the death of a party occurs there is an immediate stay in the proceeding with respect to the interest or liability that is transferred upon the death of the party.1
In the recent decision Preiano v Cirillo2 Justice Price reviewed the procedural ramifications where a party dies in the midst of litigation. In Preiano the plaintiff brought a motion seeking an order to continue an action against a party who had died. The plaintiff sought an order appointing a representative of the estate for the purpose of the action.
The deceased had a will and named his wife as his estate trustee. The wife also happened to be a co-defendant in the litigation. The Court analyzed rule 10.02 of the Rules of Civil Procedure which states:
Where it appears to a judge that the estate of a deceased person has an interest in a matter in question in the proceeding and there is no executor or administrator of the estate, the judge may order that the proceeding continue in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent the estate for the purposes of the proceeding, and an order in the proceeding binds the estate of the deceased person, subject to rule 10.03, as if the executor or administrator of the estate of that person had been a party to the proceeding.
The Court noted that rule 10.02 only applies where there is no personal representative and that otherwise rule 11.02 governs. Rule 11.02 states:
Where a transfer or transmission of the interest or liability of a party takes place while a proceeding is pending, any interested person may, on filing an affidavit verifying the transfer or transmission of interest or liability, obtain on requisition from the registrar an order to continue (Form 11A), without notice to any other party.
Although the wife had not applied for a certificate of appointment to be the estate trustee, the Court noted that probate was not needed for the wife to qualify as an estate trustee and by implication rule 10.02 did not apply. The wife had not renounced her office as an estate trustee and therefore the Court found the wife to be bound as estate trustee in the litigation. As there was a named personal representative in the will the Court made an order continuing the litigation under rule 11.02.
Where the deceased has no named executor or administrator rule 9.02 states:
Where it is sought to commence or continue a proceeding against the estate of a deceased person who has no executor or administrator, the court on motion may appoint a litigation administrator to represent the estate for the purposes of the proceeding.
However the Court in Raiz v Vaserbakh,2 warned:
As a matter of estate law, only an executor or administrator has the authority to act on behalf of an estate. Rule 9.03(3), in my view, is intended only as a remedial provision and does not contemplate an action being brought by a litigation administrator.
In addition Trotter J in Raiz noted that the Court should be reluctant in appointing a person a litigation guardian where there is no one to administer the assets of the estate. Trotter J stated:
As a general policy consideration, a Court should be very cautious in granting authority to a person to carry out litigation without the burden of administering an entire estate.
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1. Rules of Civil Procedure, RRO 1990 Reg. 194 at r. 11.01.
2. Preiano v Cirillo, 2015 ONSC 7181 (Price J.)
3. Raiz v Vaserbakh, 1986 CarswellOnt 603, [1986] O.J. No. 1920 (Trotter D.C.J.).
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Written by: WEL Partners
Posted on: November 22, 2015
Categories: Commentary
Litigation is a complicated business. This complication is magnified where a party dies in the middle of it.
In Ontario where the death of a party occurs there is an immediate stay in the proceeding with respect to the interest or liability that is transferred upon the death of the party.1
In the recent decision Preiano v Cirillo2 Justice Price reviewed the procedural ramifications where a party dies in the midst of litigation. In Preiano the plaintiff brought a motion seeking an order to continue an action against a party who had died. The plaintiff sought an order appointing a representative of the estate for the purpose of the action.
The deceased had a will and named his wife as his estate trustee. The wife also happened to be a co-defendant in the litigation. The Court analyzed rule 10.02 of the Rules of Civil Procedure which states:
Where it appears to a judge that the estate of a deceased person has an interest in a matter in question in the proceeding and there is no executor or administrator of the estate, the judge may order that the proceeding continue in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent the estate for the purposes of the proceeding, and an order in the proceeding binds the estate of the deceased person, subject to rule 10.03, as if the executor or administrator of the estate of that person had been a party to the proceeding.
The Court noted that rule 10.02 only applies where there is no personal representative and that otherwise rule 11.02 governs. Rule 11.02 states:
Where a transfer or transmission of the interest or liability of a party takes place while a proceeding is pending, any interested person may, on filing an affidavit verifying the transfer or transmission of interest or liability, obtain on requisition from the registrar an order to continue (Form 11A), without notice to any other party.
Although the wife had not applied for a certificate of appointment to be the estate trustee, the Court noted that probate was not needed for the wife to qualify as an estate trustee and by implication rule 10.02 did not apply. The wife had not renounced her office as an estate trustee and therefore the Court found the wife to be bound as estate trustee in the litigation. As there was a named personal representative in the will the Court made an order continuing the litigation under rule 11.02.
Where the deceased has no named executor or administrator rule 9.02 states:
Where it is sought to commence or continue a proceeding against the estate of a deceased person who has no executor or administrator, the court on motion may appoint a litigation administrator to represent the estate for the purposes of the proceeding.
However the Court in Raiz v Vaserbakh,2 warned:
As a matter of estate law, only an executor or administrator has the authority to act on behalf of an estate. Rule 9.03(3), in my view, is intended only as a remedial provision and does not contemplate an action being brought by a litigation administrator.
In addition Trotter J in Raiz noted that the Court should be reluctant in appointing a person a litigation guardian where there is no one to administer the assets of the estate. Trotter J stated:
As a general policy consideration, a Court should be very cautious in granting authority to a person to carry out litigation without the burden of administering an entire estate.
—
1. Rules of Civil Procedure, RRO 1990 Reg. 194 at r. 11.01.
2. Preiano v Cirillo, 2015 ONSC 7181 (Price J.)
3. Raiz v Vaserbakh, 1986 CarswellOnt 603, [1986] O.J. No. 1920 (Trotter D.C.J.).
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