By Rebecca Betel and Natalie Kodsi

Bill 245, the Accelerating Access to Justice Act, 2021^[1] (the “AAJA”), assented to April 19, 2021 (“Date of Ascension”), is a large omnibus Bill that amends various Ontario statutes and regulations. This overview of the AAJA will take a deep dive into the most salient changes the AAJA brings to estates law.

The AAJA is comprised of 11 Schedules, each detailing amendments to various existing legislation as follows:

Schedule 1 – Barristers Act, R.S.O. 1990, c. B.3 (the “Barristers Act”)

Schedule 1 to the AAJA came into effect on the Date of Ascension, April 19, 2021, and amends the Barristers Act with reference to a current, or former, Attorney General for Ontario and removes the reference to the Solicitor General of Canada. The effect of this change is that a person who is, or has been, Attorney General for Ontario or Minister of Justice, and Attorney General of Canada is entitled to be called to the bar of Ontario without complying with the Law Society Act^[2] (the “Law Society Act”) or any of the Law Society of Ontario’s rules or regulations as to licensing, examinations, payment of fees or otherwise, and is thereupon entitled to practice at the bar of Her Majesty’s courts in Ontario.

Schedule 2 – Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (“CLRA”)

Schedule 2 to the AAJA came into effect on the Date of Ascension, April 19, 2021, and provides for two amendments to the CLRA: (1) the default maximum amount for the total money payable and the value of personal property deliverable under subsection 51(1) of the CLRA is now $35,000; and (2) if a person is duty bound to pay money or deliver personal property to a child pursuant to a judgment or court order, they can now discharge that duty in the same way they would under subsection 51(1), subject to the upper limit imposed by subsection 51(1.1).

Subsection 51(1) of the CLRA permits a person who owes money/personal property to a minor to discharge their debt by paying the money, or delivering the personal property, as the case may be, to said minor (assuming they have a legal obligation to support another person), a parent with whom the minor resides, or a person who has lawful custody of the minor. Historically, subsection 51(1.1) imposed an upper limit for the amount payable/value deliverable of $10,000. Schedule 2 amends subsection 51(1.1) to replace this upper limit with the amount prescribed by regulation O Reg 120/21 made under the CLRA, which is $35,000.

Furthermore, whereas previously money payable under a judgment or court order was expressly excluded from the application of subsection 51(1), now Schedule 2 re-enacts subsection 51(2) of the CLRA such that money payable under a judgment or court order, or upon an intestacy, is now subject to subsection 51(1) of the Act.

Schedule 3 – Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”)

Schedule 3 to the AAJA provides for many amendments to the CJA and related amendments to other Acts, such as:

• the title of a case management master will now be “associate judge”;
• lawyer members of the Judicial Appointments Advisory Committee (the “Committee”) are now to be confidentially appointed by the Attorney General, with certain requirements;
• the functions of the Committee are now amended in regard to how and when they advertise judicial vacancies;
• section 112 of the CJA is re-enacted to enable the Children’s Lawyer to make investigations and prepare reports for the court on certain matters specified by the court or to meet with the child and prepare reports for the court on their views and preferences pursuant to the Divorce Act^[3] or the CLRA;
• section 126 of the CJA, which deals with the use of French in court proceedings, is re-enacted and makes changes with respect to the right to file documents in French and the right to request translations.

Schedule 3 largely came into effect on the Date of Ascension, April 19, 2021. Please consult the Table of Proclamation on e-laws in cross-reference with the AAJA for the coming into force information of specific provisions: https://www.ontario.ca/laws/proclamations.

Schedule 4 – Crown Administration of Estates Act, R.S.O. 1990, c. C.47 (“CAEA”)

Schedule 4 to the AAJA provides for two amendments to the CAEA: (1) as of the Date of Ascension, April 19, 2021, municipal police must provide estate-related disclosure to the Office of Public Guardian and Trustee (“OPGT”) upon requests; and (2) as of a day to be named by Proclamation of the Lieutenant Governor,^[4] the OPGT’s powers under section 2.1 of the CAEA now have primacy over any other Act or regulation which prevents the disclosure of private information, including the Municipal Freedom of Information and Protection of Privacy Act^[5] (the “MFIPPA”).

The mandate of the OPGT is broad and includes: the management of incapable adults; the protection of minors; the protection of the public interest with respect to charities in Ontario; and, the administration of certain estates, including those where an Ontario resident dies without an available estate trustee.

To carry out its estate administration mandate, the OPGT may require the identification, collection, and use of personal information pertaining to an estate, such as its assets, value, and heirs/beneficiaries. Section 2.1 of the CAEA governs and facilitates the OPGT’s ability to request, access and use required information, including when that information is held with other institutions. Schedule 4 amends section 2.1 of the CAEA with subsection 2.1(5.1) which requires the municipal police service to disclose information related to an estate to the OPGT upon request.

Moreover, section 2.2 of the CAEA, that provides for section 2.1 to override other Acts and regulations in the event of a conflict, is re-enacted in order to add express reference to the MFIPPA as an Act that may be overridden.

Schedule 5 – Expropriations Act, R.S.O. 1990, c. E.26 (“Expropriations Act”)

Schedule 5 to the AAJA comes into effect on a day to be named by Proclamation of the Lieutenant Governor^[6] and provides a new process for all proposed expropriations under the Expropriations Act and new annual interest rates.

Schedule 5 amends the Expropriations Act by adding a new section 8.1 that permits the Lieutenant Governor in Council to make regulations to establish, for any or all proposed expropriations to which the Act applies, a process for owners to provide comments respecting a proposed expropriation to the approving authority, and for the approving authority to consider those comments and make a determination respecting the proposed expropriation. This process replaces the previous hearing process provided for under section 7 of the Act. Complementary amendments are made to other provisions of the Act, as well as to other Acts, to reflect the alternative process.

Schedule 5 also amends section 33 of the Expropriations Act to provide for annual interest rates specified in that section to be determined by regulations made under the Act, as opposed to the previous rate of 6% a year.

Schedule 6 – Ontario Land Tribunal Act, 2021, S.O. 2021, c.4, Sched. 6 (“OLTA”)

Schedule 6 to the AAJA largely came into effect on the Date of Ascension, April 19, 2021, and otherwise on June 1, 2021^[7] and enacts the OLTA. The OLTA provides for the composition of the Ontario Land Tribunal, sets out its jurisdiction and powers and specifies the practices and procedures that apply with respect to proceedings before it. The Ontario Land Tribunal is an amalgamation of: the board of negotiation continued under the Expropriations Act; the Conservation Review Board; the Environmental Review Tribunal; the Local Planning Appeal Tribunal; and, the Mining and Lands Tribunal. Note the bodies that are amalgamated and continued as the Ontario Land Tribunal are themselves repealed, and regulations made under those Acts and provisions are revoked. Additionally, various Acts^[8] have been amended to reflect the changes brought about by the OLTA, including reference to the Ontario Land Tribunal.

Separately, under the OLTA: the Attorney General is given authority to make regulations for transitional matters, and authorities are given to the Lieutenant Governor in Council and the Minister for the making of various regulations; and as of June 1, 2021, the Consolidated Hearings Act^[9] is repealed, and consolidated hearings are now provided for under section 21 of the OLTA.

Schedule 7 – Public Accounting Act, 2004, S.O. 2004, c. 8 (“Public Accounting Act”)

Schedule 7 of the AAJA came into effect on April 30, 2021 and amends the Public Accounting Act by dissolving the Public Accountants Council of Ontario. The Public Accounting Act transfers the governance of public accounting in Ontario to the Chartered Professional Accountants of Ontario (“CPA Ontario”). Under section 19 of the Public Accounting Act, when governing public accounting under the Act, CPA Ontario must adhere to any public accounting standards that it establishes for itself, subject to the approval of the Attorney General. The amendments under Schedule 7 expressly provides that licensed public accountants must be members of CPA Ontario and provide authority for CPA Ontario to regulate public accounting and govern its members through by-laws and other instruments made by its council under the Chartered Professional Accountants of Ontario Act, 2017^[10]. That Act is amended to reflect these changes.

Schedule 8 – Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”)

Notably, schedule 8 to the AAJA amends the SDA by adding and modifying section 3.1 that allows for virtual witnessing and execution of a power of attorney. The requirements for virtual witnessing and execution are satisfied through the use of audio-visual communication technology so long as at the time of execution at least one witness is a licensee pursuant to the Law Society Act and the signatures are contemporaneously made (signatures in counterparts permitted). Section 3.1 of the SDA came into force on April 7, 2020 and was amended on May 20, 2021. For greater clarity, section 3.1 applies for powers of attorney entered into on or after April 7, 2020 and applies, with necessary modifications, to the revocation of a power of attorney under the SDA.

Schedule 8 also broadens the OPGT’s access to records relating to an investigation under the SDA. Schedule 8 amends sections 83 and 90 of the SDA, respecting the OPGT’s entitlement to have access to records relating to a person who is alleged to be incapable in the context of an investigation under the SDA, in order to provide for access to records in the custody or control of an entity or class of entities prescribed by the regulations made under the SDA. The changes to sections 83 and 90 of the SDA came into force on two days: the Date of Ascension and May 20, 2021. Please consult the Table of Proclamation on e-laws in cross-reference with the AAJA for the coming into force information of specific provisions: https://www.ontario.ca/laws/proclamations.

Schedule 9 – Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”)

Schedule 9 to the AAJA makes multiple significant amendments to the SLRA, the implications of which will surely make waves throughout the practice of estates law in Ontario.

Witnessing Wills

Wills can now be signed and remotely witnessed, in counterparts, via electronic audio-visual communication. Section 4(1) of the SLRA provides that Wills made on or after April 7, 2020, may be remotely witnessed through the means of audio-visual communication technology, so long as at least one witness is a licensee pursuant to the Law Society Act at the time of execution and the signatures are made in the (electronic) presence of the testator (signatures in counterparts permitted). This amendment is deemed to have come into force on April 7, 2020 and was amended on May 20, 2021.

Revocation of a Will by Marriage

Marriage occurring on or after January 1, 2022 does not revoke an existing Will. As of January 1, 2022, section 16 of the SLRA, that a Will is revoked by the marriage of the testator, except in specified circumstances, is repealed.

Separation and Divorce of Testator

Historically, section 17 of the SLRA provides that if the marriage of a testator is terminated or declared a nullity then the testator’s Will shall be construed as if the former spouse had predeceased the testator such that any devises, bequests, appointments, or conferring of powers of appointments to the former spouse will be revoked. As of January 1, 2022, except where a contrary intention appears in the Will, section 17 is amended to add other specified instances of separation between married spouses that would have the same result, such as: living separate and apart for a period of 3 years; a separation agreement; court order; or a family arbitration award. This amendment takes effect in circumstances where a Will names a former spouse who has been separate but not divorced for at least three years prior to the death of the testator that must occur after December 31, 2021.

Remedial Powers

As of January 1, 2022, Schedule 9 amends the SLRA by adding section 21.1 to give the Superior Court of Justice authority to, on application, make an order validating and rendering fully effective a document or writing that was not properly executed or made under the SLRA if the Court is satisfied that the document or writing sets out the testamentary intentions of a deceased, or an intention of a deceased to revoke, alter or revive a Will. Electronic Wills form an exception to this provision. Previously, Ontario adhered to a strict compliance regime such that the Court had no discretion in determining a document as constituting a valid Will if it did not fully comply with the requirements prescribed by the SLRA. Now, under section 21.1, improperly signed wills are treated with more flexibility such that the Superior Court is authorized, on application, to determine a non-compliant Will valid. Note that one can only make an application under section 21.1 where the date of death of the testator is on or after the effective date, being January 1, 2022.

Separated Spouse – Intestacy

As of January 1, 2022, section 43.1 of the SLRA provides that spousal entitlements under Part II of the SLRA do not apply if the intestate and their spouse were separated, as determined under the section, at the time of the person’s death. A complementary amendment is made to section 6 of the Family Law Act^[11].

Schedule 10 – Amendments Respecting Appeals to a Minister

As of June 1, 2021, Schedule 10 of the AAJA amends the Environmental Protection Act^[12], the Mining Act^[13], the Nutrient Management Act, 2002^[14], the Ontario Water Resources Act^[15], the Pesticides Act^[16], the Safe Drinking Water Act, 2002^[17], and the Toxics Reduction Act, 2009^[18], by removing provisions that permit certain matters to be appealed to a minister of the Government of Ontario, and providing for a regulation-making authority to address any transitional matters that may arise as a result. A complimentary amendment is made to the Resource Recovery and Circular Economy Act, 2016^[19].

Schedule 11 – Parentage terminology in French Versions of Acts

Schedule 11 makes various changes to French-language terminology in a number of statutes. Notably, references to “père” and “mère” are replaced with “parent”. For more details, please refer to the text of the AAJA.

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[1]Accelerating Access to Justice Act, 2021, S.O. 2021, c. 4.

[2] Law Society Act, R.S.O. 1990, c. L.8.

[3] Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).

[4] On a day to be named by Proclamation of the Lieutenant Governor, which is the date section 1 of Schedule 1 to the Comprehensive Ontario Police Services Act, 2019, S.O. 2019, c.1, is to come into force. For coming into force information for Ontario statutes, consult the Table of Proclamation on e-laws found here: https://www.ontario.ca/laws/proclamations.

[5] Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56.

[6] For coming into force information for Ontario statutes, consult the Table of Proclamation on e-laws found here: https://www.ontario.ca/laws/proclamations.

[7] Please consult the Table of Proclamation on e-laws in cross-reference with the AAJA for the coming into force information of specific provisions: https://www.ontario.ca/laws/proclamations.

[8] Including the Local Planning Appeal Tribunal Act, 2017, the City of Toronto Act, 2006, the Municipal Act, 2001, the Ontario Northland Transportation Commission Act, and the Expropriations Act.

[9] Consolidated Hearings Act, R.S.O. 1990, c. C.29.

[10] Chartered Professional Accountants of Ontario Act, 2017, S.O. 2017, c. 8, Sched. 3.

[11] Family Law Act, R.S.O. 1990, c. F.3.

[12] Environmental Protection Act, R.S.O. 1990, c. E.19.

[13] Mining Act, R.S.O. 1990, c. M.14.

[14] Nutrient Management Act, 2002, S.O. 2002, c. 4.

[15] Ontario Water Resources Act, R.S.O. 1990, c. O.40.

[16] Pesticides Act, R.S.O. 1990, c. P.11.

[17] Safe Drinking Water Act, 2002, S.O. 2002, c. 32.

[18] Toxics Reduction Act, 2009, S.O. 2009, c. 19.

[19] Resource Recovery and Circular Economy Act, 2016, S.O. 2016, c. 12, Sched 1.