Can an Estate Trustee Represent an Estate in Litigation Without a Lawyer?
Facts
In the decision of Scarangella v. Oakville Trafalgar Memorial Hospital[1], 2024 ONSC 5518, Ms. Scarangella (the “Applicant”) sought a motion for her act in a representative capacity on behalf of the estate of her late partner, Mr. Carew Kaiser (the “Deceased”), without a lawyer. The Applicant was also the estate trustee of the Deceased’s estate. The Deceased died on February 26, 2021, while in the care of the doctors (the “Defendants”) at Oakville Trafalgar Memorial Hospital. The Applicant, as a representative of the Estate initiated a medical negligence action under the Family Law Act. The Applicant was unable to find a lawyer who would be willing to act as her counsel. Over four lawyers declined to act, however, it was clear that the Applicant made reasonable efforts to retain counsel.[2]
The Applicant went ahead and served the Defendants with a statement of claim, without representation. Counsel for the Defendants sent the Applicant a letter stating, “Rule 15 requires a party bringing an action on behalf of an estate to be represented by a lawyer”.[3] The Defendant’s offered the Applicant additional time before they filed their statement of defence for her to retain counsel. The Applicant unsuccessfully brought a motion, for authority and an order to represent the estate without a lawyer. The Court sided with the Defendants and dismissed the motion, thus reinforcing Rule.15.01(1).[4]
The Law[5]
Rule 15 of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”) states:
Where Lawyer Is Required:
Rule 15.01 (1) A party to a proceeding who is under disability or acts in a representative capacity shall be represented by a lawyer.
However, it is clear this rule conflicts with Rules 2.03, and 9.01 which provide as follows:
Court May Dispense with Compliance
2.03 The court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time.
…
Proceedings by or against Executor, Administrator or Trustee
General Rule
9.01 (1) A proceeding may be brought by or against an executor, administrator or trustee as representing an estate or trust and its beneficiaries without joining the beneficiaries as parties.
Rule 9.01 of the rules is supported by case law, as the court states:
“An estate trustee who acts for an estate in litigation does so in a representative capacity and is subject to Rule 15.01(1) that requires the estate to be represented by a lawyer: Herberman Estate (Re), 2003 CanLII 10801 (ONCA) at para 5”. The court goes on to state that it rarely permits the application of Rule 2.03 and thus rarely dispenses with compliance of any of the rules, such as Rule 9.01.[6]
Analysis
The court found that the Applicant did not successfully apply Rule 2.03 and was not able to dispense with the compliance of Rule 9.01. Therefore, the court did not permit the Applicant, as a representative of the estate, to not have a lawyer.[7]
The Applicant submitted two cases (Selkirk v. Trillium Gift of Life Network, 2022 ONCA 478, and Preiano v. Cirillo, 2024 ONCA 206,) where the courts applied Rule 2.03, and dispensed compliance with Rule 9.01. The court asserted that in both those cases the application of Rule 9.01 would have been unfair and not in the interest of natural justice because Rule 9.01 was not raised until after “after each case had been presented”. In other words, litigation had already unfolded and would’ve likely resulted in the litigants unwinding several years of litigation. [8]
Importantly, the court stated that the following public policy concern for allowing the Applicant to represent the estate without a lawyer. Additionally, neither case featured a non-lawyer seeking monetary damages for a beneficiary and on their own behalf, that would raise the sort of concerns that have been described as the “principal rationale” for the requirement under Rule 15.01(1) for representation by a lawyer: Selkirk at para 13.[9]
The court further identified additional reasons in respect of dispensing with the compliance of Rule 9.01. These reasons indicated that the Applicant was put on notice by the Defendants that representation by a lawyer would be advisable at the outset of litigation.
The court asserted that the Applicant did not prove why it was necessary to dispense with rule 9.01. The Applicant acknowledged that she had the funds to retain a lawyer, as she stated in her affidavit. Moreover, the Applicant was not able to point to the reason that she was not able to find a suitable lawyer, despite her numerous options. Therefore, the court found that the Applicant may not have been acting in the best interest of the estate. Moreover, the court considered the legal and monetary consequences of the medical negligence claims against the interests of the other beneficiaries of the Deceased’s estate. If the medical negligence claim had moved forward, it would have been important for the counsel of other beneficiaries to assess the risks and benefits of such action.[10]
The court goes on to state:
[17] Importantly, the “principal rationale” for Rule 15.01(1) that the court of Appeal identified in Selkirk at para 13 is engaged in this case. Ms. Scarangella seeks to act for the Estate on its claim for monetary damages while also seeking her own damages as an FLA claimant. Accordingly, the concerns with the risks associated with an unqualified or unskilled person seeking to represent the legal rights of others take on added significance in the circumstances of this case: …. In raising this point, I mean no disrespect towards Ms. Scarangella who is a thoughtful and well-intentioned person. That said, Rule 15.01(1) is clearly intended to avoid the pitfalls associated with having untrained and unqualified people act for others in litigation, for which much is written: Gagnon at para 31.[11]
For these reasons, the court dismissed the Applicant’s motion because she did not demonstrate why Rule 2.03 should be applied, and therefore why compliance with Rule 9.01 should be dispensed. Ultimately, the court ruled that the Applicant required a lawyer to represent the Deceased’s estate during litigation.
—
[1] Scarangella v. Oakville Trafalgar Memorial Hospital, 2024 ONSC 5518
[2] Ibid at para 3-6
[3] Ibid at para 6
[4] Ibid at para 11
[5] Ibid at para 7
[6] Ibid at para 8
[7] Ibid at para 11
[8] Ibid at para 14
[9] Ibid at para 14
[10] Ibid at para 18
[11] Ibid at para 17
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Written by: Gabriella Banhara
Posted on: November 1, 2024
Categories: Commentary, Estate Litigation, Estate Trustees, WEL Newsletter
Facts
In the decision of Scarangella v. Oakville Trafalgar Memorial Hospital[1], 2024 ONSC 5518, Ms. Scarangella (the “Applicant”) sought a motion for her act in a representative capacity on behalf of the estate of her late partner, Mr. Carew Kaiser (the “Deceased”), without a lawyer. The Applicant was also the estate trustee of the Deceased’s estate. The Deceased died on February 26, 2021, while in the care of the doctors (the “Defendants”) at Oakville Trafalgar Memorial Hospital. The Applicant, as a representative of the Estate initiated a medical negligence action under the Family Law Act. The Applicant was unable to find a lawyer who would be willing to act as her counsel. Over four lawyers declined to act, however, it was clear that the Applicant made reasonable efforts to retain counsel.[2]
The Applicant went ahead and served the Defendants with a statement of claim, without representation. Counsel for the Defendants sent the Applicant a letter stating, “Rule 15 requires a party bringing an action on behalf of an estate to be represented by a lawyer”.[3] The Defendant’s offered the Applicant additional time before they filed their statement of defence for her to retain counsel. The Applicant unsuccessfully brought a motion, for authority and an order to represent the estate without a lawyer. The Court sided with the Defendants and dismissed the motion, thus reinforcing Rule.15.01(1).[4]
The Law[5]
Rule 15 of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”) states:
Where Lawyer Is Required:
Rule 15.01 (1) A party to a proceeding who is under disability or acts in a representative capacity shall be represented by a lawyer.
However, it is clear this rule conflicts with Rules 2.03, and 9.01 which provide as follows:
Court May Dispense with Compliance
2.03 The court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time.
…
Proceedings by or against Executor, Administrator or Trustee
General Rule
9.01 (1) A proceeding may be brought by or against an executor, administrator or trustee as representing an estate or trust and its beneficiaries without joining the beneficiaries as parties.
Rule 9.01 of the rules is supported by case law, as the court states:
“An estate trustee who acts for an estate in litigation does so in a representative capacity and is subject to Rule 15.01(1) that requires the estate to be represented by a lawyer: Herberman Estate (Re), 2003 CanLII 10801 (ONCA) at para 5”. The court goes on to state that it rarely permits the application of Rule 2.03 and thus rarely dispenses with compliance of any of the rules, such as Rule 9.01.[6]
Analysis
The court found that the Applicant did not successfully apply Rule 2.03 and was not able to dispense with the compliance of Rule 9.01. Therefore, the court did not permit the Applicant, as a representative of the estate, to not have a lawyer.[7]
The Applicant submitted two cases (Selkirk v. Trillium Gift of Life Network, 2022 ONCA 478, and Preiano v. Cirillo, 2024 ONCA 206,) where the courts applied Rule 2.03, and dispensed compliance with Rule 9.01. The court asserted that in both those cases the application of Rule 9.01 would have been unfair and not in the interest of natural justice because Rule 9.01 was not raised until after “after each case had been presented”. In other words, litigation had already unfolded and would’ve likely resulted in the litigants unwinding several years of litigation. [8]
Importantly, the court stated that the following public policy concern for allowing the Applicant to represent the estate without a lawyer. Additionally, neither case featured a non-lawyer seeking monetary damages for a beneficiary and on their own behalf, that would raise the sort of concerns that have been described as the “principal rationale” for the requirement under Rule 15.01(1) for representation by a lawyer: Selkirk at para 13.[9]
The court further identified additional reasons in respect of dispensing with the compliance of Rule 9.01. These reasons indicated that the Applicant was put on notice by the Defendants that representation by a lawyer would be advisable at the outset of litigation.
The court asserted that the Applicant did not prove why it was necessary to dispense with rule 9.01. The Applicant acknowledged that she had the funds to retain a lawyer, as she stated in her affidavit. Moreover, the Applicant was not able to point to the reason that she was not able to find a suitable lawyer, despite her numerous options. Therefore, the court found that the Applicant may not have been acting in the best interest of the estate. Moreover, the court considered the legal and monetary consequences of the medical negligence claims against the interests of the other beneficiaries of the Deceased’s estate. If the medical negligence claim had moved forward, it would have been important for the counsel of other beneficiaries to assess the risks and benefits of such action.[10]
The court goes on to state:
[17] Importantly, the “principal rationale” for Rule 15.01(1) that the court of Appeal identified in Selkirk at para 13 is engaged in this case. Ms. Scarangella seeks to act for the Estate on its claim for monetary damages while also seeking her own damages as an FLA claimant. Accordingly, the concerns with the risks associated with an unqualified or unskilled person seeking to represent the legal rights of others take on added significance in the circumstances of this case: …. In raising this point, I mean no disrespect towards Ms. Scarangella who is a thoughtful and well-intentioned person. That said, Rule 15.01(1) is clearly intended to avoid the pitfalls associated with having untrained and unqualified people act for others in litigation, for which much is written: Gagnon at para 31.[11]
For these reasons, the court dismissed the Applicant’s motion because she did not demonstrate why Rule 2.03 should be applied, and therefore why compliance with Rule 9.01 should be dispensed. Ultimately, the court ruled that the Applicant required a lawyer to represent the Deceased’s estate during litigation.
—
[1] Scarangella v. Oakville Trafalgar Memorial Hospital, 2024 ONSC 5518
[2] Ibid at para 3-6
[3] Ibid at para 6
[4] Ibid at para 11
[5] Ibid at para 7
[6] Ibid at para 8
[7] Ibid at para 11
[8] Ibid at para 14
[9] Ibid at para 14
[10] Ibid at para 18
[11] Ibid at para 17
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