Dinner with the Honorable Estates List Judges- Hull on Estates #205
Listen to: Dinner with the Honorable Estates List Judges- Hull on Estates #205
This week on Hull on Estates Paul Trudelle and Natalia Angelini discuss their attendance at the Dinner with the Honorable Estates List Judges hosted by the OBA on Tuesday, April 27, 2010.
If you have any comments, please email us at hull.lawyers@gmail.com or leave us a comment on our blog.
Paul E. Trudelle - Click here for more information on Paul Trudelle.
Natalia R. Angelini - Click here for more information on Natalia Angelini.
Paul Trudelle: Hi and welcome to Hull on Estates. You’re listening to episode 205 on Tuesday, May 4.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of
Natalia Angelini: Hi and welcome to another episode of Hull on Estates. I’m Natalia Angelini.
Paul Trudelle: And I’m Paul Trudelle.
Natalia Angelini: If you want to be heard on Hull on Estates you can participate by leaving us a comment. E-mail us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.
Paul Trudelle: So Natalia, how are you today?
Natalia Angelini: I’m good, you?
Paul Trudelle: I’m very good, thanks. We thought we’d spend our time today talking a bit about the dinner with the Estates judges that was held last Tuesday. It’s put on by the OBA every year and it’s a wonderful forum where members of the Estate Bar get to enjoy a meal and break bread with the judges from the Estate List and then listen to their comments on matters of concern or observations that they have. So it’s always a very informative and entertaining night. And so I thought we’d spend some time talking about what was discussed at that dinner.
Natalia Angelini: Yeah and it was nice that we had the Honourable Justice Brown, the Honourable Justice Conway and the Honourable Justice Strathy in attendance and giving talks as well as the Honourable Madam Justice Greer was in attendance, so that was special.
Paul Trudelle: Yeah it was a wonderful evening. The evening started off with a case comment by Ameena Sultan. She commented on the case of Chu and Chang which was a decision of Mr. Justice Brown who was there and able to add a few other comments to that case as well. Mr. Justice Brown opened the evening by advising that he’s reviewing the Practice Direction and determining whether any amendments to that are required and he’s soliciting comments from the Bar as to their experiences with the Practice Direction, good or bad, so that the Practice Direction can be reviewed and tweaked as may be required.
Natalia Angelini: That’s right and so if anyone has comments to make, we certainly encourage that you do that since it will be helpful.
Paul Trudelle: Right and he’s soliciting comments directly or they can be made, if you like, to our firm and we can pass those on as well.
Natalia Angelini: Right and he also touched briefly on the administrative matter of sittings for the summer and given the G20 summit we are looking at a shortened Court time and so we’ve got about 5 out of 9 weeks that we’ll have sitting judges.
Paul Trudelle: Right and I think he gave the dates, I don’t have those right now but there’s 5 weeks when the Courts are sitting. The Courts are also going to be closed on the days leading up to the G20 summit, that’s Wednesday, July…
Natalia Angelini: I think it’s the end of June, yeah.
Paul Trudelle: June…June 23, Thursday, June 24 and Friday, June 25. However if there is an emergency, a judge can be made available if you contact the Court. And also if a judge is required during any week in which the Court is not actually sitting.
Natalia Angelini: Right.
Paul Trudelle: Mr. Justice Brown also expanded a bit on the summary judgment practice with respect to bringing a motion for summary judgment and he talked about the two touch system that they have in place where there is an initial appointment before the Court in order to set up a schedule or timetable for the summary judgment and then the second touch is the actual hearing. So if you are bringing a motion for summary judgment the procedure is to attend at a 9:00 a.m. Monday scheduling appointment and the Court will require that you complete the summary judgment case information form or sheet and that will be submitted and discussed at that first touch hearing.
Natalia Angelini: That’s right. And His Honour noted that because of the change in the Rules relating to summary judgment, that Notices of Objection might need to be reconsidered and perhaps more particularized given that now they’re typically a boiler plate form and really don’t have much detail.
Paul Trudelle: Right and his comments were to the effect that at that early stage the Notice of Objection is akin to a pleading that sets out the matters in issue and with summary judgment that may be brought. If there are no pleadings, it may be advisable to or maybe something that the Court requires is that there be more details or particulars put into the Notices of Objection. And that comes out of a decision in the Smith Estate that he recently handed down.
Natalia Angelini: Justice Brown also touched on the issue of administration bonds and how since I think he’s released at least one endorsement that has assisted not only the Estates Court office but also counsel and parties in applying for the dispensing of such bonds that the rate of rejection of those types of applications has really plummeted.
Paul Trudelle: Right and he’s handed down a number of endorsements on over-the-counter matters or matters that have been handed up to him from the Estate Office and they’re all very helpful. The one on administration bonds we commend to you. It sets out in detail what’s required or what the Court wants before they’ll dispense with the administration bond and it looks like that practice or that direction is being taken up by the Bar and the number of cases where…the number of rejections with respect to that request is going down significantly. A few of his other endorsements also touch upon trying to elicit some common sense amongst the Bar and the Estates List so that matters can be dealt with more…in a more straightforward manner and without so much red tape, so there’s a number of directions out there, one dealing with e-mail correspondence being acceptable and other matters like that.
Natalia Angelini: Right. And notably I think one of his more recent decisions in the Mitchell case dealing with increased costs, that was quite helpful and I also did a blog on that not so long ago. So if anyone is interested in learning more you can visit our blog page for that.
Paul Trudelle: Right, and the Mitchell case sets out, I think…correctly if I’m wrong Natalia…that what’s required if you’re going to be requesting increased costs, what is it that the Court wants to see. Other directions or decisions that he’s referred to, one is with respect to ex parte motions and motions for assistance and that they should be on notice unless the circumstances don’t allow for notice. He referred to a decision dealing with what is required in order to prove a lost Will.
Natalia Angelini: Right, and I think his point was that the form of Order should read in a certain way. And he set that out clearly for everyone so hopefully that practice will be taken up.
Paul Trudelle: And most of those decisions have been referred to in our blogs over the past couple of months, so we’ll just refer you to those blogs, it’s a great way of keeping up-to-date with respect to the direction that we’re receiving from Mr. Justice Brown.
Natalia Angelini: Right. And next up was the Honourable Justice Conway and she had some interesting comments or pet peeves as she called some of them, and I think that’s always helpful to counsel when we are before judges to know what things we do that perhaps don’t sit well with them. And some of the things she mentioned is that with the new scheduling appointment system in place, it really should be used for that purpose and she doesn’t prefer it when counsel start arguing the merits of the case at those appointments.
Paul Trudelle: Right, that’s not the time or place for those types of arguments. I think a very short period of time is scheduled for those appointments and it’s not the time to get into lengthy argument. Another peeve that she referred to is not having Affidavits of Service in the file. She wants to see those in every case and I imagine all judges require that as well. So I know normally they’re filed when the materials are filed but that’s not always the case with respect to all Affidavits of Service. So ensure that they’re in the file or if they’re not in the file, at least they’re available to satisfy the judge with respect to service requirements.
Natalia Angelini: Yeah that’s a good point. And she also was commenting on contempt proceedings and reminding counsel that the Court is not afraid to use their powers in the appropriate circumstance. And so I think we should definitely be considering whether to bring that type of a motion if we’ve got Orders that the other side, you know, is not complying with. And Justice Brown added a comment to that which I thought was quite important, that if you do have a contempt proceeding before one judge and time passes before your next Court attendance where you have to deal with potentially sentencing, that it really makes sense to be back before the same judge. So…
Paul Trudelle: Right, I think the Court is handcuffed where one judge makes a finding of contempt and then it’s back before a different judge to make a sentence…to pass sentence or to determine whether the contempt has been remedied. And Mr. Justice Brown made a very good point that counsel should, to the extent possible, try to have that scheduled before the same judge. In many cases…Madam Justice Conway noted that in many cases we’re before her, she will seize herself of the matter or schedule a return date when she’s…for a time when she’s sitting. Mr. Justice Strathy also had some comments with respect to contempt proceedings and noted that parties in effect, when they’re bringing a contempt proceeding, become a private prosecutor and the contempt proceeding can be a drawn out affair, can lead to a number of hearings, the first several to find…to make a finding as to whether there is contempt, further hearings with respect to determining whether the contempt has been purged or to sentence. It can become a long and costly process. There are cost remedies that the Court has and can award the costs and does in most cases to the party bringing the motion for contempt against the contemnor but that’s something that should be kept in mind.
Natalia Angelini: He also talked about passings of accounts. He’s had a couple of hearings in the recent past dealing with passings of accounts and I think what I took away from his comment was that…and I think we find this in our practice too is that they can be just as complex as, you know, civil trials.
Paul Trudelle: As the trial or an application themselves. There is some commentary to say that they are rather informal but his point was that no, they aren’t necessarily. There’s also the concern that he has, the problem is that there’s very little guidance in the Rules as to the trial procedure. There’s…the Rules call for the accounts to be passed, an objection to be filed. There’s no requirement that there be a reply to the objection, there’s no provision for discovery or production. However the Court can and will make Orders giving Directions setting out those procedures. So it’s up to the Court and the parties ultimately…well, it’s up to the parties and the Court ultimately to put together a procedure for allowing the passing of accounts to move properly before the Court. He suggested that in the Order giving Directions you consider, you know, a timetable for production, for discovery and consider the requirement that there be a Statement of Issues put before the Court. Also considered the appointment of a case management judge if the case is a complex one or one that may require assistance from the Court with respect to moving it along.
Natalia Angelini: Right, in essence the judges are relying on us, especially in these types of cases where we don’t have guidance in the Rules to make the process and I guess the impartment of information as easy as possible for them.
Paul Trudelle: So all in all, it was a wonderful event. It was very insightful and it’s always great to be able to hear from the judges out of Court rather than being before them in gowns. I think it was helpful and very useful and it was a wonderful evening.
Natalia Angelini: Yeah.
Paul Trudelle: Well thanks Natalia for helping me today, and for blogging with us.
Natalia Angelini: Well thank you. Thank you. So we look forward to hearing from our listeners. Until next time, take care.
Paul Trudelle: Good bye.
This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.
To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.
Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.
