Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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My last blog this week examines the application of our favourite Rule 57.07 - Liability of Solicitor for Costs - in the context of affidavits.  We (and our clients) have all suffered through The Angry Affidavit.  In Manitoba, which has comparable legislative provisions authorizing and governing cost awards, drafting such an affidavit can be expensive for the drafting lawyer.   

In Eblie v. Yankowski, [2007] M.J. No. 145, the court awarded costs against the solicitor personally where an affidavit contained irrelevant, scandalous, vexatious and frivolous.  It was not enough to simply type what the client wanted to say.  The solicitor was responsible for drafting and presenting the affidavit material, and had caused costs to be incurred without reasonable cause.  In this case, the costs incurred included a motion to expunge the impugned material. 

Further, the court made the interesting comment: "It is difficult to accept that these materials were not prepared and filed for an improper purpose, namely to prejudice the mind of the court against the opposite party. If their inclusion in the affidavit filed by the Petitioner was intended to gain undue advantage and to defeat the course of justice costs against counsel personally are clearly warranted."  

For those interested, section 96 of Manitoba's Court of Queen's Bench Act is nearly identical to section 131 of Ontario's Courts of Justice Act in creating jurisdiction to make discretionary cost awards.   Manitoba's Rule 57.01(1) is similar in all relevant ways to Ontario's Rule 57.01(1), and Manitoba's Rule 57.07 similarly imposes potential personal liabilty on solicitors.

Enjoy your weekend,

Chris Graham

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There seems to be a rule for every situation in estates litigation.  Consider the oft-ignored Rule 74.14(2), the short-cut to probate rule.

Probate applications are refused where the application material raises legal issues.  Normally, the next step is to bring a motion for directions to have a judge rule on the legal issues raised by the application.  There is arguably no such thing as a "simple will"; even a modest estate can give rise to issues of the highest level of complexity.  Preparing motion materials for interpretation of a "simple will" can therefore be disproportionately expensive.

Can Rule 74.14(2) can apply to avoid the need for drafting motion materials?  Rule 74.14(2) states:

"Where, in the opinion of the registrar, the application and accompanying material are not complete or contain information on which the registrar has a doubt, the application shall be referred to a judge for determination."

The qualifying conditions for referral to a judge can be interpreted quite broadly.  The key to this provision is the absence of any requirement to bring a motion.  It would seem that a letter to the registrar is sufficient, citing this rule and requesting the matter be referred to a judge.  Of course, unanimity among the parties to the probate application is probably required, though not explicitly stated in the rule.  It probably also helps to be polite, since the language of Rule 74.14(2) is discretionary.

This useful rule is unlikely to be the subject of substantial litigation, since where an estate can bear litigation expenses, the usual course of a Rule 74.15 motion for an Order for assistance, or a motion or application for directions under Rule 75.06 will be preferred.   

Have a great day,

Chris Graham