Skip to content
An analysis of Rule 9.01 and Dawson and Harris v. Dawson (Estate) and Dawson et al.

What if Someone Dies in the Middle of a Lawsuit?

What if the person you are suing dies before the lawsuit has been completed? The answer starts with Rules 11 and 9.01. We will be dealing with Rule 11 later in our series. For the purposes of this blog, it suffices to say that Rule 11 deals with the transfer of interest or liability to another party by virtue of assignment, bankruptcy, death or other means. When a party to a lawsuit dies, the proceeding is stayed. At that point, any interested person may file the material necessary for the registrar to issue an order to continue – reigniting the lawsuit.

Read more

Minors, Litigation Guardians, and Limitation Periods

There is an interesting interplay between Rule 7.02(2) of the Rules of Civil Procedure and the Limitations Act, 2002. Historically, the legislature and courts suspended limitation periods for a plaintiff who was a minor until that minor reached the age of majority. But, section 9 of the Limitations Act 2002 allows a defendant to bring a motion to appoint a litigation guardian to represent a minor plaintiff and thereby trigger the start of the limitation period. The case of Siddiqui v. Saint Francis Xavier High School [Siddiqui] demonstrates how this situation can play out.

Read more
Berkelhammer v. Berkelhammer Estate and Rule 7.02(1.1)(b)

The Attorney For Property shall act as Litigation Guardian Unless…

Rule 7.02(1.1)(b) of the RULES OF CIVIL PROCEDURE – R.R.O. 1990, Reg. 194 provides that unless a court orders otherwise an attorney for property shall act as litigation guardian for a person under disability. This is understood to be a presumptive, but not conclusive, entitlement. Our review of Berkelhammer v. Berkelhammer Estate focuses on what, in this case, the court considered in exercising its discretion to remove the attorney for property in favour of the Public Guardian and Trustee.

Read more
retracting disclaimer of gift

Retraction of Gift Disclaimer – There’s a Ketch

The Superior Court decision in Rubner v. Bistricer quoted from earlier case law and texts stating that: ““The law certainly is not so absurd as to force a man to take an estate against his will.” There is no authority to the effect that the disclaimer must take place in a court of record; it may be made by deed, or even by conduct. Prima facie, the disclaimer operates from the time of the testator's death and makes the gift void for certain purposes ab initio.” So we know that people can say no to a bequest - but what if they change their mind?

Read more
dnr order

Are Doctors above the Law?  The case of Wawrzyniak v. Livingstone

In the Wawrzyniak decision, the elderly patient was suffering from numerous illnesses including gangrene. Both his legs were amputated above the knee. The patient’s daughter, his attorney for personal care, was also a nurse. It was clear to everyone involved that both the patient and the attorney for personal care wanted CPR to be administered in the case of a cardiac or respiratory arrest. But it didn’t happen. Why not?

Read more
Case Conference for Capacity Assessment

The Case Conference: A Powerful Tool For Efficiency in Guardianship Applications

When an application, including an application for guardianship of an incapable person’s care and property, is brought, there are several steps that need to be taken before the application can be heard and decided by a judge. These steps include filing of application materials, cross-examinations, potentially mediation, the appointment of a neutral lawyer to protect the interests of the person whose capacity is in issue,  and preparation of written arguments. Motions may also need to be brought along the way to compel production of documents, stop inappropriate conduct, etc. These steps can be time consuming.

Read more

Do the Designated Beneficiaries of the RRSP Pay The Tax?

Mediating estate disputes often involves determining who gets proceeds from the deceased’s registered retirement savings plan or registered retirement income fund (“RRSP/RRIF”), and who pays the taxes on that RRSP/RRIF. A key factor during the negotiations at mediation is how a judge would decide this issue were the matter to come before a court. In other words, what does the law say?

Read more
Back To Top