Clients are sometimes understandably frustrated when the cost of defending a bogus claim is greater than settling. I want to share a story about one case where an aggressively creative motion addressed this concern.
In this unreported case1, the Applicant filed a Notice of Objection and commenced proceedings seeking support under Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26. The Deceased was not biologically related to the Applicant and was not receiving any financial or emotional support prior to the testator’s demise.
Ordinarily, in the Toronto region the Applicant would file his notice of objection, serve his application record, the executor would file responding materials, and the parties would attend a scheduling appointment. Depending on the order giving directions that would follow, the parties would proceed to discoveries and then mediation, which might result in a settlement where the executor would pay something to the applicant to settle the claim. Leaving aside how much would be paid to settle such a claim, the cost of getting to mediation can be quite high. The executor’s legal fees, depending on the complexity of the file, could be anywhere from $20,000 to $75,000. That is a lot of money to settle a claim that has no merit.
So what are the options? A summary judgment motion, after discoveries, may cost as much as a trial with a smaller prospect of success given the different tests. Moreover, a failed summary judgment motion may result in a significant cost order against the moving party.
In the Toth Estate Case, a different approach was taken. The executor brought a motion under Rule 75.03(2) of the Rules Of Civil Procedure and sought an order from the court to remove the Notice of Objection so that the Application for a Certificate of Appointment of Estate Trustee With a Will could proceed. The executor argued that the Applicant did not appear to have a financial interest in the estate and the notice of objection should be withdrawn. Based on affidavit evidence alone, Justice Whitaker found that the Applicant was not biologically related to the deceased, had no financial interest in the estate and was not a dependant. His Honour ordered that the Notice of Objection should be removed and declared that the Applicant was not a dependant. He also dismissed the Part V claim for support under the Succession Law Reform Act. At a relatively inexpensive cost, this meritless claim was dismissed.
The purpose of this blog is to point out the utility of the underutilized Rule 75.03(2), which permitted this type of motion. Any party who is interested in a copy of this unreported decision is welcome to contact the writer.
- For copy of endorsement and transcription of same please see this link: https://www.wagnersidlofsky.com/wordpress/wp-content/uploads/Endorsement-of-Justice-Whitaker-JUL-17-2013.pdf. ↵