The death of a party during a lawsuit almost inevitably complicates the litigation. In this first in a series of blogs, we set out the procedural steps that must be taken in order to proceed with the lawsuit following the death of a party.
In Ontario, when a party dies, any proceedings in which that person was previously involved are immediately stayed with respect to the deceased’s interest or liability1 in the lawsuit. A “stay” simply means that the Court will not allow the action to continue unless certain conditions are first met.
Rule 11 of the Rules of Civil Procedure sets out the process by which parties are able to continue with an action following the death of a party. The Rule overcomes the common law rule that a right of action, whether in contract or tort, ends upon a party’s death. However, even Rule 11 does not permit the continuation of every type of claim by an estate following a plaintiff’s death.2
Who is Entitled to Apply for an Order to Continue?
Presuming, as is typically the case, that the proceeding can continue, Rule 11.02 of the Rules states that “where a transfer or transmission of the interest or liability of a party takes place while a proceeding is pending, any interested person may, on filing an affidavit verifying the transfer or transmission of interest or liability, obtain on requisition from the registrar an order to continue (Form 11A), without notice to any other party.” [emphasis added]
Despite the language in Rule 11.02 referring to “any interested person”, the case law suggests that it is the executor of the party’s estate who must obtain the order to continue on behalf of a (deceased) plaintiff. In Godkin Estate v. MTM Financial Services (London) Corp.3, the Court held that an order to continue can only be obtained by the party who is legally entitled to administer his estate. This is logical as the deceased’s interest in the litigation becomes the asset/liability of their estate.4
Consistent with the case law that suggests that an executor should obtain the order to continue, in Windsor v. Mako, 2008, J.W. Quinn J. noted, in obiter, that Rule 9.03(1) implies that an order to continue should not be obtained until after the issuance of a certificate of appointment.5 The only people who can obtain a certificate of appointment, are the executors of an estate.6
The need to have a certificate of appointment in order to obtain an order to continue is even more important if the party dies intestate (i.e without a will). In Raiz v. Vaserbakh, an individual applicant who was not named as the estate trustee without a will, sought to obtain an order to continue. Justice Trotter dismissed the applicant’s motion to be appointed as the deceased’s litigation administrator relying on a combination of Rules 9 and 10 of the Rules and concluded that, “as a general policy consideration, a Court should be very cautious in granting authority to a person to carry out litigation without the burden of administering an entire estate”.7
How does one Apply for an Order to Continue?
Rule 11.02 indicates that any interested person may, on filing an affidavit verifying the transfer or transmission of interest or liability, obtain on requisition from the registrar an order to continue (Form 11A) without notice to any other party. That is the normal process. However, there are also a number of cases in which the Court has dispensed with strict compliance with Rule 11 altogether. For example, in Salzman v. Salzman, the Court acknowledged that Rule 11.02 requires that an order to continue be obtained from the registrar and that “a motion to obtain an order to continue from this Court is not the proper avenue”, but proceeded to grant what effectively amounted to an order to continue relying on Rule 2.03 to dispense with technical compliance with the Rules.8
Generally, obtaining an order to continue is a straightforward procedural exercise. However, the implications of a litigant’s death on the litigation can differ significantly depending on the nature of the proceedings, whether the party is a plaintiff/applicant or respondent/defendant, as well as the prejudicial impact that the party’s death may have.
In our next blog, we will explore the options available to an executor who decides that it is not in the best interest of the estate to continue with the litigation and the implications to the remaining parties in the litigation.
- Rule 11.01 ↵
- For example, in Giacomelli Estate v. Canada (Attorney General) 2007 CarswellOnt 5119 Justice Harris barred the deceased’s estate from continuing the deceased’s Charter claim that the deceased had commenced against the federal Attorney General. The deceased’s action sought a declaration that his rights under the Canadian Charter of Rights and Freedoms had been violated and damages pursuant to Section 24(1) of the Charter. Relying on the Supreme Court of Canada’s decision in Hislop, the Harris J. explained that the estate of the deceased plaintiff is, “just a collection of assets and liabilities of a person who died” and therefore is unable to sustain a claim under section 7 or 15 of the Charter, which is a personal action. ↵
- 1999 CarswellOnt 1648 (Ont. S.C.J.) at para. 12 ↵
- Brune v. Calcaterra, 2011 CarswellOnt 1673 (Ont. S.C.J.) at para. 32 ↵
- Windsor v. Mako, 2008 CarswellOnt 6442 (Ont. S.C.J.) ↵
- The Authors note, as a matter of practical experience, the registrar will often require a certificate of appointment before granting an order to continue. ↵
- Raiz v. Vaserbakh 1986 CarswellOnt 603 at para. 17 ↵
- Salzman v. Salzman, 2012 ONSC 1733 ↵