This article is the second in a series of articles discussing the available Orders for Assistance under Rule 74.15 of the Rules of Civil Procedure (the “Rules”). Part one of the series looked at who was permitted to bring a motion under Rule 74.15 and can be viewed here. This article focuses on the procedure for obtaining an Order for Assistance and the notice requirement with respect to the same.
Materials to be Filed on a Motion under Rule 74.15(1)
When moving for an Order for Assistance, the moving party is required to file a Notice of Motion, two copies of the draft Order for Assistance being sought and a supporting Affidavit setting out the facts supporting the relief requested.[1]
A signed copy of the Order for Assistance will be returned to the moving party if the relief sought is granted. Once the Order for Assistance is granted, the moving party is required to serve the Order in accordance with rule 74.15(3), which requires service to be made personally, by an alternative to personal service or as the Court directs.
The Notice Requirement & “Extraordinary Urgency”
A motion under subrule (1) may be made without notice except a motion for further particulars under 1(e), which requires 10 days’ notice to the estate trustee.
Notwithstanding the permissive language of rule 74.15(2), case law suggests that notice should be provided in the absence of “extraordinary urgency” requiring that it be dispensed with. [2]
For instance, in Ignani v Ignani, Justice Brown opined that in the absence of extraordinary urgency justifying an ex parte Order for Assistance, the moving party should be required to give notice.[3]
In making this statement, Justice Brown considered the nature of the relief being sought in the Orders for Assistance enumerated under rule 74.15(1) and the consequences flowing from the failure to receive notice of same, stating the following:
“[O]rders for assistance are not mere administrative devices. [T]he consequences of failing to comply with an order for assistance are significant – the loss of rights to a share in an estate of to participate in its administration, or the potential exposure to a contempt motion,
…
Members of the Estates Bar may regard the requirement to give notice of a motion for an order for assistance unless “extraordinary urgency” exists as imposing undue costs on the administration of the estate. Against that must be weighed the fundamental principle that a court should not issue an order against a person without affording that person an opportunity to explain the other side of the story. Many estate disputes arise in the context of strained family relationships, or out-and-out family battles. Courts should exercise great caution before granting an order that imposes obligations on one side in a family. Unless some extraordinary urgency exists, prudence and the principles of natural justice require a moving party to give notice of the order requested so that the respondent enjoys the opportunity of placing the rest of the story before the court.”[4]
Circumstances that may justify an ex parte motion for an Order for Assistance are those where notice would tend to frustrate the process of justice or where notice is improbable due to time constraints and/or the lack of means to provide notice.[5]
PRACTICE TIP: While lawyers may be tempted to rely on the permissive wording of the notice provision in moving for an Order for Assistance on an ex parte basis, it is prudent for counsel to provide notice to the responding party unless there are circumstances of extraordinary urgency at play. That said, there may be a case-specific strategic benefit to proceeding on an ex parte basis, which counsel will have to weigh against the risk of the Order being denied.
Rule 74.15 provides useful tools for individuals requiring assistance with respect to issues that arise in estate administration. For more information on how to obtain an Order for Assistance, please contact David A.S. Mills or Lauren A. Kason.
[1] Brian A. Schnurr, Estate Litigation, Volume 1, 2d ed. (Toronto: Thomson Reuters) at page 3-2
[2] Ignani v Ignani, 2009 CarswellOnt 6115, [2009] O.J. No. 4269, 181 A.C.W.S. (3d) 619, 83 C.P.C. (6th) 61
[3] Ibid at para 12
[4] Ibid at paras 12 and 14
[5] Ibid at paras 6 and 15
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