Originating process: Applications versus actions

By Brendan Donovan and Hershel Sahian

Law360 Canada (June 30, 2023, 11:45 AM EDT) --
Brendan Donovan
Brendan Donovan
Hershel Sahian
Hershel Sahian
Probate litigation is both atypical and highly technical. The court at once exercises both its conventional adjudicative jurisdiction to decide upon the contest as framed by the litigants, but also has an inquisitorial jurisdiction employed to ensure that a grant of probate assures estate trustees and third parties alike that transactions undertaken between them are unimpeachable. As such, the nature of the contest and the issues brought before the court for resolution will impact the decisions to be taken by counsel as to what procedures are best suited to the case.

One such decision that has to be taken advisedly is whether to proceed by action or application.

It is trite that the originating process that commences civil litigation may be a Statement of Claim or a Notice of Application. Beyond the form of the pleading, however, these begin two very different procedural routes to a final hearing. Proceeding by action through the delivery of a Statement of Claim puts the parties on a road that travels through documentary and oral discovery. Proceeding by application puts the parties to the task of leading evidence straightaway. How to decide how to proceed? Certainly counsel must consider the following factors:

  1. The complexity of the facts;
  2. The number of facts in dispute;
  3. Whether there are major credibility issues;
  4. Whether there are allegations of bad faith.

Thus, for example, say the nature of the objection to the will being admitted to probate is bound up with fraud. Here the ability to discover evidence becomes very important to the objector favouring proceeding by action; the party defending the will may equally wish to proceed by action to ensure that the allegations of wrongdoing are stated with precision and that a demand for particulars can be made. Very different considerations may be at play where the nature of the objection is rather more technical; say, the improper delegation of testamentary power by the testator to his or her estate trustee. One might rightly conclude that proceeding by way of application would be more efficient.

The question is not fully answered by the initial decision whether to proceed by action or application; that is, there is the further question of whether a motion should be brought to change tracks — to convert an application to an action. This might be desirable, for example, in order to be able to move for summary judgment which is only available where one proceeds by action in Ontario. Further, in some regions, an objector who wishes to bring a will challenge by action may be required to bring an application first and, subsequently, seek its conversion. The decision whether to seek conversion raises a number of considerations:

  1. If litigation has already been commenced by way of an application, can it be converted to an action?
  2. When will this conversion be allowed?
  3. Practically, how does this conversion work?

The concise answers to these questions are as follows:

  1. It is possible to convert litigation started as an application to an action. There are several mechanisms for this conversion, including those set out under Rules 38.10(1), 75.06(3), and 75.07 of the Rules of Civil Procedure.
  2. This type of conversion will generally be granted in accordance with the guidance set out in Przysuski v. City Optical Holdings Inc., 2013 ONSC 5709.
  3. Practically, conversion through Rule 75.06(3) provides two ways to convert an application to an action. One route simply lists the issues to be decided and another directs the applicant qua plaintiff to file a Statement of Claim and allows the defendant to plead conventionally in defence.

For more information about these and related topics, attend at the CPD Program on July 5, 2023, hosted by estate litigation lawyers Brendan Donovan of Donovan Kochman LLP, and Hershel Sahian of Wagner Sidlofsky LLP. You can register at the following link.

Brendan Donovan is a partner at Donovan Kochman LLP, a boutique litigation firm in Toronto. Brendan’s practice focuses on estate, trust and capacity matters, including will challenges, dependant’s support claims, guardianship applications, contested fiduciary accountings and the removal of trustees. Hershel J. Sahian is a partner with Wagner Sidlofsky LLP. He practises estates, insurance and commercial litigation.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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