October 3, 2022

Generally, a court proceeding is categorized as either an action or an application. Both actions and applications end with a judge making a decision (judgment); however, an action concludes with a trial and live witnesses and an application is conducted by way of a ‘paper trial’ (i.e. no live witnesses). In both cases, judges will hear submissions from lawyers representing the various parties. Most estate matters proceed by way of application because, among other things, material facts are usually not in dispute.

In addition, the Ontario Rules of Civil Procedure provide guidance on how to bring a court proceeding. In particular, Rule 14.02 of the Ontario Rules of Civil Procedure provides that every proceeding in court shall be commenced by way of an action, except where a statue or the Ontario Rules of Civil Procedure provide otherwise. Rule 14.05(3) of the Ontario Rules of Civil Procedure further provides, in part, that many estate matters may proceed by way of application, including, but not limited to, orders for the opinion, advice or direction of the court on a question affecting the rights of a person in respect of the administration of the estate of a deceased person, interpreting wills, varying trusts and removing or replacing estate trustees.

Applications are accompanied by sworn affidavit evidence which set out the facts and evidence (the affiant may then be cross-examined on his or her sworn evidence) whereas in an action, evidence is disclosed through the process of discovery (parties exchange all relevant documents in their power/possession/control and then the parties undergo examinations for discovery where they are asked questions under oath and a transcript is taken that can be used at trial).

Sometimes, and notwithstanding the aforementioned statutory provisions, the parties may disagree as to how a matter is to proceed (i.e. by way of action or application). In these circumstances, the specific facts of each case must be considered in order to determine how to best approach the litigation. Parties should also recognize that if there is no agreement on procedure, that in and of itself can become its own, expensive fight in court.