December 22, 2014

Congratulations to Justice David Brown who was appointed to the ONCA this week. I am sure that I speak for the Estates Bar when I wish him well in his new role.

Justice Brown had a profound impact on the Estates Bar (and beyond) and leaves a lasting legacy. He certainly imposed procedural rigour on the Estates Bar. His 2009 Practice Direction for the Toronto Estates List regularized estate procedures, provided for 10 minute scheduling appointments which often functioned like a triage court, and signaled that a new effective and efficient regime of efficacy had begun.

Regardless of what list Justice Brown was hearing, he was a prodigious worker and well prepared. He expected the same of counsel and was unimpressed with unreasonable positions or timewasting behaviour. And while his language could certainly be colourful, his decisions were sharply written, insightful and usually bang on.

His decisions often attracted wide media attention. And why not, his much quoted phrase “parties cannot treat the assets of an estate as a kind of ATM bank machine from which withdrawals automatically flow to fund their litigation” delighted journalists and clients alike. Justice Brown described the continued reliance by the court on paper rather than electronic documents as “a poor excuse of a system” and “scandalous”. He invoked Dr. Seuss’ “green eggs and ham” to criticize counsel who seemingly avoided trial. He referred favourably to the Rules of Civil Procedure as “Lego blocks that allow you to build your own litigation plan.” In issuing injunctions in the Idle No More protests Justice Brown roared that “[n]o person in Canada stand above or outside the law”.

Justice Brown imposed the discipline of cost consequences on the Estates Bar by ensuring that the loser-pay principle ruled supreme. In Smith v. Rothstein, Justice Brown wrote:

“While the will challenge process serves the important public policy objective of ensuring that courts only give effect to valid wills that reflect the intention of competent testators, it must be open to the courts to sanction, through elevated cost awards, meritless will challenges which are driven by blind emotion, but devoid of any material relevant evidence. To do otherwise would risk undermining the stated intentions of testators and testatrixes and risk exhausting an estate, or inflicting financial harm on a beneficiary, by the pursuit of fruitless objections by a ‘slighted relative who is denied the testator’s largesse.’”

Important decisions (in no particular order) included:

  • Applegath Estate (the necessary steps a foreign executor must take to have his/her authority recognized in Ontario);
  • Assaf Estate (an estate trustee must exercise his/her power honestly and with an eye to the best interests of the beneficiaries);
  • Coombs Estate (ordering limited examinations for discovery and hybrid trials);
  • George Weston Limited v. Domtar Inc. (the overuse of complex summary judgment motions);
  • Henderson Estate (when and how a bond can be waived);
  • Ignagni Estate (ex parte orders for assistance – not so fast);
  • Kaptyn Estate (several notable decisions, including whether the court will act as referee between warring brothers and co-estate trustees. Justice Brown compared the case to Jarndyce v. Jarndyce, a reference to Dickens’Bleak House);
  • McMichael Estate (where to commence an estates application);
  • Mitchell Estate (ordering increased costs in a passing of accounts application);
  • Perkovic v. McClyment (when interim dependant support will be ordered);
  • Salter Estate (the loser-pay principle applies to estate litigation);
  • Szabo Estate (a solicitor can assert a lien over a will for unpaid fees);

Best of luck to Justice Brown. While he will be missed by the Estates Bar here in the trenches, I am certain we have not heard the last of Justice Brown from his new perch on the ONCA.

Happy Litigating, Happy Holidays, and Happy New Year!