April 14, 2010

Recent amendments to Ontario’s Rules of Civil Procedure (“Rules”) have introduced sweeping changes meant to make the civil justice system more affordable and accessible. The changes are the most significant in a generation; litigation in Ontario will not be the same. Among the changes is the addition of the proportionality rule as an overarching principle of interpretation. There are also significant revisions to the discovery and summary judgment rules.

This paper discusses how these changes are likely to affect will challenges and guardianship litigation under the Substitute Decisions Act, 1992 (“SDA”). In particular, this paper considers the difficulties inherent in applying the principle of proportionality to estate and guardianship litigation where monetary concerns are rarely, if ever, the only interests driving the litigation. This paper argues that the courts and counsel need to be alert to these concerns when determining the scope of discovery, bringing motions for summary judgment, and the exercise of judicial discretion in fixing costs.

Given the recent rule changes, the current “hot button” issue in both will challenges and attacking powers of attorney is the impact the principle of proportionality will have on estate and guardianship disputes. Put another, albeit more sceptical way: will the principle of proportionality have a chilling effect on estate and guardianship disputes to the detriment of bona fide issues that can bedevil even the best families?

Read the full paper: Brave New World by Justin de Vries and Angelique Moss