December 16, 2013

Effective November 18, 2013, there are some important procedural changes affecting estate, trust, and capacity matters in Toronto.

For some time now, the Toronto court has maintained a separate “Estates List” to hear all matters relating to the administration of trusts and estates and substitute decision making.  As an estates litigator, I have been an appreciative user of the Estates List, because it allowed a regular roster of judges to spend two week rotations focusing exclusively on matters involving estates, trusts and capacity law.   In other regions, a judge may be called upon to oversee a list containing every conceivable type of matter from criminal to family to personal injury to shareholder dispute to guardianship application.

As of November 18, 2013, the Estates List will now be heard together with the Commercial List.  Time will tell what impact this will have on Toronto estates litigators and their clients.

The first pressing question about the combination with the Commercial List (and I’m not being facetious) is what to wear.  The Commercial List, as I remember from my early days of commercial litigation, first deals with all scheduling matters at 9:30 am, followed by hearings beginning at 10:00 am.  The “9:30s”, as we called them, take place in judges’ chambers rather than in the courtroom and counsel wear business suits (a la Law and Order), not gowns (anyone old enough to remember Street Legal?).  The Estates List, on the other hand, had all scheduling appointments take place at 10:00 am in open court, meaning that counsel were required to gown in order to be permitted audience with a judge. Now, all estates scheduling appointments will also take place at 9:30 am in the sitting judge’s chambers.

So, when I attended my first scheduling appearance since the “merger” of the two lists, the first pressing question was: gown or suit?  Erring on the side of caution, I wore my gown, as did, I observed from looking around, most or all of my colleagues from the Estates List.  The commercial litigators, however, seemed to be wearing suits.  The Registrar helpfully whispered to me that counsel are not required to gown for in-chambers scheduling appointments.  Still, given that the other two counsel appearing on my matter were also in gowns, I decided not to chance it.  Besides, the Practice Direction for the Estates List is still in effect, and it says that counsel are to gown for everything except pre-trial conferences. When we got into chambers, the judge did not tell us we were overdressed.

More importantly than the what-not-to-wear dilemma, it may take us a bit of time to figure out  just what can and cannot be accomplished at a 9:30.  For small contests over largely procedural issues, the Estates List Practice Direction (which remains in effect) says that these matters can be decided at a scheduling appointment if they will take less than 10 minutes to resolve.  In reality, these procedural disputes often ran over the 10 minute time limit on the “old” Estates List.  At one point, scheduling appointments on the Estates List were extended from 10 minutes to 20 minutes to allow even more flexibility.  This was significant from a client perspective because it eliminated the need to bring a formal motion, which would take more time and cost much more.

Now that all scheduling appointments are just 10 minutes long and judges will be handling both lists, I suspect that counsel will be held more strictly to the 10 minute time cap.  On the other hand, the Commercial List has widely been regarded as a model of efficiency, in part due to what judges and counsel are able to accomplish at the 9:30s.  We shall see what the new merger of the two lists brings.

Thanks for reading.

Update: I now have the answer to my gowning dilemma.  Shortly after I wrote my blog, an e-mail was circulated by one of my colleagues in the estates bar, who was asked to spread the word that counsel are not required to gown for a 9:30 scheduling appointment.  (Thanks, Clare)