November 24, 2021

No one wants to think that a party to litigation could pass away before the litigation settles or is resolved by the court. But, unfortunately, it does happen. The death of one of the parties in the litigation has an immediate impact on the proceeding. Rule 11.01 of the Rules of Civil Procedure provides, in part, that the proceeding is “stayed” with respect to the party whose interest or liability has been transmitted to another person until an “order to continue” the proceeding by or against the other person is obtained. A stay is a stop or pause in the legal proceeding. A stay can be temporary or permanent.

The stay that occurs by operation of r. 11.01 is automatic upon the death of a litigant. The deceased litigant’s interest is transmitted to another person who is typically the estate trustee of the estate of the deceased litigant (but who could be the estate’s litigation administrator, for example). The stay is in effect until an order to continue is obtained. An order to continue essentially acts as a way of substituting the estate trustee for the deceased litigant in the proceedings. The interest or liability of the deceased’s estate can then be advanced or defended in the litigation. An order to continue allows for the proper parties to be identified and to continue with the litigation.

Rule 11.02(1) provides the process by which an order to continue is obtained. It allows for any interested person to file an affidavit verifying the transfer or transmission of interest of liability. Importantly, the rule does not require the affidavit from the estate trustee or next-of-kin of the deceased litigant. In other words, an opposing party can obtain the order to continue. The affidavit and a requisition is filed with the registrar. The requisition requests that an order to continue be signed by the registrar. The interested person who seeks an order to continue is not required to provide notice to any other party. However, when the order to continue is obtained from the registrar, the order must be served on the other parties to the litigation (r. 11.02(2)). Any party who is served with the order who wishes to set aside or vary the order to continue must bring a motion forthwith after notice of the order.

It may happen that the deceased litigant is the sole plaintiff in the action. The stay would have the effect of stopping the action until an order to continue is obtained. If, for example, the estate trustee or estate litigation administrator does not obtain an order to continue “within a reasonable time”, then Rule 11.03 provides that a defendant may move to have the action dismissed for delay. For any defendant, this would be the ultimate remedy. For the deceased’s estate, the loss of not being able to proceed with the litigation could be devastating. Navigating the effect of r. 11.01 and the impact of a deceased litigant in the continuation of the litigation can present some challenges. However, it is of paramount importance that r. 11.01 is not overlooked and that the interests of the parties to continue with the litigation are preserved.