June 5, 2023

Launching a lawsuit and deciding to proceed with litigation is a big decision which requires thought and attention. One of the first matters to consider is who is going to be named as a respondent or defendant to a proceeding. In estates litigation, generally, any individual or entity with a financial interest in an estate should be named as a party. If after a proceeding is commenced it is learned that not all proper parties have been sued, a motion will typically be required.

Subrule 5.04 (2) of the Ontario Rules of Civil Procedure provides: At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. Further, subrule 5.02 (2) provides, in part: Two or more persons may be joined as… respondents where…(b) a common question of law or fact may arise in the proceeding…(e) it appears that their being joined in the same proceeding may promote the convenient administration of justice. In addition, subrules 5.03 (1) and (4) provide: 5.03 (1) Every person whose presence is necessary to enable the court to adjudicate effectively and completely on the issues in a proceeding shall be joined as a party to the proceeding; and 5.03 (4) The court may order that any person who ought to have been joined as a party or whose presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding shall be added as a party.

Generally, where there is no limitation period issue, in determining whether a person is a “necessary party”, the court must consider whether the person is likely to be affected or prejudiced by the order being sought. There are two primary purposes in ensuring that all parties likely to be affected or prejudiced by a judgement are before the court. First, the proposed party must be given an opportunity to be heard, allowing for a single, comprehensive adjudication and forecloses further proceedings on the same issue. Second, the judgement can be more efficiently enforced when all parties of interest are joined and thereby bound in the result.[1] Moreover, when relief is claimed directly against a proposed party, they must be joined to the litigation so that they may be bound by any orders made against them.[2]

It is important to think about the foregoing when preparing notices of application or statements of claim, so as to avoid unnecessary motions (and the attendant costs) down the road.

[1] York Region Condominium Corporation No 890 v Market Village Markham Inc, 2020 ONSC 3993 at para. 377.

[2] Kim v Trump, 2014 ONSC 2129 (CanLII) at para. 84.