Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 11

FSCO A11-000896

BETWEEN:

CORINNE WARREN HANCOCK (estate of)

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

INTERIM DECISION ON A MOTION

Before: Arbitrator John Wilson

Heard: November 18, 2011, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Michael Wentzel for the Estate of the late Ms. Hancock Donata Di Iorio for RBC General Insurance Company

Issues:

The Applicant, Corinne Warren Hancock, was injured in a motor vehicle accident on February 18, 2009. She applied for statutory accident benefits from RBC General Insurance Company (“RBC”), payable under the Schedule.¹ Unfortunately, on August 14, 2010, Ms. Hancock died. Since the parties had been unable to resolve their disputes through mediation prior to her death, her representative, Mr. Wentzel, applied on behalf of the late Ms. Hancock for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. Unfortunately he neglected to include on the application for arbitration the fact that he was making the application on behalf of a deceased insured.

At the pre-hearing in this matter, Mr. Wentzel was not available at the time set for the teleconference. Rather, a colleague, Mr. LeRoux, sat in for Mr. Wentzel. He advised that it was his understanding that Ms. Hancock’s file had been closed, and that his firm was no longer involved.

At the outset of the pre-hearing Ms. Di Iorio advised that RBC had not been advised of any withdrawal and that it intended to bring a motion to dismiss the arbitration and that it would be requesting that its expenses be payable by Mr. Wentzel as the representative of record who signed the application for arbitration. This motion is the result.

The issues raised in this motion are:

1. Is this arbitration a nullity because the application for arbitration was filed after the death of Ms. Hancock without the authorization of anyone entitled to act on behalf of her estate?

2. If so, should Mr. Wentzel, the paralegal claiming to represent Ms. Hancock be responsible for RBC’s expenses in defending this claim?

Result:

1. On the basis of the evidence before me, the arbitration brought in the name of Ms. Hancock is a nullity, as it was brought by an agent without any specific authorization from anyone authorized by law to bind the estate of the late Ms. Hancock.

2. I reserve on any final determination of expenses to allow Mr. Scott Warren an opportunity to make submissions if so advised.

EVIDENCE AND ANALYSIS:

There is no dispute that Ms. Corinne Hancock died on or about August 14, 2010. There is no evidence before me linking her death to a motor vehicle accident. Indeed RBC takes the position that her demise is totally unrelated to any motor vehicle accident.

A mediation of Ms. Hancock’s claims took place with a Mediator’s report issued on September 2, 2010. The mediator listed a claim for ongoing non-earner benefits, housekeeping and home maintenance benefits and a medical benefit for prescriptions as remaining in dispute.

There is no indication in the mediator’s report that the mediator was aware that Ms. Hancock was deceased. Indeed the claims listed imply that Ms. Hancock required housekeeping assistance until February 2011 and “ongoing” non-earner benefits at the time of mediation. There is no dispute that both the mediation and the Application for Arbitration happened after Ms. Hancock’s death.

While there is no question that at the time of the Application for Arbitration Ms. Hancock was in no position to be self-sufficient in housekeeping and other needs, all such benefits claimed in both the Application for Mediation and Arbitration are predicated upon an insured being alive and in need of the benefits. Any such ongoing claims after August 14, 2010 were clearly both highly irregular and unsustainable.

An Application for Arbitration was filed with FSCO. It was stamped as received on March 22, 2011. The Application lists a claim for non-earner benefits, housekeeping and home maintenance expenses for two years post-accident, a period after the death of Ms. Hancock.

The Application for Arbitration is signed by a squiggle that commences in the Applicant’s signature box and finished in the box for the Representative’s signature. At the hearing Mr. Wentzel acknowledged this mark as his signature.

Although there is said to be a son of Ms. Hancock’s, Scott Warren, resident in Alberta, there is no evidence before me that anyone has undertaken to administer Ms. Hancock’s estate in Ontario, either through a grant of probate or administration. The absence of an applicant’s signature probably reflected the reality that there was no-one available to sign as applicant.

LEGAL CONTEXT

Probate matters such as this in Ontario are covered by a mixture of common law and a variety of statutes, including the Estates Act², and the Estates Administration Act.³

The Estates Administration Act provides at section 2:

2(1) All real and personal property that is vested in a person without a right in any other person to take by survivorship, on the person’s death, whether testate or intestate and despite any testamentary disposition, devolves to and becomes vested in his or her personal representative from time to time as trustee for the persons by law beneficially entitled thereto, and, subject to the payment of the person’s debts and so far as such property is not disposed of by deed, will, contract or other effectual disposition, it shall be administered, dealt with and distributed as if it were personal property not so disposed of.

If an heir had established a right to be the personal representative of Ms. Hancock upon her death, then all real and personal property, including choses in action would be vested in that person.

If the benefits claimed by the estate in this matter had crystallized prior to Ms. Hancock’s death, then by reason of the above section they would form part of his estate.

However even if the benefits had crystallized, there remains the question of entitlement to bring any action to bring forward the claim, and, indeed provide a discharge once paid.

In estate matters, the executor or trustee under a will derived his or her powers from the will. These powers may be confirmed by a court having jurisdiction, but they trace from the appointment made in a will, and date from the time of death. Subject to certain restrictions, an executor may deal with property, if required, from the date that it vests in him or her as trustee.

In the absence of a will an administrator, appointed by the courts, can trace his or her power to the appointment by a court. No property vested in an administrator, except by virtue of the appointment.⁴ Consequently, an executor had the flexibility to take actions to preserve an estate from the time of the death of the testator that an administrator, or person claiming from an intestate did not have.

In order to address this problem Equity developed the concept of relation back to mitigate the impact of the strict legal rule, and to give an administrator the ability to retroactively validate necessary actions taken on behalf of the estate.

Halsbury’s⁵ defines the doctrine of relation back as follows:

Relation back of the administrator’s title. In order to prevent injury from being done to a deceased person’s estate without remedy, the courts have adopted the doctrine that upon the grant being made the title of the administrator relates back to the time of death. This doctrine has been consistently applied in aid of an administrator seeking to recover against a person who has dealt wrongfully with the deceased chattels or chattels real: it is also applicable against a person dealing wrongfully with the deceased’s real estate. It cannot be applied, however, to disturb the interests of other persons validly acquired in the interval or to give the administrator title to something which has ceased to exist in the interval.

Essentially, the doctrine serves to permit actions by persons acting on behalf of the estate to preserve or protect assets of the estate from wrongful injury. The cases make it clear that the actions taken by an individual must be on behalf of the estate, and not on his or her own account.

Although the provisions of the Estates Administration Act mitigate some of the difficulties of the old rules, it is clear that none of the saving principles for ratifying actions made in the name of an estate before the formalities have been completed, including relation back, are available to the “estate” named in this arbitration.

The Rules of Civil Procedure⁶ would, if this matter were a court action than an arbitration potentially offer some relief and allow an action undertaken in the name of a deceased or the deceased’s estate without the participation of a legally recognized trustee or administrator, to be retroactively validated.

Unlike the Rules of Civil Procedure, neither the Insurance Act, nor the Statutory Powers Procedure Act provides either the jurisdiction or the mechanism to relieve from the potential harshness of the application of the common law rule to arbitrations. There is no suggestion that Rule 9 of the Rules of Civil Procedure provides any jurisdiction for an arbitrator to order that a proceeding be continued by any executor, administrator or litigation administrator, or to appoint any of those enumerated persons.

Does a legal representative engaged prior to the death have the power to bring an action after the client’s death?

A legal representative, whether a lawyer or a paralegal, is at the most simplistic an agent acting on behalf of his or her principal— the client.

The general rule of law still is that an agency is terminated by the death of the principal. As Addy J. remarked in Wilkinson v. Young⁷:

in all cases where the agency is gratuitously created and is created merely for the benefit of the principal, it terminates at law with the latter’s death or mental incompetency.

While the law recognizes some irrevocable assignments that survive the death of a principal, a legal retainer is not one of them.

In this matter, it is clear that Ms. Hancock died prior to both mediation and the Application for Arbitration. Any instructions Mr. Wentzel may have received from Ms. Hancock prior to her death lapsed with her passing.

The Application for Arbitration was filed in the name of the deceased (as though she was still alive in fact). There is no evidence that anyone has taken formal responsibility for the “estate”. Certainly, even Mr. Wentzel does not claim to have received instructions from a formally appointed estate trustee, administrator or litigation administrator.

As Trotter, D.C.J. commented in Raiz v. Vaserbakh :

At common law, the maxim actio personalis moritur cum persona provides that a personal right of action dies with the person. In other words, both the procedural and the substantive right to sue or be sued dies with the original party litigant.⁸

Even though there are some situations where the estate or the heirs of someone could bring an action to enforce contractual rights, such an action would have to be framed in the name of the person or entity who would have standing to enforce the contract.

Engaging the legal process is something that should not be done lightly. There are obligations upon parties who submit disputes to courts and other tribunals for resolution. There are also potential consequences, such as costs, should a party lose, or fail to meet his or her responsibilities to the court or dispute resolution scheme whose jurisdiction has been invoked.

In McEllistrum v. Etches, the Court of Appeal concluded that a writ issued on behalf of an estate prior to the issue of letters of administration is necessarily a nullity. Laidlaw J.A. speaking for the Court stated:

I hold, following the high authority of Lord Parker of Waddington in Meyappa Chetty v. Supramaniam Chetty ([1916] 1 A.C. 603), and the subsequent cases in England to which I have referred, that an action under s. 37 of the Trustee Act for torts or injuries to the person of the deceased cannot be instituted by a person in the capacity of administrator before grant of letters of administration. In accordance with that view I must conclude that the writ of summons and subsequent proceedings in the action so far as they relate to a claim under the Trustee Act are a nullity.⁹

In the absence of any proof that anyone has undertaken to administer the estate, or to obtain letters of continuation, or appointment of a litigation administrator under Rule 9 of the civil Rules, I would have no choice but to conclude that the Application for Arbitration had and has no valid authorizing principal to take responsibility and give direction to a counsel or agent as the case may be.

While, in the absence of such proof, a finding of nullity would normally follow, there remains the possibility that some sort of remedial action in another forum is possible.

Remedial Provisions

Proceeding Commenced before Probate or Administration

The Rules of Civil Procedure provide for direct relief from the harshness of the common law rule actio personalis moritur cum persona and the shortcomings in the concept of “relation back”.

9.03(1) Where a proceeding is commenced by or against a person as executor or administrator before a grant of probate or administration has been made and the person subsequently receives a grant of probate or administration, the proceeding shall be deemed to have been properly constituted from its commencement.

This provision, in effect, extends the doctrine of relation back to any grant of administration or probate, and allows a party to retroactively validate a proceeding by so applying and receiving a grant of probate or administration.

However it is not at all clear whether this relief is available in the context of an arbitration.

The Rules at Rule 1.03 state that:

“proceeding” means an action or application; (“instance”)

Likewise:

“action” means a proceeding that is not an application and includes a proceeding commenced by,

(a) statement of claim,

(b) notice of action,

(c) counterclaim,

(d) crossclaim, or

(e) third or subsequent party claim; (“action”)

However:

“application” means a proceeding commenced by notice of application; (“requête”)

There is certainly no reference to arbitrations, which are neither commenced by a Notice

of Application nor by a Notice of Claim or Statement of Claim. Nor do arbitrations take place

within the confines of the Superior Courts (although the Superior Courts through the

Divisional Court have supervisory jurisdiction over arbitrations).

To confuse matters further, there are elements of the Rules of Civil Procedure which patently

are meant to affect matters beyond the Superior Courts. One need only refer to Rule 7 dealing with disability as an example of a provision in the civil Rules having general application.

A former Director of Arbitrations however has expressed the following opinion as to the

applicability of the Rules of Civil Procedure to arbitrations:

In my view, it is immaterial that dictionary definitions and common usage of “proceeding,” the term used in Rule 9.03(3), may be broad enough to include arbitrations. “Proceeding” is defined in the Rules of Civil Procedure and is clearly meant to encompass various types of court processes, whether commenced by application, statement of claim, notice of action, counterclaim, crossclaim, third or subsequent party claim, or divorce petition or counterclaim. It does not extend the court rules to all statutory decision makers involved in any process that can be called a “proceeding.” As this is the term used in the Statutory Powers Procedure Act, the consequences of the arbitrator’s approach would be startling, with discoveries and other court procedures becoming available in a broad range of non-court proceedings.¹⁰

It is of some note that the Director’s comments arose in the context of an appeal that rejected the position taken in the primary case relied upon by Mr. Wentzel, that of Bittan and CGU Insurance Co. of Canada.¹¹

While the Director specifically rejected the application of the remedial processes in the Rules of Civil Procedure he purported to achieve the same effect by invoking Rule 1 of the Dispute Resolution Practice Code.

Unfortunately he neglected to consider the fundamental difference between the Rules of Civil Procedure and the Dispute Resolution Practice Code. While the Court Rules are specifically subsidiary legislation under the Courts of Justice Act, confirmed in fact as regulations duly issued and published in the Ontario Gazette, The Director of Arbitrations is merely permitted to make rules relating to practice and procedure.

The Director’s authority to make Rules is derived from section 21 of the Insurance Act which reads:

21. Subject to the regulations made under paragraph 25 of subsection 121(1), the Director may make rules for the practice and procedure to be observed in mediations under section 280, in performing evaluations under section 280.1, and in proceedings under this Act before the Director or an arbitrator. [emphasis added]

Laskin J.A., in dealing with the distinction between procedural and substantive referred himself first to the dictionary definition:

Murray’s English Dictionary defines “substantive” as applied to law as:

Relating to or consisting of the rules of right administered by a Court as opposed to forms of procedure.¹²

“Procedure” is defined as:

The mode or form of conducting judicial procedure as distinguished from those branches of law which define rights or prescribed penalties.

“‘Practice’” in its larger sense -- the sense in which it was obviously used in that Act, like ‘procedure’ which is used in the Judicature Acts, denotes the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which by means of the proceeding the Court is to administer the machinery as distinguished from its product.”¹³

In arbitrations, the Code rules do not have the force of law, either primary or secondary, and cannot in themselves make substantive changes to the common or statutory law¹⁴. Creating the equivalent of Rule 9.03 in the arbitration forum would be to make a substantive change in the law, one that is outside the scope of the Code.

One cannot find jurisdiction to make an order in mere wishful thinking as the Director appears to have done in the Bittan appeal.

Unlike the former Director, I have no confidence that pulling a solution out of a hat based on his rule making authority is sufficient to clothe an arbitrator or the Commission with jurisdiction to grant what is in effect a substantive change in the law.

Just as an arbitrator does not have jurisdiction to relieve from forfeiture, so he or she lacks the power given to a court of competent jurisdiction to provide relief in this situation. While a court may apply the curative provisions of Rule 9.03, as a statutory arbitrator I have no comparable powers. Consequently the application, in the absence of someone legally competent to commence it remains a nullity.

I take comfort in this view by the decision of the Divisional Court in a very similar matter, that of Maryasin (Maryasin Estate v. ING Insurance Co. of Canada). In that matter, counsel had also applied for arbitration on behalf of an estate which had no legal representative appointed at the time of the Application for Arbitration, and there was no will in evidence to cloak an executor or trustee with any authority to act on behalf of the estate. The court stated:

In our view, the Arbitrator was correct when he found that the claim as constituted was a nullity, because a claim in the name of Ms. Maryasin as Executor is a claim by a different party than a claim in the name of Ms. Maryasin in her personal capacity. As such, what was being sought before the Arbitrator was more than an amendment to cure an irregularity in the form of a misdescription of the person bringing the claim. It was an amendment, which, if granted, would have substituted a party with one legal interest for another with a very different legal interest. Given this, the Arbitrator was correct when he found that the only way to cure the problem was to commence a new application. The Director’s Delegate was also correct when he upheld the Arbitrator’s decision on this point.¹⁵

If the Application in Maryasin was a nullity, then I am bound to so find in this matter as well.

While I have concerns about impairing the ability of any validly appointed representative of Ms. Hancock’s estate to pursue the interests of the deceased, I am satisfied that on the evidence before me, that the current Application for Arbitration was not validly constituted.

Although I am assured by Mr. Wentzel that he has been in touch with a key player in this matter, Mr. Warren, whom he identifies as the presumptive administrator of Ms. Hancock’s estate, I am not satisfied that any potential representative of the estate has necessarily received clear advice that a potential interest of Ms. Hancock’s estate may be precluded by a decision on this motion, or that the issue of costs or expenses incurred by the Insurer arising from that application is to be decided.

Consequently I will wait 30 days from the issuance of this decision before entering a final dismissal order to allow Mr. Warren to take any actions he may wish in a court of competent jurisdiction, or to provide proof that he validly acts for the estate of his late mother and that he is prepared to endorse Mr. Wentzel’s actions in this matter, including taking the responsibility of a full party for any costs or expense orders to be made in this matter.

EXPENSES

RBC has requested an order reimbursing it for unnecessary expenses caused by an Application for Arbitration that on its face was invalid. In addition it has claimed that these expenses should be properly paid by Mr. Wentzel, nominally the paralegal or agent acting on behalf of Ms. Hancock and the sole signator of the Application.

Given my finding that the original Application for Arbitration is a nullity it would follow that an opposite party resisting the application would normally be entitled to its costs in defending and moving for the dismissal of the arbitration.

Rather than accepting that any order be payable by a potentially impecunious estate, RBC wants its expenses to be paid by the person it holds responsible instigating the process leading to the incurring of those expenses; Mr. Wentzel.

Punishing a lawyer or a paralegal with costs for his or her actions in litigation is unusual and fraught with public policy concerns, surrounding limitations on the ability of counsel to advocate forcefully on behalf of a client.

A claim for expenses against a representative in an arbitration is based on section 282 (11.2) of the Insurance Act which provides:

Liability of representative for costs

(11.2) An arbitrator may make an order requiring a person representing an insured person or an insurer for compensation in an arbitration proceeding to personally pay all or part of any expenses awarded against a party if the arbitrator is satisfied that,

(a) in respect of a representative of an insured person, the representative commenced or conducted the proceeding without authority from the insured person or did not advise the insured person that he or she could be liable to pay all or part of the expenses of the proceeding;

(b) in respect of a representative of an insured person, the representative caused expenses to be incurred without reasonable cause by advancing a frivolous or vexatious claim on behalf of the insured person; or

(c) the representative caused expenses to be incurred without reasonable cause or to be wasted by unreasonable delay or other default.

Considering the failure of Mr. Wentzel to fully disclose the death of Ms. Hancock on a timely basis, combined with the claims for ongoing benefits that are predicated on Ms. Hancock’s survival (non-earner, housekeeping) the Application could well be found to be frivolous or vexatious or to be a situation where a person commenced or conducted the proceeding without authority from the insured person (the deceased or a legal representative of the estate).

Mr. Wentzel should have known that his retainer ended with Ms. Hancock’s death. I had no evidence at the hearing of this matter that he ever sought prior formal authority from anyone representing the estate to validate his actions. Indeed the continuation of this matter in the name of the deceased personally, without reference to her death suggests that such measures were never contemplated.¹⁶

The Insurer has not alleged fraud, but fraud is not a prerequisite to an expense order against a representative. Unreasonably causing expenses to be incurred by another party is however.

Once an Application for Arbitration is finalized, an insurer is required to either defend the claim or face a potential payment order. An insurer is also assessed a fee for the arbitration which is essentially non-refundable.

In this matter I have no hesitation in finding that Mr. Wentzel caused expenses to be incurred by the Insurer by initiating this arbitration. Such expenses were unnecessary because at the time of the Application he had no valid authority to act for Ms. Hancock or her heirs or estate.

The claim as well was vexatious in the sense that claims were advanced for personal benefits on behalf of Ms. Hancock that patently would not be available to a deceased insured.

An award of expenses against a representative in this matter cannot be seen to adversely affect the ability of counsel or representatives to advocate forcefully on behalf of a client, since at the time of the Application for Arbitration, Mr. Wentzel had no client authorized to give instructions in this matter.

If the state of the law regarding actions by deceased persons was outside of Mr. Wentzel’s own knowledge, then he should have obtained legal advice before boldly undertaking an Application for Arbitration on behalf of a deceased.

He should have known better than to withhold information about the death of Ms. Hancock when attending the mediation and filing the Application for Arbitration.

In addition to an insurer’s direct costs arising from an Application for Arbitration, the person in whose name an application is filed also undertakes some risk. As in any litigation a losing party to an arbitration may be subject to paying its opponent’s expenses.

By filing an Application for Arbitration in the name of Ms. Hancock, Mr. Wentzel exposed her estate to an award of expenses.

I would be prepared to find therefore, that since the Application for Arbitration was filed without the direct authorization of the named Applicant, Ms. Hancock, or her validly appointed legal representatives and is a nullity, that the basic underpinnings for an Order against Mr. Wentzel have been made out.

Given however, the limited evidence filed in this matter, and the potential of some input from at least one of Ms. Hancock’s potential heirs, I am prepared to reserve on a final expense order for a period of thirty days to allow Mr. Warren to take any actions he may wish in a court of competent jurisdiction, or to provide proof that he validly acts for the estate of his late mother and that he is prepared to endorse Mr. Wentzel’s actions in this matter, including taking the responsibility of a full party for any costs or expense orders to be made in this matter.

Obviously, if becomes clear that Mr. Wentzel had prior instructions from a person claiming to represent the estate at the time that he instituted this proceeding, then that would be relevant as to the identity of the potential payor of any expense order.

Failing the receipt of such documentation within the time provided, this arbitration will be formally dismissed as a nullity, and a final order on expenses will be made.

February 10, 2012

John Wilson Arbitrator

Date

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 11

FSCO A11-000896

BETWEEN:

CORINNE WARREN HANCOCK (estate of)

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. On the basis of the evidence before me, the arbitration allegedly brought by Ms. Hancock is a nullity, as it was brought by an agent without any specific authorization from anyone authorized by law to bind the estate of the late Ms. Hancock.

2. I reserve on any final determination of expenses to allow Mr. Scott Warren an opportunity to make submissions if so advised, and to clarify whether he accepts full responsibility for Mr. Wentzel’s actions in launching this arbitration, including responsibilty for any expense order that may be made.

February 10, 2012

John Wilson Arbitrator

Date

(1) Where a proceeding is commenced by or against a person as executor or administrator before a grant of probate or administration has been made and the person subsequently receives a grant of probate or administration, the proceeding shall be deemed to have been properly constituted from its commencement. R.R.O. 1990, Reg. 194, r. 9.03 (1) (3) A proceeding commenced in the name of or against a person who has died before its commencement shall not be treated as a nullity, but the court may order that the proceeding be continued by or against the executor or administrator or a litigation administrator appointed for the purpose of the proceeding and the title of the proceeding shall be amended accordingly.

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2R.S.O. 1990, c. E. 21
3. 3R.S.O. 1990, c. E. 22 — There has been a reform of probate law which has seen the disappearance of traditional terms such as “executor” and “administrator.” I have, however used the terms “administrator” and “estate trustee without will” virtually interchangeably in this matter.
4. 4An executor derives his title from the will, not from the grant of probate, but an administrator’s title is based solely upon his grant, and at common law he cannot institute an action as administrator before he gets his grant: Meyappa Chetty v. Supramanian Chetty, [1916] 1 A.C. 603.
5. 516 Hals., 3rd , at p. 135
6. 6See Rule 9.03
7. 71972 CanLII 632 (ON HCJ), [1972] 2 O.R. 239
8. 8Raiz v. Vaserbakh, [1986] O.J. No. 1920
9. 91954 CanLII 131 (ON CA), [1954] O.J. No. 247
10. 10Bittan and CGU Insurance Co. of Canada (FSCO P01-00058) Appeal, May 30, 2002
11. 11Bittan (Estate of) and CGU Insurance Co. of Canada (FSCO A00-001005 November 27, 2001)
12. 12Carvell v. Carvell 1969 CanLII 400 (ON CA), [1969] 2 O.R. 513-521 Laskin, J.A.
13. 13Citing Poyser v. Minors (1881), 7 Q.B.D. 329
14. 14the legislative history of Rule 9 of the Rules of Civil Procedure, with its roots in the former Trustee Act confirms that the provisions substantially change common law, by transforming a nullity into something distinctly different.
15. 15Maryasin Estate v. ING Insurance Co. of Canada [2010] O.J. No. 5780 Divisional Court
16. 16Some weeks after the hearing was completed Mr. Wentzel wrote to the arbitrator, enclosing what appeared to be a broad authorization to act on behalf of Mr. Scott Warren. Given the absence of any request to re-open the motion hearing to receive further evidence, and my decision to allow an opportunity to Mr. Scott to respond personally to this interim decision, I have not considered the new material in the context of this decision.