COURT FILE NO.: CV-10-5284

DATE: 20221024 CORRECTED: 20221026

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Renato Brun Del Re, Applicant

AND:

The Estate of Philip Thomas Buck, deceased, and 1083453 Ontario Inc, Respondents

BEFORE: Coats J.

COUNSEL: Margaret McCarthy, for the Plaintiff

Susanne Draper, paralegal, appearing with permission for this motion only, on behalf of Patricia Heroux, Estate Trustee for The Estate of Philip Thomas Buck, deceased

HEARD: October 18, 2022

ENDORSEMENT

Background/Issues:

[1] The matter before me is the continuation of a reference conducted by way of a motion. This is pursuant to the Order of Justice Gisele Miller, dated February 11, 2014.

[2] The reference arose out of an order winding-up the Respondent corporation, 1083453 Ontario Inc. (“1083453”). 1083453 was owned equally by the Applicant and the Respondent, Philip Buck.

[3] I had permitted Ms. Draper, a paralegal, to assist Mr. Buck.

[4] There were then concerns expressed as to whether Mr. Buck had the capacity to act on his own behalf in this matter with the assistance of Ms. Draper.

[5] Mr. Buck participated in a capacity assessment.

[6] In my Endorsement dated August 26, 2021, I found, after reviewing the assessment report, that Mr. Buck lacked the capacity to make decisions about his case, to retain and instruct counsel, and to represent himself.

[7] Prior to August 26, 2021, Ms. Patricia Heroux, Mr. Buck’s common-law spouse, had requested to be appointed Litigation Guardian for Mr. Buck, given his incapacity, but she had been unable to secure counsel as required by rule 7.03(3) of the Rules of Civil Procedure. As such, on August 26, 2021, I appointed the Public Guardian and Trustee to act as Mr. Buck’s Litigation Guardian, and it did so.

[8] Unfortunately, Mr. Buck died on May 29, 2022. The Public Guardian and Trustee ceased representing Mr. Buck upon his death.

[9] The Applicant obtained a registrar’s order to continue the matter.

[10] Ms. Heroux obtained a Certificate of Appointment as Estate Trustee for Mr. Buck’s Estate.

[11] Ms. Heroux filed this motion seeking an order that she could represent Mr. Buck’s estate in this matter as estate trustee in her personal capacity, without legal counsel. There were other issues raised in her motion but this was the only issue argued on October 18, 2022.

Analysis:

[12] Rule 15.01(1) of the Rules of Civil Procedure provides that a party to a proceeding who is under disability or acts in a representative capacity shall be represented by a lawyer.

Does a party acting in a “representative capacity” include an estate trustee?

[13] Ms. Heroux’s position is that an estate trustee does not act in a representative capacity. I do not accept her position. Where the deceased or their estate is the relevant party for whom the estate trustee is acting, that person is doing so in a representative capacity.

[14] The existing case law leaves little ambiguity that an estate trustee is a person in a representative capacity, and subject to r. 15.01.

[15] In Herberman Estate (Re), 2003 CanLII 10801, (also cited as Streisfield v. Goodman, [2003] O.J. No. 258 (C.A.)), at para. 5, the Court of Appeal noted:

First, an appeal has been launched by Lillian Streisfield in her capacity as litigation administrator on behalf of the estate of Gerald Streisfield. Pursuant to rule 15.01(1), she is unable to personally represent the estate. Rule 15.01(1) requires that the estate be represented by a solicitor.

The Court ordered that if a solicitor was not retained to represent the estate, a motion could be brought to dismiss the appeal.

[16] Also in McBride v. Merchant Estate, 2021 ONSC 7089, at para. 6:

In this case Mr. Jutsun is apparently seeking leave to appear for both The Estate of Helen Merchant and for Arlene Mackaracher personally. Rule 15.01(1) applies in this case, as an appearance on behalf of the estate is an appearance in a representative capacity. Nowhere in the Rules is there an exception to this requirement. Nowhere is there an ability to seek leave to represent a party when the proposed representative is not a lawyer.

[17] And in Radzevicius v. Workplace Safety and Insurance Appeals Tribunal, 2019 ONSC 1678, at para. 5:

As estate trustee, Leon Radzevicius acts in a representative capacity for the estate and the beneficiaries as is made clear by Rule 9.01. Therefore, he is not authorized to appear on behalf of the estate in this court without a lawyer. The Rules do not provide the court with the ability to grant leave to a non-lawyer to act as they do, for example, under Rule 15.01(2) when a corporation is involved.

[18] And finally in John Hrycko v. Justin Booth, Estate Trustee of the Estate of Olga Miller, 2014 ONSC 6676, at para. 4:

As the defendant, Olga Miller, is now deceased, her estate trustee, Justin Booth, was present at the hearing. Mr. Booth did not file any material and was self-represented. He was formerly represented by Mr. Ferro, but when it was pointed out to him by the plaintiff’s counsel that this would be a conflict, he decided to represent himself. He wished to provide a letter to the court, but counsel for the plaintiff objected to this as it was not sworn evidence. Mr. Booth did not retain further counsel after Mr. Ferro. This is contrary to the requirement of Rule 15.01(1), which requires that a party who acts in a representative capacity be represented by a lawyer. Given all of the above, I declined to hear from Mr. Booth.

[19] Ms. Heroux is an estate trustee and as such is acting in a representative capacity and subject to the requirement of r. 15.01(1). There is no exception to this requirement in the rules. There is no provision to seek leave to represent a party when the proposed representative is not a lawyer. There is no exception available on any ground.

An Estate Trustee is a Personal Representative

[20] Ms. Heroux’s argument is that she is not someone acting in a representative capacity, because, in her words, she is a trustee; she is not a representative. She says that the statutes that do apply to her are the Estate Administrations Act, R.S.O. 1990, c. E.22, and the Trustees Act, R.S.O. 1990, c. T.23. However, these statutes include the following definition, evidentiary of the fact that an estate trustee is in fact a representative of the estate.

“personal representative” means an executor, an administrator, or an administrator with the will annexed. (“représentant successoral”)

An identical definition is also given in the Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 1.

[21] While these definitions refer to “executors” and “administrators”, amendments to the Rules of Civil Procedure have consolidated the two terms into the office of the “estate trustee,” as noted in r. 74.01:

“estate trustee” means an executor, administrator or administrator with the will annexed; (“fiduciaire de la succession”)

This is also apparent from the Ontario Law Reform Commission, Report on Administration of Estates of Deceased Persons (Toronto, 1991), at p. 16:

“We recommend that a personal representative should be called an “estate trustee”. This term will denote that the office comprehends both the unique functions of a personal representative of the deceased and the responsibilities of a trustee.”

[22] In conclusion, it is clear that Ms. Heroux as Estate Trustee acts in a representative capacity.

Rules 9 and 10 are not applicable

[23] Finally, Ms. Heroux relies on rules 9 and 10 to advance her argument that the estate trustee does not represent the deceased, but rather that they act, in a legal capacity, as the deceased themselves. In my view, neither rule cited offers support for this argument.

[24] Rule 9.03(4), which Ms. Heroux states indicates that a ‘litigation administrator’ is secondary to an estate trustee, is one of a number of remedial procedural provisions – this one designed to ensure that a proceeding against a deceased with a litigation guardian is not rendered a nullity by the discovery of an existing estate trustee.

[25] Rule 10.02, which Ms. Heroux says supports the argument that the estate trustee acts in an identical capacity to the original litigant, notes in its very wording that an executor is a person representing the estate of the deceased person – in the same capacity as any other person appointed by the court. This rule only otherwise indicates that where a proceeding is held with an appointed representative, and not the estate trustee, the estate will nonetheless be bound by the outcome of those proceedings.

Conclusion:

[26] Rule 15.01(1) applies. Ms. Heroux as estate trustee must be represented by counsel.

[27] The matter is to be spoken to before me in January of 2023, on a date to be scheduled through the trial office, whereupon Ms. Heroux is expected to have counsel present.

Costs:

[28] The costs of this motion will be determined as part of my determination of costs in the matter before me as a whole.

Coats J.

Date: October 24, 2022

Corrected: October 26, 2022