Whether you are involved in estate litigation, civil litigation, or personal injury litigation, being named a successful party in an action may result in a monetary award to reflect damages or a debt owed to you. However, collecting the award may be another challenge altogether. Collection of such an award can become further complicated if the party the judgment has been made against passes away before making payment. 

A recent decision examines how the courts approach situations where a successful plaintiff seeks to collect a judgment from the deceased’s estate. 

Plaintiff is awarded more than $2 million but defendant passes away

The plaintiff was the successful party in a December 24, 2020 judgment. The plaintiff was entitled to receive just over $2.4 million and $75,000 in costs from the defendant, who appealed unsuccessfully, leading to another cost judgment. Unfortunately for everyone involved, the defendant passed away. The plaintiff was notified of this on August 1, 2022. 

After receiving this news, the plaintiff tried to ascertain the identity of the executor or administrator of the defendant’s estate. The plaintiff contacted the defendant’s three children, one of whom had attended the original trial and the defendant’s trial lawyer and appeal lawyer. The latter of which, along with the children, did not respond. When the trial lawyer responded, it was only to say he didn’t know who was responsible for the estate. Finally, the plaintiff reviewed publications where notices about estates were published but had no luck. 

During his investigation, the plaintiff told the court that he learned the defendant had transferred a “significant” sum of money to his son and that he had also listed his condominium for sale. This resulted in the court ordering that he not sell or encumber any property. 

To pursue the collection of his judgment, the plaintiff asked the court to allow the order to be enforced against anyone who represents the estate, as well as a motion for a Norwich Order, which is an order that requires a third party to preserve and provide evidence ahead of discovery. This would, for example, prevent the estate administrator from selling any of the defendant’s assets. 

Will the plaintiff be able to collect the judgment?

The court began its analysis by stating that when a person dies, any proceedings they are involved in will be stayed until an order to continue has been obtained. If the deceased is a plaintiff, representatives of their estate may apply for this. However, in the case at hand, the deceased was the defendant, and the family of the deceased have not only not brought a motion for an Order to Continue, but they have also not responded to attempts made by the plaintiff to establish who is responsible for the estate. 

The court then explained that the Regulations of the Rules of Civil Procedure for Ontario allow a matter to be continued without a person representing the deceased’s estate. The law states,

“10.02 Where it appears to a judge that the estate of a deceased person has an interest in a matter in question in the proceeding and there is no executor or administrator of the estate, the judge may order that the proceeding continue in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent the estate for the purposes of the proceeding, and an order in the proceeding binds the estate of the deceased person, subject to rule 10.03, as if the executor or administrator of the estate of that person had been a party to the proceeding.”

By highlighting that the law allows such an order to be issued in “any other matter where it appears necessary…”.  In applying the law to the facts in this case, the court wrote that it would be desirable for such an order to be made in a case where the beneficiaries of an estate have made no efforts to provide information about who the executor or administrator is. If the court refused the plaintiff’s request, it would leave the plaintiff unable to execute the judgment. The court recognized the rights of the estate but wrote that if any of the defendant’s beneficiaries had wished to represent the interests of the deceased or of the estate, they had plenty of time to seek an order. 

As a result, the court’s ruling stated that the Order would be served on the three children of the defendant as well as the lawyer who conducted the appeal on the defendant’s behalf. The court was also satisfied that the Norwich order should be issued, preventing the estate from selling or transferring any of the defendant’s property. 

If You Are In Need Of An Estate Litigation Lawyer, Tierney Stauffer LLP In Ottawa Can Help

At Tierney Stauffer LLP, we take a client-focused approach, providing innovative guidance through the estate planning and administration processes. Should a dispute arise at any stage, we provide practical and honest advice to clients and represent their interests in all levels of court in addition to other forums. Our estate lawyers have extensive experience and will work to secure the results our clients need in order to move forward. Call us at 1-888-799-8057 or contact us online to set up a consultation with an experienced wills & estates lawyer.


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