When a party involved in a lawsuit passes away, the legal proceedings become complex.
In Ontario, any ongoing proceedings in which the deceased was involved are immediately put on hold concerning the deceased’s interest or liability in the lawsuit. This suspension, referred to as a "stay," implies that the court will not proceed unless specific conditions are met.
Rule 11 of the Rules of Civil Procedure outlines the process to continue an action after the death of a party.
According to Rule 11.02, when there is a transfer of a party's interest or liability during ongoing proceedings, any interested individual can, by filing an affidavit verifying this transfer, obtain an order to continue without notifying other parties. While the rule mentions "any interested person", legal precedents suggest it's typically the executor of the deceased party's estate who should obtain this order.
The case law in Godkin Estate v. MTM Financial Services (London) Corp. (1999), CarswellOnt 1648and Windsor v. Mako (2008), CarswellOnt 6442 indicate that only the legally entitled party administering the deceased's estate can obtain the order to continue. This aligns logically with the deceased's interest in the litigation becoming an asset or liability of their estate.
Rule 11.02 outlines the usual process to obtain an order to continue, which involves filing an affidavit verifying the transfer of interest or liability, and obtaining, on requisition from the registrar, an Order to Continue.
Another scenario is where there is no Executor or Administrator of the Estate of the party who died. In this case, Rule 9.02 would apply. According to Rule 9.02, where a party wants to continue a lawsuit against the estate of a deceased person who has no executor or administrator, the party will need to bring a motion to appoint a litigation administrator to represent the estate for the purposes of the lawsuit. While the litigation administrator would represent the estate’s interests and liabilities, it is important to note that Rule 9.02(2) states that any order made against the estate which is represented by a litigation administrator has no effect on the litigation administrator’s own liability in his/her personal capacity, unless of course a judge orders otherwise.
The Impact of a Party’s Death on the Ongoing Lawsuit
While obtaining an order to continue may seem straightforward procedurally, the impact of a litigant’s death on the ongoing legal matters can vary significantly based on the nature of the proceedings, the role of the deceased party, and the potential impact of their death.
The type of legal proceedings can significantly dictate the impact of a party's death. For instance, in complex litigations involving multiple parties or intricate legal issues, the absence of a party due to death might alter the dynamics of the case. In contrast, in simpler cases, the impact might be less substantial.
The position held by the deceased within the litigation process is crucial. Whether they were the plaintiff, defendant, applicant, or respondent can determine how their absence affects the progression of the case. Their role in the case, the claims made, and the defenses presented can profoundly influence the direction of the legal proceedings.
The consequences of the deceased party's absence can range from minor disruptions to substantial shifts in the case's outcome. It might affect the availability of evidence, impact witness testimonies, and even influence settlement negotiations. The deceased party's absence can potentially change the course of the legal proceedings, necessitating adjustments or reconsideration of legal strategies by the remaining parties.
The decisions made by the executor of the deceased party's estate regarding the continuation of the litigation can significantly impact the remaining parties involved.
The nuances of each case, combined with the legal and emotional complexities arising from a party's death, make it imperative for all involved parties to carefully consider and navigate the implications that stem from such an event.
To consult with a lawyer who has experience dealing with cases involving the death of a party, please contact our team at JEWELL RADIMISIS JORGE LLP for a free initial consultation at 1 (855) 546-2525.