Toronto Injury Lawyer Blog
Imagine for a moment that you have a personal injury case with a fast approaching Pre-Trial or Trial date.
In the case, liability (how then accident happened and whose fault it is) along with damages are both hotly contested issues.
At trial, both lawyers for the Plaintiff and the lawyers for the Defendant expect their respective clients to provide contradictory evidence. It’s a case of s/he said vs. s/he said whereby the Judge and Jury will need to pick a version of events they like the best.
What happens is before the trial one of those parties dies?
This happens more than you might expect. Personal injury cases, and civil trials take a lot of time. In 2024, these cases take a lot more time to get to move through the litigation process than they did decades ago. The longer a case takes to reach its conclusion, the greater the odds that a party might pass away before the proceeding reaches its conclusion. That’s just science.
When a party to the litigation dies, the action is stayed as it relates to them. That means that the action is paused. This stay, or pause is only temporary and can get removed so that it progresses forward again.
The party must secure an “Order To Continue” under Rule 11. This is a standard form but will require Affidavit evidence from your lawyer. The form states:
Form 11A
Courts of Justice Act
order to continue (transfer or transmission of interest)
On the requisition of (identify party or person) and on reading the affidavit of (name), filed, which indicates that on (date), (recite the details of the transfer or transmission of interest or liability),
IT IS ORDERED that this proceeding continue and that the title of the proceeding in all documents issued, served or filed after the date of this order be as follows: (Set out new title of proceeding, deleting name of party whose interest is transferred or transmitted and showing name of new party.)
Date ………………………………………………………………… Signed by …………………………………………………………………
Local registrar
One of the first things you will need to know is whether to not the litigant who passed away died with, or without a will. That’s important because the will names the estate’s executor. The executor acts as a representative of the estate and will be named as a party (in an executor’s capacity) to the proceeding. This does not mean that the executor will bear any sort of personal liability or responsibility. The Court just needs a person to speak/act on behalf of the Estate. Think of it for a moment. Who will direct the action or instruct the lawyer on behalf of the Estate if not the executor? Someone needs to do it and who better than the person who has been appointed as executor. However, the executor does NOT necessarily need to be appointed as the litigation administrator for the estate. Rule 11 states that any interested party may secure the Order to Continue. The person who gets appointed to represent the interests of the estate is often referred to as the “Litigation Administrator“.
When a Defendant passes away, often the lawyer for the Defendant is not eager to appoint a Litigation Administrator or secure the Order to Continue. There is no incentive or reason for them to do so. Why would they help a Plaintiff to move the action forward when the action remains stayed (on pause) against their client after they die and no Order to Continue has been secured. Rule 9.02 contemplates this scenario and provides a remedy that the Court may, on a motion, appoint a Litigation Administrator for the sole purpose of the proceeding. This Rule has the effect of not leaving the case waiting in limbo forever simply because a Defendant has passed away, either with or without a will. The Plaintiff may bring a motion to have someone appointed. That person can be a friend, family member or, in many instances, another lawyer. Lawyers often do other lawyers favours of acting as Litigation Administrator in cases where the Defendant died without a will, and without any assets. The only thing which the Plaintiff is pursuing is the insurance money available in a personal injury case. There is not much for the Litigation Administrator to do aside from lend his/her name to the proceeding and to sign some paperwork for the defendant lawyer who is paid for by the insurance company. The instructions on how to advance the claim do not come from the Litigation Administrator. Instead, they come from the insurer. You would think that by now there would be changes to the Rules which require a Litigation Administrator to be appointed who works or act for the insurer defending the claim itself. This would make sense given the role and high level of responsibility and control which the insurer has over the claim itself.
It seems counter intuitive to appoint someone who has no real say or control over what can or will happen with the litigation itself. Basically, what the Rules require is that a warm body step in to give the impression that they are acting on behalf of the Estate. When, in reality, its the insurer and their lawyers who are making all of the decisions and devising the strategy for the litigation. The same premise takes place in personal injury claims involving insurance. Its not the insured who makes the decisions or who strategizes the litigation. Rather its the insurer’s claims department along with their lawyers who make these decisions.
Can an Estate bring its own independent action? This means that a person has died. In death, can the deceased (his/her Estate) sue, or be sued? The answer to that is a resounding yes! Rule 9.03(2) provides for exactly that. It provides instructions on how the Estate is named in the style of cause and what needs to be done. So, just because a person has died, does not mean that they cannot commence an action, or that they cannot be sued. Even in death the law is there (scary thought given that there’s no peace for the dead…)
