Our Lawyers
What We Do
Blog
Contact

The law is a funny thing sometimes in that the issues in a trial could impact future litigants, or perhaps even the law itself. This means that even if a legal dispute is no longer relevant to the parties involved, a court may still decide to hear the matter. However, such is not always the case. Sometimes a significant event can cause the need for a trial to be eliminated altogether. In a recent decision from the Court of Appeal of Ontario, the court had to determine if a matter concerning the personal care of an individual should continue after that person had passed away.

Subject of issue passes away

The original trial concerned the personal care of an individual who ended up passing away on March 1, 2020. Of course, this means that matters related to the deceased’s personal care was no longer something that had to be determined. However, the appellants stated that the court should still hear the appeal because there remained a “live controversy,” a term borrowed from a 1989 Supreme Court of Canada decision. The live controversy test states that a court may elect to address a moot issue if the circumstances warrant. In order to do so, the court must first determine whether “the required tangible and concrete dispute has disappeared, and the issues have become academic.” The second stage of the test is asked if the first one is answered in the affirmative. If so, the court has to determine if it is necessary to decide if the court should exercise its discretion to hear the case.

What was the live controversy in this case?

The appellants were siblings and were asking the court which of them should be responsible for the care of their mother, the deceased. The appellant had asked the court to determine whether she was still responsible for costs stemming from the original trial. In this case, the court found that the appellant’s liability for the costs is simply “an incidental consequence” of the mother’s death, and not actually a live issue.

The appellant also proposed that the court should hear the appeal because it may have implications for the passing of accounts between the parties. However, the court refused to hear the appeal on these grounds as well, stating that the matter was a finding of fact made by the trial judge, and as such is not subject to appeal.

For these two reasons, the court declined to hear the appeal. It also awarded the respondent with costs in the amount of $9,000.

The decision provides a lesson that people can use in determining whether they should pursue appeals at a time when courts are under significant amounts of stress. Parties should also work with their lawyers to determine if there is an issue that would warrant a trial despite the issue being moot. In this case, the appellant found themselves on the hook for more costs than just what was ordered in the original trial.

If you have been appointed an executor, the estates lawyers at Derfel Estate Law can advise and guide you on all aspects of estate administration, including determining whether or not probate is required, or assisting you if it is. Call us at 1-844-2-DERFEL or contact us online to schedule a consultation.

For professional service and knowledgeable advice on Estate Law matters contact Derfel Estates Law

Contact Derfel Estates Law today to speak with a Toronto estate lawyer who will work tirelessly to achieve the best possible resolution to your will, estate, power of attorney, or trusts dispute.

Call us at 1-844-2-DERFEL or contact us using the form.

LOCATION

95 Barber Greene Road, Suite 300
Toronto, Ontario,
M3C 3E9