A recent case confirmed that estate trustees representing an estate in litigation must have a lawyer unless the court dispenses with that requirement.

In Scarangella v. Oakville Trafalgar Memorial Hospital, Ms. Scarangella commenced a medical negligence action as a claimant under the Family Law Act and as the estate trustee on behalf of her late partner’s estate.  As she was self-represented, she brought a motion seeking leave to act on behalf of the estate without a lawyer. The Defendants opposed the motion by asserting that Rule 15.01(1) of Ontario’s Rules of Civil Procedure (“Rules”) requires an estate to be represented by a lawyer and it would be inappropriate to dispense with the requirement for a lawyer in this case.

Rule 15.01 sets out when a lawyer is required:

15.01 (1) A party to a proceeding who is under disability or acts in a representative capacity shall be represented by a lawyer. 
(2) A party to a proceeding that is a corporation shall be represented by a lawyer, except with leave of the court. 
(3) Any other party to a proceeding may act in person or be represented by a lawyer. 
(4) Subrule (3) permits a party to be represented by a lawyer acting under a limited scope retainer, but a limited scope retainer does not, in itself, make a lawyer the lawyer of record for the party.  [Emphasis added]

After a careful review of the applicable legal principles and Rules, the court dismissed Ms. Scarangella’s motion to dispense with compliance of Rule 15.01(1).

The court acknowledged that their had been two recent court of appeal decisions that allowed Plaintiffs to dispense with the requirement for a lawyer under Rule 15.01(1) but found Ms. Scarangella’s case distinguishable from the two appeal decisions.

Unlike the two court of appeal decisions, the Defendants in this matter promptly objected to the Plaintiff acting on behalf of an estate without a lawyer after the statement of claim was served. The court also noted that the Plaintiff sought to act on behalf of an estate on a claim for monetary damages while also pursuing her own personal claim.

The court went on to note the risks associated with a potentially unqualified person seeking to represent the interests of others including the interests of other beneficiaries. The Plaintiff also failed to provide evidence as to why a lawyer had not been retained and it did not appear that the estate could not afford a lawyer.  Given the above, the motion was dismissed and the parties agreed to mediate the outstanding issues.

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