Where a party involved in litigation dies before it has resolved, it can create uncertainty as to who will continue to represent that person’s estate in the litigation. In the absence of a Will and a named estate trustee, the Court may appoint a litigation administrator if it is appropriate in the circumstances. In Azzi v. Kelly, 2026 ONSC 5774, such a situation was before the Court.
The defendant passed away approximately one month before the trial of the action, and the parties only learned of their passing shortly before the trial was set to start. On the eve of the trial, the plaintiff brought a motion for the appointment of a litigation administrator for the defendant’s estate.
The action arose from a motor vehicle incident that had happened years prior. The defendant was insured under a motor vehicle liability policy and the insurer had been defending the action. In September 2026, the plaintiff advised defence counsel that she intended to amend her claim to increase the damages sought beyond the policy limits. The defence counsel submitted that the proposed amended claim potentially exposed the defendant’s estate to liability beyond the available insurance coverage.
The death of the defendant automatically stayed the action pending receipt of an order to continue pursuant to rule 11.01 of the Rules of Civil Procedure. As a result, and in an attempt to move the matter forward in a more efficient and faster manner, the plaintiff brought the motion to appoint a litigation administrator so that the action could continue. The plaintiff sought for an experienced lawyer to be appointed as the litigation administrator. The lawyer had previously acted for the defendant in an unrelated matter, consented to act, and confirmed that she had no interest adverse to the defendant’s estate.
Rules 9.02 and 9.03 of the Rules of Civil Procedure contemplate this exact situation. Rule 9.02 authorizes the appointment of a litigation administrator where no estate trustee or administrator exists. Rule 9.03(4) further provides a mechanism whereby an estate trustee who is later identified may be substituted into the proceeding.
The defence counsel opposed the motion and submitted that it should be dismissed or adjourned to permit a further investigation into whether the defendant had a Will, whether there was an estate trustee for his estate, and whether there were any family members who had an interest in the defendant’s estate.
The main question before the Court was whether the interests of justice favoured adjourning the trial to permit further investigation into the existence of a potential estate representative or whether a litigation administrator should be appointed immediately so that the action could proceed.
Ultimately, the Court declined to grant the defence counsel’s request for an adjournment and ordered that the proposed lawyer be appointed as the litigation administrator for the defendant’s estate.
When deciding whether to grant the adjournment, the Court relied on Ariston Realty Corp. v. Elcarim Inc., 2007 CanLII 13360 and found the relevant considerations to include (1) the reasons for the adjournment request, (2) the competing interests of the parties, (3) the prejudice that may result from granting or refusing the adjournment, and (4) the impact upon the administration of justice. The Court’s comments on this issue were as follows:
- The effect of granting the adjournment would be the loss of the scheduled jury trial. The action had occurred over 8 years ago, the action had been ready for trial for a significant amount of time, and the action had already been adjourned once because of a lack of judicial resources. Lengthy jury trials in Ottawa were difficult to schedule and if the trial were adjourned again, it would likely be rescheduled in 2028 or beyond;
- The prejudice to the plaintiff was considerable, as the parties had incurred substantial trial-preparation expenses and witnesses and experts had arranged to attend. A further delay would “increase the cost of the litigation, risk diminishing the quality of the evidence as memories fade, and undermine confidence in the administration of justice”; and
- The prejudice identified by the defence counsel was largely speculative. It was true that the proposed amended claim may have exposed the defendant’s estate to further liability and could have put the estate and insurer at odds against each other. It was therefore important that the estate’s interests be represented independently of the insurer, and the appointment of a litigation administrator would address that issue.
In support of the finding that a litigation administrator be appointed, the Court found that their was sufficient evidence to show that efforts had already been undertaken by both the plaintiff and the defence counsel to locate an estate trustee:
- The plaintiff conducted estate and probate searches which did not reveal any estate proceeding relating to the defendant. A search for a Will had been conducted through the county’s Will Check registry and came back negative.
- Defence counsel undertook additional inquiries, including requesting a death search letter, retaining an investigator, contacting a person believed to be the defendant’s former landlord, contacting his insurance broker, contacting lawyers who had previously acted for him, notifying the Public Guardian and Trustee, searching for an estate trustee appointment at the courthouse, and arranging for a notice to be published through the county seeking information regarding any Will. None of those efforts identified an estate trustee, a Will, or any person willing to administer the estate.
Moreover, the evidence concerning the defendant’s family was limited. A police detective deposed that she spoke with a niece of the defendant who advised that the defendant had been estranged from his family for many years and that no family member was able to facilitate arrangements relating to his death.
The Court found that the appointment of the lawyer as a litigation administrator “adequately protected the estate against the potential divergence of its interests from those of the insurer. By contrast, the prejudice arising from the loss of the trial date would be immediate and substantial”.
While it may often be the case that the estate trustee of an estate continues the action on behalf of the deceased’s estate, there may not always be an estate trustee that exists or is ready and willing. Azzi provides a helpful reminder on what steps a party can take in that scenario, and when the Court might be willing to appoint a litigation administrator promptly instead of delaying the litigation any further.
