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Estates - Court Declarations. Bunker v. Veall
In Bunker v. Veall (Ont CA, 2023) the Court of Appeal considered the use of declarations and directions by the court in estate matters:[11] While procedurally an estate may seek the advice of the court including declarations of right under r. 14.05(3) of the Rules of Civil Procedure, that rule does not give the court jurisdiction. It is a procedural rule only. This court recently discussed these principles at para. 61 of Bryton Capital Corp. GP Ltd. v. CIM Bayview Creek Inc., 2023 ONCA 363:Rule 14.05 is procedural in nature. It does not create jurisdiction, but assumes it, and provides a means by which to engage that jurisdiction: Grain Farmers of Ontario v. Ontario (Ministry of the Environment and Climate Change), 2016 ONCA 283, 130 O.R. (3d) 675, at paras. 17-18. A court must have jurisdiction independent of r. 14.05 before it can consider the appropriate vehicle for bringing the matter forward, whether by application or action: J.N. v. Durham Regional Police Service, 2012 ONCA 428, 294 O.A.C. 56, at para. 16. [12] In addition, s. 60(1) of the Trustee Act, R.S.O. 1990, c. T.23 allows a trustee, guardian or personal representative to apply to the Superior Court of Justice “for the opinion, advice or direction of the court on any question respecting the management or administration of the trust property or the assets of a ward or a testator or intestate.”
[13] These types of applications are intended to assist, and in some cases provide legal protection to the trustee against the beneficiaries for actions to be taken by the trustee in the administration of the trust or estate. However, to the extent that such declarations or opinions relate to what steps a prosecutor may take or what findings a court may make in a criminal prosecution against the trustee, they do not provide protection to the trustee from the court or a prosecutor because they do not bind those decision makers.
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