2.11: Litigation representative required
2.14: Self-appointed litigation representatives
2.21: Litigation representative: termination, replacement, terms and conditions
3.68: Court options to deal with significant deficiencies
9.4: Signing judgments and orders

Case Summary

The Plaintiff referred an Appeal of a Master’s Decision in a foreclosure proceeding to Rooke A.C.J. for review pursuant to Civil Practice Note No 7 (“CPN7”). The Defendant in the underlying Action was an estate. The Plaintiff had filed a claim against property held by the estate, and the estate did not defend, resulting in the Master granting a foreclosure order (the “Foreclosure Order”). The son of the personal representative of the estate, Mr. Feeny, appealed the Foreclosure Order. The Plaintiff argued that Mr. Feeny did not have standing to appeal, as he had not satisfied the requirements to be appointed as a litigation representative under Rule 2.14: namely, he had not provided any supporting Affidavit, and he had not established any financial interest in the estate. Further, Mr. Feeny had an extensive, abusive litigation record.

Rooke A.C.J. noted that CPN7 is a document-only method used to conduct a Rule 3.68 proceeding, which focuses on whether a filing is abusive. Rooke A.C.J. noted that Mr. Feeny’s standing as a litigation representative was not relevant to the Rule 3.68 proceeding, and he noted that Mr. Feeny had filed a supporting Affidavit for the Appeal.

Rooke A.C.J. also noted that pursuant to Rule 3.68, alleged and claimed facts are presumed to be true except for when they are absurd, implausible or hyperbole. Mr. Feeny had claimed in his Affidavit on the Appeal that he was a beneficiary of the estate. Rooke A.C.J. noted that because Mr. Feeny was a relative of the deceased, his claim that he was a beneficiary of the estate was not absurd, implausible or hyperbole, and was therefore established on a presumed factual basis.

Rooke A.C.J. held that Mr. Feeny’s previous abusive litigation record did not matter in this instance, because CPN7 only relates to the substance (or absence of substance) of a particular filing. Rooke A.C.J. therefore rejected the Plaintiff’s referral of Mr. Feeny’s Appeal to the CPN7 process.

Mr. Feeny had purported to be a self-appointed litigation representative for the estate pursuant to Rule 2.14. A precondition to Rule 2.14 is that the estate is one that is required to have a litigation representative pursuant to Rule 2.11. Rooke A.C.J. noted that Mr. Feeny’s mother was already the personal representative of the estate, and therefore it was not immediately obvious that the estate required a litigation representative pursuant to Rule 2.11. Rule 2.14 requires that an Affidavit satisfying the criteria set out in the Rule be filed, and Mr. Feeny had not filed such an Affidavit. Rooke A.C.J. held that this resulted in Mr. Feeny not having the authority to file the Appeal of the Master’s Decision.

Accordingly, Rooke A.C.J. ordered that the Appeal filed by Mr. Feeny be stayed until he had filed a Rule 2.14 Affidavit or provided a valid basis for why the Court should exercise its discretion under Rule 2.14(4) to allow him to continue the Appeal without an Affidavit. Rooke A.C.J. also ruled that Mr. Feeny did not need to approve the Order granting the stay pursuant to Rule 9.4(2)(c).

View CanLII Details