This decision arose from an Application for advice and direction concerning the interpretation of a Consent Order approving the transfer of assets from one trust (the “1982 Trust”) to another (the “1985 Trust”). At the time the Application was heard, the Consent Order had been issued approximately five years previous in the same litigation.

The Application sought advice and direction as to whether the Consent Order’s intended effect was to transfer both the legal and beneficial interest, such that the trust assets would be held by the 1985 Trust for the benefit of the 1985 Trust beneficiaries, or only the legal interest, such that the assets would be held by the 1985 Trust for the benefit of the 1982 Trust beneficiaries. The Court noted that its determination would be consequential, as its effect, regardless of its decision, would be to exclude individuals from the benefit of valuable trust assets.

A threshold issue was whether the Court could issue the advice and direction sought. In particular, the Respondents argued that, while the Case Management Judge could issue advice and direction in respect of whether, pursuant to the Consent Order, the trust assets were being held for the benefit of the 1985 Trust beneficiaries, he could not, in the event it was concluded the trust assets were not held for such beneficiaries, go on to identify the proper beneficiaries. To do so, the Respondents argued, would effectively grant a remedy, which a Case Management Judge cannot do.

In reaching its conclusion, the Court noted guidance from the Supreme Court of Canada calling for a culture shift from strict formalism to embrace litigation procedures and tests that provide fair, just, but efficient and proportionate mechanisms to resolve legal issues. Noting the importance and relative urgency of the matter, the parties’ ample opportunity to argue their positions and the quality of the record, which the Court found was sufficient to fairly evaluate the matter, the Court concluded that it was appropriate and necessary to provide the requested advice and direction.

In reaching this conclusion, the Court further noted Rules 4.14 and 4.15, which respectively empower the Case Management Judge to resolve issues in ongoing litigation and preclude the Case Management Judge from hearing an Application for Judgment by way of Trial or Summary Trial. As the Application was neither a Trial nor a Summary Trial, Rules 4.14 and 4.15 did not preclude the Court from providing the requested advice and direction.