Canadian court rules COVID-19 complications not an excuse for estate administration inaction

Tuesday, 21 July 2020
Procedural complications due to the coronavirus pandemic were not a sufficient reason to extend the time frame of a court order, according to a recent decision in the Ontario Superior Court of Justice (Lima v Ventura (Estate of), 2020 ONSC 3278).

The case centred around a house with the market value of CAD900,000, which is currently resided in by Antonio, one of three siblings who are the joint executors of their mother’s estate. Antonio’s sisters, Eddy and Linda, brought an application on behalf of the estate to sell the house. This resulted in a court order made on February 6, 2020 that the house should be listed for sale by April 15, 2020, or alternatively that Antonio could purchase it by close of business on April 14, 2020.

Various complications subsequently arose due to the outbreak of the COVID-19 pandemic. Antonio was out of the country when the order was issued and, on his return on February 26, had to self-quarantine for the next 14 days.

Further, he argued that the real estate agent he had hired to undertake a comparative market evaluation of the house would not make a site visit due to the pandemic, so he did not have a valuation of the property in order to apply for financing to buy it. Moreover, he said, he could not meet the timeline under the order because offices of banks and municipal departments were closed in March and April. He therefore requested an extension to the deadline of the order.

The judge, Emery J, responded that “any motion to adjust timelines previously ordered by the court must be supported by persuasive evidence. The moving party must convince the court that his or her ability to perform obligations within those timelines has been frustrated or prevented for COVID-19 related reasons. The evidence must show that those reasons warrant a legitimate exemption from compliance with the order, and are not just an excuse.”

Emery found that Antonio had not provided such evidence to justify his inability to comply with the order.

“Antonio provided no evidence of contacting these service providers by telephone or email, let alone that he encountered resistance at obtaining information or approvals,” said Emery. “The absence of any evidence that Antonio attempted to meet the timelines in the Trimble order by electronic means is a flaw I cannot overlook. In the modern world, even when in the grip of a terrible coronavirus, people sheltering in place can access information, services and products online.”

Similarly, the judge pointed out that Antonio “could have applied online for financing directly or indirectly…to obtain a financing commitment. He would have been able to provide any lender with all financial documentation in electronic form the lender might have required.” 

Consequently, Emery ruled against Antonio’s request to extend the time period in which he could purchase the property and granted carriage of the sale to Eddy and Linda, as the other two estate trustees.


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