How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Debra Your Own Question
Debra, Lawyer
Category: Canada Law
Satisfied Customers: 100371
Experience:  Lawyer
Type Your Canada Law Question Here...
Debra is online now
A new question is answered every 9 seconds

We were served an application in the court of queens bench

Customer Question

We were served an application in the court of queens bench in Alberta about the remuneration of Trustees.
We would like to add some claims against former trustees who were also respondents in the application and also claims against applicant.When we file a response to the Applicant, do we include those claims in the brief (there is no requirement for separate
forms for response or answer) or do we file a separate application with those claims?
Submitted: 1 year ago.
Category: Canada Law
Customer: replied 1 year ago.
HI there, it's me again.
Expert:  lrizos replied 1 year ago.

Good Afternoon

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

Is this in Australia or Canada?

Customer: replied 1 year ago.
We were talking to someone from Canada before. It's Alberta law with need help with.
Expert:  lrizos replied 1 year ago.

I have asked you be referred to a canadian lawyer

Expert:  Debra replied 1 year ago.

What is the application for? Is this for the passing of accounts?

Or is this actually a lawsuit for damages?

Are you a party or a beneficiary of the estate.

I need to get a clearer picture of what is going on.


Customer: replied 1 year ago.
For disbursements of costs that a trustee determined and a former trustee is disputing. The trustee is applying in the current complicated proceedings about various matters that court makes an order to approve it's determination. We are respondent in the proceedings and interested party in the estate and we have to counter claim that the trustee did not determine the disbursements and the financial status of the trust and in fact failed to discover significant misappropriation of trust property.
Customer: replied 1 year ago.
is it appropriate to put our claim for misappropriation of trust property as a response to the application or is it better to apply with a new application in the new proceedings.
Expert:  Debra replied 1 year ago.

This is very complicated and it's hard to determine by just hearing a few details online.

It sounds like the issues are all tied together and that it would save the court time and the parties money and time if the matters could all be handled at once. They sound like they are intertwined considerably.

So it may make sense to try and counterclaim at the time you are responding and let them bring a motion if they wish to have the new issue severed from this case and have you start a new application.

From the little I know, the court should want the matters tried together.

Customer: replied 1 year ago.
We are aware of it. The only question we ask you, in although we believe it can be done both ways, would you recommend to file an affidavit and brief as a response to an application or to make a short brief with response and to also make application and longer brief to claim misappropriation.In Canadian Law (Alberta) does a counter claim have to be limited to a fact of an application?
Expert:  Debra replied 1 year ago.

If you have not yet put in a reply to the application then they way I would do this is to put in a reply and a counter-claim at the same time.

If this is just the beginning of the lawsuit and you are drafting pleadings you would not use an Affidavit at this point. That is for evidence but you first have to put in your story essentially.

The facts have to be bound up in some way. But if this is all about the same estate, the same parties and much of the same facts it would make sense to join the issues rather than starting a separate application.

Expert:  Debra replied 1 year ago.

I can see you've not read my last post. So I am going to go to bed but I will check back in the morning.

But I've been thinking about what I've said some more and just want to clarify that if this is about the passing of accounts so that the main document is an affidavit and shows what the Trustee did with the money and they are asking for the court approval and you are objecting then that is different and then you need to start a separate action for the claim you have.

I will be back in the morning.

Have a good night.

Customer: replied 1 year ago.
Good morning.
From what you say, counter claim seems to be the right way to go. As you already did research for us and advised us that that only the affidavit is necessary. We will also be filing a brief. Can you advise how to articulate the claim in the brief under remedy claimed because we have to respond and we are putting a counter claim. Do we state counter claim and grounds or do we just mention our counter claim remedies under the heading Remedy claimed or sought.
Expert:  Debra replied 1 year ago.

If you have been served with a claim you do not do an affidavit or brief at this point in time.

You do a defence and then a counter-claim.

Here is a link to the forms:

Use Form 21 for the counter-claim.

Customer: replied 1 year ago.
Thank you for your answer.
The initiating application was filed in 2013 and consent orders shortly after. One of the respondents filed an interim application
to resolve some matters and we are to file any documents we want before the 21st of June.
Is it possible to file a reply in the Queens Bench Court in Alberta
We feel, it may the most logical and appropriate to file three documents: reply, brief and affidavit.
At the minimum we will file two documents, brief and affidavit.
Do think it would be a breach of the Court Rules and /or Procedure Rules to file all 3, brief, affidavit and response.
Expert:  Debra replied 1 year ago.

I think you can only file a reply and counter-claim if this is to the interim application but this is really complicated and so try to do what you want and see what happens. That sometimes works especially when you are self-representing.

Customer: replied 1 year ago.
Thanks, ***** *****! Clever name, BTWAnother question - we are getting there!
Are a reply and counter-claim separate documents?
We do not feel that a counter claim is possible.
Our submission is elaboration of the interim application. It is important to note that both the applicant in interim application and us are respondents in the main proceedings and are not in dispute so we do not feel a counter claim is appropriate.
There was no a claim, it was an application for the court to bring a determination. An expense was made by a trustee which the new trustee now asks back as it was misappropriation. We claim there was more misappropriations to that and introduce new facts and claims.
Expert:  Debra replied 1 year ago.

Thanks re the name. I thought it was great though my kids aren't impressed.

They two documents are separate but should go in at the same time.

You can seek the direction of the court as to whether this should be one action or two.

You don't want to end up in a situation where the plaintiff in the main action says the matter has already been tried and you cannot now bring a claim.

Related Canada Law Questions