In estate litigation, examination of non-party witnesses is often done. For example, it is common for parties to seek discovery of the solicitor(s) who assisted the deceased with their estate planning. Where the deceased’s solicitor is not already a party to the proceeding, the Court may grant a party leave to examine the solicitor in limited circumstances pursuant to rule 31.10 of the Rules of Civil Procedure. Today, I will discuss the test that needs to be met in order to examine a non-party and review a recent case that illustrates this test.

Test for Leave to Examine a Non-party

The test for leave to examine a non-party for discovery is set out in Rule 31.10.  First, the non-party must have information relevant to a material issue in the action, and must not be an expert retained by or on behalf of a party in preparation for litigation. Second, the Court must be satisfied that:

1. the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine;
2. it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and
3. the examination will not,

               i. unduly delay the commencement of the trial of the action,

              ii. entail unreasonable expense for other parties, or

             iii. result in unfairness to the person the moving party seeks to examine.

Boe v Whitby

The recent decision of Boe v. Whitby, 2021 ONSC 6998 out of the Ontario Superior Court of Justice provides a good example of how the test in Rule 31.10 is applied.

In Boe, the plaintiff was the only surviving child of the late Beverly Boe (“Ms. Boe“). The defendant was the estate trustee and sole residual beneficiary of Ms. Boe’s estate. Ms. Boe was predeceased by her parents, whose Wills provided Ms. Boe with an income during her lifetime and on her death, the residue of their estates was to be paid to Ms. Boe’s surviving child – i.e. the plaintiff. TD Canada Trust subsequently paid the plaintiff the funds from his grandparents’ estates. However, the plaintiff transferred these funds to Ms. Boe’s estate based on an alleged misrepresentation by the defendant. The plaintiff brought an action to recover the money.

The defendant then brought a motion for leave to examine the plaintiff’s former lawyer, Ms. Reid, on the basis that the plaintiff discussed estate and inheritance matters with Ms. Reid. The Court denied the defendant’s motion.

In its endorsement, the Court states that the “starting point is that privileged communications are only to be disclosed in exceptional circumstances and communications between lawyers and clients are generally sacrosanct.” In this case, the information that the defendant was seeking to obtain through examination of Ms. Reid could be obtained through production of records held by TD Canada Trust. The Court reasoned that before encroaching on the sanctity of solicitor/client privilege, the defendant ought to be obliged to pursue other avenues of inquiry. As such, the motion was premature and dismissed on that basis.

Thanks for reading!

Arielle Di Iulio