We just blogged on the very recent decision in Gordon v Gordon et al., where the Ontario Superior Court of Justice considered how it may intervene to give effect to a testator’s intentions.
However, Gordon v. Gordon et al. promises to be one of those decisions that all types of litigators will continue to hear about because the Court also considered requirements for affidavit evidence on motions and applications as governed by Rule 39 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”).
The record for this application before Madam Justice Corthorn included an affidavit from each of the three applicants who were the estate trustees, and an affidavit from the lawyer who prepared both the Primary Will and the Secondary Will of the Deceased.
The affidavits from the estate trustees were sworn specifically for the purpose of the 2021 application. The substantive evidence upon which the applicants relied was set out in one of the trustee’s affidavits. This trustee also provided her consent to the disclosure by the Deceased’s lawyer, for the purpose of the application.
In their respective affidavits, the other two trustees each stated that they (a) reviewed the first trustee’s affidavit, (b) believed the contents of her affidavit to be true, and (c) also consented to the disclosure by the Deceased’s lawyer.
The requirement for specificity of contents of affidavit evidence on an application is addressed in rule 39.01(5), which provides that an affidavit filed in support of an application “may contain statements of the deponent’s information and belief with respect to facts that are not contentious, if the source of the information and the fact of the belief are specified in the affidavit.”.
In paragraph 1 of her affidavit, the first trustee states that she is providing evidence in her capacity as an estate trustee. In addition, she declares:
[t]o the extent that I do not have personal knowledge or information, I state the source of such information and believe it to be true.
In paragraphs 20, 30, and 33 of her affidavit, she goes on to make an attempt to provide evidence based on said information and belief. The paragraphs read as follows:
20. I am advised by my lawyers that it is a common estate planning practice to prepare multiple wills as a means of addressing the disposition of assets that do not require a testamentary grant of probate, which most typically consist of interests in private corporations.
30. I am advised by my lawyers that this is a typographical error capable of rectification. [The typographical error is the reference in paragraph 4(c) of the Limited Property Will to paragraph 8(d)(ii), which the applicants submit should have been to paragraph 4(d)(ii).]
33. I am advised by my lawyers that the estate administration tax payable on the Limited Property Estate would amount to $471,075, if such property is found to be captured by the Primary Will.
Madam Justice Corthorn found, however, that because the trustee failed to identify the source of the information upon which she attempted to rely on, the subject paragraphs did not comply with rule 39.01(5) of the Rules.
The court affirmed that an affiant must provide the name of the individual who is the source of the information. The court further opined that, for example, “My lawyers” is not sufficient to satisfy the requirement to identify the source of the information in the affidavit.
Madam Justice Corthorn provided a further reason why paragraphs 20 and 33 do not comply with rule 39.01(5). In those paragraphs, the trustee had also failed to provide evidence as to the basis for the knowledge on the part of the unspecified source of the information.
The Honourable Justice explained that the court would expect that paragraphs 20 and 33 should have contained evidence regarding the experience in estate law of the individual who was the source of the information.
For paragraph 33, the court expected that the trustee would include the source’s knowledge of the basis for the calculation of the estate administration tax said to be payable.
Additionally, Madam Justice Corthorn found paragraph 30 to be conclusory in nature. She therefore relied on this interpretation of the paragraph as yet another reason why paragraph 30 was inadmissible as evidence.
As a result of the trustee’s failure to identify, by name, the source of the information upon which she wanted to rely, paragraphs 20, 30, and 33 were struck from her affidavit.
Madam Justice Corthorn referenced Gordon v. Gordon et al. in her subsequent Endorsement to He v. Meloche Monnex, released just a few weeks ago, where she reiterated the above-noted requirements for an affidavit to specify (a) when the evidence is based on information and belief, and (b) the source of that information.
Beware of the requirements in rule 39. Ensure that when giving evidence based on information and belief, you provide the necessary detail to allow for admissibility of those statements before the court.
Thank you for reading.