A party has a prima facie right to test the evidence given by a witness through cross-examination. This is a critical means to building a body of evidence to support one’s case. However, if a party does not make adequate efforts to avail themselves of the opportunity to cross-examine, they may lose this benefit. The Honourable Madam Justice Sylvia Corthorn of the Ontario Superior Court of Justice addresses this issue in her recent decision in Clayton v. Clayton et al., 2020 ONSC 7592.
Clayton involves an application to remove the trustees of two trusts that form part of an estate. The applicant in this case brought a motion for an order striking the affidavit sworn by one of the respondents and trustees, Shirley. Pursuant to a notice of cross-examination, Shirley was to be cross-examined on her affidavit on November 22, 2019. However, prior to the commencement of cross-examinations, Shirley’s counsel advised that she would not be produced for cross-examination due to concerns about her mental capacity. Counsel agreed that an assessment of Shirley’s capacity to be cross-examined was necessary and consequently, she was not cross-examined. The applicant did not obtain a certificate of non-attendance with respect to Shirley’s cross-examination and no notice to cross-examine Shirley on a subsequent date was served.
The geriatric assessment of Shirley was scheduled for May 2020 and then postponed to the fall of 2020 due to COVID-19. There was no evidence before the court as to whether this assessment was ever done. The hearing of the application was likewise delayed as a result of the pandemic. The application is currently scheduled to be heard in January 2021.
At no point after November 2019 did the applicant pursue cross-examination of Shirley. When the application returned to court in September 2020, the applicant took the position that Shirley’s affidavit cannot be used on the application in light of her supposed incapacity and the respondents’ alleged refusal to permit cross-examination. The applicant then brought a motion requesting that the affidavit be struck in its entirety on the grounds that the admission of this evidence would be prejudicial to the fairness of the hearing and constitute an abuse of process.
Justice Corthorn dismissed the applicant’s motion. She found that he did not take any steps, prior to bringing this motion, to seek the assistance of the court in determining the steps required to address concerns with respect to Shirley’s affidavit and whether she could be cross-examined. She also considered that the application had already been adjourned three times and that the applicant had not requested a further adjournment to permit cross-examination of Shirley. Justice Corthorn affirmed that the court has discretion to prevent or limit cross-examination where it is in the interests of justice to do so. She decided that in this case, it is fair to both the process and the parties to admit Shirley’s affidavit and leave the issue of the weight to be given to her evidence to be determined with the benefit of the complete record. The parties would also have the opportunity to make submissions with respect to the weight to be given to Shirley’s evidence, and this will permit the court to control the process and avoid an abuse of it.
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The Law Society of Ontario (LSO) has issued a COVID-19 Response which is required reading for all members of the Bar. As we have noted in many of our blogs posted since the onset of the pandemic, the delivery of legal services requires us all to adopt a new normal. The LSO has provided guidance in its Response regarding the delivery of legal services remotely that would never previously have been considered other than in person. As the LSO notes: “This is an unprecedented situation and some flexibility may be required to ensure continuity of essential legal services without undue risk to public health.”
Commissioning of affidavits has always been one such task performed in person. The LSO has provided guidance on an appropriate departure from commissioning in the physical presence of the deponent. It is worth noting that s. 9 of the Commissioner for Talking Affidavits Act (“the Act”) only speaks of the commissioner having to be in the presence of the deponent (the requirement for “physical” presence being a best practice but not an essential element of the statute).
Accordingly until further notice and as a result of COVID-19:
- The LSO will interpret the requirement in section 9 of the Act that “every oath and declaration shall be taken by the deponent in the presence of the commissioner or notary public” as not requiring the lawyer or paralegal to be in the physical presence of the client.
- Rather, alternative mean of commissioning such as commissioning via video conference will be permitted subject to management of risks associated with this relaxed practice including but not limited to: fraud, identity theft, undue influence, and capacity.
Virtual commissioning is a temporary measure that casts a burden on the lawyer to make extra enquires into the existence of one or more of these risks. The LSO sees the current circumstances as a regrettable opportunity for persons to attempt to commit fraud or other illegal acts. Lawyers and paralegals must accordingly “be alert to red flags in order to ensure that they are not assisting, or being reckless in respect of any illegal activity.” To protect against being an unwitting accomplice see the Federation of Law Societies’ Risk Advisories for the Legal Profession.
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Justice Brown nostalgically opens his reasons for decision in Wallbridge Estate, 2010 ONSC 3409 (CanLII) as follows:
“Those of a certain vintage may remember the television ad for a certain brand of breath mint. As the voice-over pronounced, “Two, two, two mints in one”, the two rolls of breath mint merged into one. Does the principle of “two mints in one” apply to probate applications? More specifically, can the Estates Office process an application for a certificate of appointment of estate trustee with a will when the applicant has placed required information in one affidavit, instead of the two stipulated by the Rules of Civil Procedure?
After succinctly summing up the question, Brown J. provides the answer: Yes.
In Wallbridge, the applicant for a Certificate of Appointment filed an affidavit that indicated that the Will in question was signed in the presence of two witnesses, and also that there were certain changes to the Will after it was signed. The Application was rejected because, although the necessary information was provided, the Applicant did not submit an Affidavit of Execution and a separate Affidavit of Condition. The matter was then placed before Justice Brown.
In his decision, Justice Brown cited extensively from his decision in Estate of Michael O’Flynn (See blog here). There, Brown J. allowed a party to combine a Renunciation, Consent to Appointment and Consent to Dispense with Bond form into one document.
In Wallbridge, Brown J. noted that the affidavit evidence complied with requirements of the legislation (if not the Rules).
He also noted three additional reasons for granting the Application. Firstly, the Court failed to communicate with the Applicant’s counsel by email, which resulted in a waste of time. Secondly, the Applicant was dying of cancer: urgency was required. Thirdly, Brown J. referred to his O’Flynn decision and his complaint that the court was locked in the past with its reliance on a paper culture. Despite the concerns raised by Brown J. in O’Flynn, nothing to address the issue had been done. However, as a judge, he was constrained as to what he could do to address the problem. Thus, in addition to being satisfied that the technical requirements of the Succession Law Reform Act were complied with, he dispensed with compliance with the Rules “out of sheer frustration that those in higher places in government who can take steps to improve the efficiency of the probate system in this province, and thereby enhance access to justice for the Ontario public, are not doing so.”
(As an aside, Certs, the mint referred to by Brown J. in his opening paragraph, has been ruled to be a breath mint, as opposed to a candy mint, by the U.S. Court of Appeals for the Federal Circuit in Washington.)
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Paul E. Trudelle – Click here for more information on Paul Trudelle.
Listen to Deductions from Compensation.
This week on Hull on Estates and Succession Planning, Ian and Suzana finish up the discussion on the question of accounting by reviewing deductions from compensation and briefly sum up the procedure of the passing of accounts.
Listen to The Formal Passing of Accounts.
This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the specifics of what happens when you have to go to court to formally pass accounts.
Listen to The Process of Administering an Estate
This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the first, pre-probate stages of administering an estate.