Yesterday, my blog touched on the use of Rule 39.03 to examine non-party witnesses before the hearing of a pending motion or application. As noted, Rule 39.03 can be used to summons solicitors to give relevant evidence about a deceased former client in estate litigation proceedings. However, given the special relationship between a solicitor and his/her client, it is always good practice to obtain a court order in advance which directs a solicitor to attend an examination and waives confidentiality and solicitor-client privilege over any evidence provided. As demonstrated by a recent case, Rule 39.03 is not a carte blanche to examine solicitors about former clients.
In Nieweglowski Estate (Re) 2009 Canlii 13033 (On. S.C.), Justice Strathy held that a solicitor is entitled to the protection of a court order before being examined as a witness pursuant to Rule 39.03. The case involved estate litigation over Mr. Nieweglowski’s Will and a property transfer made by him before his death. Further to a prior court order, the solicitor who had assisted Mr. Nieweglowski produced his files regarding the matters. However, the court order did not provide for the solicitor’s examination. The solicitor was then subpoenaed to give evidence pursuant to Rule 39.03. Although the solicitor attended at his examination, he refused to give evidence. The ground for his objection was the absence of any express provision in the first court order. The party that had subpoenaed the solicitor moved before Justice Strathy for an order that the solicitor provide his evidence and that he be personally responsible for the costs of the first aborted examination.
Justice Strathy refused to order costs against the solicitor. His Honour held that it was not unreasonable for the solicitor to insist upon a court order directing him to attend an examination and provide evidence about privileged communications with a former client. Accordingly, Justice Strathy ordered that the solicitor was entitled to provide his evidence regarding matters that would otherwise be privileged or confidential.
Have a great day!
Bianca La Neve
Estate litigation differs in many ways from general civil litigation, as noted in previous blogs on our website. Differences notwithstanding, estate litigators should still make it a habit to consider all of the Rules of Civil Procedure when planning out their litigation strategy.
In gathering the necessary evidence in estate litigation matters, counsel must resort to Rule 39 of the Rules of Civil Procedure. Rule 39 deals with how evidence may be provided on motions and applications. In the usual course, evidence is given by affidavit and cross-examination on affidavits. However, Rule 39 provides for other ways to obtain evidence:
- by the examination of a witness before the hearing of a pending motion or application [rule 39.03(1)];
- by the examination of a witness orally at the hearing, with leave of the court [rule 39.03(4)]; or
- by the use of an examination for discovery on the hearing of a motion [rule 39.04].
The examination of a witness before the hearing of a pending motion or application [rule 39.03(1)] can prove a useful tool for obtaining evidence from non-parties to the litigation. If a non-party witness has relevant evidence, there is arguably a prima facie right to resort to this rule so long as the right is not exercised in a way that constitutes an abuse of process. A witness examined under Rule 39.03 may be cross-examined by the examining party and any other party.
In my own estates and trust litigation practice, I have used Rule 39.03 to summons solicitors and health practitioners to give relevant evidence about a deceased individual in Will challenge proceedings. Rule 39.03 can prove a useful tool to other estate litigators in marshalling their evidence for motions and applications.
Have a great day!
Bianca La Neve
In keeping with modern advances in our society, The Honourable Coulter Osborne (former Associate Chief Justice of Ontario), was asked to propose some options that would assist in making our civil justice system more accessible and affordable. The Honourable Coulter Osborne submitted his findings and recommendations and in December 2008 The Civil Rules Committee filed amendments, which are scheduled to come into effect on January 1, 2010 (amendments can be found here). It is important to note that there is no transitional stage with respect to the amendments coming into force.
The following are a few amendments that caught my eye:
1. Rule 1.04 (1.1) provides that the court shall make orders and give directions that are proportionate to the importance and complexity of issues, and the amount involved, in the proceeding.
2. Rule 1.08 will permit the court, on its own initiative, to hear matters by telephone or video conference.
3. Pursuant to Rule 20 (summary judgment), the general test to obtain judgment is the moving parties ability to show that there is "no genuine issue for trial". Rule 20 has now been amended which imposes the burden on the moving party to show that there is "no genuine issue requiring a trial".
4. In actions commenced in Toronto, Ottawa and Essex County, mandatory mediations are to take place within 180 days, rather than from 90 days of filing the first defence unless the court orders otherwise.
5. Where the discovery tools are likely to be implemented in a litigious matter, Rule 29.1 now requires the parties to agree to a discovery plan before the earlier of 60 days after the close of pleadings or such longer period as agreed. The discovery plan must be in writing and it must include the intended scope of documentary discovery, taking into account relevance, costs and the importance and complexity of the issues.
6. With respect to examinations for discovery, regardless of the number of parties or other persons to be examined, no party is allowed to examine for more than seven hours unless the party has obtained the consent of the parties or has obtained a court order.
7. The monetary jurisdiction of the Small Claims Court will be increased to $25,000.00.
Again, these amendments were made with a view that it would make our civil justice system more accessible and affordable. For instance, permitting courts to hear matters via telephone or video conference will free up judicial resources, and reduce Lawyers fees. Increasing the monetary jurisdiction of Small Claims Court to $25,000.00 will provide access to justice for many in need and at the same time eliminate the demanding obligations that are imposed upon parties under the Rules of Civil Procedure. I will be looking on with interest as these amendments take effect in the new year.
Thank you for reading and have a great day.
Wrongful death does not give rise to a claim under Ontario law. Section 38(1) of Ontario’s Trustee Act states in part that “if death results from such injuries no damages shall be allowed for the death or for the loss of the expectation of life”.
Contrast this with the US, where wrongful death is very much a cause of action (perhaps depending on the state). In fact, in many prominent criminal cases, the end of the first trial is often just a pause in litigation, after which the civil wrongful death proceedings begin: some recent examples include the Natalee Holloway case, the O.J. Simpson case and the Scott Peterson case. Given the “balance of probabilities” civil standard of proof that a litigant must surpass versus the “beyond a reasonable doubt” standard that the government must satisfy in a criminal trial, it is not unheard of for the defendant to avoid conviction and jail time but not a financially crippling loss in civil Court.
If an institution with deep pockets or wealthy individual defendant can be successfully linked to an alleged wrongful death, then the chances of securing a large award increase, particularly if an award for the payment of punitive damages award can be obtained. Cases brought against jails after inmates’ deaths offer numerous examples: see here, here and here.
While the deceased’s estate cannot sue in Ontario, family members do have limited rights to redress. Under Ontario’s Family Law Act defined family members can still sue for their “pecuniary loss resulting from the injury or death”. It is noteworthy that even here damages appear to be limited to pecuniary losses, and do not allow for claims regarding punitive or aggravated damages.
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This week on Hull on Estates, Rick and Sean discuss evidence issues in estate matters when a main party is deceased. They reference "Burns Estate and Mellon"; a 2000 Court of Appeal Case cited in 34 Estates and Trusts Reports, 2nd Edition, p.175.
Listen to Madore-Ogilvie vs. Ogilvie Estate.
This week on Hull on Estates, Rick and Sean discuss the case of Madore-Ogilvie vs. Ogilvie Estate which was recently featured in the CCH periodical Will Power.
Section 131 of the Courts of Justice Act establishes the authority for the Court to award costs. Section 131 states that the Court has absolute discretion in awarding costs, subject to the provisions of an Act or the rules of court.
Before July 2005, the Rules of Civil Procedure provided some sense of certainty to the Court’s broad discretion in awarding costs as the Rules provided a costs grid. The costs grid suggested that costs were to be determined by an hourly rate multiplied by the time spent. In 2004, the Court of Appeal in Boucher v. Public Accountants Council set forth the general principle as to the fixing of costs pursuant to Rule 57.01 and the costs grid. With respect to costs, the Court stated that the overall “objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”. Subsequently, in July 2005, the Rules were amended.
The amendment to the Rules abolished the costs grid and expanded on the list of factors, set out in Rule 57.01, which the Court may consider before making a cost award. Rule 57.01 was now expanded to include the principle of full indemnity and the reasonable expectations of an unsuccessful party to pay a cost award.
The principle of the reasonable expectations of an unsuccessful party to pay a cost award appears to provide the parties with some flexibility in obtaining the maximum cost award by permitting the successful party to establish the reasonable expectations of the unsuccessful party.
Thanks for reading, and have a great day!
Listen to Experts in Estate Matters.
This week on Hull on Estates, Craig Vander Zee and Sarah Fitzpatrick discuss expert evidence in estate matters. In this episode they outline circumstances when one should use expert evidence, different types of experts, timing of reports, limitations of experts and the court appointed expert.
Listen to Preparing for Trials in the Context of Contested Passing of Accounts
In this podcast, Craig Vander Zee and Paul Trudelle discuss trial preparation considerations in the context of a contested passing of accounts.