An Order excluding all the parties from each other’s examinations for discovery was made in an estate matter before the Hon. Justice Myers. In Boodhoo v. Persaud, the Plaintiff is one of the Deceased’s surviving daughters, while the Defendants are the Deceased’s brother and sister-in-law. During the initial stages of litigation, the Defendant Uncle was removed as the Estate Trustee of the Boodhoo Estate in 2012 and he was ordered to account for the duration of his administration. By the time of the present hearing before Justice Myers, the accounting was still deficient. At the same time, the Plaintiff was also pursuing allegations against her uncle’s wife for her involvement in the administration of the Estate.
In applying the test for the exclusion of witnesses in Lazar v. TD General Insurance Company, 2017 ONSC 1242, Justice Myers found that “all of the parties have cause to be worried that others will tailor their evidence based upon what they hear at examinations for discovery”. Where the credibility of the parties appears to be crucial, especially in the absence of documentary records, his Honour ordered that:
“Counsel for the parties and anyone who attends discoveries with them shall not disclose any evidence given by a party on examination for discovery to any other party in advance of the completion of all of their respective examinations by answering all undertakings and refusals (if any). Nor shall any counsel or their staff provide any transcripts or summaries of transcripts of any of the examinations for discovery to any of the parties prior to the completion of all of their respective examinations by answering all undertakings and refusals (if any).”
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One of the purposes of having viva voce testimony at trial is so that the trier of fact is able to determine a witness’s credibility and attach the appropriate weight to his/her evidence.
While the determination of a person’s credibility may appear to be a rather personal assessment, according to Madam Justice D.A. Wilson, this is not case at law:
 As I noted in Rider v. Grant, 2015 ONSC 5456 (CanLII) at para. 90:
In deciding issues of credibility, it is not simply a matter of accepting the evidence of one party over another based on how the witness performed in the witness box. Rather, “the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” Faryna v. Chorny,  2 D.L.R. 354 (B.C.C.A.)
Moreover, in the case of 1483677 Ontario Ltd. v. Howard, 2015 ONSC 6217, as excerpted above, Justice Wilson did not find a particular witness to be worthy of belief where,
- there were discrepancies between the witness’s testimony at trial and his evidence during an examination for discovery; and
- the witness was unable to provide a reasonable explanation for the discrepancies between his testimony and the documentary evidence, such as e-mails.
On the other hand, a different witness who responded to questions directly, and without hesitation, even if his answer may have an negative impact on his case was found to be “forthright” and “honest”. The objectivity and fairness of a witness’ testimony was also preferred.
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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.