A recent decision of the Federal Court provides detailed instructions for proceeding with a virtual trial.
- the technology to be used;
- document management;
- counsel preparation to ensure they have the required hardware and software;
- witness preparation with respect to hardware, software;
- testimony protocols, including camera positioning, access to documents, and who can be present;
- how documents are to be put to a witness;
- what is to happen if there is a loss of internet connection;
- how objections are to be raised and dealt with;
- how the principle of “open courts” is to be addressed;
- testing of the systems before trial;
- access to Zoom “chat” functions.
The Direction also includes a schedule entitled “Information for Witnesses” which summarizes part of the Direction, and is to be provided to witnesses in advance of their testimony.
The decision is not a “Practice Direction” applicable to all virtual trials. However, it is comprehensive and should be considered by the parties and the trial judge in a case conference prior to the commencement of any other trial.
Justice Lafreniere begins the Direction by setting out the balancing act that the courts must engage in when dealing with trials during these COVID times. “The Court recognizes the importance of reducing the spread of COVID-19 and prioritizes the health and safety of all court participants, including members of the Court, registry staff, counsel, witnesses, stenographers and interpreters. At the same time, the Court must balance the need to maintain judicial operations. Bearing in mind these important factors, it has been ordered that the hearing of this trial continue remotely via videoconference.”
The show must go on. Albeit with a very different script.
Thank you for reading.
As this is the beginning of the week, I would like to take this opportunity to visit two of the rules from the Rules of Civil Procedure, which are frequently used by estate litigators.
Rule 14.05(3)(a) states that "a proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is, the opinion, advice or direction of the court on a question affecting the rights of a person in respect of the administration of the estate of a deceased person or the execution of a trust". In contrast, Rule 75.06(1) states that "any person who appears to have a financial interest in an estate may apply for directions … as to the procedure for bringing any matter before the court".
It is clear from the language of these rules that an Applicant may use either rule to apply for directions from the court. The difference between the two rules lies in the relief that the Applicant seeks.
Rule 14.05(3)(a) is a substantive remedy that addresses the rights of a person with respect to the administration of an estate or the execution of a trust. Therefore an Applicant who relies on Rule 14.05(3)(a), is asking the court to make a determination of his or her rights in the context of an estate. For example, whether or not an Applicant has an interest under the deceased’s Last Will and Testament.
Rule 75.06(1) is a procedural remedy. In essence, Rule 75.06(1) provides the road-map for "any matter before the court". Therefore an Applicant who utilizes Rule 75.06(1) may seek a court order that permits the disclosure of relevant documents to their matter and establish time-lines for the completion of a specific phase in their court proceeding. For example, the court may decide that mediation should be completed within 90 days and as such, include a mediation clause in a court order.
In summary, both rules can may be used to apply to the court for direction, however with Rule 14.05 (3)(a), the Applicant is asking the court for a specific answer to a question affecting his or her rights, whereas with Rule 75.06(1), the Applicant is requesting that the court provide them with a guideline to their court proceeding.
Have a Great Day!
Yesterday, I set out a fact situation giving rise to a certain interpretation issue.
The fact situation is based on the decision of Moore J. in Rudling Estate v. Rudling, 2007 CanLII 51794 (Ont. S.C.).
There, the court held that the word "debt" in relation to Property B could not include within its meaning all of the taxes, expenses and other charges that the estate trustee is directed by the will to satisfy in addition to "debts" of the estate. The court found that all reasonable charges against the estate arising from the death of the deceased were, by the terms of the will, intended to be paid from the estate before the specific bequests of the two properties are made. That is, both A and B are to share the burden of the testamentary expenses.
The court found that the will could be fairly construed upon the language contained within its four corners, and without the need to resort to extrinsic evidence in order to interpret the meaning.
However, in light of the Orders Giving Directions made in the case, and the issues is raised in the pleadings, and “because I am aware of the recent tendency of Canadian courts to apply the ‘armchair rule’”, the court also addressed the interpretation of the will in light of the surrounding circumstances. The court examined the surrounding circumstances, hearing from ten witnesses over the course of seven days. After considering this evidence, the court concluded that the evidence did not support a conclusion that the testamentary expenses be borne by A alone.
Did you make the right call?