Tag: discovery

22 Sep

Application to Pass Accounts – How do you deal with complex issues and claims?

Stuart Clark Passing of Accounts Tags: , , , , , , , , , , , , , 0 Comments

The Application to Pass Accounts serves an important function in the administration of estates and trusts, providing the beneficiaries with the ability to audit the administration of the estate or trust and raise any concerns through their Notice of Objection.

The procedure that is followed for the Application to Pass Accounts is somewhat distinct from any other court process, with the process being governed by rule 74.18 of the Rules of Civil Procedure. These procedural steps include the filing of the “Notice of Objection” and the “Reply” to the Notice of Objection, processes and documents which are distinct to the Application to Pass Accounts. Although the Application to Pass Accounts process differs in certain ways from a more traditional Application, at its core the Application to Pass Accounts is still an “Application” and not an “Action”, with the process designed to be more summary in process as compared to the typical Action.

I have previously blogged about the procedural differences between an “Application” and an “Action”, and how things like Discovery and Affidavits of Documents, as well as calling witnesses to give oral evidence, are generally not available in an Application. The same generally holds true for an Application to Pass Accounts, with there generally being no Discovery process or witnesses called at the eventual hearing for the passing of accounts, with the summary process designed to be adjudicated on the paper record of the documents contemplated under rule 74.18.

Although the simplified and summary process intended for the Application to Pass Accounts may present many benefits to the parties, including allowing the beneficiaries to pose questions and objections to the trustee without having to resort to potentially prolonged and expensive litigation as provided in a typical Action, it could present some challenges if the claims that are being advanced are complex or seek significant damages as the process may not allow for the full record to be adequately explored.

If the claims or issues which are being advanced in an Application to Pass Accounts are complex, such as for example claims that the trustee was negligent or committed a breach of trust, the summary process designed for the typical Application to Pass Accounts may not provide the depth of procedural process that the claims may deserve. Under such circumstances the parties may seek to direct and/or convert the complex objections into a separate triable issue, thereby potentially opening up the procedural processes more typically reserved for an “Action” such as Discovery or the calling of witnesses to the issue.

The process by which certain objections are directed and/or converted into a separate “triable issue” is governed by section 49(4) of the Estates Act, which provides:

The judge may order the trial of an issue of any complaint or claim under subsection (3), and in such case the judge shall make all necessary directions as to pleadings, production of documents, discovery and otherwise in connection with the issue.”

Under section 49(4) of the Estates Act the court may direct any objection which fits under section 48(3) of the Estates Act, which includes allegations of breach of trust, to be separately tried before the court, with section 49(4) noting that the judge shall make necessary directions regarding pleadings, Discovery, and the production of documents for the objection.

If an individual wishes to direct an objection to be tried under section 49(4) of the Estates Act such an intention should be raised at the early stages of the Application to Pass Accounts, with an Order being sought which would specifically direct the objection(s) in question to be tried by way of Action. To the extent that such an Order cannot be obtained on consent a Motion may be brought regarding the issue, with the court also being asked to provide direction regarding the procedures to be followed for the triable issue.

Thank you for reading.

Stuart Clark

10 Jun

Discovery by Videoconference: “It’s 2020”

Ian Hull Litigation Tags: , , , , , 0 Comments

The COVID-19 pandemic has forced the legal profession to alter the ways in which we practice. The need to keep litigation moving forward has brought to the forefront alternative processes and the importance of technology. Files are continuing to move forward during the pandemic via virtual proceedings, such as virtual courtrooms and virtual mediations. While some are embracing these platforms, others are more wary. In Arctoni v. Smith, 2020 ONSC 2782, Justice Myers considered whether an examination for discovery should proceed by videoconference, or if the plaintiffs were allowed to wait until the physical distancing restrictions are lifted and conduct the examination in-person.

The plaintiffs objected to a videoconference examination because they maintained that:

  • They needed to be with their counsel to assist with documents and facts during the examination;
  • It is more difficult to assess a witness’s demeanour remotely;
  • The lack of physical presence in a neutral setting deprives the occasion of solemnity and a morally persuasive environment; and
  • They did not trust the defendants not to engage in sleight of hand to abuse the process.

Justice Myers noted that the simplest answer to this issue is that “It’s 2020”. He went on to say that “we now have the technological ability to communicate remotely effectively. Using these technological methods is more efficient and less costly than personal attendance and we should not be going back.”

While the court endorsed the use of technology, it acknowledged that legitimate concerns exist. One of which is that technology can be abused. It was noted, however, that the possibility of abuse may still exist even if parties are in the same room. While it is important to remain vigilant against the risk of fraud and abuse, a vague risk of abuse is not a good basis to decline the use of technology.

Furthermore, the suggestion that the use of videoconferencing creates “due process” concerns was rejected as the court noted that all parties have the same opportunity to participate and to be heard. All parties also have the same ability to put all of the relevant evidence before the court and to challenge the evidence adduced by the other side.

With regards to the plaintiffs concern that they needed to be with counsel to assist with the documents and facts, Justice Myers stated that there are other ways in which counsel can convey information to their colleagues during an examination. For instance, Zoom offers “breakout rooms” in which counsel can privately meet with their colleagues and clients.

Case law depicts that there are many fears associated with assessing the credibility of a witness via video technology but these fears, by those who have never actually used the technology stated Justice Myers, may not be as significant as they seem. While solemnity and personal chemistry may be lost in remote proceedings, it is not yet known whether, over time, solutions to these shortcomings will be developed as familiarity with these processes grows.

Justice Myers emphasized that, in 2020, the use of readily available technology is “part of the basic skillset required of civil litigators and courts.” He went on to say that those who are uncomfortable with technology should obtain necessary training and education.

The court concluded that proceeding remotely does have its shortcomings; however, in this case, the benefits of doing so outweighed the risks. The plaintiffs main concerns could be resolved by creative alternatives or by increased familiarity with technology. By proceeding remotely, the litigation, which had been going on for years, would not have to be delayed. Consequently, Justice Myers ordered that, unless the plaintiffs chose to waive their opportunity to conduct the examination for discovery, the examination should proceed by videoconference.

 

Thank you for reading!

Ian Hull and Celine Dookie

14 Oct

Jane Haining: Scotland’s Schindler

Noah Weisberg Uncategorized Tags: , , , , , , , , , 0 Comments

I recently came across an interesting article, found here, which highlights the fascinating story of Jane Haining, a Christian missionary from south Scotland, whose Last Will and Testament was recently unearthed in church archives in Scotland.

Jane Haining's Last Will and Testament recently unearthed in church archives in Scotland
“As a result of the care Haining provided to her students and the safety she provided, Haining is often referred to as Scotland’s Schindler.”

Despite requests to return home to native Scotland, Haining remained in Budapest during the height of World War II where she worked as a matron at a church-run school that provided safety to orphaned Jewish schoolchildren.  She refused to leave Budapest stating that “if these children needed me in days of sunshine, how much more do they need me in these days of darkness?”

As Hungary’s Nationalist government acceded to the anti-Semitic laws imposed by Hitler’s regime, Haining was arrested by the Gestapo on suspicion of “espionage on behalf of England” and working among Jews.

Haining was eventually sent to Auschwitz where she died of “cachexia following intestinal catarrh”.

As a result of the care Haining provided to her students and the safety she provided, Haining is often referred to as Scotland’s Schindler.

Found within a box in the attic of the Church of Scotland World Mission Council’s archives in Edinburgh, Haining’s handwritten Last Will was dated July 1942 and read on its face that it should only be opened upon her death.  The Last Will bequeaths, amongst other things, her typewriter, fur coat and watches.

Although the Last Will itself is nothing unusual, there is much excitement surrounding its discovery as historians suggest that it gives a sense that Haining was fully aware of the risks she was taking to protect the Jewish schoolchildren.

Noah Weisberg

07 Jul

Cooperation in Discovery Plans

Noah Weisberg Litigation Tags: , , , , , , , , , , 0 Comments

As claims commenced by way of action are becoming more prevalent in the estates bar, it is important to understand the different rules, and obligations, imposed on counsel depending on whether a claim is commenced by statement of claim (action) or notice of application (application).  One such difference is the use of discovery plans.  The recent decision of Teti v. Mueller Water Products addresses the obligations surrounding discovery plans used in actions.

According to Rule 29.1.03 of the Rules of Civil Procedure, where a party to an action intends to obtain evidence by the discovery of documents, examination for discovery, inspection of property, medical examinations, or examinations for discovery by written questions, the “…parties to the action shall agree to a discovery plan”.

In Teti, the parties were unable to agree on a discovery plan relatively early in the litigation.  As such, a motion was brought by the plaintiff for a discovery plan.  Master Dash dismissed the plaintiff’s motion to impose a discovery plan on the basis that the Rules impose an obligation on the parties to reach an agreement.

Although Master Dash acknowledged that case law supports the Court’s intervention in exceptional circumstances to the discovery process, and the Rules of Civil Procedure provide for broad powers to make orders and impose terms, Master Dash required the parties to make further efforts to create their own discovery plan, including the requirement to mediate before he would consider imposing a court ordered discovery plan.

Such a decision seems to accord with Justice Brown’s 3Cs: cooperation, communication, and common sense.  Parties must work together in good faith, before recourse to the Court.

Noah Weisberg

09 Sep

Will Challenge Litigation – Part 4 – Hull on Estate and Succession Planning

Hull & Hull LLP Estate & Trust, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Litigation, Podcasts, PODCASTS / TRANSCRIBED, Show Notes Tags: , , , , , , , , , , , 0 Comments

Listen to Will Challenge Litigation Part 4

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step.

They continue to discuss the value of the discovery process and intense investigation. The goal is to get to the mediation process as soon as possible. New evidence may lead to the next stage: the pre-trial. Ian and Suzana talk about the pre-trial process and what you can expect during this stage.

If you have any comments, send us an email at hullandhull@gmail.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.

READ MORE

02 Sep

Will Challenge Litigation – Part 3 – Hull on Estate and Succession Planning

Hull & Hull LLP Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Litigation, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Wills Tags: , , , , , , , , , , , 0 Comments

Listen to Will Challenge Litigation – Part 3

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step.

They discuss what happens during the Discovery process and explore what Mediation is and how it works. Will challenge proceedings can benefit greatly from facilitation during the litigation process.

To see the video version of this podcast, you can also download it from iTunes or watch it on YouTube on the Hull and Hull channel: http://www.youtube.com/HullandHullLLP

If you have any comments, send us an email at hullandhull@gmail.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.

18 Mar

The Deemed Undertaking Rule – Hull on Estates #102

Hull & Hull LLP Hull on Estates, Podcasts Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , 0 Comments

Listen to the deemed undertaking rule.

This week on Hull on Estates, Paul and Allan discuss the deemed undertaking rule and its application to estate matters.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog at http://estatelaw.hullandhull.com.

READ MORE

11 Mar

File For All to See

Hull & Hull LLP Litigation Tags: , , , 0 Comments

The OBA Civil Litigation Section recently held a Continuing Legal Education seminar on the deemed undertaking rule (Rule 31.1.01(3)) and the filing of transcripts.  For those who have not had a chance to listen to our (excellent, eloquent!) podcast on this point, here is the abridged version:

Practitioners of all stripes can take solace in the fact absent a sealing Order granted under s. 137(2) of the Courts of Justice Act http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90c43_e.htm , once a transcript is filed with court by any party, it is accessible to the public notwithstanding the Deemed Undertaking Rule.  This extends to transcripts filed in support of motions, including motions to challenge a refusal to answer.  This public access principle is to be strictly applied, according to Justice Cullity’s recent decision in Lewis v. Cantertrot Investments Ltd., [2007] O.J. No. 4201 (S.C.J.).

Parties to a motion may merely list a transcript along with all other relevant documents: R. 37.10(2)).  But the transcript – meaning the entire transcript – must be filed at least two days before the hearing by the party relying on it: Rule 34.18(2).  Since the consent of all parties is required to file a partial transcript (R. 38.18(3)), in practical terms the filing party itself vetoes whether a partial transcript is filed. 

After a transcript is filed, the onus is on the examinee to seek a sealing Order.  The test for a sealing Order laid down by the Supreme Court of Canada in Deganais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (S.C.C.) and restated in R. v. Mentuck, [2001] 442 (S.C.C.) is very strict, however.  For an application of this test, see the recent case of Moore v. Bertuzzi , [2007] O.J. No. 5113, where a sealing Order was denied to the applicant defendant.

Conclude your review of this interesting set of principles with Rule 34.18(4), which states the Judge  "may read only the portions to which a party refers": R. 34.18(4).  So the public right to access extends to the entire transcript though the Judge only reads a portion of it. 

Another good reason to avoid trials where possible.

Chris Graham

12 Feb

The Ontario Civil Justice Reform Project – Hull on Estates #97

Hull & Hull LLP Hull on Estates, Podcasts Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , 0 Comments

listen to The Ontario Civil Justice Reform Project

This week on Hull on Estates, Chris and Justin discuss the Ontario Civil Justice Reform Project and the steps being taken by Mr. Justice Colter Osbourne and Attorney General Michael Bryant.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

READ MORE

31 Jul

FOLLOW UP ON CONSEICAO FARMS V. ZENECA CORP. AND LEAVE TO APPEAL TO THE SUPREME COURT OF CANADA

Hull & Hull LLP Litigation Tags: , , , , 0 Comments

In yesterday’s blog, I wrote about the recent case of Conceicao Farms Inc. v. Zeneca Corp., [2007] 83, O.R. (3d) 792, www.canlii.org, decided by the Ontario Court of Appeal. As I noted, this case is a good reminder of the care and focus required during the discovery process when seeking disclosure of findings, opinions and conclusions of another party’s expert.

The Ontario Reports dated July 27, 2007 indicate that an application for leave to appeal to the Supreme Court of Canada (“S.C.C.”), www.scc-csc.gc.ca, for this case was filed on November 17, 2006 and submitted to that Court February 12, 2007. It appears that the S.C.C.’s decision granting or dismissing this Application has yet to be released.

In the normal course a respondent is given the opportunity to respond before the application is submitted to the Court.

Leave may be granted when the S.C.C. finds that the case raises an issue of public importance and ought to be decided by the S.C.C.  The case must then raise an issue that goes beyond the immediate interest of the parties to the case. 

Applications for leave are usually decided by a panel of three judges of the Court.

According to the S.C.C. website, as many as 600 applications for leave are filed each year with the Court granting leave to approximately 70 applications per year, touching upon a variety of legal issues.

As part of the application seeking leave to appeal, a party must, among other things, complete the detailed requirements for such applications further to Rule 25 of the Rules of the Supreme Court of Canada. Aside from a notice of application for leave to appeal and other documents, a memorandum of argument must be filed.  

It will be interesting to see if the appellants in the Conseicao Farms Inc. matter will be able to persuade the panel of S.C.C. judges that the case raises an issue of public importance beyond the immediate interest of the parties.

Thanks for reading.

Craig.

SUBSCRIBE TO OUR BLOG

Enter your email address to subscribe to this blog and receive notifications of new posts by email.
 

CONNECT WITH US

CATEGORIES

ARCHIVES

TWITTER WIDGET