Tag: discovery

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

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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.

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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

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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.

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11 Mar

File For All to See

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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

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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.

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31 Jul

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

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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.

30 Jul

ASK ABOUT THE EXPERTS DURING DISCOVERY NOT AFTER

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The case of Conceicao Farms Inc. v. Zeneca Corp., recently decided by the Court of Appeal for Ontario, 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. 

In this case, the respondents had provided an expert report 8 months prior to trial. The expert was then called as a witness at trial. The appellants’ action was dismissed with costs at trial with the trial judge relying, in part, on the respondents’ expert evidence. 

When the respondents provided material to the appellants in support of their costs claim, the existence of a memorandum came to light. The memorandum, prepared several years before the trial, contained foundational information for the opinion of the respondents’ expert. The appellants then moved before the trial judge to request production of that memorandum. The trial judge dismissed the motion. 

The appellants appealed the trial judge’s decision. They relied on Rule 31.06(3) of the Rules of Civil Procedure hoping to tender the memorandum as fresh evidence on an appeal in order to argue that a decision based in part on the expert could not stand since the memorandum was wrongly withheld. 

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