Tag: motions

01 Feb

The Risks of Virtual Examinations

Rebecca Rauws Estate Litigation Tags: , , , , , , , , 0 Comments

As my colleague, Nick Esterbauer, blogged about last week (here and here), the COVID-19 pandemic has pushed all of us, including the courts and the legal profession, towards the increasing use of technology. This has included the use of video-conferencing for examinations of witnesses in the litigation context. As we adapt to this new world, there are inevitably going to be ‘hiccups’. It is crucial to maintain the integrity of the process and to ensure that virtual examinations are not abused.

A recent decision of the Ontario Superior Court of Justice dealt with just such a situation. In Kaushal v Vasudeva et al., 2021 ONSC 440, the cross-examination of the respondent to an application was held over Zoom. The respondent required an interpreter for his cross-examination, and the respondent, his lawyer, and the interpreter all attended at the lawyer’s boardroom for the examination. They were all in the same room together, but on separate devices. The respondent’s wife and son came to the lawyer’s office with him, but according to the respondent they remained in the reception area at all times. It was confirmed on the record by the respondent’s lawyer that the only people present with the respondent during the examination were the lawyer and the interpreter.

Following the examination, the applicant noticed that a microphone and camera in the respondent’s lawyer’s boardroom had been left on, and he could hear the respondent’s wife and son speaking. It appeared to the applicant that the wife and son had listened in on the examination.

The respondent denied that his wife and son were present in the boardroom during his cross-examination. His lawyer’s legal assistant also provided affidavit evidence that the wife and son were not in the boardroom during the examinations.

The interpreter, however, ultimately swore two affidavits that the wife and son were present in the boardroom throughout the respondent’s examination, and were prompting the respondent’s answers by hand and facial gestures. The court accepted the interpreter’s evidence in its entirety.

The court concluded that there was misconduct during the respondent’s cross-examination on the basis that his wife and son were present and made hand and facial gestures to assist him with his answers. The court further concluded that the respondent’s misconduct amounted to abuse of process and that his affidavit responding to the application must be struck. It was the court’s view that it “must send a strong message that interference in the fact-finding process by abusing or taking advantage of a virtual examination will not be tolerated. In a broader sense, this type of misconduct strikes at the very heard of the integrity of the fact-finding process such that general deterrence is also a factor.”

Thanks for reading,

Rebecca Rauws

 

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07 May

How Important is it to Provide Evidence of Urgency During COVID-19?

Rebecca Rauws Uncategorized Tags: , , , , , , , , , , 0 Comments

As a result of the COVID-19 pandemic, pursuant to the Notice to the Profession, the courts are presently restricted to hearing mainly urgent matters. For civil and commercial matters, this includes “urgent and time-sensitive motions and applications in civil and commercial list matters, where immediate and significant financial repercussions may result if there is no judicial hearing.” There is also a broad ability for the court to hear any other matter that it deems necessary and appropriate to be heard on an urgent basis, but these matters will be strictly limited.

In a recent decision, Weidenfeld v Parikh-Shah, 2020 ONSC 2401, the court considered two urgent motions brought by the plaintiff and the defendants, respectively. The defendants sought to have monies that had been paid into court several years ago, paid out from court. The plaintiff sought, among other things, an order prohibiting the payment out of the monies. The decision did not provide details of the background of the litigation between the parties.

The court stated that the parties’ first step is to establish that their respective motions are, in fact, urgent. The court provided some guidance as to what is needed in this regard:

“The obligation is on the moving party to provide cogent, particular and specific evidence to show the court that the relief requested is urgent. Speculative, supposition or theoretical evidence is not good enough. The present environment and limited use of judicial resources mandate that the urgency must be real and immediate.”

Unfortunately for the parties in this case, the court found that their affidavit evidence did not provide cogent evidence to satisfy the court that the relief sought was urgent. The reason for which the defendants had brought the motion seeking to have money paid out of court was not set out in the decision.

The court did consider the category of urgent matters where “immediate and significant financial repercussions may result”, and specifically mentioned (a) matters that may put a person in financial jeopardy; (b) the funding of a business, business venture or construction project, failing which the financial viability of the project is in jeopardy; and (c) the necessity of a person to have resources to pay expenses or an order for the health and safety of a person; as issues that would meet the test of “immediate and significant financial repercussions”.

In the current circumstances, we are continually adjusting to new ways of doing things. This includes bringing court proceedings. Based on the Weidenfeld v Parikh-Shah decision, it is clear that parties will need to provide clear and sufficient evidence to satisfy the court as to the urgency of the matter in order for the court to hear the proceeding while court operations are restricted.

Thanks for reading,

Rebecca Rauws

 

You may also enjoy these other blog posts:

20 Mar

Courts Closed? Try a Motion in Writing

Paul Emile Trudelle In the News, Litigation Tags: , , , , 0 Comments

Yesterday, Arielle Di Iulio blogged on COVID-19 and the response by the Ontario Superior Court of Justice.

In a Notice dated March 15, 2020, the Chief Justice of Ontario advised that the Superior Court of Justice is suspending all regular operations until further notice. All criminal, family and civil matters scheduled to be heard after March 17, 2020 are adjourned.

There is an exception for “urgent matters”. as defined in the Notice, and a procedure is set out for dealing with such urgent matters.

For the most part, the court is still accepting filings. Where an application is to be issued, it is issued without a fixed return date.

How can parties obtain relief if a matter is not urgent? Consider a motion in writing.

Rule 37.12.1(1) of Ontario’s Rules of Civil Procedure allows a motion to be brought in writing without the attendance of the parties (unless the court orders otherwise), where the motion is on consent, unopposed or without notice.

Further, under Rule 37.12.1(4), a party may propose that the motion be “heard in writing” without the attendance of the parties where the “issues of fact and law are not complex”. In response, the responding party may agree to have the motion “heard and determined in writing”, or serve a notice that the responding party intends to make oral argument.

As serving a notice of intention to make oral argument will essentially, for now, prevent the motion from proceeding, now more than ever parties and their counsel must practice the “three C’s” of the commercial court: co-operation, communication and common sense.

Stay safe. Have a great, but isolated weekend.

Paul Trudelle

04 Oct

How to Dismiss Frivolous Proceedings Quickly & Effectively

Natalia R. Angelini Litigation Tags: , , , , , 0 Comments

With the amendments to the summary judgment rules made some time ago, we are seeing more of these types of motions being brought with a view to terminating litigation short of a trial.  The trouble with these motions is that they often involve costly and time-intensive steps, resulting in an exercise that may take several months and cost tens of thousands of dollars.  Hence, it is a motion brought in select cases applying careful consideration to the facts, law and risks.

Although there are certain other mechanisms available to us to attempt to narrow the scope of litigation or terminate it altogether, I have found that none is more swift than Rule 2.1 of the Rules of Civil Procedure.  The process is, unless the court orders otherwise, conducted entirely in writing.  It is simple:

How to dismiss frivolous proceedings
“After the initiation of a lawsuit a defendant/respondent can write a letter to the registrar setting out why the proceeding ought to be dismissed…”

· After the initiation of a lawsuit a defendant/respondent can write a letter to the registrar setting out why the proceeding ought to be dismissed (alternatively, the court may, on its own initiative, stay or dismiss a proceeding);

· The court may either decide the matter based upon such letter alone or after seeking further information e.g. the court can direct the registrar to give notice to the plaintiff/applicant that the court is considering making the order;

· The plaintiff/applicant can then file written submissions within 15 days responding to the notice (no more than 10 pages in length);

· The court may direct the registrar to give a copy of the submissions to any other party (this is not mandatory, so you may obtain an outcome without ever seeing the opposing side’s argument); and

· The defendant/respondent can file written submissions within 10 days responding to the plaintiff’s submissions (no more than 10 pages in length), and shall give a copy of the submissions to the plaintiff/applicant.

After all is said and done a decision can be rendered within a few weeks and with minimal expense.  I have seen no other mechanism that can achieve as quick and cost-effective an outcome in clear cases of frivolous, vexatious or abusive proceedings, making Rule 2.1 a most welcome addition to the Rules.

Thanks for reading,

Natalia Angelini

03 Nov

The Interpretation of Releases

Nick Esterbauer Litigation Tags: , , , , , , , 0 Comments

In Biancaniello, Romano, Prinova Technologies Inc. v. DMCT LLP, Collins Barrow, a recent decision by the Divisional Court, the dismissal of a motion for summary judgment was upheld despite the presence of a Release that appeared to bar the action in question.  The Defendants sought summary judgment on the basis that the action was barred by execution of a broadly-worded Release as part of the settlement of a prior action between the same parties.

Under the Release previously signed by the Plaintiffs in 2008, they agreed to release and discharge the Defendants:

“of and from all manner of actions, causes of actions, suits, debts, duties, accounts, bonds, covenants, contracts, claims and demands which against each other they had, now have or hereafter may, can or shall have for or by reason of any cause, manner or thing whatsoever existing to the present time with respect to any and all claims arising from any and all services provided by [the Defendants] to [the Plaintiffs] through to and including December 31, 2007 and, without limiting the generality of the foregoing, with respect to any and all claims, counterclaims or defences that were pleaded or could have been pleaded in the action commenced in the Ontario Superior Court of Justice, as court file No. 08-CV-349246 PD3” (para 7).

The motions judge determined that the Release did not bar a negligence claim that had arisen in 2011, three years after the Release had been executed, notwithstanding its broad language and seemingly all-encompassing nature.  The Ontario Superior Court of Justice had noted that the alleged negligence of the Defendants had not yet been adjudicated and should not have been subject to the Release that referred to claims “existing to the present time“, being 2008.

The Divisional Court recognized that a negligence claim may have been contemplated by the parties at the time that the Release was executed.  However, the nature of the negligence claim (and the significant tax liabilities resulting from same, in the approximate amount of $1,200,000.00) was unknown by the parties at the time of the 2008 settlement.  Justices Wilton-Siegel, Corbett, and Baltman found that the negligence claim was not barred by the Release, as it lacked any reference to the relevant transaction, language specifically releasing against claims resulting from “potential or undiscovered negligence”, and was limited in its scope through the reference to causes existing only at present, when the damages, in fact, resulted at a later time.

Although the motion for summary judgment and subsequent appeal did not involve an estate or trust, this decision is nevertheless relevant within the context of estate litigation, in which so many disputes are settled outside of court and settlements formalized by execution of Minutes of Settlement and Full and Final Mutual Releases.  When assisting clients in settling disputes, it is important to adequately consider claims that could potentially arise in the future and whether the terms of the release should explicitly refer to and waive such causes of action.

Thank you for reading.

Nick Esterbauer

03 Jun

Being Specific About Costs – Hull on Estate and Succession Planning #167

Hull & Hull LLP Hull on Estate and Succession Planning, Podcasts, Show Notes Tags: , , , , , 0 Comments

 

Listen to Being Specific About Costs

This week on Hull on Estate and Succession Planning, Ian and Suzana get into specifics regarding costs.
They discuss specific illustrations where motions can arise; both strategic motions and those that can be predicted and look into why costs may be so high.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

27 May

Uncertainties in Litigation – Hull on Estate and Succession Planning #166

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

 

Listen to Uncertainties in Litigation

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the uncertainties in litigation. They look at the great uncertainty of interlocutory (or injunctions, or motions) throughout the process.

They talk about the motions that are brought often that can create budget difficulties due to the unknowns in litigation.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

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26 Aug

Will Challenge Litigation – Part 2 – Hull on Estate

Hull & Hull LLP Estate & Trust, 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 2

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

They cover how a comprehensive preliminary investigation can help litigation and discuss how a motion of claim is filed to set the stage to move forward with a trial.

Core documents that accompany these stages are:

  1. Medical records
  2. Solicitor’s notes
  3. Financial disclosure

The next stage is the discovery process and will be the topic that gets next week’s podcast off to a start.

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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12 Nov

The Three “Cs”: courtesy, civility and co-operation

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

 In Kaplun v. Kaplun, Brown J. of the Ontario S.C.J. reminded all counsel of certain basic expectations that a court has of counsel who appear in Motions Court:

1.      Be on time and ready to start at 10:00 a.m. Tardiness displays a lack of respect for the court, its staff, and fellow counsel;

2.      Counsel should always be courteous and civil to opposing counsel.

3.      Ill feelings that may exist between clients, particularly during litigation, should not influence counsel in their conduct and demeanour towards opposing counsel.

4.      When scheduling a motion, counsel should consult the responding side before setting a date.

5.      Requests for an adjournment should be communicated to opposing counsel well in advance of the hearing date. The not uncommon practice of adjournment by ambush is unacceptable;

6.      Counsel should follow the two basic rules of courtroom etiquette:

(a)   When one counsel is standing to make submissions, the other should sit down. Success in Motions Court does not depend on the last person standing; and

(b)   Avoid "Jack-in-the-box" advocacy. Standing up to interject repeatedly during opposing counsel’s oral argument on a motion is rude and wastes time. Counsel should deal with any disputed matter and respond in a reply argument.   

7.      Finally, Brown J. states that for Motions Court to work efficiently and fairly, the court depends upon counsel observing the three “Cs”: courtesy, civility and co-operation.

Thank you for reading.

Justin

03 Aug

REGARDING ORDERS REQUIRING PAYMENTS OF MONEY – THAT IS THE QUESTION – PART III OF III

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

Today’s blog is the third in a three part series dealing with the availability of Rule 60.11 contempt orders to enforce the payment of money and more specifically, the case of Dickie v. Dickie, in which the Ontario Court of Appeal (C.A.) and Supreme Court of Canada (“S.C.C.”) considered this issue.

Part I (July 31, 2007) noted several C.A. cases on the issue and provided background to the Dickie case. Yesterday’s blog dealt with the C.A.’s decision in Dickie. As promised, today’s blog deals with the S.C.C.’s disposition of the case.

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