The Rules of Civil Procedure are quite clear as to when a lawyer may answer questions on behalf of their client during an examination for discovery. The Rules though, appear to be less clear with respect to cross-examinations on affidavits, and as such, attention must be turned to case law.
According to Rule 31.08 of the Rules of Civil Procedure, questions on an oral examination for discovery, “…shall be answered by the person being examined but, where there is no objection, the questions may be answered by his or her lawyer”. Simply put, if the examining party objects to an answer being given by the deponent’s lawyer, the examined party must answer the question and not their lawyer.
The rationale for this can be found in the Divisional Court decision of The Polish Alliance of Canada v. Polish Association of Toronto, where Justice Lauwers (quoting the Law of Civil Procedure in Ontario) states that: “…counsel for the party being examined should not interfere with the examination; the examiner is entitled to the evidence of the witnesses and not to that of counsel”.
Justice Lauwers provides further rationale (quoting Witnesses): “The primary reason for prohibiting communication between counsel and witness while testifying at trial is to prevent counsel from telling the witness what he or she should say. The same concern exists during a discovery, and consequently, the same basic restriction against counsel/witness communication should be in place”.
Therefore, whether it be an examination for discovery or a cross-examination on an affidavit, a lawyer may answer questions on behalf of the deponent, only if the examining party does not object. There is no distinction between the two forms of examinations.
Debt owing by an individual does not terminate upon death. The estate trustee is therefore obliged to satisfy any outstanding debts owing from the assets of the estate even after an individual has passed away. I recently came across a new service which assists estate trustees in locating any such debts in order to satisfy them.
Generally speaking, an estate trustee is not personally liable for debts owed by the deceased. However, if debts remain and the estate trustee distributes the assets of the estate, they may be personally liable to satisfy them. In order to avoid personal liability, estate trustees advertise for creditors in accordance with section 53 of the Trustees Act, often referred to as Notice to Creditors. According to this section, an estate trustee will not be personally liable for claims by creditors should they place a ‘notice’ specifying a period of time in which claims by creditors must be made. It is important to note that a Notice to Creditors does not prevent creditors from tracing distributable assets to beneficiaries.
The Trustee Act does not specifically provide how such a ‘notice’ must be posted. However, it has become common practice to advertise multiple times in a local newspaper where the deceased domiciled, and wait at least 30 days before taking steps to administer the estate.
A new service, NoticeConnect, publishes these notices to creditors online. According to the creators of the site, “…publishing notices with NoticeConnect is superior to print advertising because the notice will be found by any creditor conducting a basic Google search and because the ad is promoted across multiple internet platforms with larger potential audiences than print newspapers”.
Furthermore, proceeding online “…is an economical option for the many solicitors and estate trustees who are not publishing Notice to Creditors because of prohibitively high costs, exposing themselves to potential liability”.
Full details of the service provided by NoticeConnect can be found on their website.
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.