In litigation involving capacity, trusts and estates, proceedings are often commenced by way of application rather than action. Evidence is submitted in the form of supporting affidavits, and the parties have the opportunity to cross-examine each other on the evidence in each affidavit. In the normal course of applications, hearings proceed on the affidavit evidence, together with the trans of cross-examinations on those affidavits.
There are occasions, however, where the evidence of a non-party may be essential, or at least beneficial, to a determination of the issues raised. Within applications, counsel may avail themselves of rule 39.03 of the Rules of Civil Procedure, which provides for non-parties to be examined for the purpose of having a tran of their evidence available at the hearing of a pending motion or application.[1]
Generally
The examination of the witness under rule 39.03 is governed by Rule 34, which deals with the procedure on oral examinations, including the location of the examination, notice requirements and production of documents, together with the attendance money fixed by the tariff.[2] The attendance of a witness is secured by way of a Summons to Witness, served personally on the individual. Under rule 34.06, the parties and the witness to be examined may consent to the time and place of the examination, as well as the form and delivery of the notice. Personal service may therefore be dispensed with, upon consent.
The witness is required to bring to the examination all documents in their possession, control or power, as specifically set out in the Summons.[3] If, during the examination, the witness admits to being in possession, control or power of other documents relevant to a matter at issue, the witness will be required to produce those documents for inspection.[4]
Witness examinations may be initiated by one party, or by consent of all parties. Where an opposing party does not believe that the evidence of the witness is relevant, or that the proposed witness is not in a position to give the anticipated evidence, that party may bring a motion to quash the summons.[5] The court considers a number of factors in determining whether to allow the examination, but the most important revolves around the relevancy of the anticipated evidence. The party serving the summons must establish two things.
1. that the proposed witness has evidence that is possibly relevant to the matters at issue; and
2. that the proposed examination will not be a fishing expedition, and that the documentary requests in the summons are not overly broad.[6]
Estate litigation
Evidence from non-parties can be of particular importance in capacity and estate litigation, where the direct evidence of the deceased or the incapable individual is not available. It can assist the parties in assessing the merits of various claims and in narrowing the issues. Counsel should consider availing themselves of this useful tool early in the proceeding.
One non-party whose evidence is almost always sought in a Will challenge is the drafting solicitor. An application that puts the validity of a Will in issue will typically include a request for production of the solicitor’s file and for an examination of the solicitor under rule 39.03. Where the parties and the solicitor agree that this is appropriate, those steps proceed on consent. Where they do not agree, the moving party must bring a motion for that relief.
The usual sequence begins with production of the solicitor’s file. The notes, drafts and correspondence often answer the central questions in a Will challenge, namely capacity, knowledge and approval, volition and due execution. Where the file resolves those questions, an examination may prove unnecessary. Where the file leaves the issues unresolved, the next step is an examination of the solicitor, whose contemporaneous observations of the testator carry obvious weight.
These motions are rarely refused, because the evidence of the drafting solicitor is often essential to a proper determination. However, the right to that evidence is not automatic. Since the Court of Appeal’s 2016 decision in Neuberger Estate v York, an interested person no longer has an absolute right to require proof of a Will in solemn form.[7] The person must first meet a minimal evidentiary threshold by adducing, or pointing to, some evidence which, if accepted, would call the validity of the Will into question.[8] In the 2017 case of Seepa v Seepa, Justice Myers described the inquiry as whether the challenger ought to be given the tools, such as documentary discovery and the examination of the solicitor, that are ordinarily available before a litigant must put a best foot forward on the merits.[9] He declined to sign the parties’ consent order for directions in chambers, requiring them to show an evidentiary basis before granting the order for production of the lawyer’s Will file and the deceased’s medical records. Justice Myers questioned whether it was time for a culture shift away from “fishing expeditions” into a testator’s privileged legal files and most personal and private medical records.[10]
Courts have since dismissed Will challenges, and refused the accompanying production and examination, where the challenger failed to clear the minimum evidentiary threshold. In the 2021 Ontario case of Johnson v Johnson, the applicant sought the medical, financial and legal records of her late mother, including the notes and file of the drafting solicitor.[11] The application judge dismissed the application without ordering any production, finding that a rational explanation for the disinheritance, together with affidavit evidence from a lawyer who had taken instructions from the testator, answered the applicant’s suspicions and left the minimal evidentiary threshold unmet.[12] The Court of Appeal upheld that result.[13]
The court reached a similar conclusion in Graham v McNally Estate, where suspicion and a sense of exclusion, unsupported by evidence, did not meet the threshold.[14] Appellate deference to these threshold findings is now well established.[15]
A drafting solicitor who is asked to produce a file and submit to examination is always entitled to seek representation. LAWPRO takes the position that a drafting solicitor who is to be examined should contact it immediately, so that counsel can be appointed to represent the solicitor before the examination proceeds.[16] Confidentiality deserves attention, because the deemed undertaking rule does not assist automatically. That rule reaches only evidence obtained through the discovery processes it specifies, such as documentary discovery and examination for discovery, whereas a Will challenge proceeds by application, with the solicitor examined as a witness under rule 39.03 rather than for discovery.[17] Where the file is instead produced under rule 30.10 and the solicitor examined for discovery under rule 31.10, the deemed undertaking does apply, and the concern shifts to resisting an unjustified waiver of it.[18] Counsel for the solicitor will therefore often seek a term in the order that confines the use of the file and the tran to the proceeding. The solicitor will also ordinarily be compensated for preparation and attendance.[19] The proper approach for the moving party is to notify the solicitor that the relief is being sought, to seek the solicitor’s agreement, and to advise the solicitor of the entitlement to consult LAWPRO.
Conclusion
Non-party evidence is one of the most useful tools in estate litigation, and in a Will challenge, the drafting solicitor is almost always the most important non-party. The solicitor’s file and evidence often decide the core questions of capacity, knowledge and approval, volition and due execution, yet access to them is not automatic. A challenger must first meet the minimal evidentiary threshold, and a court will refuse production and examination where the challenge rests on suspicion alone. Counsel who intend to pursue the drafting solicitor should therefore build a solid evidentiary foundation, request the file before seeking an examination, give the solicitor proper notice and the opportunity to involve LAWPRO, and frame the relief to address the issues of privilege and confidentiality. A focused request that rests on real evidence advances the case and conserves the estate, while a broad demand made on suspicion does neither.
[1]The right to examine non-parties under rule 39.03 must be differentiated from the examination for discovery of non-parties under rule 31.10. Examinations under rule 31.10 are conducted within actions, not applications.
[2]Rules 39.03(5) and 53.04(1) and (4). Attendance money is calculated in accordance with Tariff A under the Rules.
[3]Rule 34.10(2)(b).
[4]Rule 34.10(4).
[5]Seelster Farms Inc v Ontario, 2017 ONSC 4756 at para 33.
[6]Ibid at para 40. See also Elgner v The Estate of Harvey Freedman, 2013 ONSC 2176 (CanLII) for other factors to be considered.
[7]Neuberger Estate v York, 2016 ONCA 191 at para 88.
[11]Johnson v Johnson, 2021 ONSC 6415, aff’d 2022 ONCA 682.
[13]Johnson v Johnson, 2021 ONSC 6415, aff’d 2022 ONCA 682.
[14]Graham v McNally Estate and Blais, 2024 ONSC 4006.
[15]See Bitaxis Estate v Bitaxis, 2023 ONCA 66 at para 5; Giann v Giannopoulos, 2024 ONCA 928 at para 17.
[16]Debra L Stephens, “Discovery or Surgical Strike: Effective Preparation for Non-Party Examinations”, WEL Partners (paper prepared for The Advocates’ Society) [unpublished] at 9. See also Juda Strawczynski and Simona Ristic, “When You Get a Call About a Will You Drafted… What Is Your Next Step?” (5 October 2021).
[17]Rule 30.1.01(1) and (2). The deemed undertaking applies to evidence obtained under Rules 30, 31, 32, 33 and 35, and not to evidence obtained otherwise, including the examination of a witness on a motion or application. See Sobeski v Mamo, 2012 ONCA 560.
[18]Stephens, supra note 16 at 9. Stephens notes that orders giving directions not uncommonly waive the deemed undertaking rule with nothing in the record to justify it, and that counsel for the drafting lawyer may move to set aside such a waiver.
[19]Stephens, supra note 16 at 10.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.