SUMMARY TRIAL - AN OPTION WORTH CONSIDERING
Under Rule 76, examinations for discovery, or cross-examinations of a deponent on an affidavit filed on a motion, are not allowed. However, parties are required to include in their affidavit of documents a list of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences at issue in the action. This added requirement is designed to disclose information that the parties might have otherwise discovered during an examination for discovery.
Under the simplified procedures, the parties may agree that the trial shall be an ordinary trial or a summary trial. If the parties cannot agree, the pre-trial conference judge or master can decide what mode of trial is appropriate. The procedure for a summary trial is as follows (Rule 76.12):
1. Evidence-in-chief is to be adduced by affidavit, not orally.
2. The opposing party may cross-examine the deponent orally, which can be followed by oral re-examination. Oral re-examination is limited to 10 minutes.
3. All of a party's cross-examinations can take no more than 50 minutes.
4. Each party is entitled to make oral closing arguments of not more than 45 minutes.
5. The trial judge may extend the time limits set out above.
In the estate context, the parties should consider utilizing the simplified procedure if they are looking for a relatively quick resolution or want to contain their legal costs. By reducing the overall costs of the litigation, a party can also reduce the amount that they may have to pay to the winning party should they ultimately lose at trial. The parties opted to proceed by way of summary trial in McDougald Estate v. Gooderham [2003] O.J. No. 3106 (S.C.J), affirmed at [2005] O.J. No. 2432 (C.A.). During the lifetime of Headley Maude McDougald (the testator), her attorneys for property sold 640 South Ocean Boulevard, Palm Beach, Florida (the "Property") pursuant to a Power of Attorney. The Property was subject to a specific bequest in Mrs. McDougald's Will. The parties sought direction from the court as to whether the proceeds of that sale adeemed and became part of the residue at the date of death or whether section 36 (the anti-ademption section) of the Substitute Decisions Act, 1992 applied to prevent ademption. The doctrine of ademption is a common law rule dating back to the 18th century. Ademption occurs whenever a testator makes a bequest of a specific piece of property that is not found among the testator's assets at the time of his or her death. In such a case, the bequest is said to have adeemed and the bequest simply fails on the basis that "the thing meant to be given is gone". Any proceeds from a disposition of the property fall into the residue of the estate, unless the testator has indicated in his or her Will that the bequest includes any such proceeds. In 1996, Mrs. McDougald had three attorneys managing her estate pursuant to a Power of Attorney.
According to section 36 of the Substitute Decisions Act, 1992 if Mrs. McDougald was incapable of managing her financial affairs when the Property was sold or if the attorneys reasonably believed she was incapable, the proceeds of the Property would not fall into the residue of the estate. When the case first began by way of application, Wilson J. raised a concern as to whether she was able to determine the contested factual issues regarding Mrs. McDougald's capacity and the reasonable belief of the attorneys based upon affidavit material alone. Counsel sought instructions as to whether their clients were prepared to consent to Wilson J. hearing and determining the issues on the written record alone.
Upon consideration, the parties expressed their desire to cross-examine on the contested factual issues. In the ordinary course, the entire application would have had to be adjourned. According to Wilson J. a practical solution was for the parties to opt for a summary trial. Ultimately, the parties agreed, in essence, to follow the format of the summary trial set out in Rule 76 regarding Mrs. McDougald's capacity and the reasonable beliefs of her attorneys. There was affidavit material already before the court. The parties agreed to exchange further affidavit material and file a consolidated record. The affidavit material constituted the evidence-in-chief. After reviewing the extent of the affidavit material before her and hearing from counsel, Wilson J. imposed reasonable time limits on the cross-examinations. The process resulted in significant cost savings for the parties.
The issues of capacity and the reasonable beliefs of the attorneys were tried in two days. There was no delay as a result of the adjournment of the application for a trial of the issues and the parties obtained a quicker resolution from the court. The rights of the parties were protected as they had had an opportunity to prepare affidavits and conduct cross-examinations, albeit within reasonable time limits. While the case was ultimately appealed to the Ontario Court of Appeal, the mode of trial or procedure employed was not in issue.
Have a great day. Justin de Vries --------
