RULE 38.10 - TRIAL OF AN ISSUE
Many estate litigation proceedings start by way of an application. However, from a practical and legal standpoint, contentious applications should be converted to a trial of an issue(s). Where the parties agree that credibility is at the heart of an application, a trial is warranted. Rule 38.10(1) states:
On the hearing of an application, the presiding judge may… order that the whole application or any issue proceed to trial...
In the normal course, once an application is converted to a trial of an issue, the court orders directions regarding the procedure to be followed by the parties (i.e. an order for directions).
In Gordon Glaves Holdings Ltd. v. Care Corp. of Canada (1998)[1][1], the Ontario Divisional Court considered the test to convert an application to a trial of issues:
The general rule is that the court will not determine genuine issues of credibility on the hearing of an application. Such issues should be decided at trial by the trier of fact [Citations Omitted/Emphasis Added]. In my opinion, the central issues in this case could not properly be determined without a trial, because they depended on questions of credibility.
Proceeding by way of a trial of a trial of an issue, which requires oral testimony, will allow a judge to “eyeball” witnesses and decided who ultimately to believe.
Recently, I was involved in a proceeding that alleged a secret trust. It was commenced by way of an application, but after some resistance from opposing counsel, the application was converted to a trial of an issue. In the end, the application could not properly be determined without a court deciding: (a) exactly what the deceased said to the alleged trustee and beneficiary (if anything); (b) what the parties understood the deceased to mean; and (c) what steps the parties did or did not take regarding the alleged secret trust. The court would have to decide “who to believe” and the parties’ credibility was clearly on the line. Pursuant to Rule 38.10, the application was converted to a trial of issues and an order for directions issued.
Thanks for reading. Enjoy the dying days of summer.
Joi gin (Cantonese for good-bye)
Justin
