Listen to Will Challenge Litigation - Part 3

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

They discuss what happens during the Discovery process and explore what Mediation is and how it works. Will challenge proceedings can benefit greatly from facilitation during the litigation process.

To see the video version of this podcast, you can also download it from iTunes or watch it on YouTube on the Hull and Hull channel: http://www.youtube.com/HullandHullLLP

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.

Posted on March 18^th, 2008 by Hull & Hull LLP

Paul Trudelle: Hello and welcome to Hull on Estates. You’re listening to Episode #102 on Tuesday, March 18^th, 2008.

Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada.   Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and Wills.  Now, here are today’s hosts.

Paul Trudelle:  Hi, I’m Paul Trudelle.

Allan Socken: Hi, and I’m Allan Socken.

Paul Trudelle:  Hi Allen, how are you today?

Allan Socken:  I’m good, thank you. How are you Paul?

Paul Trudelle: Good, withstanding the winter?

Allan Socken: Yeah, hopefully it’s close to an end.

Paul Trudelle:  The end is in sight, we’re almost there. With respect to our podcast today and we’re now up into the triple digits, we thought we’d talk a bit about the deemed undertaking rule. The deemed undertaking rule is a rule that applies in litigation, it’s a common law rule, that talks about the use of evidence, and it’s now codified in the Rules of Civil Procedure.

Allan Socken:  I think it’s also just important to make mention that while this appears to be standard practice in all jurisdictions in Canada, it’s interesting to note that only P.E.I. and Ontario have this codified within our Rules of Practice.

Paul Trudelle:  Yeah, that is a bit strange, but we have it codified in Ontario and that’s the system that we’re working under, so we’re going to talk a bit about the rule as it applies in Ontario.  However, it should be noted that it probably applies to the same effect in other jurisdictions as well, being a common law rule that is now codified.

With respect to the purpose of the rule, it basically… the rule is set to limit the use that one can make use of when obtaining evidence in the litigation process.  And there’s a very good quote from the Ontario Court of Appeal decision of Goodman v. Rosi that talks about the basis upon which the rule exists or why it exists.

Allan Socken:  It basically says the principle is based on recognition of the general right of privacy which a person has with respect to his or her documents. The discovery process represents an intrusion on this right under the compulsory processes of the Court. The necessary corollary is that this intrusion should not be allowed for any purpose, other than that of securing justice in the proceeding in which the discovery takes place.

Paul Trudelle:  Right, and I think that’s a great quote and I think it summarizes the purpose of the rule quite well and quite succinctly … I guess, put another way or restated, if you’re going to be forced to the litigation table by someone and you’re forced to disclose your documents, the documents only need to be disclosed for that limited purpose and they shouldn’t be disclosed for the whole world to see or they shouldn’t be used in some other proceeding and come back to bite you that way.

Allan Socken:  I think also to point out, I think the purpose of the deemed undertaking rule as is set out in Rule 30.1.01 sub 1, is that you can only use evidentiary documents that relate to the discovery and inspection of property, medical examination and the like. That’s what the rule tries to capture. So, for example, if you are in Court and there’s evidence given, then that probably isn’t captured under the deemed undertaking rule.

Paul Trudelle:  That’s right. The principle of the rule is if you’re forced to disclose information in the litigation process before it gets to open Court, it’s that information that’s going to be protected by the deemed undertaking rule. And the rule sets out that the rule applies to evidence obtained under the rules relating to documentary discovery, Examination for Discovery, that’s of the parties and of witnesses as well, inspection of property, medical examination, written interrogatories if they are used, and even as far as examinations in aid of execution after judgment is obtained. So it is of limited application, however, in the context of litigation, it seems to protect most evidence that you are able to obtain from the other party or from the witnesses.

Allan Socken:  For example, for Will challenges, a lot of the time, it’s very standard to ask for complete disclosure of medical, financial and legal information.  And especially in the case of legal materials, when you do a Will challenge, it may be necessary or it may be an option for the client subsequent to the Will challenge or during the Will challenge, to want to pursue a negligence claim against the solicitor in certain circumstances.

Paul Trudelle:  That’s right, Allen. And I think that that’s very important from an estate point of view. The only way we are able to obtain evidence, usually from medical practitioners, and perhaps more importantly from solicitors, is through the litigation process. If that evidence is protected by the deemed undertaking rule, that’s going to have a significant impact on the rights of the parties to pursue those types of claims, and we’ll talk about that in a minute.

The substance of the rule, I think we should mention briefly, we talked about what evidence it applies to. With respect to the substance, that’s set out in the rule itself.  And the rule states that all parties and their counsel are deemed to undertake not to use evidence or information to which the rule applies, and we talked about that, for any purposes other than those of the proceeding in which the evidence was obtained. So that’s very limiting.  You can’t use it for any other purpose other than the purpose of the very litigation that’s before the Court. And that’s quite restrictive. Having said that, there are exceptions to that rule and perhaps we can talk about some of the exceptions that are set out in the rule itself.

Allan Socken:  Sure. Some of the exceptions are that the deemed undertaking rule does not apply to evidence that is filed with the Court. Similarly, it doesn’t apply to evidence that is given or referred to during the hearing, as well as information obtained from evidence regarding the evidence filed within the Court, or evidence that is given or referred to in the hearing.

Paul Trudelle:  That’s right. So once the material is aired in an open Court, then its open game and the parties are able to … the protection no longer applies. Similarly, if you obtain some information and it’s disclosed in open Court that leads to other information, that information isn’t protected either. There’s another exception that deals with using evidence to which the parties consent. So if you get the consent of the person with respect to the evidence that’s disclosed, then it can be used for another purpose.  Although if you’re going to be suing that person, it’s probably not likely you’re going to be getting their consent.

Allan Socken:  And I think another exception is the deemed undertaking rule doesn’t apply when the interests of justice outweigh the prejudices of the parties. I think that’s kind of an interesting exception, simply because it’s such a broad exception and it could probably capture a number of situations.

Paul Trudelle:  That’s right.  And to deal with that exception, you’d need to get an order of the Court allowing you to use that evidence for the ulterior purpose or for the purpose of the other proceeding. What you would need to do is show the Court that, just as the rule states, that the interests of justice outweigh any prejudice that would result to a party. That is often a sort of a way of saving yourself or allowing you to proceed with the action after the fact. If you obtain evidence through the examination process or the discovery process and there is no other way to get that, you may be able to argue that you have a legitimate interest in using that evidence for the purpose of the subsequent proceeding.

Allan Socken:  From your experience, Paul, is it easy to get that kind of order?

Paul Trudelle:  I think that that’s a very tough thing to do because I think that we have to look at the overriding purpose and the intrusive nature of the disclosure process. People are dragged to the table and forced to disclose their evidence, their documents.  And to allow that sort of fishing expedition to be used to commence another proceeding against another party, I think, is something that the Courts are not going to do lightly. Having said that, if there was no other way to get that evidence, or it’s clear that the evidence ought not to be protected, then the Court, I think, will make that type of an order and allow it to proceed. I think that’s still a very tough order to get, though.

Allan Socken:  Absolutely. I mean, because, I think, in most matters, certainly a Court would be very careful before it goes ahead and grants a rule or grants an order which basically prejudices a party in a certain way.

Paul Trudelle:  That’s right. With respect to the exceptions, there’s another exception.  You can use that evidence to impeach someone’s testimony in another proceeding. So the evidence, if it’s... documents are given in one proceeding, they can be used in another proceeding to impeach testimony. And that’s another exception as set out in the rules.

We were talking, or you mentioned before, the estates context and I think that’s what we should maybe touch on before we wrap up. In the estates context, we usually get an order in a Will challenge, that would allow the parties to obtain evidence on examination or through witnesses. That may be, for example, the evidence of a solicitor who prepared the Will and the instructions that were given to that solicitor. That information may be protected by the rule and it may preclude a party from bringing an action as against a solicitor. There was a case back in 1998 that’s an unreported decision of Giamanco and Zahora that dealt with that very issue. And there, the Court was faced with a motion to consolidate proceedings. There was a Will challenge, there was an action against a solicitor and there was a motion to consolidate.  The solicitor resisted that, as did the parties to the other lawsuit, on the basis that the deemed undertaking rule was breached.  And the Court there dealt with the issue of the deemed undertaking rule.

Allan Socken:  And what’s also interesting about that case was, it cited a decision known as Orfis Realty and D.J. Jewellery of Canada Ltd., which basically says that if you try to use evidence from one proceeding to another, notwithstanding the deemed undertaking rule, that a contempt order can be issued against the party who tries to do that. And notwithstanding that ruling, Justice Mossep in the Giamanco decision did not proceed to make a contempt order in the Giamanco decision.  But the Justice did make mention of the fact that the solicitor, the defendant, could go ahead and try to stay the proceedings. But what’s interesting about it is Justice Mossep didn’t, on its on volition, try to stay the proceeding.

Paul Trudelle:  That’s right.  I think she left it open to the party to bring the appropriate motion in the second proceeding to have it stayed. And I think that’s maybe something we can touch on before we wrap up, which is the remedies where there is a breach of the deemed undertaking rule. You mentioned that contempt was one of them.  And the other was a motion or a staying of the second proceeding or perhaps even a dismissal of that. You think that might be a fair conclusion?

Allan Socken:  Absolutely.

Paul Trudelle:  Okay.  Now how do we, as parties to a litigation, when we’re going to be getting evidence from solicitors, how do we protect the right to pursue an action, if one is advisable, as against the third parties or those people who are giving evidence?

Allan Socken:  Well generally, when we do a Will challenge, in that kind of situation, when we proceed with the order giving direction, which basically sets out the procedure for the litigation, we’ll specifically ask the Court within that order to ensure that this rule, the deemed undertaking rule, doesn’t apply for that litigation.

Paul Trudelle:  And the Court can make an order that the deemed undertaking rule doesn’t apply. Often, in estate matters, we seek that in the order giving directions, usually on the basis that there’s no other way to get that information. The solicitor is…the information that he has can only be produced on a Court order in this proceeding because the person who gave the instructions is deceased. In effect, the parties are stepping into the shoes of that deceased person to get the information.  And on that reasoning, we would argue that the deemed undertaking rule shouldn’t apply and that evidence shouldn’t be protected from an action, if it turns out that such an action is warranted.

Okay, well I think that’s a good, initial discussion with respect to the deemed undertaking rule, and when it can be invoked and the considerations to be taken into account. Thank you very much, Allan.

Allan Socken:  Thanks Paul.

Paul Trudelle:  And just before we go, we welcome your comments and we ask for your comments. You can send us an e-mail at hull.lawyers@gmail.com and send in any comments, your questions or suggestions that you might have.

Allan Socken:  And be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estate law.

Paul Trudelle:  And we also have a comment line.  You can call us at 206-350-6636, and give us your comments and you might even end up on the air, on our podcast, if you leave a comment.

Well, thanks a lot Allan, that was very good.  It was a pleasure blogging with you this week.

Allan Socken:  Likewise, Paul.

Paul Trudelle:  Podcasting with you, and I look forward to doing this again, thank you.

Allan Socken:  Thanks.

This has been Hull on Estates with the lawyers of Hull & Hull.  The podcast you have been listening to has been provided as an information service.  It is a summary of current legal issues in estates and estate planning.  It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid  and is courtesy of the Podsafe Music Network.

/mem

Practitioners of all stripes can take solace in the fact absent a sealing Order granted under s. 137(2) of the Courts of Justice Act http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90c43_e.htm , once a transcript is filed with court by any party, it is accessible to the public notwithstanding the Deemed Undertaking Rule.  This extends to transcripts filed in support of motions, including motions to challenge a refusal to answer.  This public access principle is to be strictly applied, according to Justice Cullity's recent decision in Lewis v. Cantertrot Investments Ltd., [2007] O.J. No. 4201 (S.C.J.).

Parties to a motion may merely list a transcript along with all other relevant documents: R. 37.10(2)).  But the transcript - meaning the entire transcript - must be filed at least two days before the hearing by the party relying on it: Rule 34.18(2).  Since the consent of all parties is required to file a partial transcript (R. 38.18(3)), in practical terms the filing party itself vetoes whether a partial transcript is filed. 

After a transcript is filed, the onus is on the examinee to seek a sealing Order.  The test for a sealing Order laid down by the Supreme Court of Canada in Deganais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (S.C.C.) and restated in R. v. Mentuck, [2001] 442 (S.C.C.) is very strict, however.  For an application of this test, see the recent case of Moore v. Bertuzzi , [2007] O.J. No. 5113, where a sealing Order was denied to the applicant defendant.

Conclude your review of this interesting set of principles with Rule 34.18(4), which states the Judge  "may read only the portions to which a party refers": R. 34.18(4).  So the public right to access extends to the entire transcript though the Judge only reads a portion of it. 

Another good reason to avoid trials where possible.

Chris Graham

Posted on February 12^th, 2008 by Hull & Hull LLP

Hello and welcome to Hull on Estates. You’re listening to Episode #97 on Tuesday, February 12^th, 2008.

Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada.   Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and Wills.  Now, here are today’s hosts.

Chris Graham: Hi and welcome to another episode on Hull on Estates. I’m Chris Graham.

Justin de Vries: And I’m Justin de Vries. Chris, this is the first time that you and I have podcasted together, so that’s always fun. And after much debate, we decided that we were going to look at the Ontario Civil Justice Reform Project which was a project that started in, I believe, 2006 and Mr. Justice Colter Osbourne was appointed by then- Attorney-General Michael Bryant to look at reforming or at least improving the civil justice system. And I thought it was worthwhile spending some time just talking about the system.  And I know, Chris, that you were recently out of the country for a long period of time but are now back and deep into the system and it’s interesting to know what your impressions are of the current problems or access to the system for those people who can’t afford it.

Chris Graham: Yeah, absolutely. Spending some time outside of a place governed by rule of law does give you a special perspective and appreciation for a judicial system. And when I look at all of these recommendations, I’m struck by two things: first, many of them are excellent and; second, many of them are also maybe, a little conservative in a sense.

Justin de Vries: Well let’s get there. Let’s… I think what inspired the report is the fact that anybody who is in the system, be it counsel or a party, know how expensive litigation has become. And unfortunately, the sad result is that cases often settle, which is not bad in and of itself, but they settle because of cost. The economics of litigation begin to drive the costs. I would think that a fairly standard estate matter that had to go in front of Court, be it a Will interpretation or a Will challenge would be well over a $100,000.00 by the time you put in a hotly contested one. And those are things that, not only in the estate world, but in the civil context, the larger civil context, are a problem. So access to justice, what people listening to this who went to law school will know, was always a big deal, was a problem that needed to be looked at. And Mr. Justice Colter Osbourne is well respected in the province. He’s currently the province’s Integrity Commissioner which means he works for the provincial government and they put to him certain questions dealing with a member’s integrity of the Parliament or of the Legislature in Ontario. And he’s a former Justice of the Court of Appeal. So I was never in front of him, but I’ve mediated with him and again, a very capable judge. What are some of the reforms, Chris, that caught your fancy in all of this?

Chris Graham: Okay, one of the most exciting reforms is the recommendation that the jurisdiction for the Small Claims Court should be increased to $25,000. I just think that’s fantastic. Small Claims Court is a great way for people to get some justice without spending more on lawyers than they may get back. And right now, the maximum is…

Justin de Vries: $15,000.

Chris Graham:  $15,000, yeah.

Justin de Vries: I think it started originally at 5, moved up to 10 and now it’s 15. What’s also interesting in that recommendation is that you cannot appeal from judgments of less than $1,500. What may be interesting, and I don’t know what Justice Osbourne found out but… some Small Claims Court judges may be less than happy with that because you’re going to have a lot of self-represented litigants dealing with some of their problems. But it’s probably better, as you say, Chris, to have it there than in front of the Superior Court.

Now coupled with that is an increase or a recommendation that the monetary limit for Simplified Procedure actions be increased from $50,000 to $100,000. The $50,000 Simplified Procedure Rules probably came in now about 5, 6 years ago and the idea was you really remove the discovery process from Simplified actions. They were simplified because they were $50,000 or less. No discovery. You could have a summary judgment motion and the Rules in respect of that were somewhat eased, so it was easier for the Court to grant summary judgment motion. And you could also have a simplified trial which really relied on witness statements and a limited cross-examination. So that increase would be to $100,000, which I think is great as well. As part of a Simplified Procedure, you get a pre-trial which is always a good way to settle a case. And there’s no indication that that would fall by the wayside. So Chris, what else did you see that you liked?

Chris Graham: Well, when it comes to Simplified Procedure, there’s a recommendation that there can be 10 minutes for a statement, a general statement of any party whose sworn an Affidavit for the summary trial. Or 10 minutes for an examination-in-chief. And I think that’s a fantastic way of bringing a very small amount of useful procedure into the trial aspect. Again, it’s limited to 10 minutes and that will preserve… I think it’s a fantastic way of preserving the simplified aspect of the trial, while getting a little bit of evidence before the Court and allowing the judge to do what judges do really well, which is evaluate credibility and weigh evidence.

Justin de Vries: Well, speaking of that, what caught my attention was the recommendation to amend Rule 20 to allow the Court to weigh evidence, evaluate credibility and draw any reasonable inference from the evidence. However, what Mr. Justice Osbourne indicates is that that power ought not to be exercised where the interests of justice require that the issue be determined at trial. And this is really picking up from the fact that when summary judgment rules about 10 years ago, there was a series of cases where trial judges were doing exactly that.  While there was no genuine issue for trial, there was an issue of credibility. Judges were nevertheless granting summary judgment in the right circumstances. The Court of Appeal shut that down like there was no tomorrow and really put a chill on the Rule and it became much less effective because the Court of Appeal at the time said if there’s credibility involved, there should be a trial. You can’t make a conclusion based on a paper record which is what summary judgment is. And what Mr. Justice Osbourne has picked up and said now hold on, let’s go back to what was then a common sensical approach.  Where it’s appropriate, allow summary judgment to be granted by weighing the evidence and drawing reasonable inferences. But as a protection to the public or to parties, if the interests of justice are against that kind of finding, then push it on to a trial. So I’m glad to see that because I think that makes a lot of sense.

The other one, Chris, what do you think about this one? It caught my attention was Mr. Justice Osbourne wanted lawyers to be encouraged, I suppose through their various societies that they belong to and organizations, to consider new and innovative billing methods that would promote access to justice for litigants with civil litigation issues who can’t afford counsel. You know, the hourly rates are so high in many instances, I always thought block billing was an interesting way to approach things.

Chris Graham: Yeah… in the olden days, rules against champerty and maintenance prevented a lot of well…prevented almost any innovation when it came to billing and really did force lawyers to stick to hourly billing, which makes unaffordable a lot of matters which otherwise would be dealt with. This looks great and block billing can really work in some areas, areas where services are highly standardized and lawyers do the same thing over and over again, it’s fantastic for everybody. In other areas, I guess I mean the danger which the lawyer will have to deal with is that if you block bill, some clients will sort of take that as a free ride.  And you have to have some type of protection against clients adopting unreasonable stances. But it’s great if anybody can figure out a way to make it viable.

Justin de Vries: One of the problems we have as litigators, of course, is that you never know your inputs when you make up a budget. It’s not as if you’re making a widget. You don’t know how the other side is going to react. You don’t know what kind of blowback you’re going to get, what kind of motions you face and therefore it becomes very difficult to estimate your costs. Plus I find there’s a little bit that, to some extent, the Courts suck and blow on it because they go after you if your bills are too high, but then they’re also upset if you provide them with product that is not terribly impressive. So it’s a little bit hard. The other thing, though, that we do have in the estate world which provides us some flexibility is really to bill a client at the end of the piece, when they come into, if they’re a beneficiary, payment out of the estate, or to look to the estate itself to pay. Even though the rules of costs have changed a bit, that gives us some flexibility.

I think the last one that I thought we could talk about, Chris, was this idea of limiting discoveries, that one of the recommendations was to amend Rule 31, which is the rule that deals with examinations, so that each party has up to 1 day, that is, 7 hours, to examine parties adverse and interests subject to agreement otherwise or a Court Order. So what Mr. Justice Colter Osbourne is recommending is just making the discovery process, which can be endless, down to 1 day. But I’m not quite sure how I feel about that one. Part of me says that’s a great idea, but discovery’s such a powerful tool… you know, are you often going to be running off to Court to get an Order and justify more questions because the other side simply won’t agree?

Chris Graham: Yeah exactly. There are some very good arguments for limiting discoveries. On the other hand, sometimes you discover your evidence in discoveries, you don’t necessarily go in knowing exactly what you’re going to find and sometimes what you find requires yet more discovery. And if you only get 7 hours, well, one long discovery or 2 average discoveries, can easily eat that up. And then what are you left with? Well, if you have to get a motion, that means you’ll have to draft motion materials, you’ll have to negotiate with the other side, it’ll be more delays. At least in our little slice of the world, most matters will require at least easily 3-5 witnesses and 7 hours’ of discovery probably won’t cut it in a lot of situations. I can’t speak for areas outside of estates litigation, though. Maybe it would be just fantastic in contract litigation. But I am skeptical on that one.

Justin de Vries: Well, finally, there is one more I want to talk about and we’ll just touch upon it and that is… the Law Reform Commission of Ontario which was recently re-established after being disbanded under the Harris government, should review the role of the Divisional Court as a Court of intermediate appellant jurisdiction. It’s my understanding that Ontario is the only province that has this intermediate appellant jurisdiction and so, as such, it would be worthwhile to see if that’s necessary.  Because you’re really having Ontario Superior Court judges, albeit a panel of three, looking at what their colleague did in the first instance.  And you wonder whether or not…though in general, I think the Divisional Court is quite good…but you wonder whether or not it’s as unbiased as it could be and whether you should just get in front of the Court of Appeal.

Chris Graham: Yeah.  I would add one thing to that and this seems like nitpicking, but it doesn’t always feel like nitpicking when you’re the one doing it. Because there’s this Divisional Court out there, it means that every time you’re considering launching an appeal of a decision, you have to confirm which Court you appeal to. And it does sound simple, but it doesn’t end up being simple and it can add half an hour, an hour, an hour and a half of work to any file. And regardless of the good reputation of the Divisional Court or any other questions, personally, I’m in favour of anything that eliminates the amount of work that you have to do to get to the end result, the natural result of the file. So I mean, I am the one that does that research. So, of course, I’d be in favour of just, well, eliminating it altogether because it would mean one hour less on every file where there’s an appeal being considered.

Justin de Vries: Well I think that brings us to the end of this week’s discussion. Thanks for listening and for joining me today, along with Chris, of course.

Chris Graham: It was a pleasure, Justin. I look forward to podcasting with you again soon. And we look forward to hearing from our listeners. You can send us an e-mail at hull.lawyers@gmail.com or just pick up the phone and leave us a message on our comment line at 206-350-6636. Be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estate law. We hope you enjoyed the show. I’m Chris Graham.

Justin de Vries: And I’m Justin de Vries. Thanks for listening.

This has been Hull on Estates with the lawyers of Hull & Hull.  The podcast you have been listening to has been provided as an information service.  It is a summary of current legal issues in estates and estate planning.  It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid  and is courtesy of the Podsafe Music Network.

/mem

The Ontario Reports dated July 27, 2007 indicate that an application for leave to appeal to the Supreme Court of Canada (“S.C.C.”), www.scc-csc.gc.ca, for this case was filed on November 17, 2006 and submitted to that Court February 12, 2007. It appears that the S.C.C.’s decision granting or dismissing this Application has yet to be released.

In the normal course a respondent is given the opportunity to respond before the application is submitted to the Court.

Leave may be granted when the S.C.C. finds that the case raises an issue of public importance and ought to be decided by the S.C.C.  The case must then raise an issue that goes beyond the immediate interest of the parties to the case. 

Applications for leave are usually decided by a panel of three judges of the Court.

According to the S.C.C. website, as many as 600 applications for leave are filed each year with the Court granting leave to approximately 70 applications per year, touching upon a variety of legal issues.

As part of the application seeking leave to appeal, a party must, among other things, complete the detailed requirements for such applications further to Rule 25 of the Rules of the Supreme Court of Canada. Aside from a notice of application for leave to appeal and other documents, a memorandum of argument must be filed.  

It will be interesting to see if the appellants in the Conseicao Farms Inc. matter will be able to persuade the panel of S.C.C. judges that the case raises an issue of public importance beyond the immediate interest of the parties.

Thanks for reading.

In this case, the respondents had provided an expert report 8 months prior to trial. The expert was then called as a witness at trial. The appellants’ action was dismissed with costs at trial with the trial judge relying, in part, on the respondents’ expert evidence. 

When the respondents provided material to the appellants in support of their costs claim, the existence of a memorandum came to light. The memorandum, prepared several years before the trial, contained foundational information for the opinion of the respondents’ expert. The appellants then moved before the trial judge to request production of that memorandum. The trial judge dismissed the motion. 

The appellants appealed the trial judge’s decision. They relied on Rule 31.06(3) of the Rules of Civil Procedure hoping to tender the memorandum as fresh evidence on an appeal in order to argue that a decision based in part on the expert could not stand since the memorandum was wrongly withheld. 

However, the C.A. found that as the appellants knew of the expert’s final opinion months before the trial, they were entitled, at that time, to seek discovery of the foundational information for that opinion pursuant to Rule 31.06. The appellants apparently did not choose to do so. The C.A. found that there was no basis for the appellants to do so following the trial. The ability to seek discovery of foundational information for an expert opinion applies to the discovery stage of litigation which was closed. Moreover, the appellants were not entitled to disclosure at this later stage to cure their own failure to properly exercise their right to obtain this foundational information on discovery. 

Seeking the disclosure of expert evidence should be considered earlier rather than later.

Thanks for reading.

Craig