G. Marcuccio

In an application challenging the validity of an elderly father's powers of attorney, the respondent brought a motion to dismiss parts of the application.

A preliminary issue arose regarding whether the applicant could cross-examine the deponents of the respondent's affidavits before the motion was heard.

The respondent argued that the applicant must first meet the minimum evidentiary threshold test established for will challenges.

The court held that the minimum evidentiary threshold test under Rule 75 does not apply to power of attorney disputes under the Substitute Decisions Act, and permitted the cross-examination as of right under the Rules of Civil Procedure.

The plaintiff brought a motion seeking to set aside a 2008 consent order dismissing the action against one defendant, alternatively seeking to estop the remaining defendant’s estate from asserting the deceased homeowner’s mental incompetence as a defence under the Occupiers’ Liability Act, and seeking to strike a response to a request to admit.

The court held that Rule 59.06(2)(a) did not justify setting aside the consent order because the alleged new facts were discoverable with reasonable diligence, the motion was brought after substantial delay, and reopening the matter would prejudice the dismissed defendant.

The court also rejected estoppel by convention, finding no ongoing shared assumption about competence after correspondence clarified the issue early in the litigation.

However, the court found that the estate’s blanket refusal to admit facts without reasons contravened Rule 51.03(3)(b).

The response to the request to admit was therefore struck and the estate was ordered to provide a proper response.