D.J. Grier by his Litigation Guardian T. Grier v. J.L. Grier by her Litigation Guardian the Public Guardian and Trustee; S.G. Grier, Non-Party
[Indexed as: Grier (Litigation Guardian of) v. Grier (Litigation Guardian of)]
Ontario Reports Ontario Superior Court of Justice Fowler Byrne J. August 20, 2020 151 O.R. (3d) 754 | 2020 ONSC 4799
Case Summary
Civil procedure — Settlement — Persons under disability — Two siblings under disability settling estate litigation — Third sibling as non-party not served with settlement documents and moving for finding of contempt and in the alternative for a full copy of motion record for settlement approval — Motion for contempt was not served so relief could not be granted without proper notice — Non-party entitled to certain affidavits related to settlement but otherwise motion dismissed — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 7.08.
Contempt of court — Disobedience of court order — Procedure — Two siblings under disability settling estate litigation — Third sibling as non-party not served with settlement documents and moving for finding of contempt — Motion for contempt was not served so relief could not be granted without proper notice — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 7.08, 60.11(2).
D, J, and S were siblings. D and J had been involved in litigation over their father's will before reaching a final settlement. Both were under a disability and both brought motions seeking court approval of the settlement. An order giving directions from 2014 outlined how service of documents was to be effected. S and her son, [page755] G, were served with a partial version of both motions. The copy of D's motion record served on S did not include the affidavit of D's counsel. D also did not serve a supplementary affidavit on J, S, or G. S, as a non-party to the litigation, brought a motion for a finding of contempt against D and, in the alternative, disclosure of the affidavit of D's counsel and all other affidavits and documents in accordance with the order giving directions, and a detailed list of every document filed in relation to the two motions. G took no position on the motion.
Held, the motion should be allowed in part.
The motion for contempt was dismissed. Service of the motion had not been effected either on D personally or on his litigation guardian. Quasi-criminal relief was not to be taken lightly and the motion would not be entertained without proper notice being given.
S obtained an order for delivery of all affidavits in support of the settlement, but otherwise the motion for disclosure was dismissed. S did not file a notice of appearance after being served with the order giving directions, so there was no obligation to serve her with anything further other than the motions seeking approval of the settlement. The order giving directions specifically identified S and G as being entitled to notification of settlement even if they did not participate. D, J, S and G were to be served with affidavits of counsel of both parties. D's solicitor was to serve on J, S and G a new affidavit omitting the solicitor and client information, with the original affidavit to be sealed. The representative of the Public Guardian was to serve on D, S and G a new affidavit omitting the solicitor and client information. S was entitled to her costs of the motion with J and D each bearing their own costs.
Boone (Litigation guardian of) v. Kyeremanteng, [2020] O.J. No. 100, 2020 ONSC 198 (S.C.J.), apld
Other cases referred to
- Burns Estate v. Falloon, [2007] O.J. No. 3541, 160 A.C.W.S. (3d) 253
- Catanzaro v. Kellogg's Canada Inc., [2015] O.J. No. 5930, 2015 ONCA 779 (C.A.), affg [2014] O.J. No. 4642, 2014 ONSC 5691 (S.C.J.)](https://www.canlii.org/en/on/onsc/doc/2014/2014onsc5691/2014onsc5691.html)
- Poulin v. Nadon, [1950] O.R. 219, [1950] O.J. No. 433, [1950] 2 D.L.R. 303 (C.A.)
- Rivera v. LeBlond, [2007] O.J. No. 889, 44 C.P.C. (6th) 180, 156 A.C.W.S. (3d) 69 (S.C.J.)
Statutes referred to
Rules and regulations referred to
- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 7.08, (4), (a), (b), 7.09, 38.07(2), 60.11(2)
MOTION by the non-party for a finding of contempt and for disclosure of documents.
Counsel: Douglas Loucks, for applicant. Frances Wood, for respondent. Sandra Gail Grier, self-represented.
[1] FOWLER BYRNE J. : — This is a motion wherein a sibling of the parties seeks an order wherein the applicant is found in [page756] contempt, or, in the alternative, that she be served with a full copy of his motion record wherein the applicant seeks this court's approval for a settlement reached in this litigation.
A. Background
[2] The applicant David James Grier ("David"), the respondent Janet Lynn Grier ("Lynn") and Sandra Gail Grier ("Sandra") are siblings and the only children of the deceased James William Grier (the "deceased"). Since before the death of the deceased on November 25, 2013, David and Janet have been in litigation about David's handling of the deceased's affairs prior to his death and have continued their battle over which of the deceased's two wills are valid. Both wills bequeath one-third of the deceased's estate to each of Janet and Sandra. The key difference between the two wills is that the first will bequeath the remaining one-third of the estate to David. In the second will, David is disinherited, and his share of the estate is bequeathed to the deceased's grandson, Garret Bryce Richard Grier ("Garret"), who is Sandra's son. Neither Sandra nor Garret ever participated this litigation.
[3] Now, almost seven years after their father's death, David and Janet have reached a final settlement. Given that both are under a disability, they both have brought motions seeking court approval of their settlement.
[4] Sandra and Garret are not parties to this litigation. Nonetheless, by virtue of para. 2 of the order of Trimble J. dated June 3, 2014 ("order giving directions"), it was ordered that service of any documents in these proceedings, including notice of a settlement or judgment obtained, would be sufficient if served "on the following persons who appear to have an interest in the Will". The order giving directions then lists Sandra and the Office of the Public Guardian and Trustee. It does not list Garret. In addition, para. 13 of the order giving directions outlines how the parties are to effect proper service on Sandra and Garrett by referring to para. 2, which does not specifically list Garret. Paragraph 3 orders that the order giving directions is to be served on Garret by e-mail to linbrek mail.com.
[5] Both Sandra and Garret were served with a partial version of both David and Janet's motions seeking court approval of the settlement.
[6] Sandra's affidavit of service clearly states that her "Motion Record (without affidavits)" was served on David, Sandra and Garret. Subsequently, after Sandra raised her objections, Janet agreed to serve Sandra with her counsel's affidavit sworn June 11, 2020. It does not appear that Janet served Sandra, Garret or opposing [page757] counsel with the affidavit of the Litigation Guardian, sworn June 18, 2020, or the supplementary affidavit of Frances Wood, sworn July 10, 2020.
[7] It is undisputed that the copy of David's motion record that was served on Sandra did not include the affidavit of David's counsel, which was filed directly with the court, without being served. Accordingly, I conclude from this that the affidavit of Tammy Grier, litigation guardian for David, was served on Janet, Sandra and Grier.
[8] It also appears that David did not serve his supplementary affidavit of July 8, 2020 on Janet, Sandra or Garret. Accordingly, Sandra brought this motion seeking a finding of contempt as against David and a significant cost penalty. In the alternative, she seeks disclosure of the affidavit of Douglas Loucks and all other affidavits and documents in accordance with the order giving directions, and a detailed list of every document filed in relation to the two motions seeking court approval of the settlement reached.
[9] Garret has indicated that he takes no position on the settlement, and has not responded to Sandra's motion.
B. Law
(a) Contempt
[10] Rule 60.11(2) of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194 ("Rules") states that a motion for contempt shall be served personally on the person against whom the contempt order is sought, unless the court orders otherwise.
[11] In my endorsement of July 21, 2020, I specifically indicated that personal service on David had not yet been effected. Since that endorsement, Sandra's counsel sought the co-operation of David's counsel to serve David personally, which was not given. While co-operation amongst counsel is encouraged, there is no obligation on Mr. Loucks to assist Ms. Deokaran is commencing a quasi-criminal procedure as against his client. Accordingly, it appears that this motion was not served personally on either David or his litigation guardian, as is required by rule 60.11(2). As indicated, a finding of contempt is quasi-criminal in nature and should not be taken lightly. I am not prepared to entertain such relief without proper notice being given. Accordingly, this request for relief is dismissed. [page758]
(b) Disclosure of all affidavits and documents
[12] As indicated, Sandra seeks disclosure of all affidavits and documents since the order giving directions. I will determine this request in two parts: (i) the overall request for all documents and affidavits, and (ii) the specific request for documents related to the motions seeking court approval.
(i) All documents and affidavits
[13] Sandra has requested production of all other affidavits and documents since the order giving direction in 2014.
[14] In the normal course, when an application is commenced regarding the validity of a will, all persons with a potential interest in the will should be served. Despite my request for evidence of this in my endorsement of July 3, 2020, no affidavits of service were provided with respect to the original application, nor any explanation as to why this did or did not occur. Nonetheless, I am satisfied that the motion for directions, brought back in 2014 was served on Sandra (as indicated in the preamble of the order giving directions) and I have been provided evidence that the order giving directions itself was served on both Sandra and Garret in accordance with said order. Accordingly, as of late July or early August 2014, both Garret and Sandra had notice of the proceedings. I have no evidence that either Sandra or Garret ever filed a notice of appearance, affidavit or brought a motion of any kind since that time.
[15] Rule 38.07(2) states that if a party does not file a notice of appearance in an application, they are not entitled to further notice of a step in the proceeding, or service of any further document unless the court orders otherwise. The order giving directions does not specify that all documents must be served on Sandra, other than the order giving directions, but rather states that if documents are to be served, they are to be served in a certain manner. In these circumstances, I would apply this rule to Sandra and Garret after being given notice of the proceedings (if not already) by virtue of being served with the order giving directions. Given that Sandra did not file a notice of appearance, there was no obligation to serve her with anything further. A notable exception is the motions seeking approval of the settlement, which I address below. In making this determination, I do note that Sandra states that it was her intention to bring a motion to be added as a party before the shut down of the courts. Even if that was accepted, it has been over four months since the suspension of regular operations, and the ability to bring urgent motions has been available for several months. Yet no steps have been taken. [page759]
[16] Accordingly, other than the motions seeking court approval of the settlement, which is addressed below, Sandra is not entitled to any other affidavit or document filed in these proceedings.
(ii) Motions for court approval
[17] The motion records seeking court approval should be treated differently.
[18] Court approval for a settlement made on behalf of a party under a disability is governed by rule 7.08 of the Rules. With respect to what must be served and filed, rule 7.08(4) states:
7.08(4) On a motion or application for the approval of a judge under this rule, there shall be served and filed with the notice of motion or notice of application,
(a) an affidavit of the litigation guardian setting out the material facts and the reasons supporting the proposed settlement and the position of the litigation guardian in respect of the settlement;
(b) an affidavit of the lawyer acting for the litigation guardian setting out the lawyer's position in respect of the proposed settlement;
(c) where the person under disability is a minor who is over the age of sixteen years, the minor's consent in writing, unless the judge orders otherwise; and
(d) a copy of the proposed minutes of settlement.
[19] It appears clear that the motion must be served. Obviously, this would mean that the materials must be served on all the parties. This situation, though, is a little unique in that the moving party is a non-party. Nonetheless, I find that both Sandra and Garret should be served with these motions. The order giving directions specifically states, in para. 13, that service of any court materials, including notification of settlement, "shall be good and sufficient if served on the following" and sets out both the non-parties herein, Sandra and Garret. I interpret this to mean that Sandra and Garret are entitled to notification of settlement, even if they did not participate. Had they been participating parties, "notification" would not have been necessary. It appears David and Janet also interpreted the order giving girections in this manner, as they served Sandra and Garret with their motions, albeit in a modified form.
[20] The question remains: Are Sandra and Garret entitled to the entirety of the motion materials that were filed in support of their motions?
[21] As stated by the Ontario Court of Appeal in the case of Poulin v. Nadon, [1950] O.R. 219, [1950] O.J. No. 433 (C.A.) at p. 223 O.R., it is an important role of a trial judge to ensure that the [page760] application for approval of a settlement become part of the record. The evidence required, as set out in this case, was eventually codified in rule 7.08.
[22] The issue of what should be served on opposing counsel was addressed specifically in Burns Estate v. Falloon, [2007] O.J. No. 3541. In that case, the issue was whether the defence were entitled to service of the affidavits filed on an infant settlement, and whether the plaintiff could edit this information to obscure the opinions given by the solicitor and the instructions given by the client. Citing Poulin, Pierce J. found that the function of the court in approving infant settlements should be as transparent as the court proceeding itself: paras. 12, 15. In addition, Pierce J. stated that the clear wording of the rule requires service of the entire motion record on opposing counsel: para. 19.
[23] Also in Burns Estate, the court acknowledged that service of the entire motion record on opposing counsel would result in a limited encroachment of solicitor and client privilege, but it was appropriate in these circumstances. As stated in paras. 20-21:
An infant settlement represents a unique incursion on solicitor-client privilege. . . .
In this case there is limited encroachment on the solicitor and client privilege in order to meet the policy concern of protection of infants. Interference with that privilege is circumscribed and occurs when the case has been settled. It does not form part of the discovery process and does not, at the end of the case, prejudice the prosecution or defence of an action. Disclosure is limited to the extent necessary to approve the settlement and does not open to view the resit of the client's communications with her solicitor. Thus, service of documents required by Rule 7.08(4) must be a true copy.
[24] Relying on Burns Estate, Fragomeni J. in Catanzaro v. Kellogg's Canada Inc., [2014] O.J. No. 4642, 2014 ONSC 5691 (S.C.J.) found that service of a motion record seeking court approval of an infant settlement should include the affidavits from the infant party's solicitor and their representative. He declined to approve the settlement proposed in this case, as the affidavits were filed in draft form only: paras. 21-23, appeal dismissed on other grounds: [2015] O.J. No. 5930, 2015 ONCA 779 (C.A.)](https://www.canlii.org/en/on/onca/doc/2015/2015onca779/2015onca779.html).
[25] This issue was very recently considered again in Boone (Litigation guardian of) v. Kyeremanteng, [2020] O.J. No. 100, 2020 ONSC 198 (S.C.J.), in which the plaintiff was an adult under a disability. The plaintiff had reached a settlement with three of the five defendants in his action. While seeking the approval of this partial settlement and the contingency fee arrangement, the plaintiff also argued that his rights under s. 15(1) of the Canadian Charter of Rights and Freedoms were violated by rule 7.08. In particular, the [page761] plaintiff argued that by reason of his disability, he was "compelled" to disclosure information that falls within the scope of solicitor-client or litigation privilege.
[26] In rejecting the Charter argument, Corthorn J. stated that nothing in rule 7.08(4)(a) and (b) required the disclosure of privileged information on a motion or an application for court approval of a settlement: Boone, at paras. 21, 26.
[27] Relying on the decision of Thorburn J. (as she was then) in Rivera v. LeBlond, [2007] O.J. No. 889, 44 C.P.C. (6th) 180 (S.C.J.), Corthorn J. states that a motion seeking approval of a settlement requires full disclosure of evidence regarding the material issues. The substantive evidence must be sufficient to demonstrate the following: (a) an appropriate investigation with respect to both liability and damages has been completed; (b) an appropriate assessment of liability issues has been made; (c) an appropriate assessment of damages issues has been made; and (d) the fees and disbursements which the plaintiff's lawyers propose to charge are reasonable in all the circumstances. He states that this does not require the waiver of information that is subject to either solicitor-client or litigation privilege: Boone, at paras. 50-51.
[28] In particular, at paras. 53, 55-56, Corthorn J. states:
Subrules 7.08(4)(a) and (b) require that the litigation guardian and the lawyer for the person under disability, respectively, provide the court with their "position in respect of the settlement". With the material facts set out and full disclosure of the evidence, it is anticipated that (a) the litigation guardian will state that it is their belief that the settlement is reasonable and in the best interests of the person under disability, and that (b) the lawyer will state their opinion to that effect. In making those statements, neither the litigation guardian nor the lawyer necessarily discloses information that is subject to either solicitor-client or litigation privilege.
For counsel to fulfil their obligations pursuant to r. 7.08(4)(b), the waiver of either solicitor-client or litigation privilege is not required. Counsel can craft supporting materials in such a way that the evidentiary requirements are met without unnecessarily disclosing information that is subject to either solicitor-client or litigation privilege.
Counsel's obligation is to provide "assurance to the court that he [or she] has taken the steps that would be expected of competent counsel to get the best result possible for his [or her] client": Makowsky (Guardian ad litem of) v. Jaron, 2004 BCSC 2, 26 B.C.L.R. (4th) 297, at para. 4. If counsel for the moving party goes further than is required in support of a motion for court approval of a settlement, then that is counsel's problem--a problem that does not arise by reason of the relevant rule: ibid.
[29] Corthorn J. addressed the Burns Estate decision. While not specifically distinguishing it, he stated, at paras. 61-63: [page762]
Pierce J. [in Burns Estate] continued by observing, at para. 20, that "[a]n infant settlement represents a unique incursion on solicitor-client privilege." I find that a more accurate or precise statement of principle would be that a motion pursuant to r. 7.08, whether in relation to a minor or a person under disability, may require a unique incursion on solicitor-client or litigation privilege.
I emphasize the word "may" and highlight that, in some cases, where the disclosure of privileged information is required in support of a r. 7.08 motion, there may be relief available to the moving party. That relief may be in the form of a sealing order, as suggested in this matter by the AGO. It may also be in the form of reliance on a process for filing affidavit evidence analogous to the process now followed under Rule 15 on a motion for removal as lawyer of record. These forms of additional relief are discussed below.
It is important to consider the context in which Pierce J. referred to "a unique incursion on solicitor-client privilege". She did so (a) in the portion of her reasons addressing the request for an order dispensing with the requirement to serve the motion record, and (b) after acknowledging and agreeing with the defendant's submission that "there is no privilege in a communication to the court mandated by law regarding an infant settlement": Burns Estate, paras. 17 and 18.
[30] I am persuaded by the reasoning set out in Boone. Apart from the lawyer's statement of the reasonableness of a settlement and that it is in the client's best interests, the remainder of their obligation is to set out the evidentiary basis of the settlement, so that the court can make the necessary analysis. This material evidence should be complete and transparent. This also applies to the required affidavit of the litigation guardian.
[31] Accordingly, it is clear that David and Janet have the obligation to provide a complete motion record to Sandra and Garret. It is within their ability to draft the necessary affidavits without including any matters subject to solicitor and client or litigation privilege.
C. Application to these Motions
[32] I have reviewed the materials filed by David and Janet in their motion seeking the court's approval of the settlement.
[33] In David's motion, it appears that the affidavit of Tammy Grier was served. If not, I find that it provides a concise and helpful summary of evidence that supports the settlement of this issue. I do not find anything in this affidavit would be subject to any privilege and is properly served on all parties.
[34] I have also reviewed the affidavit of Douglas Loucks, sworn June 15, 2020, and the supplementary affidavit of Douglas Loucks, sworn July 8, 2020. The affidavit sworn June 15, 2020 contains a concise summary of the material evidence in this matter. The only parts that could possibly infringe solicitor and client privilege would be subparas. 18(c) and (e). The affidavit sworn July 8, 2020 [page763] should be disclosed to Janet, Sandra and Garret, as the costs affect the amount left in the estate to be divided with Sandra.
[35] With respect to Janet's motion, she has already served a copy of her solicitor's affidavit. I have reviewed the affidavit of Mr. Bruce Arnott, the representative of the Public Guardian and Trustee. It is not clear from the materials whether this affidavit was provided to Sandra with the original motion. Nonetheless, with the exceptions of exhibits "B" and "C" of his affidavit, which are clearly identified as reporting letters, the affidavit otherwise provides the evidentiary basis for the settlement on behalf of his client and should be produced. Again, steps should be taken to exclude the solicitor and client communication, if it was not already served. I have also reviewed the supplementary affidavit of Frances Wood, sworn July 10, 2020. Although the information in that affidavit is personal in nature, the evidence contained therein is a matter of public record by virtue of rule 7.09. In seeking an order that the settlement moneys be paid directly to Janet, the court requires evidence as to why this is appropriate. This evidence must be filed and forms part of the public record.
D. Costs
[36] Sandra seeks the sum of $5,061.55 in costs on a full indemnity basis, payable by David, and not the estate. David seeks $3,480 in costs, to be paid from Sandra's share of the estate. Janet seeks $1,000 in costs for this motion, also paid from Sandra's share.
[37] In determining costs, I have considered the following:
(a) Sandra has only had partial success -- she was unsuccessful in her motion for contempt and for production of the entire file, but did obtain an order for delivery of all affidavits in support of the settlement;
(b) the relief sought as against Janet was minimal given her service of her solicitor's affidavit; the time spent by Janet's counsel was also minimal;
(c) had Sandra not brought this motion, she would not have received information to which she was entitled from either David or Janet;
(d) Sandra claims her counsel spent 14.5 hours on this motion, Janet's counsel spent 3.5 hours, and David's counsel spent 8.8 hours; each counsel's rate appears reasonable;
(e) the amount of time spent by Sandra is excessive. Her materials are repetitive and contain matters that are not relevant to this motion. Part of the reason she lacks information, and why this motion is necessary, is because she had not participated in this litigation until now. [page764]
E. Conclusion
[38] For the foregoing reasons, I make the following orders:
(a) The following affidavits should be served on David, Janet, Sandra and Garret:
(1) affidavit of Douglas Loucks, sworn July 8, 2020; and
(2) affidavit of Frances Wood, sworn July 10, 2020.
(b) Within seven days, Douglas Loucks shall serve on Janet, Garret and Sandra, and file a new affidavit such as originally sworn on June 15, 2020, omitting the solicitor and client information.
(c) The affidavit of Douglas Loucks, sworn June 15, 2020, shall be sealed.
(d) If the affidavit of Bruce Arnott, sworn June 18, 2020, was not served on David, Sandra or Garret, Bruce Arnott shall serve on David, Sandra and Garret, and file a new affidavit such as originally sworn on June 18, 2020, excluding the solicitor and client communication within seven days, or as soon after as possible.
(e) If the affidavit of Bruce Arnott, sworn June 18, 2020, was served on the parties, the court copy shall not be sealed; if David, Sandra and Garret were not served with this affidavit, then the affidavit of Bruce Arnott, sworn June 18, 2020, shall be sealed.
(f) Service of these affidavits shall be effected on the parties by service on their counsel, in accordance with the Rules; service on Sandra shall be effected by email service on her counsel, Gabriella Deokaran, at gabriella mail.com.
(g) Sandra and Garret, if they wish, shall within fourteen days of the receipt of the last of these affidavits, file any responding materials to the two motions for court approval of the settlement.
(h) David and Janet, shall have seven days from the receipt of Sandra and/or Garret's responding materials to serve and file any reply affidavit evidence.[page765]
(i) Sandra is entitled to her costs of this motion, fixed in the sum of $1,000, inclusive of fees, disbursements and taxes. Whether these costs should be paid from David or Janet's share of the estate, or from the estate in general, shall be determined when the motion for approval is determined.
(j) Janet and David shall bear her own costs.
(k) The remainder of Sandra's motion is dismissed; and
(l) I shall remain seized of this matter.
Motion allowed in part.
End of Document