SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-08-00359873
DATE: 20140402

RE: Manuela Estrela Andrade, Plaintiff

– AND –

Henrique E. Andrade and Leonardo Andrade, Estate Trustee for Luisa Cabral Andrade, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL:
John Longo and Pamela Miehls, for the Plaintiff

Partick Summers, for the Defendant, Leonardo Andrade, Estate Trustee for Luisa Cabral Andrade

Andrew Anthony, for the Defendant, Henrique E. Andrade

HEARD: April 1, 2014

ENDORSEMENT

[1] This is a mid-trial motion for production of the Will, or Wills, of Luisa Andrade.

[2] Rule 30.02 of the Rules of Civil Procedure restates the established proposition of evidence in civil cases. Other than matters covered by privilege and certain other narrow exceptions, “all evidence that is relevant to an issue is admissible, while all that is irrelevant is excluded”: Hollington v. Hewthorn & Co. Ltd., [1943] KB 587, at 594 (CA). A litigant may not stand behind a shield of privacy in an effort to prevent disclosure of documents or information relevant to a law suit: McAvan Holdings v BDO Dunwoody Ltd. (2003), 2003 64222 (ON SC), 65 OR (3d) 247 (Ont Master).

[3] The Supreme Court of Canada stated in R v Cloutier, 1979 25 (SCC), [1979] 2 SCR 709, that relevance is “assessed in the context of the entire case and the positions of counsel. It requires a determination whether, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence or non-existence of a material fact more probable than it would be otherwise.” Added to that is the understanding that certain evidence does not cease to be relevant or become irrelevant just because it can support more than one inference: R v Underwood, 2002 ABCA 310, at para. 2 (Alta CA).

[4] It is difficult to see how the Will, or Wills, of Luisa Andrade are not relevant to the issues in this case. The central question is the ownership of a property in which Luisa resided and for which her estate now claims a resulting or constructive trust. Title to that property was held since 1979 in the names of two of her sons. The Plaintiff, who is the widow of one of the sons and is now a titleholder in his place, denies that there is any trust with respect to this property, while the other son is a co-Defendant with Luisa’s estate and appears to support the estate’s position.

[5] During the course of the proceedings, the Plaintiff produced her late husband’s Will. She testified at trial and Mr. Summers, on behalf of the Luisa’s estate, has cross-examined the Plaintiff on, among other things, that Will. This was all admissible evidence as the Will and the Plaintiff’s knowledge of the Will is at least arguably relevant to the intent of her late husband with respect to the property. The same must be said of Luisa’s Wills. In the end, they may have either high or low importance in determining the outcome of the case; but they are certainly relevant as relating to the issues at hand.

[6] The Supreme Court of Canada noted in Cloutier that even where evidence is relevant, material, and admissible, the court does have the discretion to exclude evidence where the probative value of the evidence is exceeded by its prejudicial effect. That is the case in either a criminal or a civil trial. Here, Mr. Summers submits that Luisa’s Wills ought not be admissible because of the divisions that already exist among the siblings in this family. He submits that exacerbating these divisions will have a prejudicial effect on the Defendants’ witnesses.

[7] According to R v P (R) (1990), 58 CCC (3d) 334, at 347 (Ont SC), the court should consider the discretion to exclude evidence as follows:

a) determine the probative value of the evidence assessing its tendency to prove a fact in issue in the case including the credibility of witnesses.

b) determine the prejudicial effect of the evidence because of its tendency to prove matters which are not in issue... or because of the risk that it may somehow be used improperly.

c) balance the probative value against the prejudicial effect having regard to the importance of the issues for which the evidence is legitimately offered against the risk that it will be used improperly.

[8] These factors have particular relevance to jury trials, where the risk of misusing evidence that has a prejudicial effect is high. In a judge-alone trial, the controlling factor is the weight that the judge puts on the evidence. It is my duty to ensure that any given piece of evidence is properly used and is only given the weight that it should properly be accorded under the circumstances. I see no legal reason to exclude the Wills, as they are relevant to the issues and any potential prejudice will be controlled by the use and the weight which I ultimately ascribe to them.

[9] Leonardo Andrade, the estate trustee for Luisa’s estate, is a party to this action. I require Leo, as estate trustee, to produce Luisa’s Wills to the Plaintiff. I have been advised that Leo will be testifying at some point during the trial, and Plaintiff’s counsel will be at liberty to cross-examine Leo on those Wills. Likewise, Plaintiff’s counsel is at liberty to ask any of the other witnesses about their knowledge of Luisa’s Wills, although he is not to show the Wills to any other witness.

[10] Luisa’s Wills, as disclosed by Leo, will be subject to a confidentiality Order, such that only I will be permitted to see them along with the parties and their counsel in this trial. The parties are not to reproduce the Wills or disclose their contents to anyone else. Luisa’s Wills will be sealed so as not to be part of the publicly accessible court record.

[11] It has been suggested to me that there may be other proceedings, or pending or potential litigation, either in Estates court or elsewhere, with respect to Luisa’s Will. For greater certainty, nothing in this Order effects the rights or obligations of any party in any other proceeding. If there is separate litigation in respect of Luisa’s estate, I leave it to a master or judge in that litigation to determine whether and how Luisa’s Wills should be disclosed in that context.

Morgan J.

Date: April 2, 2014