Citation: Roe v. Roe, 2017 ONSC 6772
COURT FILE NO.: 05-90/14
DATE: 20171110
ONTARIO SUPERIOR COURT OF JUSTICE
IN THE ESTATE OF BEVERLY GRACE ROE, deceased
B E T W E E N:
ROBERT MARK ROE
Applicant
-and-
RICHARD THOMAS ROE, RANDALL SCOTT ROE AND RAYMOND CHRISTOPHER ROE, in their capacity as Estate Trustee of Beverly Grace Roe, Deceased, and RICHARD THOMAS ROE and RANDALL SCOTT ROE, in their personal capacity
Respondents
BEFORE: F.L. Myers J.
COUNSEL: Charles Ticker and Emil Jelev, counsel for the Robert Mark Roe Andrew Rogerson, Gerhard Schertzer, and Nikhil Mukherjee, Student-at-Law, counsel for Richard Thomas Roe and Randall Scott Roe David Delagran and Lori Isaj, counsel for R. Christopher Roe
HEARD: November 9, 2017
ENDORSEMENT
[1] This endorsement deals with a trial management conference held November 10, 2017 pursuant to my order dated October 2, 2017.
[2] There are two related proceedings. In this application, Mark Roe seeks to have his mother’s will declared invalid. Mark Roe is not a beneficiary under the will. He will only be entitled to share in his mother’s estate if the will is set aside.
[3] In a related action, commenced under Court File No. 05-121/16, Mark Roe sues the respondents to set aside a number of alleged gifts purportedly made by the parties’ mother prior to her death. If Mark Roe is not successful in having the will set aside, then he agrees that he has no standing to challenge the impugned gifts. If the will survives and the gifts were to be set aside, the funds would go to the estate. As Mark is not a beneficiary under the will, he has no financial interest in the funds in the estate if the will is upheld.
[4] Chris Roe takes no position in the will challenge. But he is defending the gift action.
[5] The proceedings have been hotly contested between the applicant and the other two brothers. There have been a number of motions and court appearances to, among other things, freeze funds in the estate, seek remedies for alleged breaches of the freezing order, issue CPLs, require informal accounting, and to obtain non-party discovery. Motions also dealt with applicable procedures for moving toward trial as well as meta-motions dealing with procedural matters that arose within motions. Multiple orders have been made by numerous judges.
[6] By order dated September 22, 2014, at para. 15, Justice McEwen directed that any issues in the will challenge application that are not settled shall be tried by a judge alone. Rather than requiring pleadings to be drafted, at para. 16 of the order, McEwen J. directed that the trial record shall consist of the notice of application and “all affidavits sworn by the parties and all Court Orders made herein prior to trial.”
[7] The applicant commenced the action challenging impugned gifts in 2016. Technically he could have added the gift issues to the original application and added Chris Roe as a respondent in his personal capacity for that purpose. In light of the tone of the proceedings by that time however, it was no doubt far more affordable and efficient to commence an action unilaterally rather than seeking consent and ultimately dealing with another contested motion to seek leave to amend the application.
[8] The application and the action are near ready for trial. In my view, some order needs to be brought to the trial preparation process to provide for an efficient, affordable, proportionate trial process that is as brief as justice reasonably allows while dealing fully, efficiently, and fairly with all issues.
[9] On October 2, 2017, I heard a motion by Richard and Randall Roe for relief from the freeze of funds ordered by McEwen J. on consent. At the same time, Mark Roe moved for consolidation or trial together of this application and the related action.
[10] By order dated October 2, 2017, I dismissed Richard and Randall Roe’s request to lift the consent freezing order. I ordered that the trials will be heard together or one before the other in the discretion of the trial judge. In order to commence the trial management process, I also ordered under Rules 1.05 and 50.13 (1):
THIS COURT ORDERS that counsel for the Applicant shall set down both trials by delivering Trial Records and Notices of Readiness before November 1, 2017.
THIS COURT ORDERS that Justice Myers will hear a Trial Management Conference in November, 2017 on a date to be arranged by counsel with the assistant of Justice Myers.
THIS COURT ORDERS that the Trial Management Conference, both counsel are required to discuss the format of openings and examinations in chief, and both shall cooperate to agree on joint evidence books and to fill out completely trial schedules in the form attached for the full proposed proceeding.
THIS COURT ORDERS that no more motions may be brought in either proceeding except upon leave being obtained at a case conference in person or by telephone.
[11] Prior to the Trial Management Conference, the applicant’s lawyer circulated the trial record consisting of eight volumes. It includes all of the parties’ affidavits delivered in both this application and the action. In addition, the applicant’s lawyer circulated a draft timetable for the trial setting out his initial assessment of the times required to present the applicant’s case. Counsel for Chris Roe responded before the Trial Management Conference. Counsel for Richard Roe and Randall Roe did not respond. Counsel did not discuss joint books of documents or the format for opening statements or evidence in chief.
[12] As the parties understood the purpose of the Trial Management Conference from the terms of the order establishing it, under rule 50.13 (6) the court is empowered to make procedural and interlocutory orders and to give directions. In any event, at any case conference, the court is authorized by rule 50.13 (4)(d) to establish a timetable for proceeding. At a Trial Management Conference, scheduling includes making orders under rule 50.07 (1)(c) and rule 20.05 (1) and (2) as incorporated into that rule either expressly or through the authority to make directions under rule 50.13 (6)(c).
[13] The principal substantive issue in both the will challenge application and the gift challenge action is whether the deceased had capacity to make a will or to make gifts at the times that she purported to do so. Mark Roe’s expert witness has provided a retrospective capacity assessment as at both times. Counsel for the respondents argue that the evidence at the initial stages of the trial must be limited solely to the will challenge because, as noted above, the gift challenge will become moot if the will is upheld. The upshot of that argument is that the key witnesses, i.e. the parties and the experts, will have to testify twice about essentially the same things. This undermines the purpose of hearing the matters together or seriatim. It doubles the time and expense of the trial process.
[14] It is true that if the matters are not strictly segregated and the will challenge does not succeed, then there will be some time spent unnecessarily on gift issues. However, the waste of over-inclusion of some pieces of evidence is far less than the waste of duplicating the proceedings. That is no different than any normal civil case in which damages evidence is heard at the trial even though it becomes unnecessary if the plaintiff is not successful in establishing liability. The case law strongly frowns upon bifurcating liability from damages given the obvious duplication and waste of holding two trials. The same logic applies here. Witnesses will only testify once (subject to reply evidence of course). Counsel for Chris Roe is to be given time to cross-examine Mark Roe and his expert witness on issues where Chris Roe is adverse in interest to Mark Roe. The trial judge is well able to keep the different evidence and uses of evidence separate and distinct as necessary.
[15] In addition, in my view, particularly given Justice McEwen’s order that the affidavits of the parties comprise the trial record, the trial should proceed with affidavits standing as the parties’ evidence in chief. The parties’ positions are well understood and the subject of much sworn evidence already. Lengthy evidence in chief is duplicative. Justice McEwen’s order was made to leverage efficiently the very substantial efforts and expenditures already made by the parties and counsel. Although the order was made before the action had commenced, the rationale for the order supports the inclusion of affidavits from the gift action in the trial record since the issues in the proceedings are so intertwined. I therefore reject Mr. Rogerson’s request that the applicant’s trial record be expunged. Rather, I direct that, subject to the following terms, all witnesses’ evidence in chief shall be given by affidavit. Witnesses may give up to thirty minutes of oral evidence in chief each. If counsel are of the view that any of their witnesses will take less than thirty minutes in chief, then no affidavit will be required for those witnesses. However, a thorough and complete will say statement is required to be delivered that discloses in detail all evidence counsel proposes to adduce from each witness for whom no affidavit is produced. For witnesses with affidavits, counsel may use their thirty minutes as warm up or to focus on key issues. If counsel wish to adduce more evidence from their clients, that is not already in their affidavits in the trial record, then counsel shall produce further affidavits from their clients detailing just that additional evidence.
[16] If there are any witnesses whose testimony relates solely to issues in the gift action and not at all to the deceased’s capacity, then those witnesses may be scheduled to be heard after the trial of this application is completed. I was not apprised of any witnesses in this category at the Trial Management Conference.
[17] All affidavits and will say statements of all witnesses shall be exchanged by counsel before the end of January, 2018.
[18] Mr. Rogerson advises that although he objects to the inclusion of expert reports in the trial record, it is his normal practice to present only very brief evidence in chief of an expert-essentially to introduce and have the witness adopt her or his report. I agree that this is an efficient manner of proceeding. If the respondents’ counsel do not consent to the applicant’s expert report being admitted in evidence, it should be removed from the trial record prior to the commencement of the trial. There is little doubt that counsel will agree to allow the trial judge to see the reports in any event as is the ordinary course. Accordingly, this issue is just a technicality. Nevertheless, until the law concerning the presentation of expert reports is changed, I will leave the issue of dealing with the reports to the trial judge or for the parties’ consent.
[19] I do not view an order scheduling the trial as impinging upon the trial judge’s discretion. Rule 50.07 (2) always maintains the trial judge’s discretion to prevent injustice. In any event, para. 3 of my order dated October 2, 2017 is expressly subject to the judge’s discretion and, out of an abundance of caution, I repeat that all directions and scheduling contained in this endorsement remain subject to the trial judge’s discretion to alter as she or he sees fit.
[20] Counsel are to arrange a pre-trial conference before me during the week of March 4, 2018. In addition to pre-trial conference memos, joint books of documents, and written opening statements are to be exchanged and filed prior to the pre-trial conference. Counsel are to have agreed upon a full timetable for all witnesses by name, in light of the forgoing directions, in advance of the pre-trial. If any counsel is concerned that matters are not proceeding cooperatively so as to be ready for the pre-trial conference, my Assistant can be contacted to book a Case Conference at which I may give directions to break any logjams that have developed.
[21] Costs of the Trial Management Conference are reserved to the pre-trial.
F.L. Myers J.
Date: November 10 2017