[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Blanks v. Roberts, 2020 ONSC 7133
COURT FILE NO.: CV-17-3356-00ES
DATE: 2020 11 30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Brian Blanks
W. Jackson, Counsel for the Plaintiff
Plaintiff
- and -
Carol Elizabeth Roberts
Self-Represented
Defendant
HEARD: In Writing
REASONS FOR DECISION
LEMAY J
[1] This estates case has a long and complex history, and I have been case managing it for approximately two years. Some of that history is set out in my previous decisions (see Blanks v. Roberts 2018 ONSC 7537, Blanks v. Roberts 2018 ONSC 7699, Blanks v. Roberts 2019 ONSC 1446 and Blanks v. Roberts 2019 ONSC 2391). In addition to these reasons, there are a number of procedural endorsements that I have made that have been unreported.
[2] On August 7th, 2019, the parties attended at a case management conference before me. At that time, both sides confirmed that there were no further procedural issues to be addressed. In addition, the triable issues left to be determined in this case were set out in my March 4th, 2019 endorsement (2019 ONSC 1446). I ordered the trial of the issues onto the May, 2020 blitz list and directed that a further case conference take place before me in February of 2020.
[3] That further case conference was held on February 25th, 2020. At that time, Ms. Roberts raised three procedural issues: first, a notice to creditors that Ms. Roberts proposed be sent; second, additional documents that Ms. Roberts wished to rely upon; and third, issues relating to the T-1097 given to the Estate earlier in this process. For the purposes of this decision, only the additional disclosure issue is relevant.
[4] There have been a number of delays in this case, dating back to 2017. I will address this history more fully below. However, the delays have been of some concern to me since I first became involved in this file in the fall of 2018.
[5] At the hearing on February 25th, 2020, I provided Ms. Roberts with a short timetable for providing her alleged additional disclosure, and advised Ms. Roberts that I would have to review the disclosure and determine whether it was relevant to the issues remaining in dispute, as well as considering any explanation she had for why the disclosure had not been made in a timely way. This second issue had to be addressed because, on March 4th, 2019, I had provided the parties with a deadline of forty-five days to provide all of their additional disclosure except expert reports. As a result, on February 25th, 2020, this alleged new disclosure was already ten months late.
[6] This matter was originally supposed to proceed to a trial in May of 2020, but the trial was cancelled as a result of the ongoing pandemic. In addition, Ms. Roberts did not comply with the deadline I set on February 25th, 2020 for providing materials to the Court. This deadline passed prior to the pandemic shutting the Courts down. However, I provided Ms. Roberts with additional time to produce the documents, and Ms. Roberts finally provided her additional documents on October 19th, 2020. Counsel for Mr. Blanks provided his submissions on why these documents should not be received later the same week.
[7] I provided Ms. Roberts with an opportunity to reply to Mr. Blanks’ submissions. What I received was, in essence, a notice of motion asking for further production from Mr. Blanks. This document also included Ms. Roberts responses to the submissions of Mr. Blanks and concludes with the assertion that settlement discussions cannot take place and this matter “cannot proceed to trial on its present course, until full and frank disclosure is obtained…”.
[8] I disagree. This matter is set for a trial on the blitz list in January of 2021. That trial will proceed subject only to the ongoing pandemic. I also understand that a pre-trial is scheduled before Emery J. in December. That appearance will also proceed. For the reasons that follow, the most recent set of requests made by Ms. Roberts are all dismissed with one exception that I will come to.
Background Facts
a) The Parties
[9] Much of the history is set out in my decision of December 21st, 2018 (see 2018 ONSC 7699). However, the Applicant, Brian Blanks (“Mr. Blanks”) and the Respondent, Carol Roberts (“Ms. Roberts”) are brother and sister. Their father was the late Terrence Blanks, who passed away in 2011.
[10] Terrence Blanks left a will naming Mr. Blanks and Ms. Roberts as the primary beneficiaries of his estate. The estate consisted of a house at 7382 Redstone Road (“the Redstone property”), a Rolex watch, a ring and some other minor assets. The Rolex watch and ring have been auctioned off to the parties for certain sums that will be deducted from their portion of the estate. The other beneficiaries have received all of their entitlements under the estate, partly before I became involved in this proceeding and partly under my supervision.
[11] At this point, the only estate assets remaining to be disposed of that I am aware of are the proceeds from the sale of the Redstone property, which have been paid into Court and potentially two debts owing to the estate, one from each party. Ms. Roberts’ submissions seem to suggest, for the first time, that the estate has significant additional assets that have allegedly not been disclosed.
b) The Proceedings to March 4th, 2019
[12] The issues in this litigation started to become contentious back in May of 2016 when Terrence Blanks’ home was sold. Ms. Roberts has subsequently alleged that the sale of the property was fraudulent, that she was pressured into selling the property at an improvident price, and that Mr. Blanks and a number of other people were potentially involved in the fraudulent sale of the Redstone property. The other alleged fraudsters include the real estate agents and the purchasers of the property.
[13] The Redstone property was sold over the Victoria Day weekend. Prior to the sale, it had been valued by the Estate’s accountant at approximately $430,000.00. The property was listed at $579,900.00. During the sale process, four separate bids were received, and the highest bid of $601,000.00 was accepted from an apparently arms-length bona fide purchaser.
[14] Approximately a year and a half later, and in response to a motion for directions brought by Mr. Blanks, Ms. Roberts challenged the sale of the Redstone property. Ms. Roberts’ challenge was based primarily on allegations of fraud against inter alia Mr. Blanks, the purchasers of the property and the real estate agents. Ms. Roberts also claimed that the property had been improvidently sold. Only Mr. Blanks was provided with Ms. Roberts’ materials challenging the sale of the Redstone property.
[15] In September of 2017, the parties appeared before Shaw J. for directions. At that time, Shaw J. expunged settlement discussions from Ms. Roberts materials and directed that the parties proceed to a long motion. This motion was scheduled before Bloom J., who adjourned it to a four-day hearing to address, inter alia, the fraud allegations raised by Ms. Roberts.
[16] I held a hearing for a day and a half on October 30th and 31st, 2018 and provided the parties with directions to move this matter forward. I was also, without objection, appointed case management judge during the course of that hearing by then R.S.J. Daley.
[17] I released reasons on December 21st, 2018 addressing a number of issues, including:
a) Whether there were any potential improprieties with respect to the sale of the Redstone property. I found that Ms. Roberts’ allegations of fraud and improvident sale were not supported by any evidence.
b) Whether there were any concerns about Ms. Roberts’ divorce from her ex-husband Gil Roberts being linked to the issues in this case. Again, I found that Ms. Roberts’ assertions in this regard were without merit.
[18] In my December 21st, 2018 decision, I also provided the parties with directions about how the litigation was to proceed. Included among those directions was one that required the parties to confirm the issues in dispute. The parties duly filed submissions on that question.
[19] On March 4th, 2019, after a case conference I identified the following four issues that remained to be determined at a trial:
a) Each party claims the other party owes the Estate a debt.
b) Ms. Roberts claims Trustee compensation.
c) Mr. Blanks advances a claim for Occupation Rent as a set-off against Ms. Roberts’ claim for Trustee compensation.
d) Ms. Roberts raises the issue of a T-1079, inter alia, as a bar to the claim of occupation rent.
[20] I ordered the parties to provide each other with particulars and production within forty-five (45) days of March 4th, 2019. The one exception was for expert reports on either occupation rent or the T-1079 issue. Originating reports were due ninety (90) days after March 4th, 2019. As a result, all of the documentation (except expert reports) should have been disclosed by April 18th, 2019 and the expert reports should have been disclosed by June 2nd, 2019.
[21] As of the March 4th, 2019 appearance, there was an issue with respect to the outstanding account of Jerald MacKenzie, a lawyer who had previously been involved in these proceedings. I will address that issue in the next section. There was also an issue about the Rolex and the ring, but those issues have been resolved by way of a sealed bid auction that I conducted in Court on the record and on consent.
c) The Proceedings After March 4th, 2019
[22] There was a further appearance before me on April 15th, 2019 (see 2019 ONSC 2391). During that appearance, I reminded the parties that the timelines in my March 4th, 2019 endorsement continued to apply. I received no communications from the parties that suggested that either party was having any problems complying with my deadlines.
[23] At that time, I provided the parties with further directions on the issue relating to Mr. MacKenzie’s account and that issue was ultimately resolved in an appearance before me on May 13th, 2019. In the May 13th, 2019 appearance, a Mr. Malcolm Mercer attended as Ms. Roberts’ representative, although he was not formally on the record representing her.
[24] The resolution of the matter relating to Mr. MacKenzie was as follows:
a) Mr. MacKenzie waived any account that he had outstanding as against the Estate.
b) To the extent that Ms. Roberts wished to seek an accounting and/or other relief from Mr. MacKenzie, she would do so outside the estate.
[25] In other words, there was no claim being made by Mr. MacKenzie against the Estate and there would be no claim that the Estate could make against Mr. MacKenzie, although Ms. Roberts was free to pursue any issues she had respecting Mr. MacKenzie’s representation outside the estate litigation. In my view, this fully resolved any issues relating to Mr. MacKenzie in this proceeding.
[26] In the May 13th, 2019 proceeding, I also provided Ms. Roberts with additional time (to the end of June, 2019) to respond to the particulars that she had received. Ms. Roberts did not ask for any other extensions to any other deadlines, and Mr. Mercer did not ask for any other extensions on her behalf.
[27] A further case conference was held on August 7th, 2019. At that time, as I set out in my endorsement “both sides confirmed that there were no further procedural issues to be addressed…”. I ultimately released an endorsement on October 15th, 2019 confirming that the issues listed in my March 4th, 2019 endorsement would proceed to trial on the blitz list for May of 2020. I also directed a further case conference, which was ultimately scheduled for February 25th, 2020.
[28] At the February 25th, 2020 case conference, Ms. Roberts raised three issues for the first time, as follows:
a) A notice to creditors that Ms. Roberts proposed be sent on behalf of the Estate.
b) Additional “late disclosure” that Ms. Roberts wanted to rely upon.
c) Issues relating to the T-1097 provided to the estate at some point in the administration of the Estate.
[29] I provided directions with respect to the notice to creditors, and viewed that issue as having been resolved. However, in Ms. Roberts’ most recent set of submissions, she states “Exhibit V is the email and Notice to Creditors drafted by Mr. Jackson, agreed to by my while I was symptomatic and forwarded to His Honour.” I will address the issues relating to this statement in a discussion about accommodation, below.
[30] Ms. Roberts was directed to provide any additional documents by March 9th, 2020, and advised that this was substantially more time than I would have afforded a party who was represented by counsel. Ms. Roberts did not provide any documentation in the time allotted. I now turn to the events that took place after the February 25th, 2020 appearance.
d) The Events Since the February 25th, 2020 Appearance
[31] I had no communications from Ms. Roberts between February 25th and March 19th, 2020, which was ten days after the deadline to submit documentation had passed. On March 19th, 2020, I received a letter from Ms. Roberts. It is worth reproducing that letter in its totality. It reads:
On Monday, March 9th, 2020, I spoke with the Accessibility Services Coordinator, Dorothy McIntosh in accordance with instructions set-out in Justice LeMay’s endorsement, dated March 2nd, 2020, at para. 5, which said: “Ms. Roberts may very well have a disability, and I encouraged her to contact the Court’s Accessibility Services Coordinator, Dorothy McIntosh, who is an employee of the Ministry of the Attorney General and may be reached at 905-[xxx-xxxx].”
Ms. McIntosh said she was unable to help me and that I needed to obtain legal advice. I have been unable to meet the deadline of March 9th, 2020, set by Justice LeMay in his endorsement dated February 27, 2020, sent via email from Ms. Stafford same day, Thursday at 2:48 p.m., as a result of my disability and inability to obtain legal advice or assistance.
I am confused by His Honour’s endorsement and by the proceeding of February 25, 2020 wherein I expressed I was experiencing symptoms of my disability and was in attendance without a courtroom companion.
I confirm receipt of the endorsement of both Justice Emery and Justice LeMay dated March 17, 2020, confirming the adjournment of proceedings and the closure of the Ontario Superior Court due to the COVID 19 pandemic and state of emergency, until further notice.
I continue to try to obtain help, and respectfully rely on the authorities in my accessibility services request that remains on file at the Ontario Superior Court of Brampton.
[32] It is worth noting that this letter indicates that the first contact from Ms. Roberts to the accessibility coordinator was on March 9th, 2020, which was the date that Ms. Roberts’ materials were due to be served and filed. She did not copy the communication she sent to the accessibility coordinator to either myself or, as far as I am aware, opposing counsel. The timing of Ms. Roberts’ request to Ms. McIntosh raises questions about whether Ms. Roberts was seeking to delay this matter. I will return to the question of delay below.
[33] In any event, by the time I had received Ms. Roberts’ letter, we were in the midst of the COVID-19 pandemic. As a result, I had adjourned the dates scheduled, including the May 2020 blitz trial, by way of an endorsement on March 17th, 2020. In my March 17th, 2020 endorsement (released before I received Ms. Roberts’ letter), I indicated that there was no reason why the documents that Ms. Roberts wanted to provide should not have been provided by the time the Courts resumed regular operations.
[34] However, upon receipt of Ms. Roberts’ March 19th, 2020 correspondence, I determined that further directions were necessary. As a result, I released an endorsement on March 30th, 2020 in which I addressed a number of issues as follows:
a) I confirmed that Ms. Roberts’ “accessibility request on file” was discussed in my December 21st, 2018 decision (2018 ONSC 7699). I also advised Ms. Roberts that any additional concerns about accommodation had to be addressed to me directly by way of a formal motion once the Courts had resumed. I provided directions about what that formal motion was required to contain.
b) I confirmed that there was no reason why Ms. Roberts should have been confused about the February 25th, 2020 appearance, as she was provided with an expedited transcript of that appearance to assist her.
c) I confirmed that there was no reason why Ms. Roberts should have been unable to comply with the deadlines in my February 27th, 2020 endorsement. I explained that I viewed the March 9th, 2020 deadline as being an indulgence. However, I advised Ms. Roberts that I was prepared to provide her with a further indulgence, and that she was to file her documents within ten (10) calendar days of the Courts reopening.
[35] On September 28th, 2000, I issued an endorsement in which I advised Ms. Roberts that I viewed the Courts as having resumed operations on July 6th, 2020, when Central West Region began booking new matters and hearing non-jury trials. Further, on September 14th, 2020 the provincially mandated suspension of limitations periods came to an end and Central West Region began hearing all types of cases, including jury trials. As a result, the latest that anyone could argue that the Courts resumed regular operations was September 14th, 2020. Therefore, I indicated that the ten-day period for Ms. Roberts to file her materials began to run on September 14th, 2020.
[36] However, I acknowledged the fact that Ms. Roberts was self-represented and has an accommodation request with the Court. As a result, I advised Ms. Roberts as to my views as to when the time to file her materials had begun to run, and I provided Ms. Roberts with additional time to file her materials. I required her to provide her additional documentation for consideration by October 19th, 2020.
[37] On October 19th, 2020, Ms. Roberts provided approximately two hundred pages of additional documents that she seeks to rely on in this case. Later the same week, in accordance with the time-limits I had mandated, I received Mr. Jackson’s submissions on behalf of Mr. Blanks.
[38] Having reviewed Mr. Jackson’s submissions, I was of the view that Ms. Roberts was entitled to reply to these submissions. I directed that she provide her reply by November 9th, 2020. Again, this was substantially more time than I would have provided to a litigant who was represented by counsel.
[39] On November 9th, 2020, Ms. Roberts filed additional submissions. Those submissions included (for the first time) a request for production from Mr. Blanks, as well as a request for other information. I should note that the Affidavit filed on October 19th, 2020 does indicate that Ms. Roberts has concerns with incomplete documentation from Mr. Blanks and other organizations, but that this issue had not been raised with me at any time prior to October 19th, 2020.
[40] On November 9th, 2020, less than an hour after I received Ms. Roberts’ submissions, I received an e-mail from counsel for the Applicant. In that e-mail, Mr. Jackson stated that “I have voiced my observation that Ms. Robert [sic] has effectively filed a Notice of Motion, and have voiced my objection that same is Out of Order.” As will be clear from these reasons, I have not found it necessary to consider Mr. Jackson’s position in this matter except on one issue. Other than that one issue, Ms. Roberts’ requests can be dismissed on a review of the material that she has filed.
The Issues
[41] Based on the foregoing, I must address the following issues:
a) The scope and extent of Ms. Roberts’ accommodations.
b) The significance of the fact that Ms. Roberts is self-represented, and how that fact has been addressed by the Court.
c) Whether the additional documents produced by Ms. Roberts should be permitted at the trial of the issues I have outlined.
d) Whether Ms. Roberts is entitled to additional production from either Mr. Blanks or from any third party at this stage in the proceeding.
e) What should happen procedurally from this point forward
[42] I will deal with each issue in turn.
Issue #1- Accommodation
[43] In my decision of December 21st, 2018, I set out Ms. Roberts’ request for accommodation, as well as my views on that request (see paragraphs 12-19). In summary, I provided Ms. Roberts with some accommodations in the presentation of her case. The Court has honoured all reasonable requests for accommodation except one.
[44] The one exception took place on February 25th, 2020, where I did not permit Ms. Roberts to record the hearing. However, having been reminded of Ms. Roberts’ accommodation, I arranged for the Court office to provide her with an expedited copy of the transcript from that day’s hearing. In my view, this was more than a sufficient substitute for a recording of the hearing. In addition, Court recordings can be ordered by the parties if necessary.
[45] This brings me to the current circumstances. As I indicated at paragraph 34(a), above, if Ms. Roberts is seeking additional accommodations, she is required to bring a formal motion before the Court. This step is required, in my view, because any further request for accommodation in this case could result in significant delays in this case, which may be affecting Mr. Blanks’ ability to move his case forward.
[46] The mere fact that an accommodation sought by Ms. Roberts affects Mr. Blanks’ ability to move his case forward or otherwise delays the case is not a reason to deny the accommodation that Ms. Roberts may have requested. However, Mr. Blanks is entitled to know both why his ability to move forward is being affected and when he will be able to move his case forward. For that reason, I have directed that any further requests for accommodation must be brought by way of a formal motion with documentation.
[47] Accommodation requests do not exist in the air. They must be justified and, sometimes, they must be justified in the presence of the other party. Such justifications are necessary to ensure that fairness in the litigation process is not only done, but seen to be done. And fairness is the provenance of both parties.
[48] In addition, Ms. Roberts’ reference to a nebulous “accessibility request on file” makes it difficult for the Court to know what accommodations are being sought, and whether those accommodations are being met.
[49] In order to ensure that the accommodation requests were clear, in my March 30th, 2020 endorsement, I directed that, if Ms. Roberts was seeking further accommodation, she was to bring a formal motion outlining:
a) What additional accommodations were being sought.
b) How these accommodations can be provided while ensuring that the litigation proceeds in a timely way.
c) What the basis for these accommodations is
[50] I have received no formal motion from Ms. Roberts. Instead, there are three separate issues to address that have been raised by Ms. Roberts’ Affidavit and submissions to the Court:
a) Ms. Roberts’ assertion that she was “symptomatic” when she agreed to the Notice to Creditors.
b) Ms. Roberts’ statement at the end of her Affidavit that “I have available a third Doctor’s Letter, dated October 15, 2020 confirming my confidential accessibility requests, supplementing those on file with Accessibility Services since February 2018.”
c) Ms. Roberts has contacted Ms. Dorothy Spragget (formerly Ms. McIntosh) to discuss her accommodations.
[51] I will deal with each issue in turn.
[52] First, Ms. Roberts’ comment about the Notice to Creditors. Ms. Roberts has not made any specific request of the Court. However, I will address this issue as if Ms. Roberts was seeking to have the Notice to Creditors set aside and re-done. On the record before me, I am not prepared to do that for two reasons.
[53] First, unless Ms. Roberts is alleging that her symptoms prevented her from being able to understand the notice to creditors, the fact that she was “symptomatic” is not, in and of itself, a reason to have the notice set aside. On the record I have, there is no basis to conclude that Ms. Roberts’ “symptoms” prevented her from understanding the content of the Notice to Creditors or to providing an effective agreement to the content.
[54] Second, even if Ms. Roberts was unable to understand the content of the Notice to Creditors and/or agree to the content of that notice, I am of the view that the notice was more than sufficient on the facts of this case. Mr. Blanks died in 2011. The notice was being sent nearly nine years later. There is a real question as to whether the Limitations Act, 2002, S.O. 2002 c. 24 Sched “B” would be a bar to any claim that any creditor might have against Mr. Terrence Blanks or his Estate. The Notice to Creditors was sent out of an abundance of caution.
[55] The second issue is Ms. Roberts’ statement that she has additional medical evidence that is available on a confidential basis. If this evidence does not establish that Ms. Roberts requires any further accommodations from the Court, then it is not necessary for me to either be aware of it or to receive it.
[56] If Ms. Roberts is seeking further accommodations from the Court, then she has failed to either identify what those accommodations are or follow the process that I have outlined to seek those accommodations. While I appreciate that Ms. Roberts may wish to keep these matters confidential, I have explained at paragraph 46 why that may not be possible at this stage of this case.
[57] This brings me to Ms. Roberts’ communications to Ms. Spraggett (McIntosh). Ms. Spraggett advised me by way of both a conversation and a follow-up e-mail of the fact that Ms. Roberts has asked for accommodations and asked for confirmation that I had provided these accommodations. Two things flow from this correspondence, a copy of which will be provided to counsel for Mr. Blanks. To protect Ms. Roberts’ confidentiality, a copy will not be provided with the reported version of this decision.
[58] First, the accommodations outlined in Ms. Spraggett’s e-mail as being sought by Ms. Roberts have already been provided. As a result, based on Ms. Spraggett’s email to me, I do not see either a request for or a need for any further accommodations.
[59] Second, and more importantly, it would appear that Ms. Roberts was contacting Court staff directly to seek in-Court accommodations even after I had provided her with clear directions on what steps were necessary if she was seeking further accommodations. Ms. Roberts is reminded that the process for accommodation is set out at paragraph 49 and that any further accommodations remain my decision. As I have observed in these reasons and elsewhere, those accommodations will be considered and offered if they are justified.
Issue #2- Ms. Roberts’ Status as a Self-Represented Litigant
[60] In her last submission of November 9th, 2020, Ms. Roberts asserts, at paragraph 4:
The Respondent respectfully requests that this Court exercise its discretion in a liberal and broad manner in the interests of justice. With respect to this matter, there currently exists an imbalance of power and knowledge between the Applicant and the Respondent, both of whom — in their roles as co-executors in the Estate — ought to be on a level playing field in terms of their respective knowledge and awareness of all the relevant assets, debts, and liabilities of the Estate.
[61] In support of this assertion, Ms. Roberts references Whitell v. Whitell 2020 ONSC 2310. I will return to this case below.
[62] However, at this stage it is worth summarizing the steps that the Court has taken given that Ms. Roberts is self-represented. Some of these steps overlap with the accommodation requests.
[63] First, there has been Ms. Roberts’ search for counsel to assist her with this case. Ms. Roberts has been attempting to retain counsel for a year and a half. At one point, although he was not on the record, a Mr. Malcolm Mercer was making submissions on Ms. Roberts’ behalf. Indeed, the pre-trial and trial dates were scheduled taking Mr. Mercer’s availability into account. Ms. Roberts has been provided with ample opportunity to find counsel, but the litigation must proceed eventually. We are well past the point where any further delays in this action so that Ms. Roberts can retain and instruct counsel are justified. This matter has been pending before the Court for more than three years.
[64] Second, Ms. Roberts has had access to a MacKenzie friend throughout these proceedings. This is part of her accommodation as well as one of the protections that she was provided as a self-represented litigant.
[65] Third, Ms. Roberts has been provided with considerable additional time to complete various steps. This time has not been afforded to Mr. Blanks or his counsel. One example of this will suffice to illustrate my point. Ms. Roberts was given eight months (including pandemic time) to compile her documents and complete her submissions on them. Mr. Blanks, on the other hand, was given five days to provide his response to these documents. In this regard, it is also worth noting that Ms. Roberts has, in correspondence that she has filed, advised Mr. Jackson that she expects responses from him within a day of her raising issues.
[66] Finally, Ms. Roberts has been provided with the opportunity to record the hearings (except for one, as discussed above). Ms. Roberts has also been provided with detailed explanations of what was required of her at each step of the litigation. These are not steps that I would take with a litigant who was represented by counsel. Indeed, section 136 of the Courts of Justice Act R.S.O. 1990 c. C 43 prohibits a recording being made of a Court proceeding except with the authorization of the judge.
[67] Ms. Roberts’ comments about the relative knowledge of the assets, debts and the like of the estate will be addressed in the next two sections.
Issue #3- Should the Additional Documentation Provided by Ms. Roberts be Put Before the Judge Hearing the Trial of the Issues?
[68] No.
[69] To understand the reasons for this decision, I start with my jurisdiction in this matter. I am the case management judge of an Estates matter. Under Rule 75.06, my responsibility is to provide directions to the parties. Those directions include the ability to determine the issues to be decided and the procedure to be adopted in deciding that issue.
[70] I have already set out the issues to be decided in this matter. They are at paragraph 19. The procedure to be followed was, through case management, for me to identify the outstanding issues and direct a trial of an issue on them if that is necessary. Rule 75.03(3) outlines the scope of the orders that I have the power to make on an application such as this. Those orders include the issues to be decided and the procedures for bringing the matters to Court in a summary manner, where appropriate.
[71] With that in mind, I am obligated to review any additional documents to see whether they either relate to an issue that is currently in dispute between the parties or raise a new issue that could be the subject of a dispute between the parties. Therefore, a review of the documentation is required. The categories of documentation that Ms. Roberts seeks to rely upon are as follows:
a) Additional registry and land titles office documentation relating primarily to the Redstone property;
b) Financial Records of Terrence Blanks;
c) Financial Records of J.W. MacKenzie and his law firm;
d) Additional e-mail communications; and
e) Financial Records of Carol Roberts.
[72] I will review each category of documentation and explain why I view each category as being irrelevant to any of the remaining issues in this Estate and why in each case, I do not view the documents as raising any new issues that should concern the Court in the administration of the estate.
[73] Finally, I will address the issue of whether Ms. Roberts’ information is incomplete. Although Ms. Roberts has not brought a motion for third party records, in light of my obligations to self-represented litigants, I will consider Ms. Roberts’ position as if she had asked for leave to bring such a motion.
[74] Whitell stands for the proposition that, where a party in an estate proceeding is alleging bad faith, the documents relating to that allegation must be produced.
[75] However, Whitell is a decision in which there may actually have been some basis for the claims of bad faith. Whitell is distinguishable from this case because, in this case, there is no basis on the record before me for any of Ms. Roberts’ claims of bad faith or fraud on the part of Mr. Blanks. In addition, unlike in Whitell, Ms. Roberts is one of the Trustees as well as a beneficiary. She had access to all of the estate documentation throughout this case.
a) Documents Relating to the Redstone Property
[76] The documents that Ms. Roberts seeks to rely upon in respect of the Redstone property are set out at Tab A of her October 19th, 2020 Affidavit. For the most part, these documents are historical documents in that they relate to transactions on the Redstone property that happened before the Redstone property passed to the Estate and was sold in 2016.
[77] There are several problems with Ms. Roberts’ assertion that these new documents should be considered by the trial judge. First, they are not relevant to any issue that the trial judge has to determine. These documents relate to a piece of property that the Estate has already sold for fair market value. I have spent considerable time in my December 21st, 2018 decision explaining why I am of the view that the property was sold for fair market value and why there should not be any inquiry into the sale of the property.
[78] Second, Ms. Roberts’ request to include these documents is simply an attempt to re-litigate the issues that I already determined nearly two years ago, after an extensive hearing in which Ms. Roberts agreed that I had everything I needed to decide the issues. The parties are entitled to finality in the litigation of their case, and permitting Ms. Roberts to reopen the issue of the sale of the Redstone property at this late stage would be an abuse of process.
[79] Finally, Ms. Roberts has not provided any explanation in her Affidavit as to why these documents were not disclosed earlier. For example, one of the mortgage documents that Ms. Roberts seeks to rely upon was signed in 1967, more than fifty years before I made my original decision. It was also registered on title at that time. There is no explanation as to why this document was not provided by Ms. Roberts at the original hearing of this motion. Other documents are of the same vintage and there is no explanation for why these documents were not provided earlier either.
[80] The closest I have to an explanation is Ms. Roberts’ assertion that she does not know whether the title to the Redstone property was clear when it was sold. There are two problems with that argument. First, there is nothing in the documents that Ms. Roberts provided showing that there is any problem with the title. Second, even if there was a problem with the title to the property, that would be the purchaser’s problem and it has been five and a half years since the transaction closed.
[81] Finally, given that a deadline of April 2019 was set for the production of any additional relevant documents, it would be contrary to the purposes of the case management process to permit Ms. Roberts to rely on this document at this late stage, even if it had some arguable relevance.
[82] For these reasons, the documents relating to the title on the Redstone Property are not relevant and cannot be relied upon at the trial of the issues in January.
b) Financial Records of Terrence Blanks
[83] Tabs B, C, D, E, N, Q, R, S and T include financial records of Terrence Blanks. As far as I can tell from Ms. Roberts’ Affidavit, she is alleging that these records show the following:
a) That the Redstone property was placed into a Real Estate Income Trust (“REIT”), in part allegedly to provide Mr. Brian Blanks with benefits during Terrence Blanks’ lifetime.
b) That there was some fraudulent activity with respect to this investment and, perhaps, other assets owned by Mr. Terrence Blanks.
c) That there are other assets that have been concealed by Mr. Blanks, acting in concert with Ms. Roberts’ ex-husband Gil Roberts.
[84] Ms. Roberts makes the following assertion about the REIT in her Affidavit:
I now believe my families’ homes and other property I was unaware of, were placed in Trusts held by corporations created for the purposes of collateral to back securitized-mortgage pools, to purchase other homes and to asset protect within bare trust agreements, that had they been disclosed to me, I would know disqualified the First Dealings, and the T1079 Tax Exemption applied to Terry’s Estate Trust Return.
[85] In addition, Ms. Roberts seems to be suggesting that there are both additional unknown assets of the estate and that Mr. Blanks owes the estate an unknown amount of money. I will deal with all of these issues separately.
The REIT
[86] The REIT that Ms. Roberts refers to is a publicly traded fund that produces income (and, perhaps capital gains) for the people who hold units in it. The fact that Mr. Terrence Blanks owned units in a REIT does not mean he had put his own real property into a REIT.
[87] Further, there is nothing else in any of the records that have been filed that would show (or even suggest) that the Redstone property was ever put into a REIT. Finally, there is nothing on the documents I have that would suggest that Mr. Terrence Blanks owned any other real property. All I have is Ms. Roberts’ belief that other property that she was unaware of was put into REIT’s. In light of those facts, I cannot conclude that any real property beneficially owned by Mr. Terrence Blanks was put into a REIT.
[88] In any event, as I have noted, the REITs in this case are all from publicly traded financial companies. They provide information and tax receipts to their investors. The tax receipts that Ms. Roberts has filed show that these investments managed by these publicly traded companies were reporting income to Mr. Terrence Blanks, which he was declaring on his income tax return.
[89] Finally, in his submissions, Mr. Jackson traces the funds from the REIT through the documents that Ms. Roberts has provided. Those documents show that Mr. Terrence Blanks took the REIT and investments at ScotiaMcLeod and moved them to CIBC. In addition, the documents show that there was a slight decrease in the value of Mr. Terrence Blanks’ net worth at this time period (approximately $17,000.00), a decrease that is commensurate with him as a retiree withdrawing income to live on.
[90] The facts surrounding the REIT and the other investments are not relevant to the remaining issues that are to be decided in this case, and do not raise any new issues that need to be inquired into.
The Allegedly Fraudulent Conduct
[91] Ms. Roberts appears to be arguing that Mr. Blanks is engaged in a fraudulent conspiracy with her ex-husband and others. The nature of this alleged conspiracy is not explained in Ms. Roberts Affidavit.
[92] There are two problems with this argument. First, I have already addressed the allegations of fraud against Mr. Blanks and Mr. Gil Roberts in my December 21st, 2018 decision. Attempting to re-litigate these issues is arguably an abuse of process.
[93] However, Ms. Roberts does rely on documents that were not provided in 2018. Putting aside any issue of whether those documents should have been produced in a timely way, these new documents still do not disclose any fraud. Nor do they disclose any connection between Mr. Gil Roberts and Mr. Blanks. The only evidence of any connection between Mr. Gil Roberts and Mr. Blanks is Ms. Roberts’ assertion that there is a connection.
[94] However, even if I was prepared to accept this bald assertion, it would not be sufficient to found a claim. Ms. Roberts would also have to show that there was some sort of link between Mr. Blanks, Mr. Gil Roberts and the Estate. There is no sign of such a link in the materials that I have before me.
Additional Unknown Assets
[95] In her October 19th, 2020 Affidavit, Ms. Roberts states the following:
I believe the reason for the REIT is that Terry provided financial benefits to Brian during his lifetime. I believe he created a separate trust or trusts for tax reasons and to keep things equal. Between 2006 and 2008, Brian was distraught that he could not obtain a mortgage after his acrimonious divorce from Dorothy. Terry asked me about creating a corporation with Terry, me and Brian as equal partners, and putting Brian’s home under the ownership of a corporation. I said to my father I did not want to own a business with Brian. I believe he implemented a different strategy to make sure he was not favouring Brian, an that Brian is withholding information about his financial dealings with my father.
[96] In addition, Ms. Roberts asserts that she had a conversation with Mary-Lynn Cooney, Mr. Terrence Blanks’ accountant in April of 2020 where Ms. Cooney allegedly told Ms. Roberts that Mr. Terrence Blanks had a business.
[97] An incorporated business would have records through the Government of Ontario or Government of Canada, depending where the business was registered. There are no records of any business in the documents that Ms. Roberts has provided on this motion. Further, Ms. Roberts does not provide any information to support her assertion of a conversation with Ms. Cooney. In the absence of any evidence to support this claim, I am not prepared to delay the trial of the issues that I have ordered.
[98] Next, if Mr. Blanks’ home had been owned by a corporation, the corporation’s information would have appeared on the parcel registers that have been filed as part of the materials in this case. No such registration appears on Mr. Blanks’ home as far as I can see, and Ms. Roberts has certainly not pointed to any such registration in the documentation.
[99] Finally, there is Ms. Roberts’ assertion that Mr. Blanks is withholding information about his financial dealings with Mr. Terrence Blanks. There are two problems with this assertion:
a) Even if Mr. Blanks was withholding this information, one would also expect to find that information in the Estate’s records. Ms. Roberts has not pointed to anything in the estate’s records over and above information relating to the Promissory Notes that would suggest a debt owing from Mr. Blanks to the Estate.
b) Ms. Roberts does not provide any specifics about either Mr. Terrence Blanks’ “different strategy” or what financial information Mr. Blanks is withholding.
[100] For these reasons, I am not persuaded that any of the documents relating to this issue should be admissible.
Mr. Blanks Debts to the Estate
[101] The debts that Mr. Blanks allegedly owes to the estate are a matter that remains in dispute. However, Ms. Roberts asserts that “a dispute currently exists as to the scope, nature and extent of that debt.” That statement is not completely accurate.
[102] There is a dispute as to whether Mr. Blanks is responsible for paying two promissory notes to the estate. One note is for $52,000.00 and the other is for $14,448.74. Ms. Roberts has never identified any other dispute about debts owing by Mr. Blanks to the Estate prior to her November 9th, 2020 submission as far as I am aware.
[103] At this point, as I have noted above, there is a real question as to whether any other claim made by Ms. Roberts is barred by the Limitations Act, 2002. However, I will consider the issue on its merits. In her submissions, Ms. Roberts states that her Affidavit lays “the general foundation for her reasonably held belief that the Applicant is in possession of undisclosed relevant records.”
[104] Ms. Roberts’ Affidavit does not provide this foundation. Indeed, the only evidence that Ms. Roberts provides about debts owing to the estate by Mr. Blanks is a statement from 2008 that Mr. Terrence Blanks was frustrated by the fact that Mr. Blanks would not sign promissory notes, as well as Ms. Roberts’ bald allegation that there was, somehow, a business in this case.
[105] There are two problems with the alleged statement of Mr. Terrence Blanks:
a) The statement was made in 2008. Ms. Roberts has been aware of this statement throughout the litigation, but raises it for the first time twelve years later and on the eve of trial.
b) The fact that Mr. Blanks would not sign promissory notes has been overtaken by the fact that, according to Ms. Roberts, he did sign promissory notes. In other words, this allegation appears to pre-date the alleged promissory notes that Ms. Roberts is seeking to rely on to establish the alleged debt.
[106] In other words, this “frustration” may be evidence to prove the promissory notes. It might also be evidence to support the existence of the promissory notes, if it is admissible at trial. However, it is not evidence that, standing on its own, proves the existence of any other debt from Mr. Blanks to the Estate. It is also a fact that Ms. Roberts has known for twelve years. Ms. Roberts has provided no good explanation for why she has not raised this fact sooner.
[107] Later in the same paragraph, Ms. Roberts states “I believe they [Brian and Terrence Blanks] set up a business corporation created for the purpose of a Trust to deal with money my father loaned Brian for a mortgage.” Again, this is a statement of belief that is not supported by any documentary evidence. I have already addressed this issue above at paragraphs 97 and 98.
[108] Finally, there is a procedural impediment to Ms. Roberts raising this issue at this late date. In my March 14th, 2019 endorsement, I provide each party with forty-five (45) days to provide particulars of the debt (or debts) that they say the other side owed the Estate. These issues are being raised for the first time more than a year and a half after the deadline for raising them passed. Parties are entitled to some finality in the litigation of their cases and to revisit this issue on the basis of Ms. Roberts’ beliefs would amount to an abuse of process.
Conclusion on Financial Records of Terrence Blanks
[109] For all of these reasons, Ms. Roberts is not permitted to rely upon these additional documents for the trial of the issues in January of 2021.
c) Financial Records of J.W. MacKenzie and His Law Firm
[110] The documents that Ms. Roberts has provided relating to Mr. MacKenzie’s law firm and his accounts are set out at Tabs F, G, H, I and K. In terms of Mr. MacKenzie, it must be remembered that he was retained to act by the Estate on the sale of the house. The only work that Mr. MacKenzie is alleged to have done relating to the Estate is the sale of the house as well as possibly some mediation work. There is an allegation by Ms. Roberts that Mr. MacKenzie was retained as her lawyer as well, but it is not necessary to address that issue for the purposes of these proceedings. The issues in this case concern the administration of the Estate.
[111] Ms. Roberts alleges that she has not received any proper “Client Trust Ledger or Statement of Trust Proceeds, for over three years”. As I have noted above, the issues between Ms. Roberts and Mr. MacKenzie were removed from the Estate litigation. Ms. Roberts was personally assigned any interest that the estate may have in matters relating to Mr. MacKenize’s representation, as well as any responsibilities for costs associated with litigating those interests.
[112] As a result, Ms. Roberts commenced an Application for documents against Mr. MacKenzie. On August 19th, 2019, Chalmers J. issued an order requiring the production of certain documents, which Ms. Roberts now has.
[113] Based on these documents, Ms. Roberts alleges that various improprieties are revealed. These alleged improprieties include:
a) Two cheques being issued for the funds that Mr. MacKenzie was holding in trust for the estate.
b) Alleged improper courier charges.
c) The alleged improper billing of an account.
d) The possibility that Mr. MacKenzie was acting for Mr. Gil Roberts, Ms. Roberts’ ex-husband.
[114] The first three alleged improprieties can all be dealt with together. Ms. Roberts complains (at paragraph 26 of her Affidavit) that “despite His Honour’s order of March 4th, 2019 [ie my March 4th, 2019 decision] requiring the specific sum of $553,007.25 be paid into court forthwith, J.W. MacKenzie paid the proceeds by two separate cheques…” Ms. Roberts goes on to complain about other alleged irregularities, some of which she set out in the letter at Tab K of her Affidavit. The fact remains that the entire sum that was deposited in Mr. MacKenzie’s trust account has been transferred to the accountant of the Superior Court of Justice. These procedural concerns are not relevant to any of the issues that the Court has left to determine, as there is no shortfall in the money that Mr. MacKenzie deposited with the Court.
[115] Further, the dispute over the account has been resolved, as far as the Estate is concerned, by way of an order flowing from an agreement where Mr. MacKenzie waived his account, and Ms. Roberts agreed to pursue any issues in respect of the sufficiency of Mr. MacKenzie’s documentation outside of the Estate litigation. This is the proceeding that resulted in the Order of Chalmers J.
[116] Ms. Roberts is re-litigating issues that have already been resolved. There is no reason on the records before me to re-open the issue of Mr. MacKenzie’s account or his representation given that it has been resolved for more than a year and given that there is no evidence that reopening this issue will benefit the Estate in any way.
[117] This brings me to Ms. Roberts’ claim that there is, somehow, a relationship between Mr. MacKenzie and her ex-husband, Gil Roberts. There are three problems with this assertion:
a) There is no evidence to demonstrate that there is a connection between Mr. MacKenzie and Mr. Gil Roberts. The only connection that Ms. Roberts mentions is that Mr. Gil Roberts discharged a mortgage from a property on the same day in 2016 that Mr. MacKenzie’s account showed two courier charges for the Estate. From this information alone, no reasonable inference can be drawn that Mr. MacKenzie was acting for Mr. Gil Roberts. The only other alleged link between Mr. MacKenzie and Mr. Gil Roberts is in an e-mail where Mr. MacKenzie refers to awaiting for the reply of Mr. Roberts. When this e-mail is read in context, it is clear that this is a typographical error and that they are awaiting a response from Mr. Blanks.
b) Even if Mr. MacKenzie was acting for Mr. Gil Roberts on the sale of a house, there is no evidence that (at the time) this transaction would have put him into a conflict with the estate. In any event, however, as I have described above, the funds paid to Mr. MacKenzie as a result of the sale of the estate have been fully paid into Court. Therefore, even if there was a conflict, there is no loss that the Estate has suffered.
c) In my December 21st, 2020 decision, I have already ruled that there is no link between the sale of the Redstone property and Ms. Roberts’ matrimonial litigation. As a result, this matter is arguably res judicata. In any event, however, the reasons that I provided in my December, 2018 decision continue to apply.
[118] I should not leave the issues in relation to Mr. MacKenzie without a specific discussion of the e-mails that Ms. Roberts has provided (Exhibits H and I to her Affidavit). These e-mails are not relevant for two reasons:
a) They concern the relationship between the Estate, Ms. Roberts and Mr. MacKenzie. This is an issue that has already been resolved.
b) There is no explanation as to why these e-mails were not produced in advance of the questioning that took place in this case back in 2017. Their late production, without an explanation for the delay in producing them, raises concerns.
[119] In addition, I should note that the e-mails contain some privileged information about settlement discussions that, in any event, might be inadmissible.
[120] For all these reasons, none of the documents relating to Mr. MacKenzie and his law firm are relevant to this action or raise any issues that need to be considered in this action.
d) Additional E-mail Communications
[121] At Exhibit J of Ms. Roberts’ Affidavit, there is a series of e-mails between her and Mr. Jackson. These e-mails generally deal with the issue of the sale of the house, and the tax treatment on the sale of the house.
[122] However, there is no explanation from Ms. Roberts as to why these documents are relevant to the remaining issues in dispute between the parties. In addition, a number of these documents are marked without prejudice and would not be admissible in any event.
[123] Finally, these documents are discussions between the Trustees as to how the Estate should be administered. With the exception of the T-1098 issue, they do not go to any of the outstanding issues before the Court. On the T-1098 issue, the emails outlining the positions of the parties will not further the Court’s inquiry at all. The parties positions are well-known. It is the facts underlying those positions that are relevant.
e) Documents Relating to Carol (and Carole) Roberts
[124] At Tabs L, M, O, P, Ms. Roberts has provided a number of documents relating to credit searches that she had performed on herself, as well as other financial information that seems to relate to a different person, who spells her name Carole Roberts and is associated with an Oral Roberts. Ms. Roberts seems to suggest that these documents show that she was the victim of an identity theft.
[125] None of this documentation relates, in any way, to the issues that are left to be determined in this case. I start with the documents related to Carole Roberts. There is a property in New Tecumseh that is owned by an Oral and Carole Roberts, and another property in Newmarket that is owned by the same Oral and Carole Roberts along with one other person. The title abstracts make it clear that the properties were purchased and sold, and financed. I am not sure how these even demonstrate that an identity theft has taken place. It seems to me on their face that these documents relate to someone else. Ms. Roberts provides no evidence to show that these documents relate to her.
[126] This brings me to the letter at Tab P. That document is the mortgage on a property that Ms. Roberts owned with her ex-husband, Gil Roberts. That document spells Ms. Roberts’ name as Carole rather than the proper spelling of Carol. It was signed by Ms. Roberts at the time with the proper spelling of her name, and no irregularity was raised about the mortgage itself as far as I am aware. I do not see how this document relates to the other documents, as it is quite possible that there is another Carole Roberts in Ontario. It is also quite possible that there is another Carol Roberts in Ontario. Further, I do not see how the RBC mortgage document supports an identity theft.
[127] The credit bureau reports may support an identity theft. However, even if Ms. Roberts had been the victim of an identity theft, she would have to raise at least some evidence to suggest that Mr. Blanks was, somehow, involved in this identity theft and was involved in it in his role as a Trustee of the Estate. On the records I have, there is simply no evidence to even raise that conclusion as a possibility, much less evidence that actually supports that conclusion.
[128] For the foregoing reasons, none of the documentation related to Ms. Roberts’ claim of identity theft is relevant to the issues to be tried, and none of it raises new issues with respect to the administration of this Estate. As a result, this documentation may not be relied upon at the hearing in January of 2021.
f) Allegedly Incomplete Information
[129] Ms. Roberts’ Affidavit makes reference to incomplete information. In particular, at paragraph 9, Ms. Roberts states:
However, my information is incomplete. Other lawyers and accountants have refused my requests for disclosure, possibly due to conflicts or concerns over client privilege. They are Marvin Talsky, my father’s (and Brian’s) lawyer, Mary-Lynn Cooney, my father’s (and Brian’s) accountant, and CIBC, my father’s (and Brian’s) bank. I made requests to each of them about the REIT and my father’s finances generally, which were not answered.
[130] There are three problems with this assertion. First, Ms. Roberts was asked on the record in 2019 whether there was any additional documentation that she wanted to rely upon. Further, Ms. Roberts confirmed in October of 2019 that there were no more procedural issues to address in this case and that it was ready for trial. As a result, this is a very late request.
[131] Second, Ms. Roberts provides no evidence for her assertion that she has asked these individuals for additional information and that this information has been refused. In the absence of any evidence that these requests have been made, the Court has no basis for assuming that the requests have been made and refused.
[132] Third, Ms. Roberts provides no basis to demonstrate that these individuals would have any relevant information. I have explained why the claims about the Redstone property, Mr. MacKenzie’s files and any alleged relationship between Mr. Blanks and Mr. Gil Roberts are not relevant. It is not clear, on the materials that have been filed, how these individuals would have documentation that was related to the narrow issues in dispute in this case.
[133] In addition, it is not clear how any of the individuals in this case would have relevant information to the issues that remain in dispute in this case. As a result, I am not prepared to issue any orders for third party records on the basis of the materials before me. This brings me to Ms. Roberts’ requests for additional documentation from Mr. Blanks.
Issue #4- Should Mr. Blanks be Required to Provide Additional Documents?
[134] In her reply submissions submitted November 9th, 2020, Ms. Roberts asks the Court to issue a very broad and sweeping disclosure Order as against Mr. Blanks. Ms. Roberts’ proposed Order reads as follows:
The Respondent seeks an order from the court for the following:
a. That the Applicant disclose to the Respodent [sic] all documents, records, and correspondence in the Applicant's possession, and/or of which the Applicant is aware, that might reasonably be considered as relevant and necessary for the Respondent to determine the assets, debts, and liabilities (past, current, and prospective) of the Estate. Such information includes, but is not limited to, the following:
i. Brian Blanks to provide forthwith copies to Carol Roberts of all Estate records, documents and knowledge he maintains affecting Terry Blanks, the Estate of Terence Blanks, Redstone Road, Mississauga, Ontario, the First Dealings probate exemption, the Land Transfer from Trustee to Beneficiary tax exemption, the T-1079 capital gains tax exemption and relevant Trust Returns and agreements.
ii. Brian Blanks to provide forthwith Carol Roberts with Brian's signed Authorization and Direction for the Canadian Imperial Bank of Commerce and affiliate corporations to release copies of all records affecting Terry Blanks, the Estate of Terence Blanks, 7382 Redstone Road, Mississauga, Ontario, the T-I 079 capital gains tax exemption and relevant Trust Returns including any business accounts or partnership or corporate or shareholder or unitholder or Trust Agreements or Mortgage Investment Corporations including those found at the Airport Road Branch.
iii. Brian Blanks to provide Carol Roberts with all solicitor client communications regarding Gilbert "Gil" Roberts and counsel and 7382 Redstone Road, Mississauga, Ontario.
b. That the court order the Applicant to provide all necessary consents and authorizations to enable the Respondent to obtain bank, financial and legal records relevant to the assets, debts and liabilities of the estate (past, current and prospective)
[135] In an e-mail sent the same day Mr. Jackson on behalf of Mr. Blanks objected to this proposed order, as described at paragraph 40, above.
[136] I did not call on Mr. Jackson to respond to Ms. Roberts’ request for two reasons. First, the submissions that Ms. Roberts made were reply submissions, and Mr. Blanks has no right to reply to them. Second, even if Mr. Blanks did have a right to reply to these submissions, I am dismissing Ms. Roberts’ requests on a number of grounds and it was not necessary to hear from Mr. Blanks’ counsel with the exception of one issue that I will come to.
[137] My grounds for dismissing the bulk of Ms. Roberts’ request are:
a) The request that Ms. Roberts has made is not proportional, as that term is understood in the discovery process.
b) Many of the requests made by Ms. Roberts relate to issues that have already been determined by my previous decision.
c) Ms. Roberts’ Affidavit provides no basis for these requests that relates to the estate.
d) The requests are made in an attempt to delay the trial of this action.
[138] I am of the view that each of these reasons is sufficient to dismiss most of Ms. Roberts’ requests for production from Mr. Blanks, although not every reason applies to every request. I will deal with each item in turn. I should also note that it is open to me to have dismissed these requests on the basis that they were a procedural matter, and Ms. Roberts had already agreed that no further procedural steps needed to be taken in this case. I am not doing that, and am addressing the requests on their merits.
a) Proportionality
[139] This is a principle that applies to all of the requests that Ms. Roberts has made. It must be remembered that this was, at the outset, a simple estate. There was a house, some chattels, a couple of sentimental items (rolex watch and ring). As is often the case, each child allegedly had some money that they had received from Terrence Blanks before he died, and the question of how to treat that money is still a live issue. There is also an issue of occupation rent versus trustee compensation that remains to be determined. The remaining issues in this litigation, however, are narrow and discrete.
[140] There were no issues raised about any hidden assets, any assets that by-passed the estate or any of the other claims that Ms. Roberts is currently making. All there is left to determine in this case is how the funds that have been paid into Court, less than $600,000.00, are to be distributed.
[141] At this point, Mr. Blanks died nearly ten years ago, and the parties have been engaged in an acrimonious dispute since at least the Redstone property was sold in May of 2016. The case is being case-managed, and moved towards trial.
[142] This forms the context for Ms. Roberts’ very broad and sweeping disclosure request. Proportionality is a key principle in the Court’s consideration of whether the documents should be disclosed. In that regard, consideration needs to be given to the stage that the litigation is at, the burden that would be put on Mr. Blanks if he was ordered to provide this documentation and the potential for the information that is being sought to relate to the issues in dispute.
[143] Most of the information that is being sought by Ms. Roberts is irrelevant to the very narrow questions that are being litigated in this case. As a result, a Court should not order its production. For example, the production related to the First Dealing probation exemption is irrelevant at this stage, as this information does not relate to an issue that is in dispute in this case.
[144] There may be a few requests that have some arguable relevance to the issues remaining in this case, and I will address those in the rest of my reasons.
[145] More importantly, however, this broad sweeping disclosure request will have two negative effects. First, it will put a very significant burden on Mr. Blanks for an estate that has less than $600,000.00 in assets. Second, it will result in an indefinite, and perhaps very significant delay in the trial of this matter. As a result, the disclosure requests need to be closely scrutinized to see if they relate to any issues in dispute.
b) Requests Relate to Issues Previously Decided
[146] In her production request, Ms. Roberts seeks two types of documents that relate to issues I have already addressed, as follows:
a) Documents relating to the relationship between Mr. Blanks and Ms. Roberts’ ex-husband, Gil Roberts.
b) Documents relating to the sale of the Redstone house.
[147] I will deal with each category in turn.
Documents Relating to Gil Roberts
[148] I have already ruled that documentation relating to Mr. Gil Roberts is not relevant to this hearing. However, there are other issues that Ms. Roberts has raised with respect to her ex-husband.
[149] In her October 19th, 2020 Affidavit, Ms. Roberts states the following:
I am also concerned lawyers for the estate act on instructions from my ex-husband, Gilbert Roberts (“Gil”) who is neither an estate executor or beneficiary, and who has no authority with respect to my Trust entitlements. I separated from Gil in December 2007. Our divorce proceedings have been acrimonious. Gil’s instructions have not been disclosed to me, and they can only be adverse to my interests
[150] The problem with this submission is that Ms. Roberts says that she is concerned that the Estate Trustee (i.e. Mr. Blanks) is acting on instructions from Gil Roberts and then goes on to say that those instructions haven’t been disclosed to her. The fact that Ms. Roberts is “concerned” that Mr. Blanks might be acting on instructions from Gil Roberts does not mean that Mr. Blanks is acting on those instructions.
[151] It is up to Ms. Roberts to demonstrate some link between her ex-husband and the administration of this estate. I have reviewed both the documents that Ms. Roberts has filed as well as her submissions and I can find no such link. There is no basis in the record before me to support this request, and I decline to Order it.
Documents Relating to the Sale of the Redstone Property
[152] This issue can be easily dealt with. At paragraphs 76 to 82, I outlined why the additional documentation relating to the sale of the Redstone Property was not relevant. For the same reasons, the request for further production of documents relating to the Redstone property is denied. It is an issue that has already been determined.
c) The Affidavit Raises No Basis for Production
[153] I have already addressed the issues relating to Mr. Gil Roberts and the Redstone property in the previous section. Those issues have already been litigated. For reasons I have discussed elsewhere, Ms. Roberts’ Affidavit and new documents do not disclose any reason to re-inquire into those issues even if I was persuaded that there was a justification for failing to provide these documents before the fall of 2020.
[154] However, there are also documents that Ms. Roberts seeks in addition to these, that should be addressed in this part of my analysis.
Documents Relating to Mr. Blanks’ Alleged Indebtedness to the Estate
[155] At paragraph 12 of her last submissions, Ms. Roberts states that:
As evidenced by the Will of the deceased, the Applicant was indebted to Terry Blanks at the time the Will was created. A dispute currently exists as to the scope, nature, and extent of that debt. Accordingly, the Applicant owes the Estate and its beneficiaries the fullest transparency, to ensure that the Applicant is not abusing his administrative powers in a self-interested manner intended to shield the history of the liabilities of the capital of the Estate from the purview of the co-executor, the beneficiary, and this court.
[156] This submission must be considered in the context of the issues that have been defined in this case. In my December 21st, 2018 reasons, at paragraph 135(b), I defined the scope of Mr. Blanks’ alleged indebtedness to the Estate as follows:
Whether Mr. Blanks owes the estate monies. In particular, Ms. Roberts alleges that there are promissory notes of $52,000.00 and $14448.74 from Mr. Blanks to the estate.
[157] In that decision, I went on (at paragraph 138 (a)) to direct the parties that they were to provide their submissions at least fourteen days in advance of the next hearing date as to whether this list of issues was complete or whether there were any additions or deletions.
[158] I duly heard submissions from the parties on the issues in dispute and issued my March 14th, 2019 endorsement. There was no indication at that time that Ms. Roberts was claiming that the Estate was owed any other debts.
[159] In her current submissions, Ms. Roberts has not provided any evidence, other than her belief, that Mr. Blanks owes any further debts to the Estate. In the absence of even a hint of evidence of such a debt, the Court should not permit Ms. Roberts to go on an unlimited fishing expedition into these documents.
[160] That being said, Ms. Roberts does appear to be entitled to an Order directing that Mr. Blanks produce all of the documents in his possession relating to, or touching upon the Promissory notes that will be one of the issues at trial in this matter. In reviewing my notes, the Court orders and my endorsements it does not appear that a production order has actually been made.
[161] Mr. Blanks’ counsel, Mr. Jackson, has not provided a specific position on this very narrow issue. As a result, if Mr. Blanks objects to a production order in the form described in the previous paragraph, he is to advise my judicial assistant within seven (7) calendar days of the release of these reasons, setting out the reasons for his objection in submissions of no more than two (2) single-spaced pages. If Mr. Blanks does not object to this production order, he is to produce the relevant documents as soon as possible if they have not already been produced.
Documents Relating to Other Assets Held by the Estate
[162] Simply put, there is no evidence that the Estate has any additional assets. Ms. Roberts has asserted her belief that there were assets of Mr. Terrence Blanks that bypassed the Estate. However, the problem with Ms. Roberts’ submission in this regard is that she states that the assets that allegedly by-passed the estate included the Redstone property.
[163] It is clear that the Redstone property did not by-pass the Estate. Indeed, the Redstone property is by far the largest asset in the Estate, and has formed a significant source of the litigation in this matter.
[164] There is also no evidence that Mr. Terrence Blanks owned any other real property at any point in his lifetime, and there is no evidence that he ever put any real property or other assets into trusts when he was alive. In any event, even if Mr. Terrence Blanks had put assets into other trusts, then those trusts would have a legal existence of their own and would not be Estate property.
[165] For these reasons, Ms. Roberts requests for documentation relating to other assets and to trust agreements and ledgers is dismissed.
The T-1098 Issue
[166] As far as I understand it, the documentation related to the T-1098 issue has been generated since Mr. Terrence Blanks’ passing. As a result, it should all be in the possession of both Trustees. Therefore, I do not see the need for a further Order.
d) The Requests Are Made to Delay the Trial in This Matter
[167] In her submissions, Ms. Roberts states that the trial cannot proceed until she has received the full and complete disclosure that she asks for. I must consider that request against the conduct of the litigation as a whole.
[168] In my decision in December of 2018, I outlined what I thought the issues in dispute were in this case. The parties had a case conference with me on March 4th, 2019 in which they agreed that the issues were limited to the ones I had identified.
[169] The requests that Ms. Roberts is making do two things. First, if granted, they would reopen issues that have already been resolved. Second, they would make the litigation longer and more complicated. I start by noting that the mere fact that granting a disclosure request would make litigation more complex is not, in and of itself, a reason to deny the request.
[170] However, the context of this litigation must be remembered. The additional requests made by Ms. Roberts are attempts to re-open issues that have already been decided. Further, these requests are made mere weeks before a trial, in response submissions and in such a way that, if granted, it would prevent the trial of the issues from proceeding.
[171] In addition, Ms. Roberts waited until her reply submissions to raise the issues of disclosure. This is something that a party represented by counsel would not have been permitted to do, and suggests to me that Ms. Roberts may have been engaged in a strategy of delay by springing this request on the Court at the last possible moment.
[172] Ms. Roberts herself in her submissions states that the trial cannot proceed until she receives this disclosure. Given that my decisions on the Redstone property and on Mr. Gil Roberts were clear, there is no basis for raising these issues again other than to delay the matter. As a result, I conclude that at least some of these requests have been made by Ms. Roberts in part to delay the trial of this matter.
Issue #5- What Should Happen Next?
[173] I have dismissed all of Ms. Roberts’ requests to either rely upon or obtain additional documentation with one exception, that I expect Mr. Blanks will be able to address in short order. As a result, I see no reason why the trial should not proceed during the January blitz.
[174] It must be remembered, however, that the February 25th, 2020 hearing was for the purposes of addressing witness lists and will-say statements. A further case conference needs to be held on those issue as soon as possible. At that time, any other requests that anyone may wish to make can be raised.
[175] At this point, I should be clear as to what I expect will happen next. I expect that the trial of the issues I have identified will take place in January of 2021, and that a decision will be rendered. Once that decision is rendered, the only issues that would appear to remain are the completion of the last pieces of paperwork for the estate, the determination of costs for the various portions of the proceeding that have taken place before me, and the distribution of the funds for the estate. Now is the moment to raise any additional issue that anyone believes is outstanding, so that I can provide directions on how to deal with those issues. Those issues will be canvassed at our next appearance.
[176] However, I understand that the parties have a pre-trial before Emery J. in this matter, and that this pre-trial is set for December 16th, 2020. I am of the view that this matter should return before me for further directions at 9:00 a.m. on December 17th, 2020 unless Emery J. is content that the matters may proceed to trial without further directions. A Zoom link will be provided to the parties, and Ms. Roberts is welcome to have her MacKenzie friend present.
[177] In the meantime, the parties are to provide each other with the names and “will-say” statements of their witnesses prior to the pre-trial. For Ms. Roberts’ assistance, a will- say statement is a one to two page outline of the evidence that a witness being called at trial would be expected to give. Will-say statements are not required for the parties, as they have already exchanged particulars.
[178] In the event that the parties need subpoenas for their witnesses, we can also discuss that at our next appearance or Emery J. can assist the parties in this regard at the pre-trial.
Conclusion and Costs
[179] For the foregoing reasons, I am ordering as follows:
a) The documents that Ms. Roberts seeks to rely upon at the trial of the issues in January are excluded and cannot be relied upon in that proceeding.
b) With the exceptions of paragraphs (c) and (d) below, Ms. Roberts’ further production requests are dismissed.
c) I am inclined to issue a production order requiring Mr. Blanks to produce all documents in his possession control or power relating to the promissory notes, in the event that he has not already done so. As a result, Mr. Blanks’ counsel has seven (7) calendar days to object to such an order, failing which it shall become a final Order.
d) In the event that Mr. Blanks’ counsel does object to the order described in paragraph (c), he must provide his submissions of no more than two single-spaced pages within seven (7) calendar days of today’s date.
e) The parties are to attend at the pre-trial before Emery J.
f) The parties are to attend at a case conference before me on December 17th, 2020 at 9:00 a.m. for forty-five minutes unless Emery J. determines that he can address all of the outstanding matters for the trial of the issues that I have identified.
[180] I retain jurisdiction to address the costs of this part of the proceeding, as with all other steps that have taken place before me, once the proceeding is concluded.
LEMAY J
Released: November 30, 2020
[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Blanks v. Roberts, 2020 ONSC 7133
COURT FILE NO.: CV-17-3356-00ES
DATE: 2020 11 30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Brian Blanks
Plaintiff
- and -
Carol Elizabeth Roberts
Defendant
REASONS FOR JUDGMENT
LEMAY J
Released: November 30, 2020