ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-17-1323
DATE: 2020/06/04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BARBARA COHEN
Applicant
– and –
STEVEN ERIC COHEN, in his capacity as Trustee of the Estate of SIDNEY COHEN, Deceased
SUSAN CHARENDOFF
Respondents
Stephen Victor, Q.C., for the Applicant
Marta Siemiarczuk and Daniel Schwartz, for the Respondent, Steven Eric Cohen in his capacity as the Trustee of the Estate of Sidney Cohen, Deceased
Susanne Sviergula, for the non-party witness, Kenneth Radnoff
No one appearing for the Respondent, Susan Charendoff
HEARD: December 17, 2019
AMENDED amended rULING on motion
The text of the original Ruling on Motion of January 6, 2020 was corrected on January 8, 2020 at para. 62.6 and again on June 4, 2020, and the explanation of the correction is appended.
corthorn J.
Background
[1] Barbara Cohen and the late Sidney Cohen were married on July 1, 1986. They remained married until Sidney’s death on January 4, 2017.
[2] Barbara and Sidney entered into two domestic contracts during their relationship: a marriage contract on June 30, 1986, the day before their wedding (“the Marriage Contract”), and an amending marriage contract on August 25, 2008 (“the Amending Contract”).
[3] Sidney was represented by the late Arnell Goldberg with respect to the Marriage Contract. When she executed the Marriage Contract, Barbara dealt with Kenneth Radnoff, Q.C. For the Amending Contract, Barbara was represented by the late Gary Steinberg.
[4] On this application, Barbara seeks to have both domestic agreements set aside, an order for an equalization payment from Sidney’s estate (“the Estate”), an order for dependent support, and other relief. The issue of the validity and enforceability of the Marriage Contract (“the Issue”) has been bifurcated from the balance of the proceeding. The trial of the Issue is scheduled to proceed as part of the May 2020 sittings in Ottawa.
[5] Barbara describes the Issue as “the single most important issue in the proceedings”: see Barbara’s factum, at para. 16. The Estate agrees with that description, submitting that “[t]he importance of the validity and enforceability cannot be overstated”: see the Estate’s factum, at para. 5.
[6] If Barbara is successful in having the Marriage Contract set aside, the Estate is at risk of having to make an equalization payment of several million dollars to Barbara. That payment would be over and above the amounts gifted by Sidney during his lifetime to Barbara, and the bequests to Barbara in Sidney’s will.
[7] Of the three lawyers and two parties who were involved with the drafting and/or execution of the two domestic agreements, only Barbara and Mr. Radnoff remain alive. Neither Mr. Radnoff nor Mr. Goldberg’s firm has their respective file related to the Marriage Contract.
[8] Barbara signed the Marriage Contract in Mr. Radnoff’s presence. An Affidavit of Solicitor sworn by Mr. Radnoff is affixed to the Marriage Contract. In that affidavit, Mr. Radnoff states that he:
a) advised Barbara with respect to the terms of the Marriage Contract;
b) believes that Barbara was fully aware of the nature, consequences, and effect of the Marriage Contract; and
c) believes that Barbara signed the Marriage Contract voluntarily.
[9] In support of her request that the Marriage Contract be set aside, Barbara makes a number of allegations regarding Mr. Radnoff’s dealings with her on June 30, 1986. Barbara’s allegations are in stark contrast to the contents of Mr. Radnoff’s Affidavit of Solicitor. In summary, Barbara alleges the following:
• all of the arrangements for the Marriage Contract were made by Sidney without any consultation with her;
• she knew nothing about the Marriage Contract prior to meeting with Mr. Radnoff on June 30, 1986;
• she believed that Mr. Radnoff was Sidney’s lawyer; and
• she did not receive independent legal advice from Mr. Radnoff.
[10] Separate and apart from the allegations related to the execution of the Marriage Contract, Barbara alleges that Sidney exerted undue influence over her.
[11] This application is being case-managed by Justice Shelston. Pursuant to a case management order, the parties are proceeding to the questioning of each other no later than January 15, 2020. Pursuant to the same order, this motion was scheduled and the parties are to proceed with the questioning of Mr. Radnoff, if ordered, no later than January 31, 2020. Justice Shelston also prescribed a timetable for answers to undertakings in follow-up to questioning.
[12] Both Barbara and the Estate seek an order, pursuant to r. 20(5) of the Family Law Rules, O. Reg. 114/99 (“FLR”), permitting them to question Mr. Radnoff, as a non-party, prior to trial. The Estate seeks additional relief in the form of an order for the questioning of Mr. Radnoff to be recorded and the recording to be available for use at trial.
[13] Barbara does not object to the questioning of Mr. Radnoff being recorded; she does not, however, request relief in that regard. Barbara insists that Mr. Radnoff must testify at trial. Mr. Radnoff opposes the request for questioning. He does not object to the questioning, if ordered, being recorded.
[14] Mr. Radnoff describes the questioning requested as “the approach of last resort”: see Radnoff factum, at para. 25. Mr. Radnoff proposes that (a) he deliver a “will say” statement (“the Statement”), and (b) if either Barbara or the Estate have follow-up questions regarding the Statement, those questions can be addressed through written interrogatories.
The Issues
[15] The issues to be determined on this motion are:
Have Barbara and the Estate satisfied the onus they bear to establish that the three-part test pursuant to r. 20(5) of the FLR has been met, entitling them to question Mr. Radnoff?
Is something more than questioning required to preserve Mr. Radnoff’s evidence? If so, what is the appropriate relief?
Disposition
[16] The parties have met the onus they bear to establish that they are entitled to question Mr. Radnoff prior to trial. However, given the importance of Mr. Radnoff’s evidence to the Issue and his age, the recording of questioning of Mr. Radnoff is not sufficient; his evidence must be preserved.
[17] The use at trial of the recording of Mr. Radnoff’s evidence taken prior to trial shall be restricted to circumstances where Mr. Radnoff is ultimately unable to testify and the trial judge orders that the recording be relied on as evidence.
Issue No. 1 - Have Barbara and the Estate satisfied the onus they bear to establish that the three-part test pursuant to r. 20(5) of the FLR has been met, entitling them to question Mr. Radnoff?
a) Positions of the Parties and of Mr. Radnoff
[18] The parties are in agreement as to the significance of Mr. Radnoff’s professional dealings with Barbara on June 30, 1986. Mr. Radnoff does not dispute that his evidence is important to the determination of the Issue at trial.
[19] The parties submit that, without the benefit of questioning Mr. Radnoff, they are prejudiced in a number of ways. The parties allege that they are prejudiced both with respect to the pre-trial stage and in preparing for trial. The alleged prejudice includes the following:
• If Barbara’s evidence, that she had no prior knowledge of the Marriage Contract, is accepted, then Mr. Radnoff is the only person alive with knowledge as to the circumstances surrounding the creation and drafting of the document;
• Regardless of whether Barbara’s evidence is accepted, the Estate is at a particular disadvantage because it has no witnesses available with respect to the Issue; and
• Without the benefit of questioning Mr. Radnoff, both parties are unable to consider the merits of their respective positions, enter into meaningful settlement discussions, and prepare properly for trial.
[20] The parties submit that questioning of Mr. Radnoff is a proportionate, cost-effective, and efficient approach. They submit that the production of the Statement, followed by written interrogatories, will be inefficient, time-consuming, and possibly more costly than questioning.
[21] Mr. Radnoff submits that the information sought by the parties is “easily available” through production of the Statement and, thereafter, if necessary, through written interrogatories (i.e., a method other than questioning). As a result, he argues that the parties are unable to satisfy the second part of the three-part test pursuant to r. 20(5).
b) The Law
[22] The parties bring this motion pursuant to r. 20(5) of the FLR. This provision addresses the questioning of and disclosure by either a party or a non-party:
The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:
It would be unfair to the party who wants the questioning or disclosure to carry on with the cause without it.
The information is not easily available by any other method.
The questioning or disclosure will not cause unacceptable delay or undue expense.
[23] The party requesting an order for questioning bears the onus of satisfying the three-part test set out above: Weber v. Merritt, 2018 ONSC 308, 11 R.F.L. (8th) 177, at paras. 29 and 30. The court ought not to exercise its discretion to order questioning unless the three-part test is clearly met: Zafir v. Diamond (2008), 2008 CanLII 15231 (ON SC), 53 R.F.L. (6th) 209 (Ont. S.C.), at para. 25.
[24] In Birdi v. Birdi, 2015 ONSC 1974, 58 R.F.L. (7th) 274, Emery J. reviewed what at first glance appeared to be two different approaches historically taken by the court on motions for questioning. He referred first to the “traditional approach”, in which the value of questioning was recognized: paras. 18-20. He contrasted that approach with the “more restrained approach” to questioning, whereby “good reason” must be shown before questioning is ordered: paras. 21-25.
[25] Ultimately, Emery J. concluded that the authorities are not as divided as they appear: “the cases that reflect a less adversarial approach each turn on a significant element to merit an order against questioning. Those cases that have found questioning a usual, if not an essential tool generally involve facts where no mitigating reason stands out against the utility of questioning”: para. 26.
[26] At para. 29 of his decision, Emery J. provides a non-exhaustive list of the functions questioning is intended to fulfil:
It is helpful, if not constructive to consider the issue of questioning in terms of the functions it should provide. In my view, the purpose of questioning includes, but is certainly not limited to:
the new facts;
test the facts of the other party, including matters of credibility;
narrow the issues in the case; and
in all respects, assist the trier of fact and the adjudicative process generally.
[27] The potential for questioning of a non-party to lead to settlement discussions is also a factor to be considered when an order for questioning is requested: Elgner v. Elgner, 2010 ONSC 5238, at para. 35.
[28] When addressing the first part of the three-part test under r. 20(5), how is potential unfairness to be assessed? At para. 15 of his decision in Tsakiris v. Tsakiris, D.M. Brown J. (as he then was) held that the focus in answering this question is the materiality of the information sought, and whether preventing a party from securing the evidence would have a material effect on the determination of an issue: (2007), 2007 CanLII 44184 (ON SC), 45 R.F.L. (6th) 186 (Ont. S.C.). Or, as he put in the alternative, “without the information from the non-party would the party lack material evidence lying outside his or her control that would be required to establish an element of its claim, whether on a motion or at trial?”
c) Analysis
[29] Mr. Radnoff agrees that the parties have the right to “his information” prior to the trial of the Issue in May 2020: see Radnoff factum, at para. 21. He accepts that the parties satisfy part one of the test pursuant to r. 20(5).
[30] Mr. Radnoff takes no position with respect to part three of the test—whether the questioning requested will cause unacceptable delay or undue expense. He considers that issue to be entirely within the purview of the parties.
[31] This matter is case managed. A deadline has been set for questioning of Mr. Radnoff, if ordered. The parties agree that questioning of Mr. Radnoff, if ordered, will not result in any unacceptable delay. The parties also agree that questioning is a proportionate approach given the monetary values involved. Questioning, if ordered, will not result in undue expense to either party.
[32] I find that parts one and three of the three-part test are clearly met.
[33] Central to Mr. Radnoff’s opposition to the relief requested is his position with respect to the second part of the test. He argues that the parties have failed to establish that the information they seek “is not easily available by any other method”. Mr. Radnoff points to his willingness to produce the Statement and, thereafter, if necessary, answer written interrogatories.
[34] For the following reasons, I find that the parties have clearly satisfied the second part of the test. The information the parties seek is not available through the production of the Statement and/or written interrogatories. To quote Emery J. in Birdi, the questioning of Mr. Radnoff will in this case be “a usual, if not an essential tool” and “no mitigating reason stands out against the utility of questioning”: see para. 26.
[35] Mr. Radnoff is a key witness whose evidence at trial will, for the most part, be oral because he no longer has the file related to his retainer in this matter. The parties are already in possession of the two documents from his file that remain available––the Marriage Contract and the Affidavit of Solicitor affixed to it.
[36] Mr. Radnoff argues that, because his retainer was a single-task retainer (i.e., related only to the Marriage Contract), he can, in the Statement, cover the subject matters relevant to the Issue. I disagree.
[37] Mr. Radnoff may well understand the principle issue to be determined at trial in May 2020. He is not, however, privy to the discussions between the parties and their respective counsel that address matters specific to this case, the nuances that may affect the parties’ respective theories of the case, and the factors that each party considers most or least critical to their respective cases, etc. Those matters cannot be addressed in a meaningful way through the Statement and written interrogatories.
[38] The parties are entitled to know the full case before them: Pizzaro v. Kretschmann, 2019 ONSC 3143, at para. 11. I find that, through questioning of Mr. Radnoff, the parties would, with the degree of flexibility and spontaneity required, be able to probe Mr. Radnoff’s evidence, assess his credibility, and determine the strength and detail of his memory of the events leading up to and that occurred on June 30, 1986 (i.e., more than 33 years ago).
[39] In summary, questioning of Mr. Radnoff is a proportionate, cost-effective, and efficient method by which the parties will be able to ascertain all of the types of information they (a) seek from Mr. Radnoff, and (b) require to meaningfully carry out pre-trial steps and preparation for trial.
[40] The use that may be made at trial of answers given on questioning by an individual who is unable or unwilling to testify at trial is addressed in r. 23(17) of the FLR. Pursuant to that subrule, and absent any other order of the court, the remedy available to a party who seeks to rely on answers given on questioning is to permit the party to read into evidence all or part of the answers or information given on questioning. That remedy is available at the discretion of the trial judge, who “shall consider” the following:
(a) the importance of the evidence;
(b) the general principle that trial evidence should be given orally in court;
(c) the extent to which the person was cross-examined; and
(d) any other relevant factor.
[41] The parties recognize the importance of Mr. Radnoff’s information. For that reason, they request that questioning of Mr. Radnoff be recorded. They want to be able to do more than read in his evidence should he be unable or unwilling to testify at trial.
Issue No. 2 - Is something more than questioning required to preserve Mr. Radnoff’s evidence? If so, what is the appropriate relief?
a) The Positions of the Parties and of Mr. Radnoff
[42] The Estate requests that questioning of Mr. Radnoff be recorded. Neither Mr. Radnoff nor Barbara object to the questioning being recorded. The Estate and Barbara differ, however, on the terms to be imposed with respect to the potential use of the recording to be made at trial. Barbara insists that the use, if any, to be made of the recording at trial be left entirely to the discretion of the trial judge.
[43] Mr. Radnoff is in his early eighties. There is no evidence that he has any medical condition that might preclude him from giving evidence at trial. For that reason, the Estate is no longer pursuing its original request for Mr. Radnoff’s evidence to be taken de bene esse. Instead, the Estate relies exclusively on Mr. Radnoff’s age in support of its request for an order that (a) Mr. Radnoff’s questioning be recorded, and (b) the recording be preserved for use at trial if Mr. Radnoff is unable to give evidence at trial and subject to the discretion of the trial judge.
b) Analysis
[44] The trial is imminent. The importance of Mr. Radnoff’s evidence to the determination of the Issue cannot be overstated. At age 82, Mr. Radnoff is at risk of developing health concerns unexpectedly and in short order. Well-aware of all of these factors, the parties request that questioning of Mr. Radnoff be recorded.
[45] There is nothing in the FLR that provides for questioning to be recorded. For that reason, the parties rely, by way of analogy, on Rule 36 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”).
[46] Rule 36 provides that “[a] party who intends to introduce the evidence of a person at trial may, with leave of the court or the consent of the parties, examine the person on oath or affirmation before trial for the purpose of having the person’s testimony available to be tendered as evidence at the trial”: r. 36.01(2). Subrule 36.02(1) recognizes the importance of the procedure to be followed when evidence is taken before trial: “A witness examined under rule 36.01 may be examined, cross-examined and re-examined in the same manner as a witness at trial.”
[47] Subrule 23(18) of the FLR is analogous to Rule 36 of the Rules in that it allows for evidence to be taken prior to trial. Subrule 23(18) of the FLR states that “[t]he court may order that a witness whose evidence is necessary at trial may give evidence before trial at a place and before a person named in the order, and then may accept the transcript as evidence.”
[48] Subrule 23(18) of the FLR does not, however, provide for preservation of evidence by recording nor does it provide for the use of a recording as evidence at trial (as does Rule 36). There is nothing in the FLR that prescribes the procedure to be followed when evidence taken before trial is recorded.
[49] The purpose of Rule 36 was reviewed by Pierce J. in Smith v. Discovery Diamond Drilling Ltd. et al., 2015 ONSC 5960, 80 C.P.C. (7th) 370, at paras. 8-9, 13. The rule’s central purpose is the preservation of evidence where the health of a witness “or other factors” may interfere in the witness’ ability to testify. In Smith, Pierce J. relied on the fact that a witness was 71 years old as a factor when making the order for the preservation of evidence.
[50] I find that, because of Mr. Radnoff’s age, the importance of his testimony to the Issue, and the fact that he is the only witness—other than Barbara—available to give evidence with respect to the Marriage Contract, something more than questioning is required. I order that Mr. Radnoff’s evidence be taken prior to trial, that the taking of his evidence be recorded, and that the recording be preserved for use at trial.
[51] I also emphasize that it remains entirely within the discretion of the trial judge to determine whether the evidence preserved by the recording is used at trial in place of viva voce testimony from Mr. Radnoff. The importance of Mr. Radnoff’s evidence is such that it needs to be preserved for use at trial, but it should only be used in the event that he is unable to testify and the trial judge orders that the recording be relied on as evidence.
[52] As was noted by Power J. in Russett v. Bujold, [2003] O.J. No. 5532 (Ont. S.C.), at para. 11, having individuals attend to testify at trial is the “well tested and traditionally accepted method of giving testimony. It is a process which in [Ontario], and indeed in [Canada is considered] to be a tried and true procedure”. This norm should be heeded where possible. The order made with respect to the preservation of Mr. Radnoff’s evidence accords with that norm.
[53] My order provides that, even though Mr. Radnoff’s evidence is being preserved, he shall testify at trial unless the trial judge orders otherwise. In that regard, my order differs slightly from the order made by Pierce J. in Smith. Pursuant to the order of Pierce J., the evidence recorded was to be made available for trial unless the trial judge ordered otherwise—meaning that the witnesses whose evidence was recorded would not be required to testify at trial unless the trial judge so ordered.
[54] The circumstances in Smith are distinguishable from those in the matter before this Court. First, no trial date had been set when Pierce J. made her order. It was expected that the trial was at least a year away. In the present matter, the trial is scheduled to proceed in less than five months from the date of this ruling.
[55] Second, Pierce J. considered that the two witnesses who were the subject of the order might be on vacation or required to attend medical appointments when the matter proceeded to trial. Conversely, in the present case, Mr. Radnoff is well-aware of the trial date in the matter now before the court. There is no evidence that he will, for any reason, be unable to testify at trial.
[56] Third, the order in Smith was made at a time when the action was in its infancy. Examinations for discovery of the parties had not yet taken place. There is nothing in Smith that addresses the nature of the evidence that the witnesses were expected to give or how critical their evidence was to any one or more of the issues to be determined at trial. By contrast, Mr. Radnoff’s evidence is acknowledged by all concerned to be highly relevant to the determination of the Issue.
[57] In light of the order for Mr. Radnoff’s evidence to be preserved, how, then, is the preservation of his evidence to be carried out?
c) Terms for Recording
[58] The parties and Mr. Radnoff must address a number of procedural matters. For example, Mr. Radnoff must be under oath or affirmation when questioned, and a court reporter must be present. In addition,
• In what order will counsel for the parties pose questions to Mr. Radnoff?
• How will rights of cross-examination and re-examination be addressed?
• Will Mr. Radnoff be entitled to have counsel present? If so, to what extent, if any at all, will Mr. Radnoff’s counsel have the right object to questions posed?
• How will objections, regardless of who makes them, be addressed?
[59] The parties and Mr. Radnoff disagree as to the extent to which the parties are entitled to pose questions to Mr. Radnoff about his retainer subsequent to 1986 with Barbara’s children respecting estate litigation involving an aunt. It is not possible on this motion to determine the relevance of questions in that regard. The parties and Mr. Radnoff are clearly alert to at least one area of questioning that may give rise to objections (i.e., based on relevance). A procedure by which to deal with objections must either be agreed upon or prescribed by the court.
[60] The taking of Mr. Radnoff’s evidence must be completed by January 31, 2020. In the event that the parties and Mr. Radnoff are unable, by 4:00 p.m. on Monday, January 13, 2020, to agree upon the process to be followed, they shall make arrangements to appear before me no later than Tuesday, January 21, 2020 for submissions in that regard.
[61] The parties and Mr. Radnoff shall, for that purpose, exchange and file with the court two-page, point-form summaries (exclusive of copies of authorities) setting out their respective positions. The summaries and related authorities shall be delivered no later than Friday, January 10, 2020 at 1:00 p.m. Given the tight timelines, there is insufficient time for an exchange of materials in the ordinary course; the court shall accept the materials filed by the January 10 deadline.
Summary
[62] For the reasons set out above, the court orders that:
Mr. Radnoff shall, no later than January 31, 2020, attend for his evidence to be taken prior to trial.
The taking of Mr. Radnoff’s evidence shall be recorded.
Mr. Radnoff shall, unless the trial judge orders otherwise, attend and give viva voce testimony at trial.
In the event that the parties and Mr. Radnoff are unable, by 4:00 p.m. on Monday, January 13, 2020, to agree upon the process for Mr. Radnoff’s evidence to be taken and recorded, they shall make arrangements to appear before me or, in the event I am not available, before Justice Shelston, no later than Tuesday, January 21, 2020 for submissions in that regard.
In the event the parties and Mr. Radnoff arrange to appear before the court for the purpose set out in paragraph 4, above, they shall exchange and file with the court two-page, point-form summaries (exclusive of copies of authorities) setting out their respective positions.
The summaries and related authorities shall be delivered no later than Friday, January 17, 2020 at 1:00 p.m. The court shall accept the materials filed by the January 17, 2020 deadline.
Madam Justice Sylvia Corthorn
Released: June 4, 2020
APPENDIX
In the Citation, the title of proceeding has been changed to Cohen v. Cohen Estate.
Susanne Sviergula’s name has been added as counsel for Kenneth Radnoff.
Susan Charendoff has been identified as a respondent in the title of proceeding on the first page.
COURT FILE NO.: FC-17-1323
DATE: 2020/06/04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E N:
BARBARA COHEN
Applicant
– and –
STEVEN ERIC COHEN, in his capacity as Trustee of the Estate of SIDNEY COHEN, Deceased
SUSAN CHARENDOFF
Respondents
amended amended RULING ON MOTION
Madam Justice Sylvia Corthorn
Released: June 4, 2020