Marshall et al. v. Jackson et al.
[Indexed as: Marshall v. Jackson]
Ontario Reports
Ontario Superior Court of Justice
Morgan J.
April 1, 2021
154 O.R. (3d) 715 | 2021 ONSC 2361
Case Summary
Civil procedure — Discovery — Examination for discovery — Master ordering defendant solicitor to answer questions refused at examination for discovery — Defendant's appeal allowed in part — Master erred in law by effectively requiring fact witness to research and deliver a legal opinion regarding testamentary capacity — Questions regarding use of all available means to ascertain testamentary capacity and insurance coverage issues were relevant and legitimate and had to be answered.
The plaintiffs commenced an action in negligence in relation to the defendant's preparation and attending to the execution of a will. The claim alleged that the defendant was negligent by failing to ensure that the will was not procured by undue influence or as a result of the testator's alleged lack of testamentary capacity. A master ordered the defendant to answer five questions that had been refused at discovery. The first was to advise of the texts or sources regarded by the defendant as authoritative regarding the drafting of wills. The second was to advise whether the defendant was aware of any cases or authority indicating that a solicitor was not required to document evidence of testamentary capacity. The third was to advise whether the defendant believed, at the time of the preparation and execution of the will, that he was required to make sufficient inquiries to meet the elements of testamentary capacity. The fourth was to advise [page716] whether the defendant understood that he was obliged to ensure that all available means were utilized to ascertain testamentary capacity. The fifth was to advise whether or not there were any coverage issues as between the defendant and LawPRO. The defendant appealed the master's order.
Held, the appeal should be allowed in part.
The first two refusals did not have to be answered. Those two were considered together as they effectively raised the same question of principle. The first sought an answer identifying secondary sources of law and the second sought an answer identifying primary sources of law. The master was correct that a solicitor defendant could be asked to explain his or her understanding of the appropriate professional standard, but it was not a proper question for a deponent in a professional negligence case to be asked to render an opinion on standard of care. The master erred in law by effectively requiring a fact witness to research and deliver a legal opinion.
The third refusal had already been answered and should not have been ordered to be answered again. Counsel for the plaintiff conceded as much.
The fourth refusal was a relevant question that had to be answered. The wording of "all available means" may have been excessively broad, but the very absurdity of the literal meaning of the question made it an easy one to answer. The defendant merely had to answer whether "all available means" used in the question conformed with his understanding.
The final refusal was a legitimate question on discovery. Insurance coverage may not have been a relevant topic to canvass at trial, but it was permissible to canvass at discovery for cogent policy reasons, including the fact that the answer might foster settlement. Counsel for the defendant conceded the point and the defendant had already effectively provided an answer.
Bales Beall LLP v. Fingrut, [2012] O.J. No. 4762, 2012 ONSC 4991, 356 D.L.R. (4th) 103, 220 A.C.W.S. (3d) 637 (S.C.J.), consd
Other cases referred to
Asharzadeh Estate v. Amin, [2019] O.J. No. 702, 2019 ONSC 1024 (S.C.J.); White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 S.C.R. 182, [2015] S.C.J. No. 23, 2015 SCC 23, 383 D.L.R. (4th) 429, 470 N.R. 324, J.E. 2015-767, 360 N.S.R. (2d) 1, 67 C.P.C. (7th) 73, 18 C.R. (7th) 308, 251 A.C.W.S. (3d) 610, EYB 2015-251384, 2015 CCAN para. 10,086, 2015EXP-1385
Authorities referred to
Thayer, J.B., A Preliminary Treatise on Evidence at the Common Law (1898; reprinted, Rothman Reprints, 1969)
APPEAL from an order requiring questions refused at discovery to be answered.
David Green, for plaintiffs (respondents).
Gavin Tighe and Lauren Rakowski, for defendants (appellants).
[1] MORGAN J.: — The defendant appeals from the interlocutory order of Master Sugunasiri dated December 23, 2020 in which she ordered five questions refused at discovery to be [page717] answered. The defendant submits that four of the five questions required answers that go to the ultimate issue of liability, and that the other was not specifically raised by the plaintiffs in their Notice of Motion.
[2] The motion arises in the context of a solicitor's negligence action relating to the defendant's preparation and attending to the execution of a Will. The claim alleges that the defendant was negligent by failing to ensure that the Will was not procured by undue influence or as a result of the testator's alleged lack of testamentary capacity.
[3] The questions under appeal are as follows:
Refusal #1: to advise of the texts or sources that the defendant regards as authoritative regarding the drafting of wills, including issues surrounding testamentary capacity and undue influence;
Refusal #4: to advise whether the defendant is aware of any cases or authority that indicates that a solicitor is not required to document evidence of testamentary capacity;
Refusal #5: to advise whether the defendant believed, at the time of the preparation/execution of the 2013 Will, that he was required to make sufficient inquiries to meet the elements of testamentary capacity;
Refusal #10: to advise whether the defendant understood that he was obliged to ensure that all available means were utilized to ascertain testamentary capacity; and
Refusal #14: to advise whether or not there were any coverage issues as between LawPRO and the defendant.
[4] Refusals #1 and #4 raise, in effect, the same question of principle, and so can be considered together. Refusal #1 asks the defendant to identify any texts or other legal sources going to the issues of testamentary capacity and undue influence, while Refusal #4 asks the defendant to identify any case law or other sources of legal authority going to the same issues. In other words, Refusal #1 seeks an answer identifying secondary sources of law, while Refusal #4 seeks an answer identifying primary sources of law.
[5] It was Her Honour's view at first instance that these questions must be answered. She indicated in her reasons that they are directly analogous to questions about the source of medical authority relied upon by a physician who is a defendant in a medical malpractice case. She cited Bales Beall LLP v. Fingrut, [2012] O.J. No. 4762, 2012 ONSC 4991 (S.C.J.),in which Lauwers J. [page718] stated that in negligence cases against lawyers, expert evidence of lawyers is routinely required to assist in determining the standard of care. She then went on to reason that "the fact that the trier of fact is a former lawyer does not change the requirement for expert evidence. This makes solicitors' negligence cases sufficiently similar to medical malpractice cases such that discovery principles there, are instructive here."
[6] On one hand, Her Honour was correct that a solicitor defendant, like a doctor defendant, can be asked to explain his or her understanding of the appropriate professional standard. On the other hand, it is not a proper question for a deponent in a professional negligence case -- no matter which profession is in issue -- to be asked to render an opinion on standard of care: Asharzadeh Estate v. Amin, [2019] O.J. No. 702, 2019 ONSC 1024 (S.C.J.), at para. 38. It is for the court to ultimately determine the standard of care based not on a party's views, but rather, as Lauwers J. said in Bales Beall, based on expert opinion.
[7] It is trite law to say that a party cannot function as his or her own expert, regardless of the professional qualifications of the party, since expert evidence must be "fair, objective and non-partisan": White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, [2015] S.C.J. No. 23, at para. 10. At the hearing I asked plaintiff's counsel if in identifying the sources of law on which he relied, the defendant was expected to search for sources that might be in his possession like he would be required to do for any other evidence. I pointed out in my discussion with counsel that such a search would amount to legal research, and that if the deponent was being conscientious, he would have to do a thorough job of it and canvass all of the relevant case law and leading texts.
[8] Once one goes down that road -- i.e., asking a party on discovery to produce a legal research memo -- the impropriety of the question becomes apparent. A question that asks a defendant to state not just his general understanding of the steps he should have taken in ascertaining testamentary capacity, but to research primary and secondary sources of law in an effort to provide support for legal reasoning going to the standard of care, requires a party to engage in what is considered the expert's task.
[9] This approach amounts to an error of law by Her Honour. She effectively required a fact witness to research and deliver a legal opinion, which is contrary to a first principle of the law of evidence. As the Supreme Court put it, "it is 'for the [trier of fact] to form opinions, and draw inferences and conclusions, and [page719] not for the witness'": White Burgess, at para. 14, quoting J.B. Thayer, A Preliminary Treatise on Evidence at the Common Law (1898; reprinted, Rothman Reprints, 1969), at p. 524.
[10] While the scope of permissible questions on discovery is broad, the distinction between fact and law is undermined in an approach that requires a party deponent to step out of the role of party and into the role of expert or counsel in seeking out "evidence" in the form of case law and other legal sources. This is so fundamental to the litigation process that it is a reversible error of law. Refusals #1 and #4 therefore do not have to be answered.
[11] As for Refusal #5, it has already been answered and should not have been ordered to be answered again. Counsel for the defendant took me to the portion of the transcript of the defendant's examination for discovery where he was asked whether at the time of preparing the Will he believed that he was required to make sufficient inquiries to meet the elements of testamentary capacity. The transcript shows that in response to this question, the defendant answered "Yes". Counsel for the plaintiff concedes that this is the case and that the question was already answered when it was unnecessarily ruled on.
[12] Refusal #10 is a relevant question that must be answered by the defendant. Counsel for the defendant submits that the question is simply too broad to be answerable, since it asks whether the defendant understood he was to use "all available means . . . to ascertain testamentary capacity". As defendant's counsel argues, taken literally the phrase "all available means" would encompass hiring a team of psychiatrists to evaluate the testator's mental capacity at the time of executing the Will.
[13] Defendant's counsel may have a point about the excessively broad phrasing of the question. But that does not make the question unanswerable. Indeed, the very absurdity of the literal meaning of the question makes it an easy one to answer. The question asks about the defendant's understanding of his duty to evaluate the testator's mental capacity; accordingly, the defendant merely has to answer whether "all available means" as used in the question conforms with his understanding. If it does conform to his understanding, he should say so, and if it does not conform to his understanding, he should say so. There is no more to the question than that. Her Honour was correct in requiring it to be answered.
[14] Finally, Refusal #14 regarding LawPRO coverage is a legitimate question on discovery. It certainly ought not to have taken the defendant and his counsel by surprise. Insurance coverage may not be a relevant topic to canvass at trial, but the [page720] courts have permitted it to be canvassed on discovery for cogent policy reasons (including the fact that the answer may under some circumstances foster settlement).
[15] In any case, counsel for the defendant has apparently conceded the point, and subsequent to the hearing at first instance, provided counsel for the plaintiff with an answer. Plaintiff's counsel recounts in his factum that following the hearing, defendant's counsel indicated as follows:
There is a clear potential coverage issue as a result of the baseless allegation of intentional conduct against Mr. Jackson. If that allegation is somehow made out that would of course go to the insurer's duty to indemnify. As I told David there is no issue in respect to coverage in regards to the duty to defend which LawPRO is most certainly prepared to fund. If you don't make out your intentional conduct allegation, of course, the fact that you have made and maintained it against a professional person may be relevant in regards to costs.
[16] Although it is phrased in adversarial mode, this response by defendant's counsel is, effectively, an answer to the question at hand. Her Honour was correct in requiring Refusal #14 to be answered, and it has now been answered.
[17] To sum up, Refusals #1 and #4 do not have to be answered. Refusals #5, #10 and #14 do have to be answered, although #5 and #14 have been answered already.
[18] The result of this appeal has been mixed, with success on some of the Refusals under appeal going to the defendant and success on others going to the plaintiff. Under the circumstances, there will be no costs of the appeal awarded for or against either party.
Appeal allowed in part.
End of Document