Court File and Parties

COURT FILE NO.: 202/12

DATE: 20210614

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nancy-Lee Kuehl and Paul Schaefer, personally and Nancy-Lee Kuehl, David Barry Kuehl and Paul Schaefer as Estate Trustees for the Estate of Budd Eldon Kuehl, Plaintiffs

AND:

Heather J. Ross and The Ross Firm Professional Corporation, Defendants

BEFORE: Justice R. Raikes

COUNSEL: P. Cornish - Counsel, for the Plaintiffs S. Barton and H. Cunliffe - Counsel, for the Defendants

HEARD: November 3, 2020

EVIDENCE Ruling

[1] On November 3, 2020, during Ms. Ross’ examination in-chief, plaintiffs’ counsel objected to questions asked of Ms. Ross about an estate intake form completed during a meeting with Budd Kuehl. The document listed his assets, debts, income and expenses. She testified the form would have been in the original Will file. That file along with others was converted to an electronic file. In doing so, the original file or portions of it were inexplicably lost including the intake form.

[2] The defendants did not list the missing or lost documents in Schedule C to their Affidavit of Documents. Plaintiffs’ counsel objected to questions being asked of Ms. Ross about documents no longer in existence and which he had no idea ever existed.

[3] I made my ruling after hearing submissions from counsel and indicated that brief written reasons would follow. I permitted defence counsel to ask questions of Ms. Ross on the missing document. These are my brief reasons for the ruling made.

[4] The defendants breached r. 30.03(1)(c) by failing to list relevant documents that were once in their possession but no longer were, and the reason why they were no longer in their possession.

[5] R. 30.08(1) states:

Where a party fails to disclose a document in an affidavit of documents or a supplementary affidavit, or fails to produce a document for inspection in compliance with these rules, and order of the court, or an undertaking

(a) if the document is favorable to his or her case, the party may not use the document at trial, except with leave of the trial judge; or

(b) if the document is not favorable to his or her case, the court may make such order as is just.

[6] Rule 30.03(1) contemplates a scenario where the party who failed to produce or list a document, seeks to use the document at trial. In that case, he or she can do so only with leave of the court. The decision to allow the document to be used is discretionary. One of the considerations is trial fairness.

[7] In this case, the defendants still no longer have the document. Their sin is the failure to list it and explain why they do not have it in their affidavit of documents.

[8] I offered an adjournment to permit questioning about the failure to list the document, how it was lost, and what the witness recalls of its content. That offer was declined.

[9] I ruled that the plaintiffs’ counsel is at liberty to cross-examine on the failure to disclose the existence of the document earlier and to list the document in Schedule C. The plaintiffs were also permitted to recall witnesses as needed to address this evidence in Reply.

[10] The document in question is peripheral to the main issues in the litigation. I declined to exclude the evidence as a matter of trial fairness. Mitigating measures were offered and declined and/or were available to the plaintiffs in the trial. The prejudice to the plaintiffs is minimal. The issue is best addressed in costs.

Justice R. Raikes

Date: June 14, 2021