INTRODUCTION

[1] The issue to be decided here is whether the applicant may cross-examine the deponents of the affidavits that the respondent Tara Kay intends to use in her motion for an order dismissing parts of his Application with respect to the respondent, Michael McCormick’s Powers of Attorney prior to that motion being heard. I would answer that in the affirmative.

[2] Michael McCormick is 89 years of age. He is the father of the applicant David McCormick, of the respondent Tara Kay and of John McCormick, Larry McCormick, Jimmy McCormick and Terry McCormick. His wife, Joan McCormick died in February, 2019.

[3] Michael McCormick’s original Powers of Attorney for property and for personal care listed both David McCormick (hereinafter “David”) and Tara McCormick (a.k.a. Tara Kay)(hereinafter “Tara”) jointly as his attorneys, to succeed their mother as such upon her death. New Powers of Attorney for property and personal care dated January 18, 2019, the “2019 Powers of Attorney”, made Tara the sole attorney and David only the alternate.

[4] David brought the Application in this matter in January, 2020. In the Application, he challenges the validity of any powers of attorney for property or for personal care of Michael McCormick being used by Tara.

[5] Tara brought a Notice of Motion for, among other things, an order dismissing the portions of the Application challenging the validity of the 2019 Powers of Attorney. This was referred to as the “threshold motion”.

[6] David is supported in this matter by the affidavit of his brother, John McCormick and by the affidavit of his nephew, Michael McCormick, a grandson of the respondent Michael McCormick.

[7] Tara relies on her own affidavit and those of Larry McCormick, Kimberly McCormick, who is the spouse of Larry McCormick, and Ashley McCormick, Larry and Kimberly’s daughter, as well as an affidavit to come from the respondent Michael McCormick’s financial advisor.

[8] The two sides’ affidavits conflict with respect to the execution of the 2019 Powers of Attorney.

[9] This matter was conferenced by Kurke J. on April 9, 2021. He identified a preliminary issue with respect to the threshold motion, that being whether the applicant has the right to cross-examine on the respondent’s affidavits, which the applicant wants to do.

[10] The respondent’s submission is that sections 39 and 68 of the Substitute Decisions Act (SDA) and Rule 75 apply, that there is a leave requirement that the applicant must meet under the SDA and that there is a minimum evidentiary threshold requirement that the applicant must meet under Rule 75.

[11] The SDA, in subsection 39(1) dealing with powers of attorney for property and subsection 68(1) dealing with powers of attorney for personal care says that, if an incapable person has an attorney under a continuing power of attorney (i.e. a power of attorney for property) or a power of attorney for personal care, the court may give directions on any question arising in connection with the power of attorney. Subsections 39(3) and 68(3) say that a request for such directions may be made by a list of persons which does not apply in this case, “or by any other person with leave of the court”.

[12] To obtain that leave, Tara submits that David must meet the minimum evidentiary threshold set out in the cases of Neuberger v. York[^1] and Seepa v. Seepa[^2]. Only then, Tara submitted, would David be able to cross-examine on the affidavits that she had filed.

[13] In Neuberger, the Ontario Court of Appeal dealt with proceedings brought under Rule 75 of the Rules of Civil Procedure to challenge the validity of a deceased’s wills (there were two, a primary and a secondary will). The court found that an interested person has the right to request formal proof of a testamentary instrument, but is not entitled as of right to have it proved, or proved in a particular manner. These were within the discretion of the court.[^3] It held that the interested person “must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved”.[^4]

[14] In Seepa, Meyers J. dealt with a motion under Rule 75 for directions in a will challenge. Following Neuberger, he applied the minimum evidentiary threshold test and explained the policy reasons for that test.

[15] My reading of Rule 75 indicates that it applies only to the estates of deceased persons. In particular, whereas Rule 75.01 reads as follows:

An estate trustee or any person appearing to have a financial interest in an estate may make an application under rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs,

Rules 75.06(1) and (2) read as follows:

75.06 (1) Any person who appears to have a financial interest in an estate may apply for directions, or move for directions in another proceeding under this rule, as to the procedure for bringing any matter before the court.

(2) An application for directions (Form 75.5) or motion for directions (Form 75.6) shall be served on all persons appearing to have a financial interest in the estate, or as the court directs, at least 10 days before the hearing of the application or motion

Forms 75.5 and 75.6 explicitly refer only to the estates of deceased persons.

[16] In Abrams v. Abrams[^5], filed by Tara, the court dealt with a motion in writing for directions with respect to a dispute regarding powers of attorney. There is no mention of SDA subsections 39(3) or 68(3). The court stated that it accepted the submissions that “the purpose of Rule 75.06 is to design a procedural regime that will suit the nature of the dispute…”. There is no analysis nor explanation of how a matter involving powers of attorney, not wills, fell under Rule 75.06. The court went on to make an order giving directions.

[17] In Botelho v. Faulkner[^6], also filed by Tara, the court dealt with motions within applications under the SDA. They were not brought under subsections 39(3) or 68(3). Both parties relied on the Neuberger and Seepa cases. Fowler Byrne J. wrote that “Rule 75.06 governs all contentious estates proceedings”[^7], and applied the minimum evidentiary threshold test. Again, there is no indication of how the decision was made that such estate proceedings included matters under the SDA and not just the estates of deceased persons. Consequently, I am not persuaded that it is appropriate to deal with this matter under Rule 75 or to apply the minimum evidentiary threshold test.

[18] Turning to the SDA, subsections 39(1) and (3) and subsection 68(1) and (3) explicitly apply to situations involving “incapable persons”. Under the SDA, “incapable” means “mentally incapable”.[^8] Also, there is a presumption of capacity.[^9] The SDA has different tests for capacity to manage property and capacity to give a power of attorney for property. Similarly, there are different tests for the capacity for personal care and the capacity to give powers of attorney for personal care. The question of whether the respondent Michael McCormick is incapable in any of these senses was not addressed. The applicant’s documents only speculate about this. Therefore, it is an open question as to whether subsections 39(1) and (3) and subsections 68(1) and (3) apply in his situation. Even if they do, no cases have been provided or have been found which set out a specific test for granting leave.

[19] The applicant relies on Rule 39 of the Rules of Civil Procedure.

[20] Rule 39.01 provides that:

Evidence on a motion or application may be given by affidavit unless a statute or these rules provide otherwise.

[21] Rule 30.02 then allows for cross-examination of the deponents of any affidavits served by a party who is adverse in interest on the motion, as of right. It does not depend on leave of the court.

[22] Tara has brought a motion, supported by affidavits. That motion would proceed and be decided upon the affidavit evidence filed by each side. Neither side would have the opportunity in the hearing of the motion to test the evidence of any affiant for credibility, reliability or clarity. The only opportunity to do so would be in prior cross-examination. Cross-examination is a valued tool of our legal system for exposing the truth in matters. Going without it would risk having the court make a decision on inaccurate and incomplete evidence. That is sufficient reason in my opinion to permit the cross-examination by the Applicant.

[23] Furthermore, in Neuberger, the purpose given for the minimum evidentiary threshold test was to protect estates from needless expense and litigation. All the applicant had to do was adduce or point to evidence that calls into question the validity of the testamentary instrument. The court would generally then order the instrument to be proved and give directions on the procedure for doing so within Rule 75.06.

[24] In Seepa, Meyers J. expanded on the policy considerations behind the minimum evidentiary threshold requirement. It was to protect from lengthy, intrusive, expensive documentary collection and investigation proceedings untailored to the needs of the individual case[^10] and from intrusion into a deceased’s privileged legal files and personal medical records[^11]. In the face of these, a litigant was not to be given tools such as documentary discovery that are otherwise ordinarily available to a civil litigant before the litigant has produced some evidentiary basis to proceed.[^12]

[25] Cross-examination on the affidavits in question would not be contrary to Neuberger or Seepa. It would not involve intrusion, protracted proceedings and the associated negative consequences which those decisions were concerned about. In speaking generally about such proceedings, the only specific example given in them was documentary discovery[^13]. In Neuberger, cross-examination was not said to be objectionable and, in fact, had taken place[^14]. Indeed, it had also been done in the cases of Joma v. Jaunkalns[^15] and of Naismith v. Clarke[^16]. Both of these dealt with will challenges and explicitly referred to the minimum evidentiary threshold requirement and the Neuberger and Seepa cases.

[26] If the minimum evidentiary threshold test does apply in the present case, I find that it has been met. It appears not to be a very high bar, which is fitting at a preliminary stage before all of the information becomes available. In Neuberger, as mentioned above, the court indicated that the applicant need only adduce or point to evidence that calls into question the validity of the instrument which the propounder does not successfully answer[^17]. In the present case, there are conflicting affidavits regarding the validity of the 2019 Powers of Attorney. Without more, the court would be unable to resolve the differences on a motion.

[27] In addition, the interests of a vulnerable person such as Michael McCormick must be protected. Powers of Attorney are very powerful instruments for affecting those interests. This is a further reason not to terminate prematurely the process on technical grounds.

The Honourable Justice James A. S. Wilcox

Released: July 26, 2021

COURT FILE NO.: Sudbury File: CV-20-8999-00

DATE: 20210726

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DAVID McCORMICK

Applicant

– and –

MICHEAL McCORMICK, TARA KAY and THE OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE

Respondents

DECISION ON MOTION

WILCOX, J.

Released: July 26, 2021

[^1]: 2016 ONCA 191 [^2]: 2017 ONSC 5368 [^3]: Paras. 82 and 87 [^4]: Para. 88 [^5]: 2008 CarswellOnt 7786 [^6]: 2020 ONSC 6471 [^7]: Para. 19 [^8]: Section 1(1) [^9]: Section 2 [^10]: Para. 2 [^11]: Para. 28 [^12]: Para. 35 [^13]: Seepa, para. 35 [^14]: Paras. 43 and 124 [^15]: [2019] ONSC 6788 [^16]: [2019] ONSC 5280 [^17]: Para. 89

McCormick v. McCormick, 2021 ONSC 5177

Case Summary

INTRODUCTION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 5

Legal Tests 1