COURT FILE NO.: CV-19-05249-00ES
DATE: 20220907
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE ESTATE OF ESTHER SHAFMAN, Deceased
RE: HERBEY SHAFMAN Applicant
AND:
ALLAN PAUL SHAFMAN and JERRY SALOMON SHAFMAN, in their capacities as THE ESTATE TRUSTEES OF THE ESTATE OF ESTHER SHAFMAN, Deceased Respondents
APPLICATION UNDER Part V of the Succession Law Reform Act, R.S.O. 1990, c. S-26; s. 103 of the Courts of Justice Act, R.S.O. 1990, c. C-43, and Rule 14.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194
BEFORE: A.A. Sanfilippo J.
COUNSEL: Arie Gaertner, Jonathan Pellow and Luke Schreiter, for the Applicant
John J. Adair and Morgan McKenna, for the Respondents
HEARD
(By videoconference): September 6, 2022
TRIAL MANAGEMENT ENDORSEMENT
[1] A trial management conference was conducted on September 6, 2022 in this Application, in anticipation of the trial scheduled to begin on September 12, 2022 and continue for three days. This Trial Management Endorsement will set out procedures and directions for the hearing of this Application as an in-person, hybrid trial.[^1]
Mode of Proceeding
[2] The parties requested that the trial be conducted as a hybrid trial, with all counsel and most witnesses in person, and one witness testifying remotely. This is consistent with the Guidelines: Mode of Proceedings – Criminal, Civil, Family, Small Claims, effective April 19, 2022, Part C (Presumptive Guidelines to Determine Mode of Proceeding in Civil Matters), s. 9:
Judge-alone trials:
- All judge-alone trials will be held in person unless all parties consent to a virtual trial and the Court approves. The Court may consider the option of a hybrid proceeding and whether a witness, at the request of either party, may be permitted to testify virtually by videoconference.
[3] The trial of this Application shall be conducted as a hybrid proceeding, with all counsel and all witnesses, except one, attending trial in person, and one witness testifying virtually by videoconference.
Virtual Component of the Trial
[4] In regard to the testimony by videoconference of one witness, the lawyers calling this witness shall ensure that their witness has access to the technology necessary to testify virtually. Counsel shall provide their witnesses with a copy of the Superior Court of Justice “Best Practices and Etiquette for Remote Hearings” at https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/remote-hearings/. Counsel shall review with their witnesses in advance the prohibitions on recording a Court hearing under s. 136 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[5] To the extent that the witness is expected to be referred to documents electronically, the parties are expected to be familiar with Zoom, including the screen sharing function, and have readily available any document intended to be shared on screen.
Issues to be Addressed at the Opening of Trial
[6] The parties shall be prepared to address, at the opening of trial, the following:
(a) The Trial Record in this trial of an Application shall consist of the Application Record, Responding Application Record and Supplementary Application Record, together with a copy of any “order respecting the trial” and any other document as set out in Rule 48.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. As the affidavit evidence in these Application Records is being tendered as the affiants’ examination in chief, the parties shall be prepared to mark these Application Records as trial exhibits in paper form at the opening of trial (even though, for ease of reference, the documents contained within them may be consolidated, on consent, into a joint Document Book).
(b) An Agreed Statement of Facts.
(c) List of Issues.
(d) List of Authorities, with cases hyperlinked on points of law expected to arise during the trial. This may be updated during the trial.
(e) Any Bench Brief with aide memoires pertaining to expert reports.
(f) The parties may provide written opening submissions to supplement their oral opening submissions.
(g) Joint Document Brief.
[7] Regarding the Joint Document Book, the parties are encouraged to continue with their collaborative development of a Joint Document Book for use at trial, which may be supplemented by other documents during the trial, with the common objective of avoiding duplication and enhancing trial efficiency. The parties are directed to comply with the statements by the Court of Appeal in Girao v. Cunningham, 2020 ONCA 260, at paras. 21-35, and Bruno v. Dacosta, 2020 ONCA 602 at paras. 53-66, and be prepared to expressly state to the Court, at the opening of trial, their precise agreement with respect to the documents contained in the Joint Document Book. The parties shall provide a certification in writing to be marked along with the Joint Document Book.
The Exhibits
[8] As the trial will be conducted as a hybrid trial, the exhibits may be marked in paper form, in accordance with Rule 52.04, but with electronic images on CaseLines for ease of reference by the lawyers, the parties and the Court, and for ease of prompt transition to an electronic trial in the event of an unforeseen necessity to do so.
[9] The parties have been invited to CaseLines. Where documents are presented to the Court through CaseLines, the parties are expected to be familiar with the operation and use of CaseLines, including the search characteristics, and will be expected to refer to documents by their CaseLines “current” page number. The following weblink addresses frequently asked questions in the use of CaseLines: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/supplementary-notice-september-2-2020/faq-caselines/.
[10] The uploading of documents into the CaseLines folder does not constitute their filing into the Trial Record. Subject to any further Order, the exhibits in this trial will be marked in paper copy. Although counsel may refer to documents on the CaseLines folder, and copies of exhibits may be uploaded to CaseLines for ease of use, subject to any further Order, the documents will enter the Trial Record only once admitted by the Court and marked by the Registrar in paper copy, in the manner set out in Rule 52.04(1).
[11] Regarding any document uploaded to CaseLines, the party shall ensure that it is a searchable pdf version of any paper document, clear and legible, and where it contains multiple documents, is bookmarked and labelled in a manner that permits the prompt location and identification of any document contained within it. This is particularly important in relation to the Application Record, Responding Application Record and Supplementary Application Record and Joint Document Brief, which shall be uploaded into CaseLines in searchable pdf versions, for use of the electronic “search” and “find” features.
[12] The parties are presumed to have in place the technical and technological hardware and software requirements necessary to commence the hybrid trial on September 12, 2022. The parties are encouraged to test their video and audio connections prior to trial to ensure that there is sufficient connectivity and sound clarity for the purposes of the hybrid trial.
Written Submissions
[13] The parties may provide written opening submissions to supplement their oral opening submissions and shall provide written closing submissions to supplement their oral closing submissions. The parties shall be prepared to tender any written submissions for entry into the Trial Record as letter exhibits: Girao, at para. 66.
[14] The parties may raise any further trial management issue at the opening of trial. Further procedural directions regarding the conduct of the trial will be provided at that time and at any time required during the trial.
[15] In accordance with Rules 59.04(1), 77.07(6) and 1.04, this order is effective from the date that it is made and is enforceable without any need for entry and filing, and without the necessity of a formal order.
JUSTICE A.A. SANFILIPPO
Date: September 7, 2022
[^1]: For a virtual trial by videoconference, see Cave v. Hovsepyan, 2021 ONSC 4126.