COURT FILE NO.: CV-21-00657118-00ES/ CV-20-00652924-00ES
DATE: 20220209
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: IN THE ESTATE OF ETHEL SOLOMON, deceased
Allen Jack Solomon, Applicant
AND:
Melanie Unger and Cary Solomon in various capacities, et al, Respondents
BEFORE: Kimmel J.
COUNSEL: Justin W. de Vries / Joanna Lindenberg / Karen Watters, for the Applicant and the Respondents Katherine Solomon and Noah Solomon
jdevries@devrieslitigation.com; jlindenberg@devrieslitigation.com; kwatters@devrieslitigation.com
Bianca La Neve / John Siferd, for the Respondents,
Cary Solomon in his various capacities, and 174 Spadina Avenue Realty Ltd., Next Property Group Inc. and Jeronimo Investments Inc.
blaneve@weirfoulds.com; jsiferd@weirfoulds.com
Anne E. Posno / Jacqueline Chan, for the Respondent, Melanie Unger in her various capacities
aposno@litigate.com; jchan@litigate.com
HEARD: January 26, 2022
ENDORSEMENT- Motion Re: withdrawal of affidavits
Background and Procedural History
[1] Ethel Solomon (“Ethel”) died on July 28, 2020. Her three children, the applicant Allen Jack Solomon (“Jack”), the respondent Cary Solomon (“Cary”), and the respondent Melanie Unger (“Melanie”), are involved in complex disputes over the validity of Ethel’s various wills and the management and ownership of a commercial property at 174 Spadina Avenue (the “Spadina Property”), among other matters.
[2] Each of the siblings commenced a legal proceeding, as follows:
a. Melanie commenced an arbitration relating to, among other things, Cary's management of the Spadina Property;
b. Cary commenced an application seeking, among other things, to set aside Ethel's wills executed in 2017 and have Ethel's 2015 wills declared as her valid last wills; and
c. Jack commenced this application seeking, among other things, to set aside Ethel's 2017 wills and 2015 wills in favour of wills made in 2005 and the various codicils thereto. He is also seeking an accounting from Cary for his alleged mis-management of Ethel's property.
[3] On the consent of all parties, these three proceedings were converted to actions and ordered to be tried together by a November 4, 2021 Order of Penny J. (the “Penny J. Order"). That order sets out a litigation timetable, including the exchange of pleadings, productions, and discoveries, with a trial scheduled to commence in November 2022. The Penny J. Order changed the landscape of the litigation and it factors significantly into the outcome of this motion.
[4] Prior to the Penny J. Order, in August of 2021, Jack had brought a motion for the appointment of an Estate Trustee During Litigation (“ETDL”), the production of various financial records from Cary, and the production of records from various non-parties (the “ETDL and production motion”). At the time this motion was brought, Jack was concerned about having a “voice” and/or “window” in and to the arbitration proceeding that neither he nor the estate was a party to (although it was suggested that the estate would be bound by the outcome). He sought to achieve that through a proposed appointment of an ETDL. He was also concerned about obtaining production from Cary in the context of the three proceedings, none of which gave Jack any automatic right of discovery from Cary.
[5] Two affidavits were originally filed in support of Jack’s ETDL and production motion: one sworn on August 5, 2021 by Katherine Solomon (the applicant’s daughter, “Katherine’s affidavit”) primarily addressing the request for the appointment of an ETDL in the arbitration proceeding, and the other sworn on August 5, 2021 by Ian Wintrip (a forensic accountant, the “Wintrip affidavit”) primarily addressing the requested productions from Cary.
[6] The ETDL and production motion was originally returnable on September 23, 2021. It was adjourned on consent to December 10, 2021. Cross-examinations on affidavits sworn in support of the ETDL and production motion and other pending or threatened motions had been scheduled by counsel for November 8, 2021, in anticipation of the December 10, 2021 hearing date. In an endorsement of October 29, 2021, Penny J. wrote that the “motions scheduled for December 10, 2021… should proceed if the overall consent order being negotiated can not be concluded.”
[7] Shortly thereafter, Penny J. Order was made on November 4, 2021 that reflected the extent of what the parties had reached agreement upon to date. Among many other things, that order adjourned the ETDL and production motion and any other party’s motion to strike pleadings to January 26, 2022. The Penny J. Order provided that cross-examinations, if any, on affidavits filed in support of the ETDL and production motion or any motion to strike were to be completed by January 24, 2022. Various other procedural steps to regularize the pleadings (to be finalized by December 20, 2021) and documentary discovery (with affidavits of documents to be served by January 18, 2022) across all three proceedings.
[8] Cary later abandoned his motion to strike certain of Jack’s pleadings. Following a request from Cary’s counsel in early January 2022 for clarification of the precise relief that was being sought on the ETDL and production motion, Jack served an amended motion record on January 11, 2022. The amended motion record did not contain Katherine’s affidavit. Jack advised at that time that her affidavit was being withdrawn and no longer being relied upon in support of the amended ETDL and production motion. On January 13, 2022, the amended ETDL and production motion was further adjourned to February 10, 2022.
[9] The deadline for the delivery of affidavits of documents under the Penny J. Order was January 18, 2022. Cary’s affidavit of documents came with a caveat that certain documents were not included, and others may follow in a supplementary affidavit of documents. After having the opportunity to review what Cary had produced, a week later (at or just prior to the hearing of this motion), Jack advised that he no longer intended to rely on the Wintrip affidavit in support of the amended ETDL and production motion because the requested production from Cary was no longer being pursued in light of the documentary discovery that had been received from Cary. The intended withdrawal of the Wintrip affidavit was confirmed at the hearing of this motion.
This Motion
[10] This motion concerns the ability of the applicant to withdraw the two affidavits originally filed in support of the now amended ETDL and production motion.
[11] The applicant maintains that these affidavits have been withdrawn because the nature and scope of the relief sought on the ETDL and production motion has changed as a result of the Penny J. Order consolidating and streamlining the three proceedings (in the case of Katherine’s affidavit) and as a result of certain productions provided by Cary in his affidavit of documents recently delivered in accordance with the timetable in the Penny J. Order (in the case of the Wintrip affidavit). Simply put, the applicant argues that the motion (and affidavits in support), as originally constituted, has been overtaken by events and the affidavits no longer serve any purpose. They have not been used by the court to date and are not before the court in service of any relief now sought.
[12] The respondent Cary, who is the primary opponent of the applicant’s withdrawal of these affidavits, maintains that leave is required for them to be withdrawn and that leave should not be granted because the primary reason for their withdrawal is to shield the affiants, and in particular Katherine, from being cross-examined. Cary also argues that he will be prejudiced because of admissions contained in Katherine’s affidavit that Cary considers to be against Jack’s interests in the broader litigation.
[13] Both sides accuse each other of bad faith and of coming to court without clean hands.
a. Jack contends that Cary served a notice of cross-examination on November 10, 2021 returnable on January 6, 2022, ahead of the January 24, 2022 deadline for completing them under the Penny J. Order. Cary obtained certificates of non-attendance despite having been advised of counsel’s and one of the witnesses’ unavailability and of the applicant’s position that the cross-examinations should await the delivery of Cary’s affidavit of documents and productions, that had been timetabled for delivery on January 18, 2022. It is suggested that this was a tactical and strategic move designed to artificially entrench a right of cross-examination after Cary was alerted to the possibility that Jack might be re-considering the scope of his motion.
b. Cary contends that Jack only amended his motion after receiving the notices of cross-examination, and even then he only purported to withdraw Katherine’s affidavit and did not purport to withdraw the Wintrip affidavit until the hearing of this motion (or the evening before). At the same time, he amended his motion to seek standing to assert certain discovery rights on behalf of the estate in the ongoing litigation while holding onto the request for the appointment of an ETDL in the alternative to that relief. Cary maintains that the justifications offered for the withdrawal of these two affidavits are disingenuous and that they are being withdrawn to avoid Katherine, in particular, from being cross-examined.
Issues to be Decided and Summary of Outcome
[14] The two issues to be decided on this motion are:
a. Does the applicant need the court’s permission to withdraw Katherine’s affidavit and the Wintrip affidavit?
b. Should the applicant be permitted to withdraw these two affidavits?
[15] For the reasons that follow, I find that leave is required to withdraw these two affidavits. I am granting leave to the applicant to do so. Katherine’s affidavit and the Wintrip affidavit can be withdrawn and the amended ETDL and production motion can proceed without these affidavits.[^1]
Analysis
[16] I will deal first with the leave requirement and then with the decision to permit the applicant to withdraw Katherine’s affidavit and the Wintrip affidavit.
[17] At the outset, I recognize that there was some concern raised about the fact that the formal confirmation of Jack’s intention to withdraw the Wintrip affidavit was not provided until the hearing of this motion. However, it was acknowledged that the analysis for the court’s consideration of the withdrawal of that affidavit overlaps with the analysis relating to the withdrawal of Katherine’s affidavit, and it is most efficient and expeditious to deal with the motion for leave to withdraw both affidavits at the same time, even though the decision to withdraw them occurred, and was formally communicated to the respondents, at different times.
Leave is Required to Withdraw Affidavits Filed in Support of a Motion
[18] The Rules of Civil Procedure, R.R.O. 1990, Reg. 194, are silent on the question of whether a party can withdraw an affidavit in support of a motion. A party may abandon a motion entirely under r. 37.09 (with cost consequences), but Jack is not abandoning his motion. He has amended it, but still seeks certain (albeit different) production and discovery rights, and in the alternative, he seeks the appointment of an ETDL.
[19] I am satisfied that the evolution of the relief being sought on the ETDL and production motion was a function of the Penny J. Order and various other orders and steps taken by the parties in furtherance of the overall, laudable, objective of streamlining the related proceedings. The stated need and justification for the ETDL and production motion as originally constituted has been overtaken by events. The conversion of the various proceedings into actions to be tried together gives Jack a voice and visibility in and to all three proceedings. Further, the timetabling of pre-trial steps has provided for documentary discovery from Cary that would not have been available in Jack’s application as originally constituted.
[20] The Rules and the practice of the court encourage parties to narrow issues and focus motions as circumstances evolve, and to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits with regard to the principle of proportionality (see, for example, r. 1.04). The amended ETDL and production motion reflects the evolution of the related proceedings, by which Jack now seeks the appointment of an ETDL in the alternative to a newly constituted request for standing to examine Cary on behalf of the estate on issues relating to the estate’s interest in the Spadina Property. The production requests from Cary have now been addressed through the discovery provided for in the Penny J. Order. I will return to this later, as it is relevant to the court’s exercise of discretion on the next issue.
[21] However, the fact remains that there is still a motion pending and relief sought by Jack. I do not agree that the abandonment (refinement) of some of the relief sought on a motion should translate by analogy to r. 37.09 (abandonment of a motion and corresponding withdrawal of affidavits in support of it) into an automatic right to withdraw affidavits filed in support of certain aspects of the motion no longer being pursued. The situation is complex, and the analogy does not automatically apply. It requires a more in-depth examination of the various factors relevant to the court’s exercise of discretion when determining whether to allow the withdrawal of an affidavit.
[22] After conducting an extensive review of case law with respect to the withdrawal of affidavits, the British Columbia Supreme Court concluded in P.G. v. L.S.G., 2004 BCSC 518 (“Gill”), at para. 36 that "there is a discretion in the court to order that affidavits filed in the court file may, upon application, be withdrawn.” The Federal Court has also determined that the withdrawal of an affidavit is in the “discretion of the court”: see Law Society of Upper Canada v. Canada (Minister of Citizenship and Immigration), 2006 FC 1042, at para. 29.
[23] The factors that the court is to consider in exercising its discretion concerning the withdrawal of an affidavit on a pending motion are set out in the Gill case. The applicant argues that the underlying premise of one of the factors, whether the affidavit has been “used” or has been put before the court, is pivotal to the exercise of the court’s discretion. He suggests that, if it can be shown that the affidavit has not yet been “used” or has not been put before the court, the remaining Gill factors are not engaged and there is no need for the court to exercise its discretion. I disagree.
[24] This approach gives undue weight to one of the seven non-exhaustive factors that the court in Gill established are relevant to the court’s exercise of its discretion. The discretion must be exercised having regard to all potentially relevant factors, not just this one. Leave is required for the applicant to withdraw Katherine’s affidavit and the Wintrip affidavit in the context of the now amended ETDL and production motion.
Should the Court Exercise its Discretion and Grant Leave to the Applicant to Withdraw the Two Affidavits?
[25] The parties agree that the non-exhaustive list of factors that the court is to consider in the exercise of its discretion to allow a party to withdraw an affidavit on a motion, according to the test laid down in Gill, are as follows:
a. Was the affidavit filed by mistake?
b. Has the affidavit been used, in the sense of having been before the court, during the course of considering an application?
c. Is there a pending application before the court for which a party has indicated it intends to rely upon the affidavit?
d. Is the application to withdraw the affidavit made as a strategic or tactical decision to deny the other party access to relevant information or the ability to cross-examine the deponent?
e. Would the other party be prejudiced in any way by the withdrawal of the affidavit?
f. Are there policy considerations which would militate against a withdrawal of the affidavit?
g. Would the administration of justice be adversely affected by the withdrawal of the affidavit?
[26] Of the seven Gill factors, three are most pertinent in this case: (i) whether the affidavits have been or are before the court (there is no question that they have not yet been “used” by the court), (ii) whether there is any demonstrated prejudice to the responding parties by the withdrawal of the affidavits, and (iii) whether the affidavits are being withdrawn for the impermissible purpose of avoiding cross-examination, which also ties into the question of whether the administration of justice would be adversely affected by the withdrawal of the affidavits if it is being done for tactical or strategic reasons.
a) Have the Affidavits Been Used and/or Have They Been Before the Court?
[27] Contrary to what Cary suggests in his submissions, the "mere filing of an affidavit does not, in itself, create a situation where the withdrawal of an affidavit cannot be ordered": see Gill at paras. 13 – 14. In almost all cases, the filing of an affidavit has occurred. The consideration of whether it has been used and/or has been before the court must engage something beyond the act of filing the affidavit.
[28] The affidavits might have been “used” and/or been before the court if they had been responded to or challenged on cross-examination, but they have not been. Cary argues that this “use” was only avoided through the failure of the affiants to attend their noticed cross-examinations and, having not moved to strike the notices, it is not open to the applicant to rely upon the fact that there have been no cross-examinations when asking the court to exercise its discretion in his favour. Conversely, Jack argues that the sole purpose of the notices of cross-examination was to artificially put the affidavits into “use” and/or before the court when it was known that their purpose had been, or was expected to be, overtaken by the Penny J. Order and procedural steps taken or to be taken in furtherance thereof. In such circumstances, condoning a practice of service of notices of cross-examination and requiring the recipient of such notices to bring motions to strike them is not consistent with r. 1.04.
[29] I consider the competing allegations of bad faith surrounding the notice of cross-examination to be strategic on both sides and unhelpful to the ultimate analysis. The assessment of whether an affidavit is “before the court” involves a consideration of whether there is still a possibility that the court will be asked to consider and decide issues raised and supported by the affidavit: see Willekes v. University of Alberta, 2010 ONSC 1331, at paras. 19 –20. Jack says these affidavits are no longer being relied upon for the amended ETDL and production motion, their content has not been challenged through any responding affidavits or on cross-examination, and they therefore never have been and will not be before the court.
[30] Cary argues that, insofar as the broad issues for which the affidavits were tendered, namely the appointment of the ETDL and some production, remain as part of the relief sought on the amended ETDL and production motion, the affidavits are still before the court. That is too broad a brush. The court needs to consider the specific issues that these affidavits relate to.
[31] Having done so, I am satisfied that Katherine’s affidavit was directed at attempting to justify the appointment of an ETDL to give a voice to the estate in the ongoing arbitration, to which the estate was not a party and that was being conducted outside of the court’s process. This was viewed as necessary due to the extent of the overlapping issues and concerns about the potential for conflicting decisions. As was summarized by the arbitrator in paragraphs 18 – 19 of his May 12, 2021 decision on the jurisdiction motion that he was asked to decide:
There is an issue whether Ethel's estate is a necessary party to the arbitration. This issue is further complicated because Jack, who is not a party to this arbitration, has also sought an order in the Superior Court appointing an estate trustee during litigation in connection with a number of claims, including his claims against Cary and others, that overlap with Melanie's claims in this arbitration. Ideally, these issues relating to the estate's involvement in the arbitration should be resolved before we start an arbitration hearing. I encourage counsel to attempt to reach an agreement .... to address the estate involvement issue. If they are unable to do so, they should raise this issue with the Superior Court ...
[32] The need for the court to appoint an ETDL to represent the estate in the arbitration if the parties could not agree was reiterated by Dietrich J. in a May 12, 2021 endorsement. This was the focus of Katherine’s affidavit delivered in support of the ETDL and production motion. Katherine’s affidavit also briefly touches upon concerns about selective disclosure that Cary was making to Jack in the context of the arbitration and she previews issues that are addressed in detail in the Wintrip affidavit.[^2] These considerations have been overtaken by the Penny J. Order, which among others things, stayed the arbitration and has required the parties to frame the issues in their pleadings.
[33] The appointment of an ETDL is now only being requested in the alternative if it turns out that representation of the estate is needed in the ongoing litigation to pursue pleaded issues and if Jack (or others) are prevented from pursuing them on behalf of the estate. Katherine’s affidavit is not directed to the appointment of an ETDL in this context, or to the discovery rights that Jack is asking the court to confirm.
[34] The same applies to the Wintrip affidavit, which was directed to the identification of documents sought from Cary and companies that Cary controls (in a schedule appended to both his affidavit and the notice of motion). The applicant now says Mr. Wintrip has what he needs to complete his forensic accounting analysis after receiving and having the opportunity to review Cary’s affidavit of documents and productions that the Penny J. Order provided for. This could only be ascertained after the delivery of the affidavit of documents on January 18, 2022, especially in light of Cary’s advice in advance of that delivery deadline that not all of his intended productions would necessarily be included in what was delivered on January 18, 2022.
[35] Although the circumstances did not lend themselves to an earlier confirmation of the full withdrawal of the Wintrip affidavit, it was anticipated and alluded to in the factum that Jack filed on this motion, pending the ongoing review of Cary’s productions. As noted earlier in this endorsement, it was agreed that, although the formal confirmation of the intended withdrawal of the Wintrip affidavit was not provided until relatively late, the question of whether leave should be granted for its withdrawal could and should be dealt with on this motion.
[36] The issues to which Katherine’s affidavit and the Wintrip affidavit relate have not yet been before the court, nor will they be before the court on the amended ETDL and production motion. These affidavits do not address the issues that remain to be decided on that motion, as it has evolved.
[37] Nor do I agree with the submission made by Cary that, because Katherine’s affidavit refers to earlier affidavits that she has sworn in the litigation and that remain “before the court,” her August 5, 2021 affidavit has, as a result of this reference to her earlier affidavits, been irretrievably put before the court for all purposes in the context of the broader litigation. This does not follow logically. In any event, now that the Penny J. Order has converted the application to an action, there is no continuing purpose to having affidavits filed in support of the application before the court in the broader context of the litigation. The related proceedings will proceed to discovery and trial in the normal course based on the pleadings that have now been delivered. If there are to be affidavits used at trial, that has yet to be determined.
[38] I find that the two affidavits at issue have not been and are not “before the court” or “used” for any purpose on the pending amended ETDL and production motion.
b) Will the Respondents be Prejudiced by the Withdrawal of the Affidavits?
[39] Cary raises various arguments of prejudice, none of which have been established.
[40] Cary makes the circular argument that he will be prejudiced because he will lose the right to cross-examine Katherine if the court permits her affidavit to be withdrawn. The right to cross-examine on an affidavit is tied to the need to challenge evidence that is being tendered to the court in support of relief sought. To the extent that these affidavits are not being relied upon, and are not being used by or before the court, there is no need or “right” on Cary’s part to test their evidence.
[41] Furthermore, even if there was something to the suggestion that there is a loss of some broader procedural advantage in not being able to examine Katherine, it is pointed out by the applicant that, like all of the other grandchildren, leave can be sought to examine Katherine as a non-party in the now combined proceedings, as is expressly provided for in the Penny J. Order. Jack even allows that the fact that Katherine had previously sworn the August 5, 2021 affidavit (among others) in support of an issue in the litigation may be referred to if Cary later seeks leave to examine her, even if the court allows Katherine’s affidavit to be withdrawn in the context of his amended ETDL and production motion.
[42] Nor does the withdrawal of Katherine’s affidavit (or the Wintrip affidavit) prevent an adverse party from using those affidavits for purposes of impeachment in later testimony that they may give. These withdrawn affidavits still constitute prior sworn testimony that may be used for impeachment purposes.
[43] Cary is not prejudiced just because his ability to examine Katherine in the broader litigation as a non-party is not “as of right.” That is the procedural reality. To suggest that he is losing the ability to examine her now, in the guise of a cross-examination for purposes of the amended ETDL and production motion, demonstrates not prejudice but the loss of an improper strategic and tactical advantage that Cary seeks to obtain through persisting in a cross-examination on an affidavit that is no longer needed or being relied upon for purposes of that motion.
[44] Cary also suggested that he would be prejudiced by the withdrawal of Katherine’s affidavit because it contains “admissions” against Jack’s interests, that may not be withdrawn without leave of the court under r. 51.05. However, the said admissions have since been made directly by Jack himself in his pleadings (including in the Amended Notice of Motion for the ETDL and production motion), which have now been delivered pursuant to the Penny J. Order. There is no prejudice in allowing something that Jack’s daughter said in an affidavit that is thought to be an admission against Jack’s interests to be withdrawn when Jack has made the admission himself.
[45] During oral argument, counsel for Cary attempted to make a nuanced distinction between the statement in Jack’s pleading and the statement in Katherine’s affidavit regarding ownership of the Spadina Property. Jack stated that he was not an owner of or involved in the Spadina Property in or about 1990. Katherine’s affidavit states that “Jack is not an owner of 174 Spadina, nor a party to the Shareholders Agreement.” It was suggested that Katherine’s statement was somehow broader and permeated all relevant time periods. I do not read it that way. If anything, Katherine’s statement only addresses the present with respect to ownership but, more importantly, these are not matters within her direct knowledge. Furthermore, I note that Jack repeats the statement from Katherine’s affidavit almost verbatim in his Amended Notice of Motion for the ETDL and production motion.
[46] There is no prejudice to Cary by the withdrawal of Katherine’s affidavit and the factual statements contained in it relating to Jack’s ownership or involvement in the Spadina Property when Jack has admitted these factual points himself.
[47] In any event, I do not consider the statements contained in Katherine’s affidavit to be admissions by Jack. Thus, I do not consider r. 51.05 to be engaged and do not need to consider the three-part test that Cary has put forward for the court to consider when determining whether to grant leave for an admission to be withdrawn under that rule.
[48] None of the arguments about prejudice to Cary relate to the withdrawal of the Wintrip affidavit. Cary has not established that he will be prejudiced by the withdrawal of either of the two affidavits in question.
c) Is the Withdrawal of the Affidavits a Strategy or Tactic to Avoid Cross-Examination?
[49] It became apparent during oral argument that the factor that is most pertinent to the issues before the court on this motion is whether the two affidavits are being withdrawn to avoid Katherine being cross-examined. There is no question that the court should not permit a party to withdraw an affidavit merely to prevent cross-examination upon it. That was the court’s focus in the Law Society of Upper Canada case, at paras. 29 – 33, in which the court found it to be in the interests of justice to allow the withdrawal of an affidavit previously tendered despite the suggestion that it was being withdrawn to avoid cross-examination.
[50] Jack has put forward plausible explanations for why the original purpose of Katherine’s affidavit and the Wintrip affidavit, which he seeks to withdraw in connection with his now amended ETDL and production motion, have been overtaken by the evolution and streamlining of the proceedings that flowed from the Penny J. Order.
[51] As a practical matter, although the motion regarding the withdrawal of the Wintrip affidavit was only raised as a possibility in the notice of motion for this motion, it became a concrete reality at the motion. The timing for the crystallization of this request for withdrawal was linked to the receipt of Cary’s affidavit of documents. This was, in turn, consistent with the applicant’s position dating back to November 2021 when the notices of cross-examination were initially delivered. The applicant objected on the basis that the examinations should be conducted after the discovery production deadline so that the necessity for the continued pursuit of the documents discussed in the Wintrip affidavit (and referenced in Katherine’s affidavit as well) could be re-evaluated.
[52] Cary argues that the court should infer that preventing the examination of Jack’s daughter Katherine was and is the reason for the withdrawal of Katherine’s affidavit. Cary further argues that the last minute withdrawal of the Wintrip affidavit should be viewed as part of the effort to shield Katherine from being cross-examined. This inference is said to be available to the court based on the timing of the requests for withdrawal. The request for withdrawal of Katherine’s affidavit occurred after the notices of cross-examination were received and agreements could not be secured for their deferral. For the Wintrip affidavit, it was after the factums on this motion had been exchanged.
[53] However, the timing of the requests for withdrawal coincide with other events, such as the Penny J. Order and the eventual exchange of pleadings and productions pursuant thereto, all of which occurred after the notices of cross-examination were served. The inference that Cary asks the court to draw is not supported and is merely speculative in the face of the other plausible explanations for the timing of the requests for withdrawal of these two affidavits.
[54] The court expects parties to be nimble and responsive to changing circumstances that might impact the scope of issues to be decided. This is all the more so when motions, such as Jack’s ETDL and production motion, remain outstanding over a long period of time (this one dating back six months already). I do not consider there to be anything untoward about the evolution of the ETDL and production motion in this case, having regard to the changing litigation landscape.
[55] This is a unique situation in which a motion that was brought has evolved over a six-month period to take into account the changing litigation landscape. While the motion continues to seek relief that is of a similar nature, the justification for it has shifted and the utility of Katherine’s affidavit and the Wintrip affidavit has been eclipsed.
Final Disposition and Costs
[56] Leave is granted to the applicant to withdraw Katherine’s affidavit and the Wintrip affidavit in connection with the now amended ETDL and production motion. Those affidavits shall no longer form part of the evidentiary record on that motion. The certificates of non-attendance obtained in connection with Cary’s proposed cross-examinations of Katherine Solomon and Ian Wintrip are of no force or effect and, if necessary, are ordered to be struck or set aside. There shall be no consequence arising from the non-attendance of these witnesses, under r. 34.15 or otherwise.
[57] The parties who participated on this motion advised the court of their agreement that the losing side would pay the winning side costs fixed in the all-inclusive amount of $12,000.00. The court so orders Cary (and those other respondents upon whose behalf this motion was opposed, by virtue of their common representation with Cary) to pay Jack this amount of costs for this motion, since Jack is the successful party.
Kimmel J.
Date: February 9, 2022
[^1]: The court indicated at the close of the oral argument that the parties should assume that the January 24, 2022 deadline for completing cross-examinations on the affidavits in support of the ETDL and production motion would be extended by this endorsement if the court found that the applicant should not be permitted to withdraw these affidavits. However, no such extension of the deadline for cross-examinations is needed given the court’s determination that these affidavits can be withdrawn. On the morning of February 8, 2022, mindful of the upcoming motion scheduled for February 10, 2022, counsel for all parties were advised that the court had decided to grant leave to the applicant/moving party to withdraw the two affidavits in question, with reasons to follow.
[^2]: It is my understanding that any aspects of requested third party production that were addressed in Katherine’s affidavit have been addressed through other means. In particular, there is reference to an order of Penny J. made on January 13, 2022 for production of the files of the estate lawyer arising from a motion brought by Melanie.