Drew v Drew, 2023 ONSC 2612

Court File and Parties

COURT FILE NO.: CV-20-0192-00 DATE: 2023-04-28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: William Drew, Plaintiff v. Joanne Michele Drew and Tadeusz Patric Jedruch, Defendants

HEARD: April 27, 2023

BEFORE: Fitzpatrick J.

COUNSEL: J. Clark, for the moving party Plaintiffs R. Bodnar, for the responding party Defendant

ENDORSEMENT ON MOTION

1At the conclusion of oral argument in this matter on April 27, 2023, I allowed the plaintiff’s motion. Leave is granted to the plaintiff to file two additional affidavits in respect of the defendant’s motion for summary judgment. Further leave is granted to the defendants to file any additional affidavits in reply to these newly allowed affidavits. Counsel are to file a draft order reflecting this oral decision.

2I advised reasons for my decision would follow. These are the reasons.

3This is a civil litigation matter that involves family members. The plaintiff William Drew (“William”) is the father of the defendant Joanne Drew (“Joanne”) and the father in law of the defendant Tadeusz Jedruch. William asserts among other things that the defendants have breached an oral agreement that required the defendants to make annual payments to William and his now deceased wife in return for a piece of real property known municipally as 582 North Clover Road, in the Municipality of Shuniah (the "Property"). The Property contains a residence where the defendants live. The Defendants assert there was no such agreement and William gifted the Property to the defendants.

4The action was commenced in June 2020. Affidavits of documents were exchanged in November 2020. On April 30, 2021, the defendant served a motion for summary judgment. A date has not yet been set for the hearing of the motion.

5Cross examinations on the affidavits filed in support of the motion for summary judgment occurred between February 11, 2022 and March 24, 2022.

6Prior to the conduct of the cross examinations, correspondence was exchanged between counsel about two handwritten notes. William claims he had inadvertently forgotten to include the notes in his productions. William alleges these notes were in the handwriting of Joanne. They show writings that appear in the nature of an accounting for payments made by Joanne to the plaintiff for the House.

7The notes and their significance according to William was brought to the attention of counsel for the defence by letter dated June 21, 2021.

8During cross examinations Joanne was directly asked about the notes. She answered she did not recognize the document and did not recognize the handwriting.

9In response to this answer William has obtained the report of a person, Brenda Petty who purports to be a handwriting expert. She provided an affidavit dated July 29, 2022. It exhibited her report of February 25, 2022 entitled “Questioned Document Examiner Letter and Report”. It also set out among other things at paragraph 11;

The conclusion of the Report was that there was a high probability and more likely than not that the questioned documents provided by the Plaintiff, William Drew were authored by the same hand that authored the comparison writings provided by the Plaintiff, William Drew, as there were no significant differences in writing fundamentals between the two. It is my opinion that both sets of documents were written by the same person and the reasons for my conclusion are set out in the Report.

10Ms. Petty’s affidavit also contains evidence indicating she appreciates the nature of her duties to the Court of objectivity as an expert required by Rule 53.03.

11William has provided a further affidavit, for which leave is sought to admit, that one of the notes was provided to him by Joanne. He also deposes he provided Ms. Petty with copies of other handwritings he had received from Joanne from time to time.

The Law

12Rule 39.02(2) states:

(2) A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03. R.R.O. 1990, Reg. 194, r. 39.02 (2) .

13Counsel for the parties agree the criteria for admission of further affidavit evidence following cross examinations further to a motion under Rule 39.02(2) was set out by the Divisional Court in the [First Capital Realty Inc. v. Centrecorp Management Services Limited, 2009). The criteria are:

1. Is the evidence relevant;

2. Does the evidence respond to a matter raised on the cross-examination—not necessarily raised for the first time;

3. Would granting leave to file the evidence result in non-compensable prejudice that could not be addressed by imposing costs/terms/an adjournment;

4. Did the moving party provide a reasonable or adequate explanation for why the evidence was not included at the outset?

Disposition

14Despite the able argument of counsel for the defence, I am persuaded that William’s request to submit the two affidavits post cross examinations meets all four of the criteria for granting leave under Rule 39.02(2).

15In my view there is no issue that the opinion of the handwriting expert is relevant to the issues to be decided on the summary judgment motion. If the handwriting on the note is Joanne’s, that is significant to the issue concerning the allegation that the Property was a gift. People do not keep ledgers for ongoing payments for things they say were originally gifts to them. The preference for adjudicating disputes on a full and complete record with all relevant evidence before the Court is a significant consideration in assessing whether to exercise a discretion to admit these new affidavits.

16The existence of the notes was raised prior to cross examination. Counsel for William alerted defence counsel and sought their position. This is not a matter of the plaintiff attempting to ambush the defence or splitting its case.

17Counsel for the defence argues granting leave to file the affidavits now would cause prejudice to the defence. The defence asserts this would cause undue delay. I am not persuaded by that argument. The motion has not been scheduled yet. It is a civil matter which has no particular urgent events approaching. I recognize that the parties decided not to schedule the summary judgment motion until this motion was heard. However, the “delay” in scheduling this motion appears to have been about six months at most. This kind of “delay” in getting a civil motion matter scheduled would be looked upon as luxurious in some parts of the Province at the moment. There is no prejudice to granting the relief requested that cannot be compensated by way of a costs order if the motion for summary judgment is ultimately successful.

18Finally, I accept that William has provided a reasonable and adequate explanation for why the evidence was not included at the outset. The defence was asked about its position on the notes. The answer “this document does not affect our position on summary judgment. We reserve any obligation about its admissibility after we have your client’s affidavit” is equivocal. However it does give context to how this matter unfolded. The plaintiff did not know what Joanne was going to say about the handwriting. It made sense to avoid expending time and effort retaining an expert if the possibility existed that Joanne would agree the handwriting was hers. She did not do this. William retained an expert and now seeks to put this evidence before the Court.

19The defence has pointed the Court to the decision of Conlan J. in 2462192 Ontario Ltd. v. Paramount Franchise Group Inc., 2019 ONSC 593. In that decision Conlan J. denied a request by a party to put further affidavit evidence in on a summary judgement motion. One of the affidavits was of a handwriting expert.

20In my view, that is where the similarity of any value ends. Factually this matter is different from the Paramount case.

21In Paramount Conlan J. found there was no reasonable explanation as to why the affidavit evidence had not been tendered earlier. Conlan J. found tactical decision drove the decision of the party seeking to put in the evidence. In my view there is a reasonable explanation as to why the plaintiff waited until after cross examination to seek leave to file this evidence.

22In summary the plaintiff has successful demonstrated compliance with all four aspects of the criteria identified by the Divisional Court for the granting of leave to file new affidavits pursuant to Rule 39.02(2). Motion granted.

23After indicating to the parties, I intended to allow the motion I advised there would be no costs. I am not awarding costs as I can understand why the motion was contested. The relief granted was discretionary. This matter could have unfolded differently and I do not see it as appropriate to award costs despite counsel responsibly agreeing to a reasonable quantum for the successful party prior to the commencement of the hearing before me.

24I thank counsel for the useful and concise material placed before the Court on this motion.