Ontario Superior Court of Justice

Court File No.: CV-21-0098-000
Date: 2025-06-04

Between

Julie Garneau
Self-represented
Plaintiff

-and-

Karen Joanne Garneau, in her personal capacity
Karen Joanne Garneau, in her capacity as Estate Trustee
Kimberly Marie Garneau, in her capacity as Estate Trustee
Defendants

Appearances:
J. Clark, for the Defendant/Responding Party on Motion, Karen Joanne Garneau as Estate Trustee with a Will for the Estate of James Oliver Garneau
K. Wilbee, for the Defendant/Responding Party on Motion, Kimberly Marie Garneau as Estate Trustee with a Will for the Estate of James Oliver Garneau
D. Philips-Brown, for the non-party, Trevor Zhukrovsky

Heard: May 21, 2025, at Kenora, Ontario
Justice: R.A. Lepere

Decision on Motion

Overview

[1] This action involves claims advanced by the Plaintiff, Julie Garneau (“Julie”), against the Estate of James Oliver Garneau (the “Estate”) and the personal Defendants. Most notably, for the motions before me today, Julie asserts that certain assets of the deceased that passed to others via a right of survivorship, beneficiary designations, or transfers pre-death were being held in trust for the Estate and ought to be estate assets for distribution in accordance with the deceased’s Last Will and Testament.

[2] James Garneau passed away on October 17, 2020. The Defendant, Karen Joanne Garneau (“Joanne”), was the spouse of the deceased. Julie and the Defendant, Kimberly Garneau (“Kimberly”), are the children of the deceased.

[3] Pleadings have closed but no discovery plan has been agreed to, no Affidavits of Documents have been exchanged, and no examinations for discovery have taken place.

[4] Julie has brought a motion pursuant to Rule 30.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), for production of records from several non-parties (the “Production Motion”). The Production Motion was filed in November 2023. Responding materials were filed by Joanne in June 2024. Julie filed a Supplementary Motion Record containing a further affidavit sworn by her on May 6, 2025 (the “Reply Affidavit”) in support of the Production Motion.

[5] Joanne has brought a motion to strike the Reply Affidavit on the basis that it is not proper reply evidence, it was filed late, and/or it is scandalous, frivolous, and vexatious, and/or an abuse of process (the “Motion to Strike”).

[6] Both motions were before me today. It was agreed that both the Production Motion and the Motion to Strike would be heard at the same time so as to not further delay the matter. Parties were advised that if a decision was made to strike the Reply Affidavit, the evidence contained in same would not be considered in the decision on the Production Motion.

[7] A lawyer for Kimberly, in her capacity as Estate Trustee of the Estate of James Oliver Garneau, was present but did not make submissions and advised that his client was taking no position on the motions.

[8] A lawyer for the non-party, Trevor Zhukrovsky, was present and advised that her client was not taking a position on the motion. She did not make submissions on the motions other than to state that any order made for production of Mr. Zhukrovsky’s records will have to have sufficient wording to provide for the waiver of solicitor-client privilege and confidentiality.

Factual Background

[9] Julie and Kimberly were the only children of the deceased. The deceased was previously married to Annie Garneau (“Annie”) who passed away in or about 2012.

[10] The deceased owned and operated Jim’s Gun Shop as a sole proprietorship.

[11] Julie asserts that the deceased executed a Last Will and Testament in 2012 after Annie passed away. A copy of same has not been filed on the motions. Julie asserts that the 2012 Will named Kimberly as the Estate Trustee and divided the Estate equally between her and Kimberly.

[12] On May 16, 2016, James married Joanne. They had been in a romantic relationship in the 1970s before James married Annie and reconnected after Annie passed away. Julie asserts that the family was not invited to the wedding.

[13] In April or May 2020, the deceased was diagnosed with advanced throat cancer.

[14] On May 28, 2020, the deceased executed a Last Will and Testament (the “2020 Will”). He used the services of Mr. Zhukrovsky to prepare same. The 2020 Will names Joanne and Kim as joint Estate Trustees and divides the Estate between Joanne (35%), Kimberly (32.5%) and Julie (32.5%). Joanne renounced as the Estate Trustee on October 21, 2021. However, that renunciation is being contested and that issue remains unresolved.

[15] Julie asserts that, in the Summer of 2020, James made several other transfers and/or changes to his estate planning. More specifically, she asserts that the following changes were made:

a. James transferred his business assets and inventory to Joanne;
b. James changed the beneficiary designation on one of his investment accounts at CIBC to Joanne; and
c. James transferred title to his home located at 80 Detta Road, Balmertown, Ontario to him and Joanne jointly and executed a Direction stating that the house and all contents were to become Joanne’s upon his death.

[16] The deceased passed away on October 17, 2020.

[17] Julie commenced this action in December 2021. She alleges that James was influenced by Joanne in making these changes to his estate planning and that the business assets, the home, and the CIBC investment account should, therefore, form part of the Estate. In asserting this allegation, Julie relies on various evidence in her Affidavit sworn November 14, 2023, and the Reply Affidavit. Before making a determination on the Production Motion, I will need to determine whether the Reply Affidavit should be struck.

Motion to Strike Affidavit Sworn by Julie Garneau, May 6, 2025

[18] Joanne asserts that the entire Reply Affidavit should be struck for several reasons.

[19] Firstly, it is not proper reply evidence and the evidence contained in the Reply Affidavit was readily available to Julie at the time she prepared her initial Affidavit sworn November 14, 2023. Furthermore, the evidence was not provided in response to anything contained in Joanne’s Responding Affidavit, sworn June 17, 2024. Joanne argues that Julie is attempting to split her case by now including additional evidence in the Reply Affidavit to which Joanne is unable to respond.

[20] Secondly, the Reply Affidavit ought to be struck as it was not filed in a timely manner, being only two weeks before the hearing. This is particularly problematic given that Joanne filed her response to the motion in June 2024. This did not allow sufficient time for Joanne to obtain leave to file a sur-reply or to test the evidence contained in the Reply Affidavit via cross-examination. The only option was to further delay the matter by adjourning the Production Motion. Given the length of delay to date she opted not to do so.

[21] Lastly, Joanne asserts that the content of the Reply Affidavit is problematic for many reasons. It contains opinion evidence, hearsay evidence, and baseless accusations about Joanne that are unfounded and have only been included for the purpose of painting Joanne in a negative light. As such, the content of the Reply Affidavit is vexatious, frivolous, and/or an abuse of process.

[22] In response, Julie acknowledged during her submissions that, at the time the Motion Record was prepared, she was represented by counsel and a decision was made not to include the content from the Reply Affidavit in the original Motion Record as a courtesy to Joanne due to the subject matter of the information. She argued that Joanne is now only objecting to the content of the Reply Affidavit because it helps Julie’s case and substantiates the allegations that Julie has made about Joanne’s role in the estate planning of the deceased. Lastly, she advised that Joanne and her lawyer have had knowledge of the information contained in the Reply Affidavit since the commencement of the litigation. It was not a surprise to Joanne.

[23] Rule 25.11 of the Rules permits the court to strike out all or part of a party’s pleading or other document on one of the following grounds: (1) it may prejudice or delay the fair trial of the action, (2) it is scandalous, frivolous or vexatious, or (3) it is an abuse of process of the court.

[24] I have reviewed the Reply Affidavit in its entirety. Further to my findings below, I order that the Reply Affidavit be struck.

[25] Julie as the moving party on the Production Motion is required to put her full case forward in the first instance. The rule against case splitting restricts reply evidence to matters raised by the responding party and does not permit the moving party to deliver new evidence in reply. This ensures that the responding party knows and responds to the case being made against them: see Johnson v. North American Palladium Ltd., 2018 ONSC 4496, paras. 13–14 (“Johnson”).

[26] In reviewing Joanne’s Affidavit, sworn June 17, 2024, very little of the information contained in the Reply Affidavit responds to the content of Joanne’s Affidavit. By Julie’s own admission, the content of her Reply Affidavit was known to her at the time the original affidavit was sworn but her and her legal representative made a conscious decision not to include the information now in the Reply Affidavit.

[27] While I appreciate that in some instances courts will allow reply evidence such as this and then allow the responding party to further reply, there was not ample time to do so in this case. The Reply Affidavit was sworn just two weeks before the Production Motion. While the Production Motion could have been adjourned, there has already been substantial delay in this matter, with the action having been commenced in December 2021. Furthermore, Joanne’s Affidavit was served in June 2024. Julie had 11 months to reply to same. If she had done so earlier, the parties may have been able to rectify any issues with the Reply Affidavit by allowing Joanne to reply: see Johnson, at para. 15.

[28] Moreover, I have other problems with the content of the Reply Affidavit. Firstly, several paragraphs of the Reply Affidavit are not relevant to the issues on the Production Motion.

[29] Secondly, it contains hearsay in that it is Julie stating what others told her. While this is often times allowed in affidavits, when the source of the information is identified, in this instance the information goes to material facts that are contentious between the parties. Furthermore, the source of much of the information is Kimberly, who is a party to this proceeding, and Mr. Horton, who works for the non-party, Personal Tax Service Ltd. If Julie wanted the evidence of these individuals before the court on the Production Motion, she should have obtained affidavits directly from these individuals.

[30] Thirdly, some of the evidence is duplicative of the original affidavit sworn by Julie.

[31] Lastly, the content of the Reply Affidavit regarding Joanne’s family and past is unsubstantiated, constitutes bare allegations, and is based on opinions and conclusions drawn by Julie and can therefore, be struck: see Beraskow v. Canadian Internet Registration Authority, 2023 ONSC 1412, para. 22.

[32] While I did consider carving out portions of the Reply Affidavit that did not fall into one of the above noted categories and only striking portions of the Reply Affidavit, it was very difficult to do so. Furthermore, in light of my finding above that the Reply Affidavit was not proper reply evidence, I have struck the entire Reply Affidavit.

Motion to Produce Non-Party Records

[33] I will next turn to a determination of the Production Motion. In making my decision on the Production Motion, the Reply Affidavit will not be considered.

Law

[34] Rule 30.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides for the production of documents from non-parties to the litigation that are not otherwise privileged. For documentation to be produced by a non-party, the information sought must be relevant to a material issue in the action, and it would be unfair to require the moving party to proceed to trial without having discovery of the document: see Spina v. Shoppers Drug Mart Inc., 2020 ONSC 4000, paras. 114–115.

[35] In determining whether non-party records ought to be produced, the following factors as set out in the Spina decision, at para. 116, should be considered:

a. the importance of the document to the issues in the litigation;
b. whether production at the discovery stage as opposed to production at trial is necessary to avoid unfairness to the moving party;
c. whether the examination of the opposing party with respect to the issues to which the documents are relevant would be adequate to obtain the information in the document;
d. the availability of the document or its information from another source that is accessible to the moving party;
e. the relationship of the non-party from whom production is sought to the litigation and the parties to the litigation; and
f. the opposition of the non-party with respect to production.

[36] Relief under Rule 30.10 should not be granted as a matter of course and should only be made in exceptional circumstances: see Bayliss v. Burnham, 2023 ONSC 7161, paras. 46–49.

[37] The court on a motion for production of non-party records must also give consideration to the stage of the proceeding. In Mahjabin v. Singh et al, 2023 ONSC 4210, paras. 6–7, a motion for production of non-party records was dismissed on the basis that it was premature, as the motion was made before the close of pleadings. At paras. 6–7 of the decision, Justice Frank states as follows:

[6] Although production pursuant to Rule 30.10 is not expressly confined to the discovery stage of a proceeding, production under this Rule is only made prior to discovery where such production is shown to be necessary for the moving party to plead its claim or there is some other reason that the moving party would be prejudiced if production were delayed until the production and discovery stage of the action.

[7] In the current circumstances, I find that it is entirely premature for the plaintiff to be seeking a Rule 30.10 production order. The pleadings have not closed, the documentation that falls within the proper scope of discovery is not yet known, and the action has not proceeded to discovery. The adequacy of the defendants’ production cannot be determined because no production has yet been made. It would be unfair to impose a production obligation on Meta, a non-party, before pleadings have closed and where it is unknown whether and to what extent any of the sought‑after production may be obtained from the defendants through the discovery process. Simply put, it is premature to determine the scope of relevance and whether the sought-after production can be obtained from the defendants, and there is no reason to conclude that the requested disclosure is necessary at this time in order to avoid unfairness to the plaintiff.

Positions of the Parties

[38] Julie requests the following records:

a. the records, notes and files of Trevor Zhukrovsky which relate to James Oliver Garneau, also known as Jim Garneau;
b. the records, notes and files of Personal Tax Service Ltd. which relate to the estate plan for James Oliver Garneau, also known as Jim Garneau; and
c. the records, notes and files of CIBC which relate to the estate plan for James Oliver Garneau, also known as Jim Garneau.

[39] During the hearing of the Production Motion, Julie agreed that the production requests could be limited to the period between May 1, 2020, and October 17, 2020.

[40] Julie asserts that she believes the deceased was provided with false information by Joanne to influence him to make these changes to his estate planning. She further asserts that the records requested will provide details about that false information. It is her position that she requires this information to prove her case, she cannot proceed to trial without it, and cannot obtain a copy of the requested records by any other means.

[41] Joanne takes no position with respect to the records requested from CIBC or Personal Tax Service Ltd. She does, however, object to the production of the records requested from Mr. Zhukrovsky for several reasons.

[42] Firstly, Joanne asserts that the request is premature. The pleadings in this action have just closed. The parties have not exchanged Affidavits of Documents and have not conducted examinations for discovery. As the Estate Trustee for the Estate, Joanne and Kimberly could obtain these records from Mr. Zhukrovsky. Julie should wait until the production phase of the proceeding is complete to see if she still requires these records.

[43] Second, the records are subject to solicitor-client privilege and cannot be produced. Joanne asserts that the onus of establishing an exception to the claim for privilege rests with Julie and she has not established any exception that would permit the records to be produced.

[44] Lastly, Julie has not provided sufficient evidence on the Production Motion to establish suspicious circumstances supporting the pre-death estate planning completed by the deceased to give rise to entitlement to the records sought. This is simply a fishing expedition that is not grounded in any evidence of suspicious circumstances surrounding those transactions other than Julie’s dissatisfaction with what she is receiving from the Estate.

Analysis and Disposition

[45] At first glance, given the nature of Julie’s claim, the records requested may be relevant to a material issue in the action. It would also be unfair to require Julie to proceed to trial without having discovery of the records requested if there is merit to her concerns about the deceased being influenced by Joanne.

[46] The problem is that the proceeding is not anywhere close to proceeding to trial. I am persuaded by the Mahjabin decision, at paras. 6–7, which states that production pursuant to Rule 30.10 is only made prior to discovery when such production is shown to be necessary for the moving party to plead their case, or when there is some other reason that the moving party would be prejudiced if production were delayed until the production and discovery stage of the action.

[47] There is no evidence before me to establish that Julie would be prejudiced if production is delayed until after the production and discovery stage of the action.

[48] As such, I find that it is premature for Julie to seek a Rule 30.10 production order for all of the records requested. The parties have not exchanged Affidavits of Documents nor conducted examinations for discovery. The requested records may be produced as part of the documentary disclosure in this matter. Evidence on the issue of undue influence may be further explored at examinations for discovery to establish the need for these records. Furthermore, the records could be requested by way of undertaking at an examination for discovery since Kimberly and Joanne, as the Estate Trustees of the Estate, have the authority to obtain the records.

[49] I also find that the records of Mr. Zhukrovsky are subject to solicitor-client privilege. The onus is on Julie, as the moving party, to establish an exception that would permit the production of these records. Julie has not set out any applicable exception on this motion.

[50] Based on the foregoing, the Production Motion is dismissed. The dismissal of the Production Motion does not prevent Julie from bringing a further motion pursuant to Rule 30.10 after the production and discovery phase of the action, if necessary.

Costs

[51] If the parties cannot resolve the issue of costs of this motion, they may each deliver written cost submissions of not more than three pages plus a Costs Outline within 20 days of the date of this decision.

“original signed by”
R.A. Lepere

Released: June 4, 2025