Production of documentary evidence and examinations are key parts of the litigation process as a matter proceeds towards trial. In some cases, an applicant may wish to examine non-parties, in addition to the opposing litigants. In an estates context, these can include family members of the deceased, accountants or solicitors that helped the deceased manage his or her financial affairs or draft a will, or business partners of the deceased.

Because without the records or information in question it can be difficult for an applicant to properly proceed with his or her application, the Rules of Civil Procedure establish a process for obtaining records and examining individuals that are not party to the litigation. However, this is not automatic: in the case of a non-party, an applicant must bring a motion to obtain leave of the court for the production of records or examination.

 

Rules 30.10 and 31.10

The rules governing motions for production from non-parties and the examination of non-parties are found in Rules 30.10 and 31.10, respectively. In each case, the Rules provide a test to be used by judges when deciding whether to grant leave.

In the case of motions for production (Rule 30.10), the test contains two parts and is rather simple: whether “(a) the document is relevant to a material issue in the action; and (b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.”  This test was further clarified and expanded in  Ontario (Attorney General) v. Ballard Estate, (1995), 26 O.R. (3d) 39 (C.A.), which broke down each leg of the test into sub-factors to be weighed by the judge hearing the motion.

In order to obtain leave to examine a non-party (Rule 31.10), the threshold is higher and the party bringing the motion must demonstrate the following:

“(a) the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine;

(b) it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and

(c) the examination will not,

(i) unduly delay the commencement of the trial of the action,

(ii) entail unreasonable expense for other parties, or

(iii) result in unfairness to the person the moving party seeks to examine.”

 

Bayliss v. Burnham, 2023 ONSC 7161

These two motions were litigated in a recent case, heard by Justice Gilmore of the Toronto Estates Court in late 2023: Bayliss v. Burnham, 2023 ONSC 7161. These motions were brought against the estate of Mr. Kenneth Hill, a well-known, colourful and highly successful businessman and entrepreneur from the Six Nations of the Grand River, as a part of contentious and ongoing estate litigation involving a will challenge, multiple dependant’s support claims, claims for damages and trust claims. The litigation is scheduled for a multi-day trial in late 2024.

The applicants brought the two motions against the estate. The first was to obtain records and information relating to GRE, a large tobacco company which Mr. Hill had co-founded and in which he owned a 12.5% interest at the time of his death. The second was to examine a friend and business partner of Mr. Hill, and Mr. Hill’s former solicitor. The motion were brought under Rules 30.10 and 31.10, respectively. As neither GRE nor the two individuals were parties to the litigation, leave was required, as explained by the two Rules noted above. GRE, the two individuals and the respondent all strongly objected to the motions.

Ultimately, the court granted leave in both motions, granting the applicants the ability to obtain the production of the records sought, as well as to examine the individuals. The court found that the information sought was relevant to multiple elements of the litigation and that it would be unfair for the matter to proceed absent the information sought. The court further pointed out that since there were numerous minors involved in the litigation, the disclosure would be needed to ensure that a settlement would be fair and in the minors’ interests, should the parties succeed in resolving the litigation before trial, as required by Rule 7.08.

However, in her decision, Justice Gilmore did note that the threshold to obtain leave in both motions remains high and will not be “granted routinely” in many instances. Further, she recognized that many of the concerns raised by GRE were valid, and that a mechanism would be put in place to ensure that the disclosure provided was to remain confidential, and that the transcripts of the examinations may not be used for anything other than the litigation without a further court order.

 

 

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