A recently released decision, Giann v Giannopoulos, 2023 ONSC 5412, provides clarity on a question that frequently arises in estate litigation: what information is a party entitled to from the deceased’s personal records and documents?

This case, heard by Justice Myers of the estate list in mid-September this year was a motion by the Applicants for orders providing them access to the legal, medical and financial records of their deceased father.

In many cases, clients often expect their request for access to information and documentation to be granted virtually automatically. After all, as Justice Meyer notes in his decision, in civil litigation unrelated to estate matters, the right to access all documents in the possession of an opposing litigant is a requirement. However, as amply demonstrated by this decision, this is not the case in estate litigation. Rather, in order to gain access to the documentation sought, the individual seeking the access must meet a “minimum evidentiary threshold”, as noted by the Court of Appeal in the case Neuberger v. York, 2016 ONCA 191, cited in the Judgment. Although this early stage is not the trial itself, the motion or application judge will still assess the strength and credibility of the evidence, and determine if the evidence would be sufficient to support the claims being made at the future hearing.

As demonstrated in Giann, this determination is not a superficial one. Rather, the presiding judges in such cases analyze the evidence and claims in depth. Simply providing a large quantity of evidence will not be sufficient if the evidence is irrelevant, misleading or is used to support improper conclusions and unfair claims. Justice Myers notes in his decision that much of the evidence supplied by the Applicants in Giann was cherry-picked and used to support conjecture and incorrect conclusions, in an attempt to get over the bar and obtain the orders for production. Further, attempts were made to impugn the character and credibility of the Respondents in ways that were misleading and unfair, which the Judgment points out and criticizes.

Ultimately, the motion for production and the application were both dismissed by the Court. The Court did not accept the claims of the Applicants, nor find that there were suspicious circumstances or a basis for claiming that the Respondents had engaged in wrongful behaviour.

One takeaway from this decision is that getting over the bar to obtaining orders for production and disclosure of a deceased’s records is not simple, and requires significant and credible evidence. In particular, relying on claims and allegations related to the credibility or character of opposing litigants may be insufficient to support a finding of suspicious circumstances and should be approached with caution.

Thanks for reading.