Andruchow Estate (Re), 2011 ABQB 515

Court of Queen ’ s Bench of Alberta Citation: Andruchow Estate (Re), 2011 ABQB 515 Date: 20110816 Docket: ES03 130856 Registry: Edmonton In the Matter of The Estate of Stephen Andruchow also known as Steve Andruchow Between: Sophie Seniuk Applicant - and - Brian Andruchow, Adolph Andruchow, Mike Andruchow, John Andruchow, Paul Andruchow, Anton Andruchow, John Andruchow, Sylvia Zurburg, Peter Andruchow, Jim Fleming, Andrew Hyrcyk, Violet Kimmel, and Evelyn Lorenz Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Brian R.

Burrows _______________________________________________________ [ 1 ] Sophie Seniuk seeks an order excusing her husband, Henry Mike Andrew Seniuk, from being required to submit to pre-trial questioning in connection with her application for formal proof of the Will of Stephen Andruchow. [ 2 ] Ms. Seniuk is the named executor and sole beneficiary of the Will. There appears to be no suggestion that the fact that Ms.

Seniuk’s husband was a witness to the Will has any effect on the validity of the gift to Ms. Seniuk. I gather this is because there are three other witnesses. [ 3 ] By Consent Order entered May 27, 2010, Graesser J. directed that the Will be proved formally. The Order required that the witnesses to the Will be examined for discovery by the end of July 2010. [ 4 ] In October 2010, Sophie Seniuk applied for an order excusing her husband from submitting to examinations for discovery.

In the affidavit she swore in support of that application she said: My husband, Mike Seniuk, is currently 75 years of age and suffers from several medical conditions, including cancer, and has recently finished two months of radiation treatment. My husband has suffered from anxiety for a number of years and he and I have spoken with his physician about concerns about whether or not he is able to participate in these proceedings, given his health. [ 5 ] Ms.

Seniuk exhibited a letter dated May 10, 2010 from her husband’s family physician which said that: This letter is to certify that Henry Seniuk was assessed in this office and due to Panic and Anxiety disorder is unable to talk in court. His wife and/or lawyer will have to speak for him. He is taking oral medication for this, namely: Ativan orally as needed. [ 6 ] It appears the doctor wrote the following handwritten note on the letter of July 21, 2010: He is also high risk for cardiovascular disease.

He is scared he may get a cardiac arrest if he talks in court. [ 7 ] One of the Respondents, Brian Andruchow, filed an affidavit in reply. He swore that he sees Mr. Seniuk almost daily and had recently seen him in a stressful situation which he coped with calmly. [ 8 ] Mr. Seniuk’s son filed a further affidavit in which he expressed the opinion that if his father is compelled to submit to questioning in this matter, his health will be negatively affected. He disputed the factual basis of Brian Andruchow’s opinion. [ 9 ] On January 25, 2011, Marceau J. ordered that counsel for Ms.

Seniuk obtain a recent medical report pertaining to driver’s license testing for Mr. Seniuk, as well as evidence from a pharmacy concerning prescriptions for Ativan filled for Mr. Seniuk. He further ordered that Mr. Seniuk answer written interrogatories supplied by counsel for the Respondents. He further ordered that the application to excuse Mr.

Seniuk from questioning be adjourned sine die, but gave the Respondents leave to reschedule the application at any time. [ 10 ] The Respondents caused the application to be rescheduled for July 19, 2011 in regular chambers. [ 11 ] The medical and prescription information was obtained and supplied. I have reviewed it. I am not able to interpret its significance to the issue on this application. [ 12 ] I gather counsel for the Respondents did not provide written interrogatories. On this application he indicated he does not wish to forgo the benefits of oral examination.

[ 13 ] The onus is on the party seeking waiver of oral questioning to establish by persuasive medical evidence that the proposed examinee is unable to attend. [ 14 ] None of the “medical information” that has been filed on this application qualifies as admissible evidence. No medical person has sworn an affidavit. The lay opinions contained in the affidavit are of little use. The unsworn medical materials that have been filed do not prove that Mr. Seniuk could not submit to questioning. A medical opinion that he “cannot talk in court” says little about his ability to be questioned in a pre-trial context.

It says nothing about what accommodations would sufficiently eliminate whatever risk exists to his health if he were to be required to submit to questioning. [ 15 ] I dismiss the application. Ms. Seniuk has leave to reapply upon obtaining useful evidence. In my view the opinion of a medical expert with specialization with regard to the medical condition Mr. Seniuk is alleged to have, who has examined Mr.

Seniuk and obtained such tests as he or she considers advisable, whose report identifies the risks with precision and identifies accommodations which would reduce or eliminate them, would qualify as useful evidence, assuming it came in the form of an affidavit. [ 16 ] The Respondents are entitled to costs of this application which I fix at $600. Heard on the 19 th day of July 2011. Dated at the City of Edmonton, Alberta this 16 th day of August 2011. Brian R. Burrows J.C.Q.B.A. Appearances: Helen R. Ward for the Applicant Ian H. Gledhill for the Respondents