Moncrieff v Hayne, 2013 ABQB 657

Court of Queen ’ s Bench of Alberta Citation: Moncrieff v Hayne, 2013 ABQB 657 Date: 20131105 Docket: 0406 00189 Registry: Lethbridge Between: Sheila Margaret Moncrieff Plaintiff (Respondent) - and - Allan Hayne and D. John Getz, in their personal capacities and as purported executors of the Estate of James Shier Hayne Defendants (Applicants) _ ________________________________________ ______________ Memorandum of Decision of the Honourable Mr. Justice R.A. Jerke _________________________________________ ______________ Introduction

[ 1 ] James Hayne’s last will dated May 23, 2001 (the 2001 will), left nearly his entire estate, consisting mostly of a farming operation, to his only son Allan Hayne, and named Allan and the solicitor who drew the will, John Getz, as co-executors. After Mr. Hayne passed away, one his two daughters, Sheila Moncrieff, commenced this action. She alleges that her father lacked testamentary capacity when he executed the will and that her brother Allan and Mr. Getz exercised undue influence over her father when he gave instructions for and executed the will.

She seeks a declaration that the will is invalid and that an earlier will, dated July 26, 2000 (the 2000 will), is valid. She also claims an interest in her father’s land under an agreement, and an accounting for transactions prior to her father’s death. [ 2 ] Mr. Getz and Allan apply for

summary judgment and seek dismissal of the plaintiff’s entire claim. If not successful on this application, they seek to have the matter set down for determination at a

summary trial. Sheila opposes both the

summary judgment and

summary trial applications, arguing that there are genuine issues to be tried which can only be determined if the trial judge is personally able to assess the witnesses as they give evidence and are cross-examined. [ 3 ] After oral argument concluded, Sheila’s counsel advised that he had received instructions to discontinue the claim against Mr. Getz. A disagreement has apparently arisen between counsel concerning this part of the claim, and it may need to be spoken to if counsel are unable to resolve their differences.

This decision addresses only matters relating to the other defendant, Allan. [ 4 ] Determination of this application requires consideration of these questions: 1) How should the claim for an accounting be resolved? 2) What is the test for

summary judgment?

A) Are there genuine issues for trial?

B) Do any of the claims have a real chance of success? 3) How should the merits of the claims be determined? [ 5 ] For the reasons which follow, I have concluded that the issue of whether the 2001 will is valid should be determined at a full trial. The claim to an interest in land by virtue of an agreement is dismissed. The claim for an accounting is stayed and should be determined in the estate. If necessary, the 2000 will should be addressed following the outcome of the trial. Counsel may speak to the matter of the claim against Mr. Getz if it is not discontinued.

Facts [ 6 ] Mary and James Hayne had three children; Allan, Sheila, and a third daughter, Joyce Dick. Throughout most of his life, Allan farmed with his father. Sometimes their farming operations were carried out on lands owned by both of them, but when Allan divorced, most of his land was sold. In 1998 Allan started to live on a trailer on his father’s land. The sale of most of Allan’s land was completed prior to 2000. [ 7 ] Joyce and Sheila left the farm when they were in their late teens, and neither worked on the farm to any significant extent after that. [ 8 ] Mr.

Hayne made several wills and some gifts throughout his lifetime. Mrs. Hayne also had a will. [ 9 ] The first relevant will was signed by Mr. Hayne on December 17, 1991. It appears that the will was prepared by Mr. Getz. The named executors were Mrs. Hayne, and in the alternative, Mr. Getz. The will left everything to Mrs. Hayne, but if she failed to survive Mr. Hayne, then “all my farm land, farm equipment, farm machinery, farm vehicles, livestock, animals, grain, feed and all farm products” were left to Allan. The residue was split between Joyce and Sheila. [ 10 ] Mrs. Hayne executed a will on November 23, 1995.

It left everything to Joyce and Sheila. [ 11 ] Mr. Hayne directed the preparation of another will in 1997, but whether it was executed is unknown. It gave Mrs. Hayne a life estate in the “homestead”, which was described by the legal land description for a half section. The rest of the estate, including the remainder interest in the half section, was left to Allan. If Allan predeceased his father, Joyce and Sheila were to split the estate. [ 12 ] Mr. Hayne executed two wills in short succession in 2000. The first was prepared by a lawyer, Robert Langridge, and signed on June 7 th .

It appointed Joyce’s husband as the executor. Allan was named the alternate. It contained no bequest to Mrs. Hayne, and stated that Mr. Hayne was not unmindful of that, but “she has substantial assets in her own name” and he therefore did not provide for her. The “farmland, cattle, farm inventory, grain on hand and farm machinery” were left to Allan, with the residue of the estate divided equally among the 3 siblings. The second was prepared by another lawyer, Donald Kolody, and signed on July 26 (the 2000 will). Joyce confirmed that her husband made the initial contact with Mr.

Kolody to arrange for preparation of this will. Mr. Kolody’s account shows contact with Joyce and her husband, with Sheila, and with Mr. and Mrs. Hayne, but not with Allan. [ 13 ] The 2000 will appoints Joyce’s husband, and in the alternative Joyce, as executors. Allan was given “that portion of the SE of 32-21-25 West of the 4 th Meridian known to me as ‘the home site’ consisting of approximately 13 acres”, and “all farm inventory, grain on hand, cattle and farm machinery”. The 13-acre parcel was registered at Land Titles as part of a 160-acre parcel and was not legally subdivided.

The rest of the estate was to be divided equally between Joyce and Sheila. It is the 2000 will which Sheila seeks to have declared valid. [ 14 ] Mr. Hayne was going through major upheaval in his life in 2000. In June of that year, Mr. Hayne moved into an assisted

living facility after he was injured in a tractor accident. While there was discussion about the move being only temporary, Mrs. Hayne came to live with him in the facility. After Mr. and Mrs. Hayne moved, Allan left the trailer and moved into Mr. and Mrs. Hayne’s farmhouse. There was further family turmoil in August when Mr. Hayne signed a listing agreement for some of his land. That agreement was later cancelled. At some point, some of Mr. Hayne’s land was sold. It is unclear whether Mr. Hayne sold that land himself, or whether Joyce had it sold in her capacity as Mr.

Hayne’s agent pursuant to an enduring power of attorney. [ 15 ] Mrs. Hayne never left the assisted living facility. She passed away on March 31, 2001. Her entire estate went to her two daughters. It consisted mostly of cash and had a value around $260,000.00. [ 16 ] After Mrs. Hayne died, Mr. Hayne moved back into his farmhouse. Allan and a woman named Vera Foster were living in the farmhouse at the time, and continued to live there after Mr. Hayne returned. [ 17 ] On May 23, 2001, Mr. Hayne executed his final will, the validity of which is now contested by Sheila. It was prepared by Mr.

Getz, who was also named a co-executor with Allan. After being named as a defendant in this action, Mr. Getz renounced his appointment. [ 18 ] The 2001 will directs the trustees to “transfer and deliver all farm lands and all lands in

Section 32-21-25-W4M., together with all my farm equipment, farm machinery, farm vehicles, livestock, animals, grain, feed and all products” to Allan. The will then states, I have not made provision to divide my estate equally among my children for two reasons. First, I wish my farm to remain intact as a farm and to be farmed without debt by my son Allan. Second, my daughters have already received all of my wife’s estate and some $200,000 tax free from the sale of a half

section of land. [ 19 ] Under the 2001 will, any residue was to be divided equally between all three children. [ 20 ] If the 2001 will is valid, it revokes the 2000 will. Some question of undue influence was raised by Allan in argument as concerns the 2000 will, but this is not reflected in the pleadings. [ 21 ] At the same time that Mr. Hayne executed the 2001 will, he also executed a land transfer which transferred all his farmlands to Allan. He gave instructions that it was to be registered upon his death. [ 22 ] Mr. Hayne executed the 2001 will while he was living with Allen.

He was approximately 86 years of age, and was afflicted with Parkinson’s disease. He took medication for this and for insomnia. The drug which treated his insomnia, chloral hydrate, is in a class of drugs known as hypnotics. At this time, Allan was responsible for overseeing Mr. Hayne’s medications, and drove Mr. Hayne to all his appointments. [ 23 ] Mr. Hayne passed away on November 21, 2003, two and a half years after making the 2001 will. He was 89 years of age at the time of his passing. Sheila commenced this action a few months later. [ 24 ] When Mr. Hayne executed the 2001 will, Mr.

Getz obtained a medical opinion from Dr. Avramenko. Around the same time, Mr. Hayne also executed an enduring power of attorney before a another lawyer, Lynn Racz. Mr. Getz, Dr. Avramenko, and Ms. Racz have all sworn affidavits affirming that in their opinions, Mr. Hayne was of sound testamentary capacity when he executed the 2001 will. How should the claim for an accounting be resolved? [ 25 ] The claim for an accounting of any monies Allan has received prior to Mr. Hayne’s death, and from Mr. Hayne’s estate, should properly be addressed by the administrator in the estate.

Given that Sheila’s action was commenced when Allan was purporting to act as personal representative of the estate there may be complexities which were not raised in this application. Accordingly, the claim for an accounting is this action should be stayed, but the parties have leave to apply with respect to the accounting matter in this action. [ 26 ] Sheila maintains that Allan must account for all monies received from Mr. Hayne.

Paragraph 21 of the statement of claim alleges the need for an accounting: The Plaintiff further states that the Defendant, Allan Hayne, appropriated monies belonging to the deceased to his own personal use for his farming operation and the Plaintiff claims an accounting from Allan Hayne for all such monies had and received. [ 27 ] Because Sheila is not the administrator of Mr. Hayne’s estate, she does not have the legal capacity to commence any action for monies which Allan may owe to the estate as a result of any interactions between Allan and Mr. Hayne which occurred while Mr. Hayne was alive.

Likewise, any claim for monies received after Mr. Hayne’s death are claims of the estate, and its legal representative. [ 28 ] An application was brought in the judicial centre of Calgary regarding Mr. Hayne’s estate.

An order granted by Madam Justice Phillips on January 19, 2012 provides as follows: • Bromwich & Smith, Inc are appointed as the sole Administrator pendent lite of the estate (para. 2) • The administrator is empowered and authorized to receive and collect all monies and accounts now owed to or hereinafter owed to the estate... and to exercise all remedies of the estate in collecting such money (para. 5(f)); to bring, prosecute, continue or defend any action or other legal proceedings... necessary or incidental to the exercise of the aforesaid powers... as are necessary or appropriate in his opinion (para. 5(h)); and to obtain access to and be provided with all personal financial records of Allan Hayne... for the period from 2001 to the date of the order (para. 5(j)). • The administrator shall arrange for a forensic audit of the estate (para. 12).

[29] In her reasons she commented, “...it may be that an independent administrator after reviewing all financial records andrelevant documents, may recommend that a claim should be made on behalf of the estate against Allan.” [30] The appointed administrator therefore has the legal capacity and authority to address the accounting claims raised by Sheila. What is the test for

summary judgment? [31] Rule 7.3 of the Alberta Rules of Court, Alta Reg 124/2010, states that a defendant can apply for

summary judgment in respectof all or part of a claim when there is no merit to the claim, or no merit to part of it. In GH v Alcock, 2013 ABCA 24, the Court ofAppeal stated, 34 Simply put, the test for

summary judgment is whether it is plain and obvious that the action cannot succeed. A defendantseeking

summary dismissal must prove that there is no genuine issue of material fact requiring trial. “The defendant must prove this; itcannot rely on mere allegations or the pleadings ... If the defendant does prove this, the plaintiff must either refute or counter thedefendant’s evidence, or risk

summary dismissal...”: Canada (Attorney General) v Lameman, 2008 SCC 14, [2008] 1 SCR 372 at para11. 35 Refuting or countering the defendant’s evidence requires the plaintiff to establish that the claim has “a real chance of success”:Guarantee Co of North America v Gordon Capital Corp, (SCC), [1999] 3 SCR 423 at para 27, 178 DLR (4th) 1;Hercules Managements Ltd v Ernst & Young, (SCC), [1997] 2 SCR 165 at para 15, 146 DLR (4th) 577. [32] In Murphy Oil Company Ltd v Predator Corporation Ltd, 2006 ABCA 69 [Murphy Oil], the Court of Appeal discussed theburdens on the parties to a

summary judgment application as follows: 25 The analysis of a

summary judgment application is performed in two stages. In the first, the moving party must adduceevidence to show that there is no genuine issue for trial. Once the moving party has met that burden, the responding party may adduceevidence to persuade the court that there remains a genuine issue to be tried. It may choose to adduce no evidence, but then bears the riskthat the judge will decide that the evidence adduced by the moving party has established that there is no genuine issue to be tried. SeeWatts Estate v.

Contact Canada Tourism Services Ltd., (2000), 261 A.R. 66, 2000 ABCA 160 at para. 86; Pioneer Exploration Inc.Estate (Trustee of) v. Euro-Am Pacific Enterprises Ltd., (2003), 339 A.R. 165, 2003 ABCA 298 at para. 15; and 732311 Alberta Ltd. v.Paradise Bay Spa & Tub Warehouse Inc., (2003), 339 A.R. 386, 2003 ABCA 362 at paras. 10-12. [33] Sheila contends that because this is Allan’s second application for

summary judgment it should be dismissed as an abuse ofprocess. No authority was cited to support this proposition. [34] Any question of abuse of process need not be considered here. Allan’s initial application for

summary judgment was filed butthe matter was never heard. Allan chose, as he is entitled, to advance the litigation before bringing forward this motion for

summaryjudgment or a

summary trial. This can not amount to an abuse of process.

A) Are there genuine issues for trial? The Agreement [35] I find that Allan has proven that there is no genuine issue for trial as concerns the claimed agreement. [36] At paragraph 20 of the statement of claim, Sheila states she has a beneficial interest in Mr. Hayne’s land “by virtue of a certainagreement between the parties”. No particulars whatsoever are provided about the agreement. In his Statement of Defence Allan makes ageneral denial. If there is no agreement, Allan will not be able to do any more than maintain a denial that there is an agreement.

It is notpossible to prove a negative. [37] In oral argument, Allan’s counsel indicated that Allan has no idea what “agreement” Sheila is referring to, and Allan does notknow of any facts to substantiate any part of her claim. That is not evidence, but in his August 13, 2012 affidavit Allan swears the factualcontents of his statement of defence are true.

In examination of Joyce she said, ‘...and truthfully, it was Dad’s wish for him to have thefarm, and had-- well, I won’t say any more.’ The Validity of the Will [38] I find that Allan has proven that there is no genuine issue for trial as concerns the validity of the 2001 will, and in particularthe issues of testamentary capacity and undue influence. [39] The affidavit of Gayle Brazier, witness to the 2001 will, swears that Mr. Hayne understood the document was his will and thathe was competent to sign. The evidence of Mr. Getz, Ms. Racz, and Dr. Avramenko all support a finding that Mr.

Hayne hadtestamentary capacity when he signed the 2001 will. There is no direct evidence to the contrary. [40] Mr. Getz was contacted by Mr. Hayne on May 9, 2001 concerning the 2001 will. Allan was not present when Mr. Getz tookinstructions for the will. Mr. Getz reviewed the will with Mr. Hayne on May 23, 2001 at which time he signed it. Allan was not present.In cross-examination Allan was asked, ‘So through all of these visits you had no inkling or understanding that a will was beingdiscussed?’ He answered, ‘No.’ (page 40). There is no direct evidence of any influence by Allan on Mr.

Hayne concerning the 2001will.

B) Do any of the claims have a real chance of success? The Agreement [41] I find that Sheila has not established that the claim about the agreement has a real chance of success. In light of my findingthat Allan has shown there is no genuine issue for trial, and on the evidence before me, it is plain and obvious that Sheila’s claim underthe agreement cannot succeed. [42] In her affidavit of January 19, 2007 Sheila states that, ‘The matters in issue in the Action pertain to the validity of thepurported Last Will and Testament of 2001 of my father.’ (para. 14). No mention is made of the claimed agreement.

In her affidavit ofFebruary 5, 2009 she swears to ‘genuine issues to be tried’ (para. 2). No mention is made of the claimed agreement. No mention hasbeen made of any document which might assist in establishing an agreement. In short, there has been no evidence provided to support theclaimed agreement. The Validity of the Will [43] I find that Sheila has shown that she has a real chance of success in proving her claims about the invalidity of the will. I amunable to accept that it is plain and obvious that the claims of invalidity concerning the 2001 will cannot succeed. [44] At the time the will was executed, Mr.

Hayne was around 86 years of age. He suffered from Parkinson’s disease, which hetook medication for, and he was also on a hypnotic drug, chloral hydrate, to treat his insomnia. He was in an assisted living facility for atime, then moved back into his farmhouse, but with Allan. Allan had considerable responsibilities with respect to his care. Three willswere signed in 2000 and 2001, and the gifts made in these wills are significantly different. In August 2000, Mr. Hayne signed a listingcontract to sell part of his lands. Some event occurred between Allan and Mr. Hayne and the agreement was cancelled.

At some pointAllan may have been subject to a restraining order as concerns Mr. Hayne. [45] Allan’s counsel accepted that there may be some inconsistencies in Allan’s testimony. For example, Allan swore that hewas not aware of the specific contents, or even the existence, of Mr. Hayne’s various wills prior to Mr. Hayne making the 2001 will, butin cross-examination he said, ‘I knew about it, [the 2000 will] I didn’t know about the contents.’ Allan became aware Mr. Hayne hadsigned the will ‘shortly after he was back home.’ There is also some indication that Mr.

Hayne may have had a document prepared byAllan when he instructed Mr. Getz to prepare the 2001 will. [46] In addition to the evidence summarized above, Sheila has raised concerns which will require an assessment of the weightwhich can be attached to the evidence of Dr. Avramenko and Mr. Getz. Further, and while this will require a determination at the trial asto admissibility and weight, she has also pointed to hearsay statements attributed to a physician, nurse, and Mr. Hayne. How should the merit of the claims be determined? [47] This application is for an order that the matter proceed by way of

summary trial, i.e. the first in the two-step process in theRules. Appendix A discusses the

summary trial process with a proposal for a bifurcated application and hearing process which couldpossibly be used in some cases. [48] I find that the validity of the 2001 will is not an issue suitable for a

summary trial, and should be resolved at a full trial. [49] To determine whether this case can be resolved by way of a

summary trial rather than a full trial, it is necessary to examinerelevant factors. The factors to consider in determining an application for

summary trial include these: 1. The amount involved; 2. The complexity of the matter; 3. Its urgency; 4. Any prejudice likely to arise by reason of delay; 5. The cost of taking the case forward to a conventional trial in relation to the amount involved; 6. The course of the proceedings; 7. Whether all witnesses or only some were (will be) cross-examined in court; 8. Whether there is a real possibility that a party can bolster its evidence by discovery of the other’s documents and witnesses; and 9. Whether the resolution will depend on findings of credibility.

Bonsma v Tesco Corporation, 2011 ABQB 620; Duff v Oshust, (2005), 2005 ABQB 117 , 381 AR 386. [50] In this case, the analysis of each of these factors leads to the following observations: 1. The amount involved: This factor could be expanded to include the kind and amount of relief sought. This information is not

before the Court. Depending on the amount of land owned by Mr. Hayne, it could be substantial. Even if it is, there is no information onwhy that might favor a full trial. Some small claims may require a full trial, and some large ones may be suitable for a

summary trial. This is a neutral factor. 2. The complexity of the matter: The issue is simply whether Mr. Hayne had testamentary capacity or was unduly influenced at thetime he gave instructions for and executed the 2001 will. The law with respect to testamentary capacity, suspicious circumstances, andundue influence is well settled. The question of who bears the burden of proof on these issues is set forth in detail in Vout v. Hay, (SCC), [1995] 2 SCR 876. The evidence on these issues will consist of layperson evidence (including the parties), possiblycaregiver evidence, evidence from Dr.

Avramenko, and evidence from at least two lawyers, Mr. Getz and Ms. Racz, and possibly Mr.Kolody. There could be some pharmacological evidence about the possible effects of certain drugs. Overall, and in light of my rulingsconcerning the agreement, the accounting, and the 2000 will, I do not see the remaining issues or the evidence surrounding them asparticularly complex. Overall this is a neutral factor. 3. Its urgency: Allan is at least 72 years of age. Mr. Hayne passed away almost 10 years ago. It is long since time this matter wasconcluded, however no particular urgency was identified by either party.

This factor favors a full trial. 4. Any prejudice likely to arise by reason of delay: The matters to which witnesses will be testifying occurred over 10 years ago. Itis likely that other witnesses in addition to Allan are reaching advanced ages. Some witnesses may no longer be available. It bearsrepeating that it is past time this matter was concluded, however overall this is a neutral factor. 5. The cost of taking the case forward to a conventional trial in relation to the amount involved: The parties did not provideevidence on this point. Even if one simply considers the cost of paying the lawyers and Dr.

Avramenko to attend to testify, a

summarytrial is likely to be less costly. Costs for the preparation of affidavits of most of these witnesses have already been incurred. A number ofthem have already been cross-examined. This factor favors a

summary trial. 6. The course of the proceedings: The parties have been all the way to the Court of Appeal with respect to the issue of theappointment of an administrator, and there have been many other applications filed. This is a highly contentious dispute within a family.The best solution would be one the parties achieve on their own, or with the help of a third party such as a mediator. If that is notpossible, it may be that the parties need to actually have the experience of providing testimony in a trial setting. Given the course theseproceedings have taken, at this point this factor favors a full trial. 7.

Whether all witnesses or only some were (will be) cross-examined in court: It appears from the affidavit of Gayle Brazier(affidavit of witness to a will) that Allan will be assisted here by the presumption that Mr. Hayne knew and approved of the contents ofthe 2001 will and had the necessary testamentary capacity to execute it. That will shift the evidentiary burden to Sheila to showsuspicious circumstances of the nature described in the case-law. Much of her case is dependant on cross-examination of Allan, Mr.Getz, and Dr. Avramenko.

While cross-examination has already been conducted in the context of this application, in-court cross-examination should not be precluded. This may be able to be accomodated in a

summary trial process, but overall this factor favors a fulltrial. 8. Whether there is a real possibility that a party can bolster its evidence by discovery of the other’s documents and witnesses: Thereis no argument by Sheila that further production or questioning is necessary. In addition, Allan, Mr. Getz and Dr. Avramenko have allbeen cross-examined on their affidavits. This factor favors a

summary trial. 9. Whether the resolution will depend on findings of credibility: While Alan’s credibility has been made an issue, overall this case ismore about weight than credibility. The judge will be presented with the total factual matrix alleged by the parties, and will then makefactual findings out of that matrix. Conflicting affidavits do not negate the trial judge’s ability to assess conflicting facts, and do not meanthat a

summary trial is inappropriate: 590988 Alberta Ltd v 728699 Alberta Ltd, 1999 ABQB 227, [1999] AJ No 329. The conflict inevidence described here is not so much that one witness tells one version of a story and another witness tells another. Rather it is variouswitnesses offerring their own perspective from which inferences are sought to be drawn. On the other hand, concerns as to the credibilityof Allan and Sheila are best addressed by their cross-examination in Court. Overall, this factor favors a full trial. [51] Courts should not be hesitant to decide cases by use of a

summary trial process, and litigants should not be reluctant toparticipate. Many more cases could be resolved by use of this process than current experience indicates. Procedural safeguards to ‘vet’cases ensure that only suitable cases that will result in resolution of the dispute are in the rules. Creativity can be employed in howevidence will be provided to the

summary trial judge. But each case will be dependent on its own facts, and weighing all of the factorshere, and in particular the fact that Sheila’s case appears to depend on the success of her cross-examination of Allan’s witnesses, I reachthe same conclusion as Graessar, J: … I do not see how justice can be done in this case if there are artificial limits imposed on the manner in which the parties (or either ofthem) may present their cases, or limit their ability to make their cases through witness testimony and cross-examination of opposingwitnesses. Bonsma at paragraph 56.

Conclusion [52] The accounting for monies Allan has received from Mr. Hayne and the estate is to be addressed in the Calgary estate file, butif necessary, the parties may make further application on the accounting matter in this Lethbridge action. Sheila’s claim that she isentitled to a beneficial interest in Mr. Hayne’s land pursuant to an agreement is dismissed. The question of whether the 2001 will is validis to be resolved by a full trial. [53] Costs may be spoken to. Heard on the 16th day of July, 2013.

Dated at Lethbridge Alberta this 5 th day of November, 2013. R.A. Jerke J.C.Q.B.A. Appearances: Mr. J. Farrington, Krushel Farrington for the Plaintiff (Respondent) Loran V. Halyn, Sugimoto & Company for the Defendant (Applicants) Appendix A Rules 7.5 to 7.8 set out the process by which a party applies for a

summary trial and a judge rules on whether a

summary trial process will be permitted. Rule 7.8(1) states, "The respondent to an application for judgment by way of a

summary trial may object to the application at or before the hearing of the application..." (emphasis added). Sub rule (2) states that a notice of objection and anything the objector intends to rely upon must be filed 5 days or more before the objection is scheduled to be heard. Thus, the rules expressly provide that a respondent has the right to wait until 5 days before the date scheduled for the

summary trial to give notice of objection, and then have their objection heard at the time originally scheduled for the

summary trial hearing. One of the concerns with the

summary trial process is that it is difficult for anyone to know whether the

summary trial will be permitted to occur until the date actually scheduled for the

summary trial. The process chosen in this case, to obtain this ruling in advance of the scheduled date, avoids that uncertainty. The concern about uncertainty could be addressed if parties were to follow a bifurcated process. That process could be as follows: Step 1: An application in Form 36 is filed, returnable in regular chambers. The application should be supported by an affidavit and other evidence to be relied on by the applicant (rule 7.5(2)(d)). A

summary trial is a trial so the following points should be remembered: • Evidence should conform to the law of evidence. • Each witness should provide one fresh affidavit. [1] Step 2 If the respondent consents, or does not object to the

summary trial process the parties may submit the application by way of a desk application or speak to the matter in chambers. The chambers judge will review the application and may order the application to

summary trial and direct the clerk to set the matter for

summary trial hearing. Step 3 If the respondent objects to the application ( rule 7.8) the respondent may provide an affidavit limited to evidence required to determine the objection.

Step 4 The chambers judge will hear the application and if the objection is dismissed ( rule 7.8(3)) may order the application to

summary trial and direct the clerk to set the matter for a

summary trial hearing. Step 5 The clerk fixes a date for hearing. Step 6 The respondent files its affidavit and other evidence (rule 7.6) . Step 7 If necessary, a conference is held with the assigned judge to resolve evidentiary issues ( rule 7.5(3) ) or applications to adduce viva voce evidence. Step 8

Summary trial proceeds on the hearing date. The Judge makes a decision after

summary trial and grants judgment unless rule 7.9(2) applies.