Black v. Silver Estate, 2022 NSSC 82

SUPREME COURT OF Nova Scotia Citation: Black v. Silver Estate , 2022 NSSC 82 Date: 20220318 Docket: BWT No. 506247 Registry: Halifax Between: Shirley Black Applicant v.

Estate of Carolyn Esther Silver and Shelley Lee Ross-Jeschke Respondents Judge: The Honourable Justice Diane Rowe Heard: January 26, 2022, in Bridgewater, Nova Scotia Final Written Submissions: February 11, 2022 Counsel: Mark Taylor, for the Applicant Celia Melanson, for the Respondents By the Court: [ 1 ] The Respondent in the main Probate application, the Estate of Carolyn Esther Silver, (the “Estate”) made a motion to strike portions of the Affidavits of Shirley Black and her son Stephen Black, both sworn on May 14, 2021. Ms.

Black is the Applicant in the main application, and is seeking to set aside the current grant of Probate to the Estate. She is the Respondent to this motion by the Estate. [ 2 ] The two impugned affidavits were filed in support of Ms. Black’s Notice of Contest to the Estate’s application for Probate of the Will of Carolyn Silver, made October 21, 2003 (“2003 Will”). Ms.

Black disputes the 2003 Will’s validity on the basis that the testator had either revoked the 2003 Will or that it was superseded by another testamentary instrument. [ 3 ] At the outset of the hearing on January 26, 2022, both parties confirmed there was no agreement between them on any portions of the disputed passages of the two Affidavits. [ 4 ] The Court requested further submissions by counsel on cases that were referenced in the hearing, but that had not formed part of their filed written submissions, for the purpose of determining the issues between the parties.

These submissions were received on February 2nd and 11th, 2022, respectively. Motion to Strike Portions of Affidavit [ 5 ] The Estate seeks that the Court make an order that the two Affidavits be struck in the following manner: 1. Shirley Black’s affidavit be struck at paragraphs 3(d); 3(g); 3(i), 3 (j), and 3(k); 2. Stephen Black’s affidavit be struck at paragraphs 3(c); 3(d); 3(h), 3 (j), 3(p); 3 (r), 3(

s) and 3(t). [ 6 ] It relies upon the Nova Scotia Civil Procedure Rules; Rule 39.04, and upon the jurisprudence in Waverley (Village Commissioners) v. Nova Scotia (Minister of Municipal Affairs) , 1993 NSSC 71 , (“ Waverley ”) and Villeneuve v. MacPherson Estate , 2019 NSSC 88 , (“ Villeneuve ”) paragraphs 11 to 14 . [ 7 ] I will note that the primary source of objection to the contents of the challenged paragraphs is that they constitute inadmissible hearsay, and are either not in proper form, or fail to identify the source of information or affirm belief.

The Estate requests that the Court consider generally the admissibility of the contents of the paragraphs in regard to other issues that may appear, including plea or argument, and lay opinion. [ 8 ] At the outset, I will note that Rule 39.02 provides: 39.02 Affidavit is to provide evidence

(1) A party may only file an affidavit that contains evidence admissible under the rules of evidence, these Rules, or legislation.

(2) An affidavit that includes hearsay permitted under these Rules, a rule of evidence, or legislation must identify the source of the information and swear to, or affirm, the witness’ belief in the truth of the information. [emphasis added] [ 9 ] Civil Procedure Rule 39.02(2) imposes a mandatory requirement upon the affiant, requiring that when they are making a statement that includes hearsay, as may be permitted under the Rules , a rule of evidence, or legislation, to identify the source of the information. [ 10 ] Further, the provisions of Civil Procedure Rule 39.04(2), (3) and (5) are relied upon by the Estate, as these provide that:

(2) A judge must strike a part of an affidavit containing either of the following: (

a) information that is not admissible, such as an irrelevant statement or a submission or plea; (

b) information that may be admissible but for which the grounds of admission have not been provided in the affidavit, such as hearsay admissible on a motion but not supported by evidence of the source and belief in the truth of the information. [emphasis added]

(3) If the parts of the affidavit to be struck cannot readily be separated from the rest, or if striking the parts leaves the rest difficult to understand, the judge may strike the whole affidavit. . . .

(5) A judge who strikes parts, or the whole, of an affidavit must consider ordering the party who filed the affidavit to indemnify another party for the expense of the motion to strike and any adjournment caused by it. [ 11 ] Equally then, Rule 39.04(2)(

a) and (

b) imposes a mandatory obligation upon the Court to strike an affidavit containing inadmissible evidence, although it permits hearsay in the context of a motion. [ 12 ] In regard to its submission that the Affidavits as filed are defective, the Estate refers to Civil Procedure Rule Form 39.08, which provides litigants with an acceptable form for affidavits to be filed with the Supreme Court of Nova Scotia. This form includes a series of paragraphs to assist affiants in providing sworn evidence in an acceptable manner.

These paragraphs provide that an affiant identify themselves accurately, and disclose their relationship, if any, to the proceeding or a party. The form also provides that an affiant will disclose whether they have personal knowledge of the evidence in this affidavit except where otherwise stated to be based on information and belief. Further, it includes a paragraph requiring the affiant to swear that the source of any information that is not based on their own personal knowledge will be identified, and to state the affiant’s belief of the source. [ 13 ] Ms.

Black, in response, relies upon the Probate Act RSNS 1989 , c. 360 (“ Probate Act ”) and the Probate Court Practice, Procedure and Forms Regulations made pursuant to

section 106 of the Probate Act , N.S. Reg 119/2001 , (“ Probate Regulations ”). The Probate Regulations provide that Affidavits filed in relation to applications under the Probate Act will be filed in accordance with Probate Form 46. [ 14 ] It was noted, correctly, by Ms. Black that the legislative authority contained in the specific provisions of the Probate Act , and Probate Regulations , will take precedence over the Nova Scotia Civil Procedure Rules with some exception. As provided in

section 102 of the Probate Act , the Civil Procedure Rules will apply in the event there is no provision in the Probate Act or its Regulations for an aspect of practice or evidence. Admissibility and hearsay in the context of a Probate Application [ 15 ] Both counsel are in agreement that the jurisprudence concerning admissibility of affidavit evidence, as it has developed in this Court, are applicable in this matter, and both refer and rely upon Waverley in this regard. [ 16 ] The Estate relies upon the principles enumerated in Waverley concerning the content of the affidavit evidence before the Court.

In contrast, Ms. Black seeks that the Court recognize the principles, too, while also determining that there is a distinction concerning affidavit evidence in the context of a Probate Act application, when the affidavit is filed in accordance with Form 46. [ 17 ] Ms.

Black asks that the Court find that the differences between Form 39.08 of the Civil Procedure Rule and Form 46 of the Probate Act and Regulations indicate that the legislature intended that Probate Act matters, and affidavits filed pursuant to it, were to be “drafted with other principles in mind.” [ 18 ] It is evident that Form 46 contains a more general statement that the affiant will make statements of “fact”, and there is an absence of a series of standard paragraphs capturing the evidentiary requirements as within Civil Procedure Rule Form 39.08.

With respect, though, the more general phrasing in the Form 46 referring “fact” does not remove the need for affidavit evidence to meet the legal requirements for admissible evidence in a Supreme Court proceeding. [ 19 ] Ms. Black relies upon the decision in Balders Estate v.

Halifax (County) Registrar of Probate [1999] NSJ No. 182 (“ Balders Estate ”) to indicate that the inclusion of hearsay evidence is within the scope of a Probate Act application, subject to the rules of evidence and applicable legislation, and that it comes within the ambit of a “motion” under the Civil Procedure Rule 39.04(2)(b), which would permit the inclusion of hearsay evidence. [ 20 ] I agree with this general principle advanced by Ms.

Black, but I will note that the Balders Estate decision also indicates that when hearsay evidence is placed before the Court that it will allow its admission only on a principled basis. As noted by Saunders, J. at para 20, in Balders :

Thus in a matter such as this, begun by originating notice (application inter partes) the parties are entitled to file affidavit evidence going beyond the deponent’s personal knowledge. One is able to augment the deponent’s own personal knowledge with “hearsay” admitted on a principled basis, that is in a fashion that will announce and vouch for its necessity and reliability. That is why CPR 38.02(1) [Rule 39 in 2022] compels the disclosure of : … the sources and grounds thereof and why Mr.

Justice Davison explained in Waverley , supra that: 4. (t)he information as to the source must be sufficient to permit the court to conclude that the information comes from a second source and preferably the original source. 5. (t)he affidavit must state that the affiant believe the information received from the source. [ 21 ] The impugned paragraphs before the Court then must be considered in the circumstances of the litigation, to determine whether they are admissible in accordance with the rules of evidence, the Civil Procedure Rules or legislation.

In other words, the Court must determine whether the content of the Affidavits provide the information sufficient for a court to conclude the information comes from a second source and preferably the original source, and that the affiant has belief in the information from the source. [ 22 ] The Court will first note that neither Ms. Black or Mr. Black’s affidavits contained phrasing resembling the contents akin to the Civil Procedure Rule Form 39.08

preamble, which is not fatal to the filing of the affidavits, as they conform to Form 46 of the Probate Act and Regulations. [ 23 ] However, the contents of certain paragraphs forming the subject of the motion to strike did contain hearsay. I will note that some of the statements were attributable to a source or belief, but not consistently.

The reader is left to make presumptions on certain of the hearsay statements on whether the information is within the affiant’s personal knowledge, or based on information from another which they believed, and at some points foregoes identifying the source. [ 24 ] Hearsay evidence is an out of court statement tendered for the proof of its content, and for which there is no opportunity to cross examine the person who made the statement as to its content. (Charron, J. in R v.

Khelawon 2006 SCC 57 at paras 56-58 ) The purpose of a litigant for entering the out of court statement determines whether it is admissible. [ 25 ] The Estate submitted that in an action, rather than upon an interlocutory motion, that hearsay can be admissible if offered only for a fact of a statement having been made, with reliance on Gibson v. Party Unknown 2014 NSSC 220 . [ 26 ] Ms. Black requests that the Court refuse to strike the paragraphs containing hearsay made in the application, as the contents are relevant and could be tested on cross examination, in the course of the hearing.

She further submits that the hearsay statements that refer to the testator’s statements are not offered for the truth of the contents but on their having been made. [ 27 ] Ms. Black also submits that in the context of Probate applications that the nature of the application would require the Court to consider the principle of necessity, in these circumstances, as offering an exception to the hearsay rule when considering statements attributable to the deceased. [ 28 ] Ms. Black’s submission on this point is accepted by the Court, as it was noted in C. Marseille & J.

McArthur, eds, The Law of Objections in Canada : A Handbook (Toronto, Lexis Nexis Canada, 2019) at page 163 that: Hearsay will be considered sufficiently necessary where the witness is deceased… In those situations, but for the hearsay, the statement could not otherwise be introduced into evidence. [ 29 ] In oral argument, Ms. Black submits that if there is a prejudicial impact to some portion of the Affidavits, which the Court presumes is in regard to a reference in Ms. Black’s affidavit to the involvement of the RCMP, that it is outweighed by its probative value.

However, the law is clear that the probative value of such evidence must be high, with the weight of such evidence to be determined by the Court. [ 30 ] Additional submissions were made in regard to opinion evidence, as Ms. Black and Mr. Black each made statements of opinion as well as comments reflecting a “concern”. The caselaw reviewed, including Superport Marine Services Limited v. Balodis Incorporated , 2021 NSSC 237 at para 5 -8 , indicates that opinion evidence is admissible, and lay opinion specifically, in certain circumstances. I have considered this, in making this decision. [ 31 ] In conclusion, Ms.

Black relies on the Civil Procedure Rules overarching purpose, the “… just, speedy and inexpensive determination” of a dispute, to serve as a guiding principle for the Court in its consideration of the motion. Ms. Black submits that some of the issues canvassed in the affidavits may be addressed in the course of cross examination, or by permitting the amendment to the affidavit evidence so as to include the source of information and belief, and to remove the need for discovery or additional affidavit materials.

Analysis and Disposition of Affidavit Contents [ 32 ] The disposition on the objections to each of the Affidavits raised by the Estate will be addressed, separately. I have considered the submissions of counsel on each of the legal issues raised in regard to the objections, inclusive of hearsay, and the submissions on the Civil Procedure Rules , and case law as provided to the Court and canvassed above. Affidavit of Shirley Black [ 33 ] 3(

d) At the outset of this paragraph, Ms. Black makes a broad statement of personal opinion concerning her view of the quality

of the relationship between the executrix and the testator but does not disclose the basis of this opinion. The Court will strike the first sentence of the paragraph, with the rest to remain. [ 34 ] 3(

g) The source of the hearsay statement is not identified but more generally, the paragraph can not be remedied by simply identifying the source. The content of the hearsay statement is prejudicial with little probative value to determining a fact in issue in the main application, which is whether the testator revoked the 2003 Will or superseded it with another testamentary instrument. The Court will strike the paragraph in its entirety. [ 35 ] 3(

i) The Court does not strike this statement, as the Estate can call either Mr. Stephen Black or Richard Black, to cross examine concerning Ms. Black’s hearsay statement. [ 36 ] 3 (

j) The paragraph contains a hearsay statement regarding a fact in issue, specifically whether the testator referred to making other wills after the 2003 Will relied upon by the Estate. Ms. Black maintains that it should remain, on an exception to the hearsay rule on the basis of necessity. Ms. Black’s reference to a source for the statement made by the testator is her son Stephen, who has also provided his own affidavit in support of his mother’s position on the main application. He may be cross examined on this statement.

The Court will permit the paragraph to remain, as this statement offers significant probative value, but strikes the portion of the sentence beginning with the words “my sister” and ending with the word “other..” to be replaced by the phrase “… my sister referred to other…”. [ 37 ] 3(

k) This paragraph has no reference to a basis for the affiant’s belief concerning the 2003 Will’s revocation and is wholly speculative on the deceased’s intent and knowledge. It also contains submissions of argument. The Court strikes the paragraph in its entirety. Affidavit of Stephen Black [ 38 ] 3(

c) There is no source for the affiant’s information concerning letters sent to the deceased and his conclusion on their contents. This paragraph is struck. [ 39 ] 3(

d) There is, again, no source for the affiant’s statement concerning the deceased’s actions regarding a complaint to the RCMP. This paragraph is struck. [ 40 ] 3(

h) This statement contains “double hearsay”, as it references the deceased’s statements to Ms. Black, purportedly made over the phone, which Ms. Black then told to the affiant. Further, it is not clear from the paragraph phrase “At her request…” who is making this request, as it could be either Ms. Black or the deceased. This paragraph is struck. [ 41 ] 3 (

j) This paragraph refers to the affiant’s brother driving the deceased to a bank to meet a named representative “regarding her plans”. The source for the hearsay is named, but the portion “regarding her plans” is struck as there is no basis for the information set out, and is double hearsay in regard to the intent of the deceased. [ 42 ] 3(

p) The Court will allow this paragraph to remain, as Richard Black may be examined by the Estate. [ 43 ] 3 (

r) The affiant is making a submission or plea in this paragraph. The Court will strike the portion of the sentence beginning from the words “… although my Aunt had considered the 2003 Will…” inclusive to the portion ending with “….to my brother, Stephen Black, that…”. [ 44 ] 3(

s) The hearsay is in regard to a fact in issue that is relevant. It refers to information from counsel for the affiant’s mother, a person who is not his own counsel. The Court will permit this paragraph to remain. [ 45 ] 3(

t) This paragraph is legal argument, contains speculation, and should be struck in its entirety. COSTS [ 46 ] In regard to costs of the motion, the Court notes first that the hearing was under one hour in length, although additional written submissions were submitted at the Court’s request. [ 47 ] Further, there was a mixed result in the motion, as some portion of paragraphs of the Affidavits were struck, with few struck in their entirety, as sought by the Estate. However, Ms.

Black was not entirely successful, either, as some portions or entire paragraphs were struck, on the basis of the Estate’s objections to hearsay evidence, lack of foundation, speculation and legal argument. [ 48 ] Therefore, the Court does not award costs of the motion to either party, due to the mixed disposition. The motion has served to outline the issues between the parties, and their respective positions on the Probate application. [ 49 ] I request that the moving party, the Estate, prepare a form of Order to reflect the decision. It is to be shared with Ms.

Black for review on its contents, and then filed with the Court for issuance. Rowe, J.