2013 ONSC 1338, 2013 ONSC 1338

CITATION : Lund v. Rossiter, 2013 ONSC 1338 COURT FILE NO.: 05-12/12 DATE: 20130325 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Geoffrey Griffith Lund, Applicant AND: Nancy Katherine Rossiter and Gary Rossiter, Respondents BEFORE: Pollak J. COUNSEL: David M. Smith and Holly LeValliant , for the Applicant Jonathan L.

Rosenstein , for the Respondents HEARD: November 27, 2012, January 22, 2013 ENDORSEMENT [ 1 ] This Application is brought pursuant to Rule 75.06(1) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 [“ Rules” ], by a “person who appears to have a financial interest in an estate”, for directions from the Court on how to resolve the dispute. The Court decides the procedure to be used to resolve the contentious dispute. [ 2 ] The relief requested in this Application is: (

a) a declaration that the Will and Codicils are invalid as a result of undue influence; and (

b) a declaration that the Joint Assets were, as a matter of law, Estate Assets. [ 3 ] There is a Consent Order that identifies the issues to be tried and deals with production of documents. The specified issues to be tried are: (

a) The Applicant affirms and the Respondents deny that the Will dated February 17, 2000 is invalid due to the lack of testamentary capacity of the late Eric William Lund on the date of execution of the Will; (

b) The Respondents affirm and the Applicant denies that the deceased had knowledge of and approved the contents of the Will; (

c) The Applicant affirms and the Respondents deny that the Will was procured by the undue influence of the Respondent Nancy Rossiter; (

d) The Applicant affirms and the Respondents deny that the Codicil dated March 31, 2001 (the “First Codicil”) is invalid due to the lack of testamentary capacity of the deceased on the date of execution of the First Codicil; (

e) The Respondents affirm and the Applicant denies that the deceased had knowledge of an approved the contents of the First Codicil; (

f) The Applicant affirms and the Respondents deny that the First Codicil was procured by the undue influence of the Respondent Nancy Rossiter; (

g) The Applicant affirms and the Respondents deny that the Codicil dated April 24, 2002 (the “Second Codicil”) is invalid due to the lack of testamentary capacity of the deceased on the date of execution of the Second Codicil; (

h) The Respondents affirm and the Applicant denies that the deceased had knowledge of and approved the contents of the Second Codicil; (

i) The Applicant affirms and the Respondents deny that the Second Codicil was procured by the undue influence of the Respondent Nancy Rossiter; and (

j) The Applicant affirms and the Respondents deny that any assets passing to the Respondent Nancy Rossiter and/or the Respondent Gary Rossiter upon the death of the deceased by right of survivorship are impressed with a resulting trust for the Estate of the deceased. [ 4 ] The Respondents move for

summary judgment of this Application. [ 5 ] There is no further Order on any pleadings or any procedure to resolve the specified issues. [ 6 ] The Respondents submit that the declarations in the Applications are inappropriate, and that the Court should consider “the pith and substance” of the relief sought to determine whether the “real” relief is barred by the Limitations Act , 2002, S.O. 2002, c. 24, Sched. B. They argue that this Application is really about the Mr. Lund’s wish to recover one-quarter of his father’s estate from Nancy

Rossiter. On this motion, the Respondents submit that such a proceeding to recover these funds is statute-barred and that proceedingwith the Application is a waste of judicial resources. The Respondents further submit that even if the Applicant exclusively seeksdeclarations, the Application is an improper attempt to obtain an advisory opinion from the Court as to whether Mr. Lund has any validclaims against Ms. Nancy Rossiter. [7] The parties made submissions to the Court regarding the appropriateness of a

summary judgment motion on this Application. [8] The preliminary question facing the Court, explored in these Reasons, is whether to consider the Respondent’s motion forsummary judgment on this Application? [9] In Knox v. Trudeau, (2001), 38 E.T.R. (2d) 67, para. 9 (Ont.

S.C.J.)[Knox], Pardu J. held that: “The purpose of Rule 75.06(3) is to enable a judge at the outset to design a procedural regime most appropriate for the nature of thedispute, and contemplates the possibility that the proceeding may not be encumbered by all of the procedural steps that may accompanyother civil proceedings, and may in that sense proceed in a "summary fashion". Sometimes the nature of a dispute may obviate the needfor oral evidence where, for example, the dispute turns on a point of law, or

interpretation of a document. Oral evidence may not benecessary in every contentious estate proceeding. Orders giving directions may have to be varied where circumstances change.” [10] In Essex Condominium Corp. No. 5 v. Rose-ville Community Centre Assn. (2007), 51 C.P.C. (6th) 89 (Ont. S.C.J.)[Essex], thisCourt held, correctly in my view, that a

summary judgment motion is not available for a proceeding commenced by application asopposed to by action: “[10] On its face, the plain language of the Rule is restricted to actions. The Rule speaks of a motion for

summary judgment beingmade by a “plaintiff” or “defendant”. These terms are defined in Rule 1.03. A plaintiff “means a person who commences an action”. Adefendant “means a person against whom an action is commenced”. While “proceeding” means “an action or application”, an action isdefined as a proceeding that is not an application”. A literal

interpretation of Rule 20, in context, would restrict its scope to proceedingscommenced as actions. [11] The authorities support this restrictive view of Rule 20: see Holmes v. London Life Insurance Co. (ON SC),[2000] O.J. No.3621 (Ont.S.C.). While Holmes was distinguished in the subsequent cases of Martin v. Ontario, [2004] O.J. No.2247(S.

C) and Fraser v. Canada, [2005] O.J. No.5580 (S.C.), these cases were concerned with Rule 21, as distinct from Rule 20. Rule 21 isconcerned with striking a proceeding. This is very different than the relief envisaged by Rule 20, which is a

summary disposition of themerits. … [17] This logic does not and cannot apply to Rule 20. First, Rule 20 does not refer to other documents or other proceedings. It is, on alogical

interpretation, restricted to actions. Nor can it be said that Rule 14.09 applies to Rule 20, as Rule 20 does not allow the court tostrike out or amend a pleading. Rather, it allows a party to apply for

summary judgment, a final disposition of the claim on the merits.This is a very different form of relief and is not analogous to striking out or amending a claim. [18] Finally, I have considered s.106 of the Courts of Justice Act, which provides that: “A Court, on its own initiative or on motion byany person, whether or not a party, may stay any proceeding in the court on such terms as are considered just”. The Association did notmove under s.106 and are not seeking a stay. In any event, I am not satisfied that a stay is appropriate in the circumstances of this case. [19] In conclusion, I find that

summary judgment relief under Rule 20 of the Rules of Civil Procedure is not available to theAssociation, because the main proceeding is an application, as distinct from an action. It might well have been open to the Association tobring a motion to strike the application under rule 21.01, but it did not opt to do so.” [11] The parties, however, identified jurisprudence (none of which considered Essex) suggesting that motions for

summaryjudgment may be appropriate in a Rule 75 Application in select circumstances. [12] As will be outlined below, all of the cases allowing a motion for

summary judgment can be distinguished from the presentcircumstances. [13] In Grey v. Boyd, 2011 ONSC 7288, paras. 34, 41 [Grey], an Order for Directions, made on consent, directed issues to be tried,including the validity of the Will, as well as a number of directions relating to productions, examinations, and affidavits of documentsand named parties to the proceedings. The Court considered, and ultimately dismissed, the

summary judgment motion on the validity ofthe Will, holding that: “41 … the genuine issues requiring a trial involve both fact and law. I am not satisfied that I can weigh the evidence, evaluate thecredibility of the deponents or draw reasonable inferences on the evidence based solely on the affidavits submitted or the examinationsconducted. Indeed, I find that it is necessary in the interest of justice that the judicial assessment of the evidence be exercised at a trialwith viva voce evidence as directed in the order of Justice Lack dated April 27, 2010.

Certainly at this stage of the proceeding theevidence of Dr. Murray and the Reverend Bishop, while perhaps contradictory in part, is nevertheless compelling on such issues oftestamentary capacity and/or undue influence. I find that their evidence and the Applicant's affidavit satisfy me that there are genuineissues requiring a trial. 42 The entire issue as to when

summary judgment is appropriate has now been significantly clarified in the recent decision ofCombined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 (Ont. C.A.). As detailed in this decision there are three types of casesamendable to

summary judgment (although the list is not exhaustive) (reference paragraphs 40 to 44 inclusive):

(

a) cases where the parties agree that it is appropriate to determine an action by way of

summary motion; (

b) cases where the claims or defences are shown to be without merit; (

c) cases where the "interests of justice" do not require the issues to be resolved at trial. 43 The Court of Appeal in the Combined Air Mechanical case establishes the "full appreciation test" which the Court states is a useful benchmark for deciding whether or not a trial is required in the interest of justice. Accordingly, the Court of Appeal states that "a motions judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of

summary judgment, or can this full appreciation only be achieved by way of a trial?" (para.50) 44 Applying the "full appreciation test" to this particular case I find that the multiple findings of fact on conflicting evidence emanating from a number of witnesses and a voluminous record, makes a

summary judgment motion an inadequate substitute for the trial process. I find that as the motion judge I cannot achieve a full appreciation of the evidence and issues that is required to make dispositive findings. Therefore, I find the full appreciation test is not met and the "interest of justice" requires a trial. In support of this finding I adopt the analysis at paragraphs 53 and 54 in the Combined Air Mechanical case. In particular, I find that the attributes of the trial process are necessary to fully appreciate the issues posed by this case.

The full appreciation test requires me to do more than to simply read transcripts of cross-examinations put before me. The record does not permit me to adequately assess all the evidence. I find that to meet the full appreciation test it is necessary to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to make findings of fact first hand at trial.” [ 14 ] In Papageorgiou v. Walstaff Estate (2008), 42 E.T.R. (3d) 50 (Ont. S.C.J.) , the Court held: “In this case, unlike Knox v.

Trudeau , the order of Justice Herman directing a trial of the issue expressly permitted the respondent to bring a motion for

summary judgment . The material facts concerning the central issue are not in dispute — the 1990 Draft Will was never executed. A full evidentiary record concerning this issue is before the court. I am satisfied that this is an appropriate case to consider a motion for

summary judgment.” [ 15 ] In Knox , a comprehensive procedural order was made in the proceedings, setting out the plaintiff and defendant, timetable for delivery of a statement of claim, required affidavits of documents, and examinations under oath. Further, it ordered that the issues be tried by a judge sitting without a jury. [ 16 ] Similarly, in Slater v. Slater (2004), 12 E.T.R. (3d) 246, para. 3 (Ont. S.C.J.)[“ Slater” ] , the Court held that: “I conclude that the Court has authority to allow the applicants to bring a Rule 20 motion under paragraph 16 of the Order.

The Order requires that there be a trial of certain identified issues. It was granted at an early stage of the proceedings. In such circumstances, a liberal reading should be given to the word "trial" to encompass any other judicial proceedings that, on application by any of the parties pursuant to paragraph 16, the Court may determine to be appropriate to resolve the action, including a Rule 20 motion.

To the extent it is necessary, it is also ordered that paragraph 16 of the Order is hereby amended to allow the applicants to bring this motion .” [ emphasis added ] [ 17 ] Finally, in Re Ettorre Estate , 11 E.T.R. (3d) 208, para. 10 (Ont. S.C.J.) , the Court held that: “The Estate action was commenced by an application for directions that was made by Vito and heard by Goodman J. on September 26, 2002. A further order was made by J.S. O'Neill J. on January 23, 2003.

Among other things, Goodman J. made Orders requiring an exchange of information, and for other steps to be taken, in connection with the sale of the condominium in Florida and payment of the proceeds into court. Pleadings were ordered to be delivered in the Estate action. It was ordered that the action commenced by Mrs.

Ettorre against Vito should either be consolidated or heard together, or immediately after, the Estate Action and that Rose and Brigitte were to continue to administer their mother's Estate in their capacity as its executors until further order of the court - such order to be without prejudice to Vigo's application to remove them as executors. The motion for directions was otherwise adjourned.” [ 18 ] The jurisprudence standing for the proposition that it may be appropriate to consider

summary judgment motions in estate matters features distinct facts; namely, the Court had already decided the issues in dispute and the procedure (with the exception of Grey ) to be used to decide the issues raised in the Applications. This contrasts with the present case; although the issues in dispute have been determined on consent of the parties, there has been no agreement of the parties or a decision by the Court on the appropriate procedure to follow to resolve these issues. Further, the issue raised on this

summary judgment motion (limitation period) is not one of the issues that are identified as issues to be “tried” in the Application by the parties. As noted above, the Respondents submit that the relief requested, by way of declaration, is improper and urge the Court to decide the issues on the real “pith and substance of the Application”. [ 19 ] Slater specifically considered whether the

summary judgment should be part of the procedure in the Application. Similarly, in this case, the appropriateness of the

summary judgment motion should be dealt with by the judge hearing the Application, as is intended by Rule 75.06 (see Knox ); this result prevents a wasteful and inefficient waste of “judicial resources” and saves the Court from unnecessarily ruling in advance on limitation periods that may or may not be relevant. [ 20 ] As well, at the very least, even if the

summary judgment motion would have been appropriate to resolve this Application, the Court finds that it could not have a “full appreciation” of the case at this early stage of the litigation as required by the Court of Appeal for Ontario in Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 . [ 21 ] In conclusion, this Court finds that the

summary judgment motion procedure is inappropriate in these circumstances and accordingly dismisses the motion. Costs

[ 22 ] The parties agree that the amount of $9,000 is a reasonable award of costs on a partial indemnity basis for the successful party on this

summary judgment motion. [ 23 ] The parties may make submissions on costs as follows: the Respondent by 12:00 noon on April 2, 2013 and the moving parties by12:00 noon on April 9, 2013, and the Respondents may file a reply by 12:00 noon on April 16, 2013. Pollak J. Date: March 25, 2013