Canada: Tactical Summons Barrage Leads To Big Indemnity

Last Updated: December 19 2014
Article by Caroline Abela

The case of Opara v. Opara [2014] O.J. No. 4555 provides an example of hotly contested estate litigation involving a disappointed family member who will take the matter to a disproportionate level in an attempt to avoid dismissal of his litigation.

In a motion in September, Justice Laurence Pattillo quashed summonses to witness served by this beneficiary on all opposing counsel and ordered substantial indemnity costs against him, personally, as opposed to the estate. The beneficiary sought to cross-examine opposing counsel in support of his outstanding motion seeking to set aside a settlement and consent orders on the grounds of judicial duress.

This unfortunate estate matter involves one asset — a vacant house — jointly held by two estates, the value of which does not justify the relentless litigation being pursued by one beneficiary against the other beneficiaries of the two estates. The house was jointly owned by two sisters, each of whom had children. The underlying dispute is driven by one of the children — a beneficiary — pursuing a right of first refusal to purchase the house.

In March, the dispute was resolved. Minutes of settlement were signed to facilitate the sale of the home, subject to court approval. On consent, Justice David Brown approved various court orders reflecting the terms of the settlement.

The settlement was subsequently challenged. The beneficiary served a motion to set aside the consent orders on the grounds of judicial duress.

Initially, the judicial duress motion came before Justice Susan Greer (who has since retired from the bench) in June. At the outset, the moving beneficiary sought an adjournment of the motion for his new lawyer to review the case and to file new evidence. The adjournment was opposed. In [2014] O.J. No. 3391, Justice Greer agreed to adjourn the judicial duress motion in the two estate matters, and ordered costs of the adjournment to be paid personally by the moving beneficiary.

Following the adjournment, the beneficiary served summonses on all opposing counsel to cross-examine them in support of the outstanding judicial duress motion. In support of his motion, the beneficiary filed a lengthy affidavit setting out in detail what occurred inside and outside the courtroom, as well as a transcript and audio recording of the relevant proceeding which the beneficiary was putting at issue. The lawyers moved to quash the summonses.

On the motion to quash, Justice Pattillo upheld the well-established test of necessity and material relevance to require counsel to testify against their own client. The court found that the evidence sought was not relevant, let alone highly material (it was also not necessary in the circumstances, especially in light of the transcript and audio recording of the beneficiary). The court was also troubled by the impact the summonses would have on the status of litigation counsel if these lawyers were compelled to be fact witnesses on the judicial duress motion. The result would be that the other parties would have to retain new counsel, again. This beneficiary previously brought in former counsel as parties to the proceedings, causing the other party beneficiaries to have to retain new counsel at least once before. One party is on her third set of counsel due to allegations raised by the beneficiary against her former lawyers.

Justice Pattillo expressed concern with the beneficiary's plan that the cross-examination of counsel "may also necessitate a change in the representation of other parties." That statement, coupled with the beneficiary's prior history of "icing" the other parties' lawyers, led the judge to conclude that "the serving of the summonses was more tactical than necessary." Justice Pattillo ruled that the administration of justice "demands" that the summons be quashed.

In awarding substantial indemnity costs of $20,000, personally, against the beneficiary, the court described the service of the summonses as "ill-conceived" and motivated "to cause delay and expenses to the other parties."

The judicial duress motion was on Oct. 17 dismissed by Justice Frank Newbould, and the settlement reinstated. Again, costs were ordered against the moving beneficiary in the amount of $30,704.42. If the costs are not paid, Justice Newbould directed the costs to be paid from the proceeds of the sale of the house that would otherwise be payable to the beneficiary.

Similar to the sentiment expressed by Justice Pattillo, Justice Newbould condemned the beneficiary's ongoing pursuit of litigation: "I cannot leave this motion without expressing dismay at the legal costs incurred in all of these proceedings over a house said to be valued at $1 million and the amount in dispute apparently $50,000. All of the litigation should have ended with the minutes of settlement. Unfortunately it has not."

Despite three personal costs awards against the beneficiary, on November 17, 2014, the beneficiary brought a motion for a stay of the Order of Justice Newbould. Justice Robert Sharpe of the Court of Appeal dismissed the motion and awarded costs of $10,000 to be paid from this beneficiary's share of the proceeds of the house. The estate trustee was awarded costs of $4,000 to be paid from the estate. The next day, Justice Michael Penny approved the sale of the house.

Originally published by The Lawyers Weekly.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Caroline Abela
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