In a decision dated April 4, 2014, Justice D. M. Brown of the Ontario Superior Court of Justice refused an applicant’s request for a hearing date for a summary judgment motion and instead ordered that the action be resolved by way of a hybrid trial.
The case involved a will challenge for a “modest” estate (about $750,000 in total). Two of the deceased’s four daughters were challenging the will on the basis of lack of testamentary capacity and undue influence, among other grounds. In refusing one daughter’s request for a summary judgment hearing date, Justice Brown cited the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7, in which the Court stated:
“ A motion for summary judgment will not always be the most proportionate way to dispose of an action. For example, an early date may be available for a short trial, or the parties may be prepared to proceed with a summary trial. Counsel should always be mindful of the most proportionate procedure for their client in the case.”
Justice Brown held that in this case bringing a summary judgment motion would be a grossly disproportionate way to resolve the dispute for two reasons:
- The estate was modest and summary judgment motions are expensive; and
- Significant credibility issues were at play with conflicting versions of facts between two “antagonistic" daughters.
Justice Brown assigned a trial date for the autumn of 2014 and ordered that the matter proceed by way of a “hybrid form of hearing” in which any party who intended to testify at trial must file an affidavit which will serve as his or her evidence-in-chief, and a time-limited oral cross-examinations would be scheduled. As to the evidence from non-party witnesses (if affidavits could not be obtained), each party must serve a detailed will-say of the anticipated evidence from such witnesses.
Note : Justice Brown held that at the present time in the Toronto Region, trials of five days or less are available "virtually for the asking". That has not been my recent experience. I could not get a three day trial heard in Toronto, even though we had been given a trial date of the week of May 10th, on the basis that there were no judges available. The trial coordinator advised us that we would be put over to a new date between September and December of 2014.