May 13, 2014

The Supreme Court of Canada has emphasized access to justice as one of the top concerns facing the legal profession today (see our blog post summarizing the Supreme Court’s decision, Hryniak v Mauldin).  Justice Brown of the Ontario Superior Court has made practical the Supreme Court’s directives in Re Estate of Ireni Traitses.

Re Estate of Ireni Traitses involved a motion for directions on two related will challenges. Justice Brown took the principles and values of Hryniak to heart in shaping the order for directions. He held:

“The proportionality principles laid down by the Supreme Court in Hryniak apply to the crafting of an order for directions in these two will challenge proceedings. In light of Hryniak, I see little utility in continuing to use the standard Estates List Order for Directions. The appropriate process for will challenge proceedings now must incorporate the Hryniak principle of proportionality.”

In the result, Justice Brown used his discretion to shape the proceedings:

– He limited the pre-hearing examinations to a set number of written questions (50 each for each party), with no cross-examinations or discoveries to take place;

– He limited the scope of disclosure for proportionality reasons;

– He authorized service of materials by e-mail; and

– He ordered a two-day hybrid hearing, meaning evidence-in-chief would be delivered by affidavit (relying on the affidavits already filed), with time-limited cross-examinations to take place during the trial.

Justice Brown noted that with an aging population, the resolution of disputes must proceed quickly. This requires the parties to co-operate with one another, remain in communication, and always use common sense (the “three Cs”) in pre-trial dealings and case management.

Re Estate of Ireni Traitses is a bold example of a trial judge putting the values articulated by the Supreme Court in Hryniak, namely increasing access to justice, into practice.