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December 8, 2014

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Page 2 December 8, 2014 • Law Times www.lawtimesnews.com NEWS Hryniak followup Appeal decision highlights limits to expanded powers By yamri Taddese Law Times lower court judge made "palpable and overriding errors" when she decided a bitter sibling rivalry over a mother's estate through sum- mary judgment, the Ontario Court of Appeal has found in a ruling that highlights the limits of judges' expanded powers un- der Hyrniak v. Mauldin. "In appropriate cases, the motion for summary judgment provides an alternative model of adjudication that has the benefit of streamlining the process for litigants and making the civil justice system more accessible and affordable," wrote Justice Mary Lou Benotto on the appeal court's behalf in Trotter Estate. "However, the fact that the new process of adjudication is well-intentioned and can be beneficial cannot impose an im- perative on the court to use it in every case." In a matter dealing with sib- lings sparring over their share of their mother's estate, Superior Court Justice Margaret Eber- hard dismissed the respondents' claim that their brother had un- duly inf luenced their mother to leave her property to him only upon her death. The mother, Audrie Trotter, had written several wills before penning the final one in 2005. Her previous wills had distrib- uted her property among three of the children — Kate, Phillip, and John — but the final version was drastically different. "In this will, Audrie left no real or personal property to Kate or Phillip," according to the Court of Appeal. That led Kate and her other brother Bill to bring an application against John. In her decision, Eberhard said the suggestions that John had inf luenced Audrie into signing her property to him only were "bald allegations." She found Audrie was an indepen- dent person who made her own plans for her will. But the plaintiffs claimed John exhibited controlling be- haviour around his mother and Audrie was always worried about upsetting him. The Court of Appeal found that in the face of such contested facts, Eberhard was wrong to decide the matter on the basis of summary judgment. "Since the evidence adduced by the appellants was capable of supporting an allegation of un- due inf luence, it was incumbent upon the motion judge to ex- plain why she rejected it. This, of necessity, requires a cred- ibility analysis pursuant to the expanded judicial powers under rule 20.04(2.1) to weigh the evi- dence, evaluate the credibility of the appellants' deponents and draw reasonable inferences," wrote Benotto. "It is not always a simple task to assess credibility on a written record. If it cannot be done, that should be a sign that oral evidence or a trial is required. The motion judge did not engage in a credibil- ity analysis or attempt to provide conclusions on credibility." Appellate lawyer Allan Rouben says the court's mes- sage in this case is that Hyrniak wasn't "designed to forgo trials generally." "If there are enough facts in dispute, they should really be sorted out," he says. Toronto lawyer Lee Akazaki notes the lower court decision in Trotter Estate predates Hyr- niak. At the time of the decision in early 2013, the prevailing case law around summary judgment was Combined Air Mechanical Services Inc. v. Flesch, a decision that applied a stricter test than Hyrniak. "The decision was granted during a stricter summary judg- ment regime and then over- turned under a more liberal re- gime, which would indicate to me that the underlying decision or the lower court decision was very f lawed," says Akazaki. "At the time that it was made, it really shouldn't have been made." Akazaki says the lower court's findings surprised him and notes he shares the con- cerns raised by the Court of Ap- peal. He adds that had Eberhard made any credibility findings in the initial ruling, it would have been harder for the Court of Ap- peal to overturn her decision. "It's for the absence of that judicial exercise that the Court of Appeal criticized her and on that basis held that she was wrong," he says. According to Akazaki, Eber- hard seemed irritated by the fact the case arose out of bickering siblings and didn't feel the mat- ter should have been before the court. That becomes clear when she refers to the case as a "malig- nancy" at one point, he says. "It was manifestly clear that at least some of the siblings who put forward fine and polished legal principles for sober adjudication were in large part simply using the administration of justice as a new arena to continue their chronic arguments and the fine principles as instruments of torture upon one another," she wrote. To Akazaki, the fact the case stems from a family feud is ir- relevant to a judge tasked with making findings of fact. "The courts have to recognize that people who are at a moment of crisis in their lives or in this case at a moment of crisis in the fam- ily may not react as reasonably as a third-party bystander might. However, the court isn't a by- stander. The court has a duty to be sensitive and to ascertain the truth of what everybody is doing and everybody has done." LT Criminal trials can be challenging. Issues emerge. Legal complexities arise. Now you can find the clear, concise summaries of legal issues for every stage of the criminal trial – from bail to sentencing – with Mack's Criminal Law Trial Book – 2014 Edition. You'll find seven expertly-written sections covering every aspect of the criminal trial process – Bail, Offences, Defences, Trials, Evidence, Charter, and Sentencing. Each section covers a wide range of legal issues. 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