master schlosser

2.12: Types of litigation representatives and service of documents
2.13: Automatic litigation representatives
4.22: Considerations for security for costs order
5.6: Form and contents of affidavit of records
5.7: Producible records
5.8: Records for which there is an objection to produce
7.3: Summary Judgment (Application and decision)
10.42: Actions within Provincial Court jurisdiction
13.18: Types of affidavit

Case Summary

The Defendants brought an Application for Summary Judgment or, alternatively, for a further and better Affidavit of Records. The Claim was for roughly $2,600. The Estate as Plaintiff claimed from the Defendants a $1,000 loan made by the deceased, which allegedly had not been repaid, and a portion of a $4,000 cheque which allegedly was not properly accounted for by one of the Co-Executors/Defendants.

With respect to Rule 7.3, Master Schlosser noted that Summary Judgment is a function of whether a fair and just determination can be made on the merits without a Trial. It is a measure of the confidence the Court has in predicting the outcome of the case. The Court reviewed the evidence with respect to the $1,000 loan and the unaccounted portions of the cheque and found that the evidence was not sufficient to dispose of the Claim by way of Summary Judgment. The Court noted that much of the evidence was hearsay and that pursuant to Rule 13.8(3), Applicants could not tender hearsay evidence in support of a final Application. The Summary Judgment Application was dismissed.

The Court then turned its attention to the Application by the Defendants for a further and better Affidavit of Records by the Plaintiff. The Court noted that the Affidavit did not comply with Rules 5.6, 5.7 and 5.8, which require that bundles of records be uniquely identified and numbered. The Court ordered that the Affidavit should be revised to that extent and in that regard ordered Costs against the Estate pursuant to Schedule C and Rule 10.42.

The Court then considered whether Security for Costs should be posted pursuant to Rule 4.22. The Court stated that, in cases of a near miss, ordering Security for Costs is a “wholesome practice”. Given the intensity of the litigation and the fact that it was at an early stage, it was the Court’s view that the Estate should post Security for Costs in the amount of $20,000.

The Applicant also took exception to Donald Padget, one of the beneficiaries, appearing on behalf of the Estate. The Court found that Mr. Padget was an automatic Litigation Representative pursuant to Rules 2.12 and 2.13. Litigation Representatives are obliged to retain counsel unless they are active members of the Law Society themselves. The Court noted that Mr. Padget is a barrister and solicitor and is entitled to act as counsel. However, the Court referenced its authority pursuant to Rule 2.21 to: (a) terminate the authority or appointment of the Litigation Representative; (b) appoint a person or replace the Litigation Representative; and (c) impose terms and conditions upon, or the appointment of, a Litigation Representative or cancel of vary the terms or conditions. Master Schlosser found that there was an obvious, inherent conflict with the other beneficiaries. In the result, Master Schlosser terminated the appointment of Donald Padget as Litigation Representative.

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