Rees v. Roseveare Estate

Rees v. Roseveare Estate Court Supreme Court Date 2025-07-04 Citation 2025 NSSC 232 Docket HFX, No. 530363 Judge/Registrar/Adjudicator Keith, John A. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Rees v. Roseveare Estate, 2025 NSSC 232 Date: 20250704 Docket: HFX, No. 530363 Probate No. H-69914 Registry: Halifax Between: Laura Rees and Susan Roseveare Applicants v. Deborah Bright, Personal Representative of the Estate of Lillian Roseveare Respondent DECISION Judge: The Honourable Justice John A. Keith Heard: June 30, 2025, in Halifax, Nova Scotia Counsel: Jonathan Hooper for the Applicants Ian Dunbar and Olivia Feschuk for the Respondent By the Court: [1] On February 2, 2024, the Notice of Application was filed in this matter. The Applicants allege that the Last Will and Testament of the Lilian Marie Roseveare dated July 12, 2023 is invalid due to lack of capacity and undue influence. [2] An initial motion for directions set deadlines for lay witness affidavits and scheduled a follow-up motion for directions on May 15, 2025, to assess readiness for hearing. The Applicants were a few days late filing seven lay witness affidavits. More problematic, there were delays in obtaining third-party medical records relevant to the deceased’s physical health and cognitive capacity. This delay affected the Respondent’s ability to file responding affidavits and, in turn, prevented the Applicants from submitting rebuttal affidavits. [3] At the May 15, 2025 motion for directions, Justice Russell excused the delays to date, set new deadlines for the Respondents’ lay witness affidavits, and scheduled another motion for directions on June 30, 2025. The Respondents were seven days late filing their lay witness affidavits. [4] On June 30, 2025, I presided over the third motion for directions. The Applicant’s rebuttal affidavits were not yet due. I retroactively approved the extended deadlines for the Respondents’ ten affidavits. My reasons included: 1. The missed deadline was largely attributable to the cascading effect of delayed disclosure. While the original disclosure deadlines might in hindsight be seen as overly optimistic, the parties were waiting on medical records that were in the hands of third parties over whom the parties had no control; 2. The missed deadlines for filing affidavits were relatively minor in nature, having regard to the unexpected disclosure issue. Following the motion for directions on May 15, 2025, any additional delay had had no appreciable impact on the process as a whole; 3. The legal and evidentiary issues remain (at least to date) sufficiently contained as to validate the application in court process as a proportionate procedural mechanism for resolving this particular dispute; 4. I was satisfied that the parties were acting diligently and in a reasonably cooperative manner in order to achieve the goal of an efficient application process. For example, there are no disputes regarding the content of the affidavits filed to date and all parties committed to an expedited schedule which would see a hearing scheduled in the near future. The parties also considered additional measures to ensure that the application will still be heard in four days, as required by the Rules. [5] Also on June 30, 2025, I provided further directions for rebuttal affidavits and expert opinions. I also scheduled a further motion for directions when it is expected hearing dates will be set. [6] All that said, recent trends that extend beyond this proceeding suggest that it is appropriate to reinforce the need for compliance with directions (including deadlines) established by the Court. These comments which follow are largely in obiter and intended for future reference. For clarity and emphasis, this decision should not be taken as a criticism of the parties or their counsel in this case. [7] The Rules are dedicated to the “just, speedy, and inexpensive determination of every proceeding” (Rule 1.01). Rule 5.01 further promises that an application in court will be a “flexible and speedy alternative to an action”. The Court honours these commitments by offering aggressive case management so that all pre-hearing procedures occur efficiently and culminate in a prompt and economical hearing. This case management process occurs during motions for directions in which the content, sequencing, and scheduling of any procedural rights are discussed and determined. The wide scope of the Court’s discretion to appropriately tailor pre-hearing procedures and provide related directions is confirmed in Rule 5.13. [8] All of this only works if the parties to an application in court treat compliance with the Court’s directions as essential to the effective operation of the Rules and as mandatory. They are not subject to change simply because the parties decide among themselves that a modification seems appropriate or convenient. Directions (including deadlines) established by a judge at a motion for directions must be considered binding obligations – not inconsequential suggestions. [9] None of this is surprising. Directions from the Court are deemed to be orders, not aspirational targets (Rule 78.01). The Court recently reinforced that point by amending Rule 2.04 to emphasize that “[d]ates set by a judge cannot be altered without the approval of a judge.” [10] When parties engage in the application in court process, they implicitly agree that the matter will be ready for hearing in less than two years and that the number of days needed to hear the matter will stay within the limits established in the Rules. Noncompliance with the Court’s directions disrespects this agreement and the corresponding commitments to the Court. Further, it disregards the Court’s authority and has a corrosive effect on the proceedings as a whole. It pushes Court-imposed milestones (e.g. dates for exchanging affidavits, dates for completing disclosure, and dates for conducting discovery examinations, if any) off into the mists of an indeterminate future where it becomes increasingly likely that the matter can no longer be heard in two years. Of greater concern, applications in court begin to look like an accelerated form of action that meanders according to the parties’ convenience until such time as the parties deem themselves ready to proceed, at which point they suddenly claim an entitlement to early hearing dates. Even if these consequences are unintended and could not be fairly condemned as tactical, they exert an influence which is unjust, contrary to the intention of the Rules, wasteful, and prejudicial to other litigants who engaged the Courts expecting fair treatment and equal access to judicial resources. [11] Finally, I note that Rule 2.04 does not say that dates can only be prospectively altered by a judge. Rule 2.04 implicitly and necessarily admits of the possibility that dates may be retroactively approved by a judge. Moreover, Rule 5.14 similarly confers upon a judge very broad discretion to tailor pre-hearing milestones. It includes the jurisdiction to retroactively alter existing deadlines that may have been missed and to establish new deadlines. [12] While the Rules allow for retroactive approval, the need to ask for retroactive approval should not be considered routine. Rather, it is more appropriately considered the exception. Generally speaking, the adage “Better to seek permission than forgiveness” applies. [13] Furthermore, all parties need to bear in mind that there may be consequences associated with non-compliance including dismissal of the application, indemnification, or conversion to an action (Rules 5.24 and 6.03). [14] Some of the factors that a judge may weigh when exercising his/her discretion around a retroactive approval of non-compliance, with existing directions (including deadlines) include, without limitation: 1. Whether the application process remains the “best forum for resolving [the] dispute” and continues to meet the Supreme Court of Canada’s call for “simplified and proportionate proceedings” or proceedings that are “proportionate, timely and affordable” (Hyrniak v Mauldin, 2014 SCC 7, at paras. 27 – 28); 2. Whether the legal, evidentiary, and procedural issues are still sufficiently contained as to meet the requirements of the Rules. The relevant considerations may include: a. Whether the parties will still be ready for hearing in less than two years. If not, the Court may consider whether any delay is reasonably justifiable in the circumstances and if the parties can be reasonably afforded additional time beyond two years to be ready for hearing; b. Whether the number of hearing days remain within the requirements of the Rules. This requirement is obviously less flexible. Absent extremely extraordinary circumstances, the parties should not expect the hearing of an application in court will extend beyond what is allowed under the Rules; 3. In assessing whether any delay is reasonably justifiable in the circumstances, the judge may consider: a. The degree of non-compliance, in terms of time. It is one thing to miss a deadline by a few days. It is another to miss a deadline by a few months; b. The importance of the direction and its impact on the process as a whole. Failing to file affidavits in a timely fashion will very clearly have a cascading effect on the application and any remaining deadlines; c. The number of deadlines that have been missed by the parties and whether it exposes a more problematic trend; d. The amount of time that has passed since any deadline has expired and the reasons for any delay in seeking a judge’s approval to alter an existing deadline; e. Whether all parties have exercised reasonable diligence in their efforts to meet a judge’s directions and the underlying requirements of the Rules. On the one hand, a defaulting party should be prepared to make every reasonable effort to cure or mitigate the problem. On the other hand, an opposing party should not be permitted to exploit the slightest fault as a basis for upending or derailing the entire process and compounding the problem with further procedural uncertainty. Having submitted to the application in court process, all parties are expect to act reasonably; f. The extent to which any missed deadlines works an unfairness to any party. For example, a party who conscientiously meets Court-imposed deadlines should not be unduly prejudiced by an adverse party who, without compelling reasons, fails to similarly meet their deadlines. [15] Again, and at the risk of repetition, this is not intended as a criticism of the parties in this case, whose transgressions to date might be described as minor, at worst. At the same time, they reflect broader concerns which compel distribution of this decision to a wider audience as a reminder and a caution. Keith, J.