Procedural gamesmanship, incessant delay, and discovery without end have brought the civil justice system to the brink of a crisis.” Justice Myers in Letang v. Hertz Canada Limited, 2015 ONSC 72

Delay is endemic in civil cases.  It is a disease. It eats away at our justice system. And there appears to be no end. Especially considering the small budget for our courts.

In Seepa v. Seepa, 2017 ONSC 5368, Justice Myers attempted to address our complacency with delay. In Seepa, the siblings were fighting over their deceased mother’s assets. The mother had essentially cut one of her sons out of the will. As a result, the disinherited son wanted to challenge the division of property. He raised the issues of his mother’s incapacity, his mother being subject to undue influence, and the breach of fiduciary duty.

However, to launch his lawsuit, the disinherited son needed his mother’s medical and legal records. He needed the records to show some evidentiary basis to proceed with his claim. (Courts have enacted this threshold to protect estates from being wiped out by court processes when there is no evidence of impropriety.)

Justice Myers questioned whether he should grant access to the medical and legal records.  He raised the concern of a fishing expedition into the “deceased’s privileged legal files and most private, personal medical records”.  Noting that there is something innately offensive about an excluded relative romping through a testator’s most private records on meagre allegations. In spite of this, the inheriting son agreed to allowing his brother access to the records.

Justice Myers called for a for a shift away from automatically granting court orders on consent of the parties. “The court should be very reluctant to consign estates and beneficiaries to intrusive, expansive, expensive, slow, standard form fishing expeditions that do not seem to be planned to achieve the goals of civil justice for the parties.” The granting of a court order for access to medical and legal records further delays proceedings as the parties have to wait for the records to come in.

In the end, Justice Myers granted the order. The disinherited son was to pay the bills for the records. The inheriting son was hopeful that the “sunlight” would facilitate resolution between them. I hope for all their sake that the sunlight pours in.

(Views are my own and do not represent the views of any organization.)