In Ontario, when a party seeks an order for the production of medical records belonging to an incapable person, the Superior Court of Justice will apply Rule 75 of the Rules of Civil Procedure (the “Rules”),[1] and the ‘minimal evidentiary threshold’.
The ‘Minimal Evidentiary Threshold’
The minimal evidentiary threshold primarily applies to a party challenging the validity of a testamentary instrument under Rule 75.01 of the Rules, which states:
Formal Proof of Testamentary Instrument
75.01 An estate trustee or any person appearing to have a financial interest in an estate may make an application under rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs.
Rule 75.06(1) of the Rules states:
Application or Motion for Directions
75.06 (1) Any person who appears to have a financial interest in an estate may apply for directions or move for directions in another proceeding under this rule, as to the procedure for bringing any matter before the court.
In Neuberger v. York, (“Neuberger”),[2] the Ontario Court of Appeal provided guidance on how the court is to exercise their role under Rule 75:
An interested person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. In the absence of some minimal evidentiary threshold, estates would necessarily be exposed to needless expense and litigation. In the case of small estates, this could conceivably deplete the estate. Furthermore, it would be unfair to require an estate trustee to defend a testamentary instrument simply because a disgruntled relative or other potential beneficiary makes a request for proof in solemn form.[3]
In Neuberger, the Ontario Court of Appeal continued by stating that an interested person must “adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded”.[4] Moreover, the minimal evidentiary threshold is a matter of judicial discretion and the court has a discretion whether to order that a testamentary instrument be proved as well as a discretion over the manner in which the instrument is proved.
In Seepa v. Seepa,[5] Justice Myers of the Ontario Superior Court of Justice further elucidated the meaning of the minimal evidentiary threshold:
At [the] preliminary stage, the issue is not whether the applicant has proven his or her case but whether he or she ought to be given tools, such as documentary discovery, that are ordinarily available to a litigant before he or she is subjected to a requirement to put a best foot forward on the merits.[6]
Moreover, Justice Myers stated that “the court ought to measure the evidence adduced by the applicant challenger against the evidence answered by the proponent of the Will and assess what, if any, processes are required to resolve any conflicts that the court cannot fairly resolve on the record before it”.[7] In so doing, the court must fashion a process which provides fair and just resolution, and that meets the goals of efficiency, affordability and proportionality.
Applicability in Power of Attorney disputes
In Botelho v. Faulkner (“Botelho”),[8] an application was brought under the Substitute Decisions Act (“SDA”),[9] seeking, amongst other things, the production of medical records belonging to an incapable person. Justice Fowler Byrne applied Rule 75.06 of the Rules and the minimal evidentiary threshold in granting an order for the production of the medical records sought.
In doing so, Justice Fowler Byrne found that the applicants’ affidavit evidence, which highlighted the grantor’s susceptibility to undue influence and diminished capacity, was sufficient to meet the “low” minimal evidentiary threshold.[10]
In McCormick v. McCormick,[11] Justice Wilcox cited the decision in Botelho, but was skeptical of whether the minimal evidentiary threshold applied to proceedings under the SDA. Notwithstanding, Justice Wilcox held that if the threshold were to apply, it was met, stating:
[26] If the minimum evidentiary threshold test does apply in the present case, I find that it has been met. It appears not to be a very high bar, which is fitting at a preliminary stage before all of the information becomes available. In Neuberger, as mentioned above, the court indicated that the applicant need only adduce or point to evidence that calls into question the validity of the instrument which the propounder does not successfully answer. In the present case, there are conflicting affidavits regarding the validity of the 2019 Powers of Attorney. Without more, the court would be unable to resolve the differences on a motion.[12] [emphasis added]
More recently in Vrantsidis v. Vrantsidis,[13] the Ontario Superior Court of Justice applied the minimal evidentiary threshold in an application seeking directions on the validity of a Power of Attorney document. The court stated:
[59] In Seepa v. Seepa, 2017 ONSC 5368, at para. 49, Myers J. stated: “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.”
[60] In my view, the same principle ought to apply to disputes regarding powers of attorney. Bill and Mary submit that it is not proportional, efficient or cost effective, and it would not be in Mrs. Vrantsidis’ best interest to permit John to pursue John’s Application for directions given the weakness of his evidence. Bill and Mary seek an order that John’s Application be dismissed as having no merit.[14]
Concluding Comments
Where there is a lack of medical, solicitor or financial evidence to corroborate a challenge to a Will or testamentary instrument, documentary disclosure may be permitted if the challenger provides sufficient evidence to a court to meet the minimal evidentiary threshold. Recent case law in Ontario has demonstrated that this evidentiary threshold extends to Power of Attorney disputes. The difficulty in the result of these decisions is that only the estate trustee, or attorney in this case, has access to, or the ability to gain access to evidence and those challenging Wills and POAS do not, and so the only manner in which to gain the access is through disclosure and productions lest the actions of the surreptitious remain unchecked.
—
[1] Rules of Civil Procedure, RRO 1990, Reg 194.
[2] Neuberger v. York, 2016 ONCA 191 (CanLII) (“Neuberger”).
[3] Neuberger at para 88 [emphasis added].
[4] Neuberger at para 89.
[5] Seepa v. Seepa, 2017 ONSC 5368 (CanLII) (“Seepa”).
[6] Seepa at para 35 [emphasis added].
[7] Seepa at para 39.
[8] Botelho v. Faulkner, 2020 ONSC 6471 (CanLII) (“Botelho”).
[9] Substitute Decisions Act, 1992, S.O. 1992, c. 30.
[10] Botelho at para 25 and para 26.
[11] McCormick v. McCormick, 2021 ONSC 5177 (CanLII) (“McCormick”).
[12] McCormick at para 26.
[13] Vrantsidis v. Vrantsidis, 2023 ONSC 321 (CanLII) (“Vrantsidis”).
[14] Vrantsidis at para 59 and para 60 [emphasis added].
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Written by: Oliver O'Brien
Posted on: April 21, 2025
Categories: Commentary, WEL Newsletter
In Ontario, when a party seeks an order for the production of medical records belonging to an incapable person, the Superior Court of Justice will apply Rule 75 of the Rules of Civil Procedure (the “Rules”),[1] and the ‘minimal evidentiary threshold’.
The ‘Minimal Evidentiary Threshold’
The minimal evidentiary threshold primarily applies to a party challenging the validity of a testamentary instrument under Rule 75.01 of the Rules, which states:
Formal Proof of Testamentary Instrument
75.01 An estate trustee or any person appearing to have a financial interest in an estate may make an application under rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs.
Rule 75.06(1) of the Rules states:
Application or Motion for Directions
75.06 (1) Any person who appears to have a financial interest in an estate may apply for directions or move for directions in another proceeding under this rule, as to the procedure for bringing any matter before the court.
In Neuberger v. York, (“Neuberger”),[2] the Ontario Court of Appeal provided guidance on how the court is to exercise their role under Rule 75:
An interested person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. In the absence of some minimal evidentiary threshold, estates would necessarily be exposed to needless expense and litigation. In the case of small estates, this could conceivably deplete the estate. Furthermore, it would be unfair to require an estate trustee to defend a testamentary instrument simply because a disgruntled relative or other potential beneficiary makes a request for proof in solemn form.[3]
In Neuberger, the Ontario Court of Appeal continued by stating that an interested person must “adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded”.[4] Moreover, the minimal evidentiary threshold is a matter of judicial discretion and the court has a discretion whether to order that a testamentary instrument be proved as well as a discretion over the manner in which the instrument is proved.
In Seepa v. Seepa,[5] Justice Myers of the Ontario Superior Court of Justice further elucidated the meaning of the minimal evidentiary threshold:
At [the] preliminary stage, the issue is not whether the applicant has proven his or her case but whether he or she ought to be given tools, such as documentary discovery, that are ordinarily available to a litigant before he or she is subjected to a requirement to put a best foot forward on the merits.[6]
Moreover, Justice Myers stated that “the court ought to measure the evidence adduced by the applicant challenger against the evidence answered by the proponent of the Will and assess what, if any, processes are required to resolve any conflicts that the court cannot fairly resolve on the record before it”.[7] In so doing, the court must fashion a process which provides fair and just resolution, and that meets the goals of efficiency, affordability and proportionality.
Applicability in Power of Attorney disputes
In Botelho v. Faulkner (“Botelho”),[8] an application was brought under the Substitute Decisions Act (“SDA”),[9] seeking, amongst other things, the production of medical records belonging to an incapable person. Justice Fowler Byrne applied Rule 75.06 of the Rules and the minimal evidentiary threshold in granting an order for the production of the medical records sought.
In doing so, Justice Fowler Byrne found that the applicants’ affidavit evidence, which highlighted the grantor’s susceptibility to undue influence and diminished capacity, was sufficient to meet the “low” minimal evidentiary threshold.[10]
In McCormick v. McCormick,[11] Justice Wilcox cited the decision in Botelho, but was skeptical of whether the minimal evidentiary threshold applied to proceedings under the SDA. Notwithstanding, Justice Wilcox held that if the threshold were to apply, it was met, stating:
[26] If the minimum evidentiary threshold test does apply in the present case, I find that it has been met. It appears not to be a very high bar, which is fitting at a preliminary stage before all of the information becomes available. In Neuberger, as mentioned above, the court indicated that the applicant need only adduce or point to evidence that calls into question the validity of the instrument which the propounder does not successfully answer. In the present case, there are conflicting affidavits regarding the validity of the 2019 Powers of Attorney. Without more, the court would be unable to resolve the differences on a motion.[12] [emphasis added]
More recently in Vrantsidis v. Vrantsidis,[13] the Ontario Superior Court of Justice applied the minimal evidentiary threshold in an application seeking directions on the validity of a Power of Attorney document. The court stated:
[59] In Seepa v. Seepa, 2017 ONSC 5368, at para. 49, Myers J. stated: “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.”
[60] In my view, the same principle ought to apply to disputes regarding powers of attorney. Bill and Mary submit that it is not proportional, efficient or cost effective, and it would not be in Mrs. Vrantsidis’ best interest to permit John to pursue John’s Application for directions given the weakness of his evidence. Bill and Mary seek an order that John’s Application be dismissed as having no merit.[14]
Concluding Comments
Where there is a lack of medical, solicitor or financial evidence to corroborate a challenge to a Will or testamentary instrument, documentary disclosure may be permitted if the challenger provides sufficient evidence to a court to meet the minimal evidentiary threshold. Recent case law in Ontario has demonstrated that this evidentiary threshold extends to Power of Attorney disputes. The difficulty in the result of these decisions is that only the estate trustee, or attorney in this case, has access to, or the ability to gain access to evidence and those challenging Wills and POAS do not, and so the only manner in which to gain the access is through disclosure and productions lest the actions of the surreptitious remain unchecked.
—
[1] Rules of Civil Procedure, RRO 1990, Reg 194.
[2] Neuberger v. York, 2016 ONCA 191 (CanLII) (“Neuberger”).
[3] Neuberger at para 88 [emphasis added].
[4] Neuberger at para 89.
[5] Seepa v. Seepa, 2017 ONSC 5368 (CanLII) (“Seepa”).
[6] Seepa at para 35 [emphasis added].
[7] Seepa at para 39.
[8] Botelho v. Faulkner, 2020 ONSC 6471 (CanLII) (“Botelho”).
[9] Substitute Decisions Act, 1992, S.O. 1992, c. 30.
[10] Botelho at para 25 and para 26.
[11] McCormick v. McCormick, 2021 ONSC 5177 (CanLII) (“McCormick”).
[12] McCormick at para 26.
[13] Vrantsidis v. Vrantsidis, 2023 ONSC 321 (CanLII) (“Vrantsidis”).
[14] Vrantsidis at para 59 and para 60 [emphasis added].
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