This blog was written by Holly LeValliant

Bank records may be key evidence in estate litigation cases.  They can be the crux of a case where undue influence, financial mismanagement, or a history of dependant’s support are alleged.

The bank may be the only practical source of information that would allow the parties to determine if the key facts of an estate litigation case can be proven.  Providing the bank in question with notice of the proceedings can reduce the delay that can result when parties simply consent to an Order between them that states that they have the right to request the production of all relevant banking records.  Upon receiving notice of legal proceedings, a retail bank branch for example may need to consult with the bank’s legal department.  Specific language may be required by the bank in the Order to allow it to produce the information the parties seek.  Failing to seek the input of the bank in a production order can lead to the parties having to re-attend court to amend an Order.

In Ontario, Rule 30.10 of the Rules of Civil Procedure provides that on a motion by a party, the Court may order production for inspection of a document that is in the possession, power or control of a non-party where the court is satisfied that:

1. The document is relevant to a material issue in the action; and
2. It would be unfair to require the moving party to proceed to trial without having discovery of the document.

The leading case about Rule 30.10 motions is Ontario (Attorney General) v. Stavro 1995 CanLII 3509 (ON CA) 1995 CanLII 3509 (ONCA), where the Court of Appeal held that “it is in the public interest to ensure that all relevant evidence is available to the court.  This is essential if justice is going to be done between the parties.”

On a Rule 30.10 motion, the moving party bears the burden of showing that it would be unfair to make them proceed to trial without production of the documents.

The Court of Appeal elaborated upon the second requirement of Rule 30.10 motions – that it would be unfair to require the moving party to proceed to trial without having discovery of the document – and set out the following factors for the court to consider:

• The importance of the documents in the litigation;
• Whether production at the discovery stage of the process as opposed to production at trial is necessary to avoid unfairness to the application;
• Whether the discovery of the defendants with respect to the issues to which the documents are relevant is adequate and if not, whether responsibility for that inadequacy rests with the defendants;
• The position of the non-parties with respect to the production;
• The availability of the documents or their informational equivalent from some other source which is accessible to the moving parties;
• The relationship of the non-parties from whom production is sought to the litigation and the parties to the litigation. Non-parties who have an interest in the subject-matter of the litigation and whose interests are allied with the party opposing production should be more susceptible to a production order than a true “stranger” to the litigation.

While the bank may not be a party to the litigation, it may be an interested non-party and ought to be put on notice of the proceedings.  Master Glustein in Popov v. Jones, 2011 ONSC 665 at para 103 found that “if a bank receives funds allegedly procured by fraud, or if funds may have been transferred out of that bank, the bank is ‘involved in the events’ in the litigation and is not a true stranger.  Consequently, this is an additional factor supporting production from the bank, as its involvement makes it a proper non-party from whom to procure documents or information requested by the plaintiffs who are the alleged victims of crime.”

Providing the bank in question with notice of the proceedings can also give the bank the opportunity to determine whether a particular account should be frozen until the issues are resolved.  Failing to put the bank on notice of allegations of fraud involving an account can prevent the bank from taking preventative measures to stop further potential fraud from occurring.