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Application by the applicant Cohen and the respondent Estate for an order permitting them to question Radnoff, as a non-party, prior to trial. The Estate sought additional relief in the form of an order for the questioning of Radnoff to be recorded and the recording to be available for use at trial. Cohen and the deceased married in July 1986 and remained married until the deceased’s death in January 2017. Cohen and the deceased entered into a marriage contract the day before their wedding and an amending marriage contract in August 2008. When she executed the marriage contract, Cohen dealt with Radnoff, QC. Cohen was seeking to have both domestic agreements set aside. If she was successful, the Estate was at risk of having to make an equalization payment to her of several million dollars. Of the three lawyers and two parties who were involved with the drafting and/or execution of the two domestic agreements, only Cohen and Radnoff were still alive. Radnoff opposed the request for questioning. He did not object to the questioning, if ordered, being recorded. Radnoff took the position that the parties failed to establish that the information they sought was not easily available by any other method. He pointed to his willingness to produce the statement and, thereafter, if necessary, answer written interrogatories.

HELD: Application allowed. Radnoff agreed that the parties had the right to his information prior to trial. He took no position with respect to whether the proposed questioning would cause unacceptable delay or undue expense. The Court found that those two parts of the applicable three-part test were clearly met. Radnoff was a key witness whose evidence at trial would, for the most part, be oral because he no longer had the file related to his retainer in this matter. Through questioning of Radnoff, the parties would, with the degree of flexibility and spontaneity required, be able to probe Radnoff’s evidence, assess his credibility and determine the strength and detail of his memory of the events. The importance of Radnoff’s evidence to the determination of the relevant issue could not be overstated. Radnoff was in his early 80s and was therefore at risk of developing health concerns unexpectedly and in short order. Radnoff’s evidence was to be taken prior to trial, the taking of his evidence was to be recorded, and the recording was to be preserved for use at trial. It remained entirely within the discretion of the trial judge to determine whether the evidence preserved by the recording would be used at trial in place of viva voce testimony from Radnoff.

Cohen v. Cohen Estate, [2020] O.J. No. 17, Ontario Superior Court of Justice, S. Corthorn J., January 6, 2020. Digest No. TLD-March22020004