31420-12-1 SAWRIDGE, Indian vs. ROLAND, Twinn et al

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Thank you.
4THE COURT:
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6 Submissions by Mr. Poretti
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Thank you very much.
8MR. PORETTI: Thank you, sir. I’m going to start off at
9 paragraph 110 of our brief. And there you’ll see that we refer to the Rozak (Estate) case
10 for the proposition that when addressing the relevance of questioning on an affidavit, the
11 questioning must be relevant and material having regard to the issues in the underlying
12 application. And we would submit that that is well accepted law. Now, I heard my friend,
13 Ms. Hutchison, at the end of her submissions, as I understood her submission, she
14 indicated that what is relevant is not limited to issues necessarily raised by us, if another
15 issue is brought to your attention. And our submission would be that with respect to an
16 application for advice and directions, the framework necessarily has to be the issues that
17 are put before the Court by the applicant. Another party cannot simply come before the
18 Court and decide to raise a number of different issues that are not related in any way to
19 the issues raised. So our submission is that there may be some related matters that arise
20 that -- that the Court will be interested in and must address when deciding the underlying
21 application, but surely one must look at the initial underlying application when addressing
22 whether -- whether an issue is relevant or not. And so with that, what I intend to do is
23 take us first to the procedural order which sets out what is to be determined in the
24 application. Iwill ultimately address the different issues that my friend has raised and
25 argues are relevant, but I think again we have to start with the underlying application.
26 And we set out in paragraph 112 of our brief the paragraph from the August 31st
27 procedural order which -- which outlines what the application is to be in respect of. And
28 you’ll see paragraph -- subparagraph ’A’ deals with the first issue, and that’s to seek
29 direction with respect to the definition of beneficiaries contained in the 1985 Sawridge
30 Trust, and if necessary, to vary the 1985 Sawridge Trust to clarify the definition of
31 beneficiaries. ’B’, to seek direction with respect to the transfer of assets to the 1985
32 Sawridge Trust. I think I can deal with ’B’ quite quickly. Idon’t think anyone today is
33 suggesting that that aspect of the advice and directions application touches upon any of
34 the issues that are being put before you today. But it’s subparagraph ’A’ that I think the
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parties have a bit of a different interpretation on.
37 Our submission is that subparagraph ’A’, there are really two key aspects ultimately that
38 the Court will have to address in June at the application. The first deals with whether the
39 definition of beneficiaries is contrary to public policy, whether it’s discriminatory or not.
40 And Ithink you’ve had put before you today, sir, the fact that the definition in the 1985
41 Trust basically identifies the beneficiary as an individual who qualifies as a member under