Ontario Superior Court of Justice
Court File No.: 12-26523-ES
Date: 2014/01/15
ONTARIO
SUPERIOR COURT OF JUSTICE
In the Matter of the Estate of John McVey Wells, deceased
BETWEEN:
Sheila Prubant
Applicant/Estate Trustee
– and –
The Society for Pastoral Counselling Research
Respondent/Objector
Frank MacMillan, for the Executrix, Sheila Prubant
Paul Dancause, for the Respondent/Objector
Heard: October 25, 2013
Reasons for Decision
Justice Patrick Smith
1The Society for Pastoral Counselling Research (the “Society”) brings this motion to compel disclosure, by Sheila Prubant, the estate executrix, of the legal fees billed to Ms. Prubant by her lawyer, Frank MacMillan, in connection with the matter of the Estate of John Michael McVey Wells. Ms. Prubant has refused disclosure on the basis of solicitor-client privilege.
2In the event that it is unsuccessful in securing an order for disclosure of these documents, the Society has indicated that it intends to examine Ms. Prubant for discovery. If Ms. Prubant is examined for discovery, counsel for Ms. Prubant requests an order, pursuant to rules 2.03 and 35, that she be examined by way of written, and not oral, questions and answers.
Facts
3John Michael McVey Wells died on February 21, 2011. A Certificate of Appointment of Estate Trustee was issued to Sheila Prubant on August 2, 2011. The Society is the sole residual beneficiary of the residue of the Wells Estate. Additionally, there were seven specific bequests made under the will, totaling $121,000, of which $20,000 reverted back to the residue of the estate, the named beneficiary having predeceased Mr. Wells. All of the specific beneficiaries have received their money, save for two who currently reside in England.
4On October 5, 2012, the Society sought an order to compel Ms. Prubant to pass her accounts of the Wells Estate. The order was granted on October 15, 2012. Ms. Prubant subsequently filed an application to pass accounts, which the Society now opposes. Specifically, the Society is concerned that Mr. MacMillan has billed both the estate directly and Ms. Prubant, as estate executrix, for the same legal work – essentially “double billing.”
5The accounts to be passed are for the period from February 21, 2011, to October 15, 2012. The accounts include $3,977.60 paid to Frank MacMillan for legal services and a suggested compensation of the executrix in the amount of $38,842.63.
6The Society has requested disclosure of Mr. MacMillan’s legal billings to Ms. Prubant in order to ascertain whether Mr. MacMillan has billed both Ms. Prubant and the Wells Estate separately for the same services.
7Ms. Prubant is an elderly lady who, some years prior, suffered a cerebrovascular accident (CVA). As a result of the CVA, Ms. Prubant suffers from aphasia and difficulty ambulating. She also has difficulty hearing. According to evidence from Karen Wallace, BN, RN (EC), a nurse practitioner who is Ms. Prubant’s primary health care provider, Ms. Prubant often gets frustrated and is not able to properly verbally express herself when asked about her medical conditions. It is Ms. Wallace’s opinion that Ms. Prubant would have difficulty responding to questions and expressing herself in any situation.
Issues
8Can Sheila Prubant be compelled to disclose documents pertaining to the billing, by Frank MacMillan, for legal services rendered with respect to the Estate of John Michael McVey Wells, or are such documents protected by solicitor-client privilege?
9If the answer to the first question is that these documents cannot be ordered produced, an additional question must be answered:
10Should Sheila Prubant be relieved from oral discovery and, instead, examined for discovery by way of written questions and answers?
Solicitor-Client Privilege
11Solicitor-client privilege belongs to the client alone, and is not intended as a tool to protect solicitors: Goodman Estate v. Geffen, 1991 69 (SCC), [1991] 2 S.C.R. 353, at para. 57. In Goodman Estate, the Supreme Court of Canada made it clear that there are situations where solicitor-client privilege does not arise under any circumstances. No privilege attaches to communications between solicitor and client as against a person having a joint interest with the client in the subject matter of the communication: ibid. at paras. 61 and 66.
12In Ballard Estate (Re) (1994), 1994 7513 (ON SC), 20 O.R. (3d) 350 (Gen. Div.), the residual beneficiaries of an estate moved for an order directing the production by the executors of all communications concerning the management of that estate, including all communications from solicitors for the executors to the executors relating to estate matters. The court recognized the principle that communications passing between an executor, or trustee, and a solicitor are not privileged as against beneficiaries who are claiming under the will or trust. At para. 7, the court stated:
The proper approach is to bear in mind the rationale of the solicitor-client privilege and whether it has any applicability to this kind of situation. The Supreme Court of Canada in Goodman Estate v. Geffen, 1991 69 (SCC), [1991] 2 S.C.R. 353, 81 D.L.R. (4th) 211, made it clear that there are situations where the privilege does not even arise as where the interests of the party seeking the information are the same as those of the "client" who retained the solicitor in the first place.
13The Court referred to this principle as the “joint interests principle,” which it considered to be the appropriate test by which to assess claims of privilege by an executor against a beneficiary.
14More recently, in Haydu v. Nagy, 2012 BCSC 1870, 42 B.C.L.R. (5th) 107, the British Columbia Supreme Court was asked to address whether the legal fees incurred by an executor on behalf of the estate were protected by solicitor-client privilege. In that case, the executor sought to be reimbursed for legal fees she alleged to have incurred. A beneficiary sought to review the executor’s legal bills in order to assess the claim. The court adopted the reasoning in Ballard Estate, noting that “privilege cannot be asserted by the [executor] respondent as against the [beneficiary] petitioner as the interests were common” [Haydu at para. 26].
15The court would not allow, however, production of any documents relating to a separate and distinct estate matter in which the parties were adverse: ibid. at para. 26. At para. 25, the court stated:
…a distinction must be drawn between opinions procured by the trustee for its own protection in relation to claims made against it and opinions received in the course of determining the proper distribution of the trust. A beneficiary is entitled to the latter, but not to the former.
16This approach, according to the court, best balanced the right of a party to uphold solicitor-client privilege with the right of the other party to natural justice and disclosure of relevant evidence [ibid. at para. 30].
Examination for Discovery via Written Questions and Answers
17Rule 31.02 of the Rules of Civil Procedure provides that it is the examining party who determines whether an examination for discovery is to take the form of an oral or of a written examination:
31.02(1) Subject to subrule (2), an examination for discovery may take the form of an oral examination or, at the option of the examining party, an examination by written questions and answers, but the examining party is not entitled to subject a person to both forms of examination except with leave of the court.
(2) Where more than one party is entitled to examine a person, the examination for discovery shall take the form of an oral examination, unless all the parties entitled to examine the person agree otherwise.
18Rule 2.03 allows the court to, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time.
19In Botiuk v. Campbell, 2011 ONSC 1632, 17 C.P.C. (7th) 413, at para. 43, Master Haberman, in reviewing the jurisprudence on this matter, noted that “the onus is on the party seeking to be exempted from oral examinations and … the threshold to be met is a high one.”
20The threshold is high because oral examinations are preferred; they allow for spontaneous answers and reactions, as well as the ability to produce additional questions on the basis of those answers: ibid. at para. 44. In Botiuk, the plaintiff was refused exemption from oral discovery since, although she was elderly, she provided no clear or cogent evidence that she suffered from any unusual medical conditions which would be exacerbated by the discovery process. Additionally, the subject matter of the litigation in Botiuk was sufficiently complicated that written examination might cause serious prejudice to the opposing party.
21By contrast, in Mohanadh v. Thillainathan, 2010 ONSC 2678, 97 C.P.C. (6th) 83, an order was granted permitting the plaintiff to refuse oral examination and to be examined, instead, by way of written questions and answers. In coming to its conclusion, the court emphasized that the plaintiff had a severe and chronic mental illness, namely schizophrenia. Master Muir was satisfied that, in light of her medical condition, the plaintiff would be caused increased anxiety and increased symptomatology by the oral discovery process: ibid. at para. 8. Furthermore, Master Muir found that, as this was not a complicated matter, written discovery would cause no prejudice to the defendant: ibid. at para. 9.
22If a party decides to examine by way of written questions and answers, Rule 35 outlines the procedure to be followed.
Analysis
23I find that Ms. Prubant, as executrix of the Wells Estate, and the Society, as a residual beneficiary, are joint in their interests.
24The legal communications which the Society seeks to review do not pertain to the protection of Ms. Prubant from claims made against her, but, rather, to matters concerning the proper distribution of the Wells Estate. In this regard, the present case is very similar to Haydu, supra.
25Consequently, it is my decision that Ms. Prubant forthwith produce all documents relating to Mr. MacMillan’s legal fees for services rendered in connection with the Wells Estate.
26Given my answer to the first question, it is unnecessary for me to decide on the second, as the Society has indicated that it does not intend to examine Ms. Prubant for discovery if it can review her legal fees. Notwithstanding, I would answer the second question in the affirmative; that is, I would allow Ms. Prubant’s request that she be examined by way of written questions and answers.
27Although oral discovery is generally the preferred procedure, I do not believe that written discovery will prejudice the Society. I find the circumstances in this case to be similar to those in Mohanadh, supra.
28Two reasons underlying my ruling are: first, this is not a very complicated matter; second, the evidence before me is that, because of her medical conditions, Ms. Prubant can be easily frustrated when orally asked questions as she finds it difficult to express herself. Indeed, it is likely that, given the time to write out her answers, Ms. Prubant may be able to give more useful information through written discovery than she would be able to through oral discovery. This seems the ideal situation, therefore, to make use of the Rule 35 procedure for examination for discovery.
Costs
29In the event that the parties are unable to resolve the issue of costs themselves they may file written submissions not to exceed five pages in length within 30 days of the release of this decision.
Patrick Smith J.
Released: January 15, 2014
2014 ONSC 347
COURT FILE NO.: 12-26523-ES
DATE: 2014/01/15
ONTARIO
SUPERIOR COURT OF JUSTICE
In the Matter of the Estate of John McVey Wells, deceased
BETWEEN:
Sheila Prubant
Applicant/Estate Trustee
– and –
The Society for Pastoral Counselling Research
Respondent/Objector
REASONS FOR DECISION
P. Smith J.
Released: January 15, 2014