Court File and Parties

COURT FILE NO.: 449/18 DATE: 2021-10-21 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Conrad Boe, Plaintiff AND: Michael Whitby and Estate of Beverly Boe, Defendants AND: Erin Reid and McKenzie Lake, Non-Party Respondents on Motion

BEFORE: Aston, J.

COUNSEL: R. Haas for the plaintiff D. Sanders for the defendants

HEARD: October 1, 2021, virtually at London

Endorsement

[1] The defendant’s motion is to examine for discovery the plaintiff’s former solicitor and for production of documents from her former law firm.

[2] To address the issue of solicitor client privilege raised by the plaintiff and the other responding parties I will start by framing it in the context of the pleadings, background facts and positions of the parties.

[3] The plaintiff’s mother, Beverly Boe, died May 7, 2015. She and the plaintiff had been estranged from one another for many years prior to her death. Although the plaintiff was her only surviving child, Beverly made the defendant Michael Whitby the executor and sole residual beneficiary of her estate.

[4] Beverly Boe had been pre-deceased by her parents, the plaintiff’s grandparents, Arthur Burt and Isabelle Burt. Their wills provided Beverly with an income during her lifetime, but on her death the residue of their estates was to be paid to Beverly’s surviving child or children – ie. the plaintiff.

[5] The plaintiff received $916,856 from his grandmother’s estate and $212,469 from his grandfather’s estate. The funds were paid to him by TD Canada Trust in June 2015 in the form of two separate cheques or bank drafts. On his examination for discovery the plaintiff gave an undertaking to locate any letter than came with the payments and produce a copy of any such correspondence. Apparently, he has not located any copy in his possession.

[6] The plaintiff alleges that the defendant Whitby, Beverly Boe’s estate trustee, represented to him that the residue from the Arthur Burt estate was payable to the estate of Beverly Boe, not to the plaintiff. The plaintiff claims he relied upon that representation from his then close personal friend and signed over to Whitby the $212,469 cheque or bank draft he had received. He asserts that when he did so he was unaware of his entitlement to the residue of his grandfather’s estate. He now seeks to recover the money he paid Whitby because it was based on a false representation or, alternatively, based upon “unjust enrichment”.

[7] The defendant offers a much different narrative to explain the payment to him in or about June 2015. It is not necessary to wade into the controversial facts. The only defence in the main action that is relevant to the present motion is the assertion that the Limitations Act and laches foreclose the claims advanced by the plaintiff.

[8] The plaintiff’s claim was initiated February 28, 2018. The defendant pleads that the plaintiff had seen a copy of his late grandfather’s will, or at least knew of its terms, sometime before February 28, 2016. The defendant’s motion aims to prove that fact by evidence from the plaintiff’s former lawyer Erin Reid. Erin Reid represented the plaintiff in a family law case. There is evidence from Ms. Esau, the defendant’s spouse and former good friend of the plaintiff, that the plaintiff discussed estate and inheritance matters with Ms. Reid and that he showed Ms. Reid some documents related to that subject.

[9] There is no explanation in the material for why the defendant is not pursuing TD Canada Trust for the information or evidence that he needs to support his Limitations Act defence. TD Canada Trust is the entity that administered the trust funds and paid the residual capital to the plaintiff. It must have had a reason for making that payment and it is a reasonable inference that it communicated to the plaintiff the rationale for sending him $212,469.

[10] The affidavit evidence of Shelly Esau in support of the defendant’s motion is problematic in a number of respects, quite apart from her obvious bias as the defendant’s wife. It purports to assert the plaintiff’s thoughts, feelings and knowledge in conclusory language. It is argumentative. However, it is not disputed that the plaintiff separated from his wife and sought legal advice from Erin Reid at her former law firm in relation to that situation between October 2013 (perhaps 2014?) and May 2015. It is not clear whether the plaintiff met with Ms. Reid after Beverly Boe’s death, but I will assume for the purposes of this motion that he did.

[11] The question as framed by counsel on this motion is whether solicitor/client privilege trumps the defendant’s ability to test the veracity of the plaintiff’s assertion on his examination for discovery that he did not learn of his entitlement under his grandfather’s will before February 28, 2016.

[12] The starting point is that privileged communications are only to be disclosed in exceptional circumstances and communications between lawyers and clients are generally sacrosanct.

[13] I am satisfied from the nature of the relationship between the defendant and Ms. Esau at the time she accompanied him to meetings with Ms. Reid and the description of her role at those meetings that the plaintiff never waived solicitor/client privilege by her presence.

[14] There is nothing to support the defendant’s assertions respecting an “abuse of process” or fraud exception to the general rule protecting communications between a solicitor and client. Nor does the plaintiff seek to use any advice he may have received from Ms. Reid to support his claim against the defendants in this case.

[15] Finally, and perhaps most importantly, the defendant has not offered any explanation for not seeking the targeted information and documentation from TD Canada Trust. Surely TD Canada Trust would have documentation about the plaintiff’s entitlement to the money. It seems to me that before encroaching on the sanctity of solicitor/client privilege the defendant ought to be obliged to pursue other avenues of inquiry. Expressed another way, it would not be “unfair” to require the moving party to proceed to trial without the discovery of Erin Reid and her former law firm when the moving party has not first made a diligent effort to obtain the targeted information and documents from TD Canada Trust.

[16] This is also consistent with rule 31.10(2) which provides that an order for examination for discovery of a non-party under rule 31.10(1) “shall not be made unless the court is satisfied…the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery…”. I appreciate that the defendant is not “entitled” to examine TD Canada Trust for discovery without an order under rule 31.10(1). However, the defendant’s ability to obtain such an order seems obvious. In fact, as a follow up to the plaintiff’s undertaking (noted in paragraph 5 above) a formal examination for discovery may be unnecessary. The plaintiff can be asked (or ordered) to sign a direction and authorization that would enable TD Canada Trust to provide copies of all letters, emails or notes in its possession regarding communications it had with the plaintiff before February 28, 2016 concerning his late grandfather’s estate and the plaintiff’s entitlement to the $212,649 it paid to him in June 2015.

[17] The motion is therefore premature and is dismissed on that basis.

Justice D.R. Aston

Date: October 21, 2021