Court File and Parties
BARRIE COURT FILE NO.: FC-20-1094-0000 DATE: 20220628 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Trudy Bricker, Applicant AND: Heatheranne McLeod, Respondent
BEFORE: Justice R. Sonya Jain
COUNSEL: J. Rechtshaffen, Counsel, for the Applicant A. Zubair, Counsel, for the Respondent
HEARD: June 22, 2022
Decision on Motion
Introduction AND BACKGROUND
[1] The Applicant is the former wife of the deceased Mr. Wayne Russell Bricker. The Applicant and Mr. Bricker were married on May 6, 1988. The date of separation is contested. The Respondent is the former common law partner of Mr. Bricker, and she is the named Estate Trustee for the Estate of Wayne Russell Bricker. This case regards the validity of the separation agreement dated November 2, 2019, (hereinafter referred to as “the Agreement”) signed by the Applicant and the deceased Mr. Bricker.
[2] The Applicant seeks an order to set aside the Agreement in its entirety and equalization of the net family property held by the Applicant and the deceased. In her application, the Applicant sets out the basis on which she seeks to set aside the Agreement. Among other allegations, she claims that she did not have independent legal advice and she signed the Agreement under duress.
[3] The parties agree that there needs to be a bifurcated trial to determine whether the Agreement should be set aside. Before that trial is scheduled, both parties wish to complete questioning. On consent and by Order of McDermot J. dated April 6, 2022, the Respondent was granted leave to question the Applicant on matters related to the issue of the validity of the Agreement.
[4] The Respondent brings this motion on behalf of the Estate. She seeks an order granting leave for the Respondent to question the Applicant’s former family law counsel, Mr. Sobering. They seek to question Mr. Sobering with respect to the Applicant’s state of mind and whether she received legal advice in advance of the execution of the Agreement. The Respondent claims that the Applicant has impliedly waived privilege by way of her assertions regarding duress and lack of legal advice because she has put that legal advice and its effect on her state of mind at issue in her claim.
[5] The Applicant opposes this request and claims she has not waived privilege. She seeks an order dismissing the Respondent’s motion.
[6] Mr. Bricker’s former family law counsel is Mr. Yunjae Kim. By way of the Order of Christie J. dated February 8, 2022, the Applicant has been granted leave to question Mr. Kim. This examination has not yet taken place. The Respondent seeks an order that the scope of questioning be limited to Mr. Kim’s knowledge of the events surrounding the execution of the Agreement and with respect to witnessing the Agreement. The Applicant requests an order that the Estate be compelled to authorize a partial waiver of solicitor-client privilege.
[7] In addition to the orders sought, both the Applicant and Respondent seek the Court’s findings and ruling on the issues regarding the proposed scope of the questioning and the claims of privilege.
[8] The questions the Court needs to answer on this motion are:
Should the court order Mr. Sobering to attend for questioning? Is the questioning of Mr. Sobering relevant and necessary?
If the court orders Mr. Sobering to attend for questioning, what is the scope of the questioning? Should the court find that the Applicant is deemed to have waived (expressly or implied) solicitor client privilege by claiming she signed the Agreement under duress and without legal advice?
What is the scope of the questioning for Mr. Kim? Should it be limited to the circumstances surrounding the execution of the Agreement? Should there be an order that the Estate be compelled to provide a partial waiver of solicitor client privilege?
DECISION
[9] The Court finds that questioning of Mr. Sobering is relevant and necessary. The Court shall order Mr. Sobering to attend for questioning. The Court finds that the Applicant is deemed to have waived solicitor client privilege. Further, there shall be an order that the scope of the questioning of Mr. Kim shall be limited to Mr. Kim’s direct knowledge of the events and circumstances surrounding the execution and witnessing of the Agreement.
ANALYSIS
[10] This motion comes before me as a result of both parties’ 14B motions found at V. 1, Tabs 12-17 of the Continuing Record and my endorsements dated June 1, 2022, and June 14, 2022. Pursuant to r. 14(10),[^1] I found the issues on the motions were complicated and highly contested, and therefore they were not appropriate to be heard via a 14B motion. I adjourned the 14B motions to a motion to be argued before me.
[11] Pursuant to r. 20, this Court has jurisdiction to make orders regarding questioning and disclosure. For the purposes of this motion, the relevant sections of r. 20 are:
(5) Order for Questioning or Disclosure – The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:
It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.
The information is not easily available by any other method.
The questioning or disclosure will not cause unacceptable delay or undue expense.
(18) SCOPE OF QUESTIONS – Unless the court orders otherwise, a person to be questioned may be asked about,
(a) the names of persons who might reasonably be expected to know about the claims in the case and, with the court’s permission, their address;
(b) the names of the witnesses whom a party intends to call at trial and, with the court’s permission, their addresses;
(c) the names and addresses, findings, conclusions, and opinions of expert witnesses whom a party intends to call or on whose reports the party intends to rely at trial;
(d) if it is relevant to the case, the existence, and details of any insurance policy under which the insurance company may be required to pay all or part of an order for the payment of money in the case or to pay back to a party money that the party has paid under an order; and
(e) any other matter in dispute in the case.
(19) REFUSAL TO ANSWER QUESTION – If a person being questioned refuses to answer a question,
(a) the court may, on motion,
(i) decide whether the question is proper;
(ii) give directions for the person’s return to the questioning, and
(iii) make a contempt order against the person; and
(b) if the person is a party or is questioned on behalf or in place of a party, the party shall not sue the information that was refused as evidence in the case, unless the court gives permission under subrule (20).
The Necessity and Relevance of Questioning Mr. Sobering
[12] Mr. Scott Sobering is the Applicant’s former family law counsel. Mr. Sobering represented the Applicant over a period of time between 2018 until sometime in 2019. Mr. Sobering did not sign a Certificate of Independent Legal Advice when the Applicant signed the Agreement.
[13] The Applicant states that she terminated her retainer with Mr. Sobering in March 2019, (approximately seven to eight months prior to the Agreement being signed). The Applicant opposes an order for questioning of Mr. Sobering on the basis that it is irrelevant and unnecessary.
[14] The Respondent says that the nature and extent of Mr. Sobering’s involvement in the negotiation of the Agreement are unknown. She says that questioning Mr. Sobering is relevant to determining whether or not the Applicant had legal advice when she signed the Agreement. Further, she says it is necessary as there is no other way to confirm the legal advice relayed to the Applicant.
[15] I find it would be unfair for the Respondent to continue in these proceedings and test the Applicant’s claims of duress and lack of legal advice, without questioning her former counsel, Mr. Sobering. I find that questioning of Mr. Sobering is relevant and necessary to the issues.
The Scope of Questioning and Waiver of Privilege
[16] The questioning for Mr. Sobering and Mr. Kim will need to take place before the trial on the issue of the validity of the Agreement.
[17] Both the Applicant and the Respondent (on behalf of the Estate) have made it clear that they are asserting solicitor-client privilege over all matters in relation to the negotiations that occurred prior to and when the Agreement was signed. The Applicant is not willing to waive solicitor-client privilege with Mr. Sobering. The Respondent is not willing to waive solicitor-client privilege over all matters in relation to the involvement of Mr. Kim with the deceased Mr. Bricker as his former counsel. This leaves both parties with very little evidence to support their assertions regarding the negotiations or lack thereof and with respect to the Agreement.
[18] The Court believes that both former counsels have relevant and necessary evidence regarding the issues in dispute in the case. Without their evidence, the court will be left with a vacuum of evidence when trying to determine the issue of the validity of the Agreement. The Court has already found that it is relevant and necessary that both former counsels be ordered to provide evidence. However, there is a very distinct difference in the scope of the evidence that can and should be provided by either counsel and regarding the solicitor-client privilege claimed by the parties.
[19] Solicitor-client privilege is a principle of fundamental justice and a cornerstone of the Canadian justice system. It protects the fundamental and legal right of citizens to communicate in confidence with their lawyers. Solicitor-client privilege has been elevated to a fundamental and substantive rule of law. In R. v. McClure, 2001 SCC 14, at para. 35, the Supreme Court of Canada made clear that solicitor client privilege,
must be as close to absolute as possible to ensure public confidence and retain relevance. As such it will yield in only certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis.
[20] Unless the Court makes an order on the issues of scope and privilege regarding the communications between counsel and their clients with respect to the negotiation of the Agreement, any questioning of either of the former counsel may not provide any insight whatsoever regarding the issues that are highly in dispute. Either or both may refuse to answer certain questions put to them during their questioning. If this occurs, either party may need to bring a motion for an order that they answer those questions under r. 20(19).
[21] Although not requested in the motions before the Court, during the motion, both parties (through their respective counsel) requested that the Court rule on the issues of scope of questioning and waiver of privilege in order to minimize the need to bring motions under r. 20(19).
[22] Even if both parties were not seeking the Court’s ruling on these issues, the Court has authority to do so under r. 2 as it requires the Court to deal with matters justly, in a manner that is appropriate to their importance and complexity. By ruling on these issues, the Court is bearing in mind the primary objective of the Rules set out in r. 2, that is to enable the Court to deal with cases justly, with proportionality, common sense, and fairness. The discovery process must be kept within reasonable bounds. Questioning is an onerous and expensive process, particularly for a non-party. The court does not wish to set the parties up for further litigation on the issue of scope and/or refusals to answer questions and/or waivers of privilege.
Scope of Questioning and Privilege re. Mr. Sobering:
[23] The Applicant takes the position that all communications between her and Mr. Sobering are privileged. She says that she does not waive solicitor-client privilege in respect of the solicitor-client relationship between herself and Mr. Sobering.
[24] The Respondent says that the Applicant is attacking the validity of the Agreement and is seeking an order to set it aside on the grounds of duress and lack of legal advice. The Respondent’s position is that both of these alleged grounds bring to issue the “state of mind” of the Applicant. The Respondent argues that since it is the Applicant who has put her “state of mind” at issue in her application, the Applicant is deemed to have impliedly waived solicitor-client privilege.
[25] In Creative Career Systems Inc. v. Ontario, 2012 ONSC 649, at para. 30, Perrell J. stated:
a deemed waiver and an obligation to disclose a privileged communication requires two elements; namely: (1) the presence or absence of legal advice is relevant to the existence or non-existence of a claim or defence; which is to say that the presence or absence of legal advice is material to the lawsuit; and (2) the party who received the legal advice must make the receipt of it an issue in the claim or defence.
[26] The Divisional Court recently affirmed that this is the correct test for implied waiver of solicitor-client privilege in Laliberté v. Monteith, 2021 ONSC 4133, at para. 22.
[27] Montemarano v. Montramarano, 2020 ONSC 1393, at paras. 16-20, provides further guidance. The mere disclosure of receipt of legal advice is not an implied waiver of privilege. A party waives the protection of solicitor-client privilege when it voluntarily injects into the proceeding the question of its state of mind, and, in doing so, uses as a reason for its conduct the legal advice that it has received. There must be an affirmative allegation that puts the party's state of mind at issue.
[28] In my view, the Applicant has clearly met the elements of a deemed and/or implied waiver of solicitor-client privilege. She has made claims that she was under duress and that she never received independent legal advice as a means of setting aside the Agreement. She has voluntarily put her state of mind and understanding of her legal position (or lack thereof) in issue even though she had a lawyer retained in the matter seven to eight months earlier. Even if the retainer of Mr. Sobering was terminated in March and the Agreement was signed in November, I find this puts in issue any advice Mr. Sobering might have given the Applicant on a proposed Agreement. The Respondent should be able to respond to that issue.
[29] I find it would be unfair for the Respondent to continue in these proceedings and test the Applicant’s claims of duress and lack of legal advice, without questioning her former counsel, Mr. Sobering. I find that solicitor-client privilege between the Applicant and Mr. Sobering is deemed to be waived.
Scope of Questioning and Privilege regarding Mr. Kim:
[30] The Agreement was drafted by Mr. Kim and has Mr. Kim’s signature on it, (evidencing he was present when it was signed). The Applicant says that she does not require the right to question Mr. Kim regarding his communications with the deceased Mr. Bricker prior to his passing. There is no allegation that there exists an implied or express waiver of solicitor-client privilege. The Applicant says that she is agreeable to limit her questioning of Mr. Kim to the circumstances surrounding the execution and witnessing of the Separation Agreement.
[31] However, the Applicant does seek an exception that the scope of questioning include the circumstances surrounding the drafting of the Agreement as well. For this, the Applicant requests an order that the Estate be compelled to authorize a partial waiver of solicitor-client privilege. Counsel for the Applicant, Mr. Rechtshaffen, submitted that it is a “practical issue.” If solicitor-client privilege is not waived, and Mr. Kim cannot answer any questions on the “when, how and why the Agreement was drafted” then the only explanation for the creation and circumstances surrounding the drafting of the Agreement will come from the Applicant. He says that if the Respondent takes the position that Mr. Kim will not answer any questions save and except for the execution and witnessing of the agreement, then all the evidence regarding duress will be coming from the Applicant solely.
[32] The Respondent says it is appropriate to order that the scope of questioning Mr. Kim be limited to the execution and witnessing of the Agreement. She opposes an order compelling them to authorize the Estate to provide a partial waiver of solicitor-client privilege and to provide any evidence regarding the circumstances surrounding the drafting of the Agreement. Ms. Zubair, on behalf of the Respondent, argued that there is no waiver of privilege because the deceased Mr. Bricker’s “state of mind” has not been plead, therefore, “state of mind” communications from Mr. Bricker to his former counsel Mr. Kim are not relevant and remain privileged.
[33] The Court agrees that the evidence from Mr. Kim about the “when, how and why the Agreement was drafted” would be relevant and helpful to the issues in this case. I agree with Mr. Rechtshaffen that if Mr. Kim cannot give any evidence regarding the circumstances surrounding the communications between Mr. Bricker and Mr. Kim regarding the drafting of the Agreement, then there will be a gap in the evidence and the Court may only have evidence on this issue from the Applicant. At the same time, I further agree with Ms. Zubair that there is no express or implied waiver of solicitor-client privilege from Mr. Bricker. The deceased Mr. Bricker has not voluntarily put into issue legal advice or his understanding of the law and “state of mind.”
[34] In my view, the Respondent has not met the elements of a deemed and/or implied waiver of solicitor-client privilege and these are not appropriate circumstances for the court to make an order yielding that confidence. The Court will order that Mr. Kim answer any questions regarding the circumstances surrounding the execution and witnessing of the Agreement. This shall also include the circumstances under which Mr. Kim attended at the hospital the day the Agreement was signed, (i.e., who summoned him and why, who was present, and what, if any, statements he made to the Applicant).
[35] If after reading the decision on this motion, the Respondent decides to compel the Estate to provide a partial waiver of solicitor-client privilege, they are free to do so. However, I am not satisfied with the evidence to make an order that the Respondent compel the Estate to authorize a partial waiver of solicitor-client privilege regarding the circumstances surrounding the drafting of the Agreement.
Re: Costs
[36] Although the Respondent has been successful on this motion, my orders and rulings are not determinative of the success or failure of the larger issues in the Applicant’s application. I will not be making an order regarding costs at this time. Further, I will not be inviting submissions regarding same. Both parties required direction from the Court on these issues prior to the questioning and prior to the eventual trial on the validity of the Agreement. There are many factors that the trial judge will need to consider when determining the issue of the validity or setting aside the Agreement. Accordingly, I order the costs of this motion shall be in the cause.
ORDER
[37] For the reasons set out above, Order to go as follows:
The court finds that solicitor-client privilege between the Applicant Ms. Trudy Bricker and Mr. Scott Sobering is deemed to be waived.
Mr. Sobering shall attend for questioning by the Respondent. The scope of the questioning shall be limited to his direct knowledge and legal representation of the Applicant (including any of the legal advice he provided to the Applicant): (a) after the Applicant’s separation and during the course of the Applicant’s legal retainer of Mr. Sobering; (b) after the retainer of Mr. Sobering was terminated until November 2, 2019 (the date of the Separation Agreement).
Unless there is further agreement between the parties or partial waiver of solicitor-client privilege, the scope of the questioning for Mr. Kim (as previously ordered by Christie J. on February 8, 2022) shall be limited to his direct knowledge of the events surrounding the execution and witnessing of the Separation Agreement dated November 2, 2019. This shall also include the circumstances under which Mr. Kim attended at the hospital the day the Agreement was signed, (i.e., who summoned him and why, who was present, and what, if any, statements he made to the Applicant).
Costs shall be in the cause.
Madam Justice R. Sonya Jain
Date: June 28, 2022
[^1]: All references to Rules are to the Family Law Rules, O. Reg. 114/99.