Court File and Parties
COURT FILE NO.: CV-22-00680467-0000 DATE: 08-01-2023 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: THE ESTATE OF WILLIAM ROBERT WATERS, by his Estate Trustees LINDSAY HISTROP and AGNES KUSSINGER Plaintiff
AND:
GILLIAN HENRY, NOELLE HENRY, MATTHEW ALEXZANDER HENRY, DONNA MCGRATH, CEDRIC NOEL BUTTERS, JEAN ELAINE BUTTERS, MICHELLE AMANDA LLOYD, SHAMILE LLOYD, RICHARD ANTHONY LLOYD, 2325587 ONTARIO LIMITED, 2329223 ONTARIO LIMITED, 7222874 CANADA INC., KING OF HEARTS STABLES LTD., GMNT LIMITED, GMNT LENDING CORPORATION, JOHN DOE #1, JANE DOE #1, JOHN DOE #2, JANE DOE #2, and JOHN DOE CORP. Defendants
BEFORE: Koehnen J.
COUNSEL: Arie Gaertner, Karen Sanchez, Alan Sternberg for the moving party defendants. Lorne S. Silver, Jonathan Shepherd, Sarah Kemp for the responding party plaintiff Sean Dewart for Lindsay Ann Histrop
HEARD: July 10, 19, 2023
Endorsement
1The defendants move to obtain unredacted versions of certain documents from the files of the solicitor of William Waters whose estate is the plaintiff in this action.
2The action arises out of circumstances in which Dr. Waters transferred approximately $28 million in cash and assets to the defendant Gillian Henry during his lifetime. Dr. Waters had hired Ms. Henry as a caregiver for his ailing wife. The estate says the transfers were impressed with a resulting trust and sues for their return. Ms. Henry says the transfers were inter vivos gifts that she is entitled to retain.
3The issue on this motion arises out of a direction I gave at a case conference on March 1, 2023. That direction was converted into an order of the same date. The dispositive portions of the order provide:
THIS COURT FURTHER ORDERS that the lawyer records, notes and files of Ms. Lindsay Histrop, for the period commencing May 2009 to and concluding December 2019, that relate to the issue of gifts, transfers of monies or properties to Ms. Gillian Henry shall be disclosed as part of the documentary production in this case, subject to redactions to cover solicitor-client privileged communications. The production of relevant facts in the lawyer records, notes and files shall not constitute or be deemed a waiver or forfeiture in whole or in part of any claim of solicitor-client privilege.
THIS COURT FURTHER ORDERS that the Henry Defendants or the plaintiff may seek direction from Justice Koehnen (who shall have the right to review the redactions made by the plaintiff), regarding any dispute relating to assertions or abrogation of solicitor-client privilege by way of Case Conference before The Honourable Justice Koehnen, on 24-hour’s notice to the other party, subject to the availability of Justice Koehnen.
4The estate has produced documents from Ms. Histrop’s file. Certain of those documents contain redactions. The defendants seek unredacted versions. In addition, the affidavit of documents of the plaintiff refers to approximately 180 further documents under three general headings that the estate is not producing on grounds of privilege. Ms. Henry seeks production of all 180 additional documents in unredacted form.
Res Judicata and Abuse of Process
5The estate submits that I have already determined this issue by virtue of my order of March 1, 2023, and that anything further amounts to a violation of principles of res judicata and abuse of process. I disagree for two reasons.
6First, paragraph 7 of the March 1, 2023, order provides that either side may seek direction from me “regarding any dispute relating to assertions or abrogation of solicitor client privilege…” That is what the defendants are doing on this motion.
7Second, to the extent that the defendants seek to extend the March 1, 2023 order beyond facts, doing so does not amount to an abuse of process and does not violate rules of res judicata. I am acting as case management judge. Matters are brought before me at case conferences with varying degrees of formality. The attendance on March 1, 2023, was a relatively informal. The request for privileged materials was more in the nature of an informal direction than a fully argued motion. The fact that directions are made informally on short notice at a case management conference should not preclude parties from seeking further refinement of orders made at such conferences. If rules of res judicata and abuse of process were applied rigorously to informal case conferences, then case management and the speedy, informal resolution of issues it offers would be materially inhibited. Parties would be reluctant to seek directions for fear that not every last issue or sub-issue was captured in their request. That would defeat the purpose of case management.
Solicitor-Client Privilege
8Mr. Gaertner submits that documents from Ms. Histrop’s files should be produced if they “shed light on the issue of whether money or other property had been gifted to Ms. Henry or not.” The Estate submits that it has produced such documents.
9The estate submits that the order of March 1, 2023, was strictly limited to the production of factual information contained in the lawyer’s file and that to go any further would amount to a fundamental breach of solicitor client privilege. It relies on cases which speak generally about the importance of solicitor client privilege and its sanctity.
10I do not view the issue as being quite as clear-cut as the estate submits.
11In cases of challenges to a will, there has been a long-standing exception to solicitor client privilege which allowed a party to access at least portions of the deceased’s solicitor’s file to determine the true intentions of the deceased: see Geffen v. Goodman Estate, [1991] 2 SCR 353 at p. 384-385. Among the justifications advanced for the exception are that: (i) to hold otherwise would deprive the party contesting the will of a considerable part of the proof of its case; and (ii) the essence of a will challenge is to determine the testator’s intention. To invoke privilege after the client is deceased makes it impossible for the court to determine the testator’s intention. In those cases, the interests of justice make it more important to ascertain the true intention of the testator than to protect privilege: Geffen at page 386-387.
12The estate argues vigorously that this is not a case of a contested will. It notes that the defendants have repeatedly maintained that they are not contesting Dr. Waters’ will. As a result, they submit that the wills exception to privilege does not apply.
13In Geffen, however, the Supreme Court of Canada extended the will challenge exception to other cases in which the testator’s intention is critical. In Geffen, the exception was applied to interpret a trust instrument. The court explained its extension of the exception as follows at p. 387:
In my view, the considerations which support the admissibility of communications between solicitor and client in the wills context apply with equal force to the present case. The general policy which supports privileging such communications is not violated. The interests of the now deceased client are furthered in the sense that the purpose of allowing the evidence to be admitted is precisely to ascertain what her true intentions were. And the principle of extending the privilege to the heirs or successors in title of the deceased is promoted by focusing the inquiry on who those heirs or successors properly are. In summary, it is, in the words of Anderson Surr. Ct. J. in Re Ott, supra"[i]n the interests of justice" to admit such evidence.
14Since Geffen, other courts have applied the extension to cases other than will challenges. See for example: Re Palamarek, 2010 BCSC 1894; Durand v. Durand (Estate of), 2015 MBQB 132; Armstrong v Kotanko, 2019 BCSC 1519; Kobzos v Kobzos Estate, 2019 BCSC 2254.
15In Durand v. Durand (Estate of), 2015 MBQB 132 the court used privileged lawyer’s notes to interpret a provision in a will, stating at para. 19: “In my view there is sufficient ambiguity in the way that this will is drafted to place the case within the Goodman Estate v Geffen wills exception.”
16There is a similar ambiguity in this case. The 2018 Waters’ will provided that Ms. Henry was to receive shares in a particular corporation “provided she pays to my estate the assets she holds for me on resulting trust…”
17The estate submits that this provision of the will is irrelevant because the corporation in question is now defunct. I do not agree. The phraseology used could be read to imply that Ms. Henry may hold certain assets on resulting trust and other assets absolutely. This requires the court to determine which assets were in fact held on a resulting trust. Is it all assets that were transferred as the estate submits, is it none of the assets that were transferred as Ms. Henry submits or is it a subset of the assets that were transferred?
18The estate submits that any information about Dr. Waters’ donative intent in the solicitor client records is irrelevant. It puts the issue as follows in paragraph 64 of its factum:
The question that is at the heart of this dispute is what transfers Henry can prove, with contemporaneous evidence, were intended as gifts (if any). Henry has been unable to tender any collaborative contemporaneous evidence to support her position that any of the 391 transfers were gifts. Dura lex sed lex. The law is hard, but it is the law.
19While the maximum Dura lex sed lex may have a long and storied history, it does not reflect the currently prevailing principled approach to the law which focuses more on ensuring that the policy principles underlying rules of law are furthered than on ensuring that technical rules are enforced regardless of whether they are consistent with the law’s underlying policy. The underlying policy in estates cases is clearly to determine and enforce the testator’s intentions. In the circumstances of this particular case, one way of getting at those intentions about the transfers to Ms. Henry may be the solicitor’s file.
20The estate quotes Justice D.M. Brown in Kaptyn Estate v. Kaptyn Estate, 2010 ONSC 4293, at para. 37 to the effect that:
Inadmissible direct evidence has included (i) handwritten notes of the deceased directly stating her intentions regarding the disposition of property; (ii) statements made by the deceased to another about his intention; and (iii) the instructions the testator gave to her solicitor and the advice she received on the legal effect of the document under interpretation. (Citations omitted)
21The estate cites this quotation to suggest that evidence from solicitor client files is inadmissible to help the court determine the testator’s intention. That is not, however, what the quotation actually says. It simply says that inadmissible evidence has included instructions to a solicitor. There are no doubt many cases in which such evidence is inadmissible. There are other cases, however, like those in Geffen where courts have clearly found that such evidence can be admissible. Moreover, I am not deciding issues of admissibility at trial but of production at the discovery stage. Production at discovery is broader than admissibility at trial.
22In my view, the scope of production from Ms. Histrop’s files should extend beyond production of facts and should include production of all information that “sheds light on the issue of whether money or other property had been gifted to Ms. Henry or not.” That includes information not only about the transfers themselves but about Dr. Waters’ capacity, susceptibility to undue influence and the nature of this relationship with Ms. Henry.
23The estate should review that Ms. Histrop’s files once again with this direction in mind.
24The defendants note that the plaintiff has referred to approximately 180 documents in schedule B of its affidavit of documents. The defendants argue that by virtue of their inclusion, they are clearly relevant and should be produced in their entirety. I do not agree. Rule 30.05 provides that disclosure of a document does not amount to an admission of its relevance.
25I can see no reason for not following the usual practice in circumstances like this which is to have the party to whom the documents “belong” review them make production according to the Rules or other directions of the court. Counsel for the Estate should review the solicitor’s files again and produce those portions of documents that respond to the directions in paragraph 22 above. Other portions of the documents can be redacted.
26Turning to the specific redactions at issue on this motion, I have reviewed all of the redactions that the estate’s counsel has made. I am satisfied that all of the redactions should be removed. They all relate to the information outlined in paragraph 22 above.
27Counsel for Ms. Histrop appeared at the hearing. He expressed concern that production of privileged material is being sought to assist the defendants in determining whether to commence a claim against Ms. Histrop. That can be remedied by ordering that no one from Mr. Gaertner or Mr. Sternberg’s firms that can act in any lawsuit against Ms. Histrop in relation to the plaintiff and that no one who becomes privy to any of the documents from Ms. Histrop’s files can share that information other than with members of Mr. Gaertner’s or Mr. Sternberg’s firms or with Cassels Brock. It strikes me that this achieves a balance between getting at Dr. Waters’ true intentions which is a valid legal goal and permitting the defendants to mount a fishing expedition to see if they might have a case against Ms. Histrop which is not a valid legal goal.
28Unless either side has submissions to make on the issue of costs, I order those costs be in the cause.
Date: August 1, 2023 Koehnen J.