Ontario Superior Court of Justice

Court File No.: CV-24-00246-00
Date: 2025-04-29

IN THE MATTER OF THE ESTATE OF ANNE JAUN, deceased

BETWEEN:
Gary Brian Prosser
Applicant

• and -
  Rudy Jaun, by his Litigation Guardians Wendy Jaun and Debbie Jaun, in his capacity as Estate Trustee for the Estate of Anne Jaun
  Respondents

Appearances:

• Mr. R. Venn, for the Applicant
• Mr. B. Babcock, for the Respondents

Heard: April 8, 2025, at Thunder Bay, Ontario
Justice: H. M. Pierce

Reasons on Motion for Production of Solicitors’ Files

Introduction

[1] In his application, Gary Prosser (“Gary”) claims a declaration of secret trust entered into between Rudy Jaun (“Rudy”) and his late wife, Anne Jaun (“Anne”) that gave rise to his beneficial interest in the Silver Islet Cottage.

[2] However, the issue for determination by this court is narrower. Gary seeks production of solicitors’ files, notes, and records relating to certain real estate transactions, the Last Wills of the deceased, Anne, and the respondent, Rudy, and their estate solicitors’ files and notes. He submits that it would be unfair to require him to proceed with this application without discovery of these documents.

[3] Gary submits that the documents are relevant to the application. He argues that they are the best evidence available to decide the issues. He contends that, even if the documents are subject to solicitor-client privilege, an exception applies requiring their production. Alternatively, he submits that, if privilege applies, then it has been waived.

[4] The respondents’ argument is three-fold. First, while they concede that Gary has an entitlement to Anne’s solicitors’ files, they argue that Gary has no procedural right to production of the documents, and that Gary is conducting a fishing expedition with respect to Rudy’s documents.

[5] Next, they submit that solicitor-client privilege applies to Rudy’s documents such that they should not be disclosed.

[6] Finally, they contend that Gary does not have sufficient evidence to support the disclosure. They deny that there is a trust and, as a result, submit that the applicant has no interest in the Silver Islet Cottage.

The Nature of a Secret Trust

[7] On this motion, the applicant does not ask the court to determine whether a secret trust exists. However, in order to understand the significance of the parties’ arguments, it is helpful to understand what a secret trust is and is not.

[8] The secret trust is described at paras. 46–48 of Gefen Estate v. Gefen, 2022 ONCA 174:

[46] A. H. Oosterhoff describes secret trusts in “Secret and Half-secret Trusts,” Ontario Bar Association Continuing Legal Education, Trusts, Trustees, Trusteeships – All You Need to Know and More…, September 18, 2006, at p. 3:

A secret trust comes into existence when a testator leaves property to a person and that person secretly agrees with the testator to hold the property for the benefit of another person. There are two kinds of secret trust. With a fully-secret trust the testator leaves the property to a person apparently absolutely. In other words, the will discloses neither the existence of the trust, nor the name of the beneficiary. With a half-secret trust the will leaves the property to a person in trust, but the will does not disclose the beneficiary. If the requirements for the trust are satisfied, equity will enforce the trust and ensure that the property is given to the intended beneficiary of the trust.

[47] Secret trusts do not comply with the formal requirements of statutes governing wills, but equity intervenes to enforce the trust. Traditionally, this was seen as a means to avoid fraud, as absent intervention by equity, the trustee who received property might keep it, rather than abiding by the terms of the trust.

[48] The trust was secret for a variety of reasons. As explained by A.H. Oosterhoff, Robert Chambers & Mitchell McInnes, Oosterhoff on Trusts: Text, Commentary and Materials, 8th ed., (Toronto: Carswell, 2014), at p. 870:

A testamentary gift that favours one sibling over another, or that reveals the existence of an illegitimate child or secret lover, may generate ill-will or hostility amongst family members and close friends. Better to postpone the storm until after one is gone. Alternatively, a testator may be motivated by a desire for secrecy even after death. Once admitted to probate, a will becomes a public document, available to anyone for a fee. A secret trust allows a testator to conceal the fact that property has been left to, say, a political organization with unpopular views.

[9] The elements of a secret trust were described by the British Columbia Court of Appeal in Champoise v. Prost, 2000 BCCA 426, at paras. 15–16:

[15] A secret trust arises where a person gives property to another, communicating to that person an intention that the property be dealt with in a specific way upon the happening of an event, and the donee accepts the obligation. The essential elements are the intention of the donor, a communication of the intention to the donee and acceptance of the obligation by the donee.

[16] In addition to these requirements for an enforceable secret trust, the three certainties necessary for any express trust must be exhibited; the words making the trust must be imperative, the subject of the trust must be certain, and the object or person intended to take the benefit of the trust must be certain. Further, those certainties must be exhibited at the time the trust is created. [Citations omitted]

[10] As the respondents submit, the Court of Appeal observed, at para. 50 of Gefen Estate, that a secret trust does not arise where a testator was simply providing the trustee with guidance as to her wishes, rather than intending to establish a trust.

Anne’s Documents

[11] The respondents concede that Gary, as Anne’s only child, has an interest in the solicitors’ notes and records relating to her real estate transactions and her will. They do not object to disclosure of these documents.

Summary of the Facts

[12] The facts are not contentious.

[13] Gary is the child of the late Anne, who divorced Gary’s father. Then, Anne married Rudy on November 30, 1990. They remained together until Anne’s death. Rudy is Gary’s stepfather.

[14] Prior to her marriage to Rudy, Anne owned a cottage on Silver Islet.

[15] Anne made a will on December 19, 1990, at the law offices of Gordon, Carter and Johnson. She named Rudy as her primary Executor and Trustee of her Estate and directed that her “cottage located at Silver Islet in Sibley Township” be transferred to Gary for his own use absolutely. At the time she made this will, Anne owned the original cottage but did not yet own the Silver Islet cottage or the additional lots. Anne sold the original cottage to a third party on August 27, 1993.

[16] Counsel believe that Anne’s estate file is in the possession of the law firm Ericksons LLP.

[17] On May 9, 1992, Anne purchased the Sibley properties designated by PIN Numbers 62492-0133 and 62492-0134. Her solicitor for this transaction was Mr. Robert Mullen of the law firm MacGillivray, Poirier and Mullen. Counsel believes that this real estate file is in the possession of de Bakker Law. Rudy, a gifted tradesman, sourced building materials and built a new cottage to Anne’s specifications on the new property.

[18] Unfortunately, Anne was diagnosed with a terminal condition. On November 2, 1994, she added Rudy as a joint tenant of the Sibley properties for nominal consideration. Anne’s affidavit filed at the Land Registry Office did not indicate that the property was being conveyed as part of a trust.

[19] The solicitors for this transfer were the law firm of Kovanchak, Ferris, Ross. The solicitor’s reporting letter dated November 7, 1994, stated as follows:

Pursuant to the registration of the Transfer Document as Instrument No. 362630 on November 2, 1994, Anne Jaun and Rudy Jaun became the registered owners as Joint Tenants of Lots 297, 298, 299, 302, 303 and 304 of Plan 431 and Lots 300 and 301 saving and excepting Part 11 on the Reference Plan 55R 8612, Township of Sibley, District of Thunder Bay. Confirming our previous discussion with you, holding title in such a fashion provides for the automatic devolution of the property to the survivor of the owner thereof.

[20] Anne died on January 21, 1995. At the time of her death, only the main cottage building had been completed on these lots. Following Anne’s death, Rudy continued building on the properties, and completed four other outbuildings.

[21] On July 25, 1995, at the Law Offices of Kovanchak, Ferris, Ross, Rudy executed a Survivorship Declaration for the subject lots together with a sworn Statutory Declaration that stated, “I am the sole owner of the said lands.” This was Instrument number 368645.

[22] On September 8, 1995, Rudy returned to Kovanchak, Ferris, Ross and deposited a Survivorship Declaration with a Statutory Declaration stating, “I am the sole owner of these lands.” This was Instrument number 370027.

[23] On October 5, 1995, at the offices of Kovanchak, Ferris, Ross, Rudy transferred a portion of the Sibley properties identified with PIN # 62492-0134 to Gary. This involved Lots 297, 298, 299, 302, 303, and 304 on Plan 431 and Lots 300 and 301 on Plan 431, save and except for Part 11 on reference Plan 55R-8612 in the Township of Sibley, District of Thunder Bay.

[24] The properties were conveyed for nominal consideration with the explanation, “from stepfather to stepson for natural love and affection.” However, Rudy did not transfer the Sibley property identified by PIN # 62492-0133 (“the subject lots”) on which the Silver Islet cottage was built.

[25] Next, Rudy attended at the Law Office of Paul Gordon and executed a Last Will and Testament on October 19, 1995. The Will instructed Rudy’s Estate Trustee to transfer the Silver Islet cottage to Gary for his own use absolutely. Counsel believe that the estate file may be in the possession of the Ericksons LLP law firm.

[26] Rudy executed a new Will at the Law Office of Vauthier, Paivalainen on July 19, 1999. The Will directed the Estate Trustee to do the following:

1. transfer the subject lots including the Silver Islet cottage to Debbie Jaun, Wendy Jaun, Bonnie Jaun, and Peter Jaun as tenants in common, with each person to have a one-quarter interest; and

2. divide the residue of Rudy’s estate into five equal shares and pay one equal share each to Debbie Jaun, Wendy Jaun, Bonnie Jaun, Peter Jaun, and Gary Prosser.

[27] Next, Rudy made a new Will on November 27, 2007, at the Law Offices of Vauthier, Paivalainen. The salient points of the Will directed the Estate trustee to do the following:

1. transfer the subject lots including the Silver Islet cottage to Debbie Jaun, Wendy Jaun, Bonnie Jaun and Peter Jaun as tenants in common with each to have a one-quarter interest; and

2. not to provide in the Will any benefit or gift to his stepson, Gary, because Gary had previously received a gift of Lots 297, 298, 299, 300, 301, 302, 303 and 304 on Plan 431 in the Township of Sibley, District of Thunder Bay. in 1995, without consideration.

[28] Gary was unaware of Rudy’s wills executed in 1999 and 2007, both of which revoked the 1995 Will. He contends that the subsequent Wills are a breach of the trust agreement he alleges Rudy made with Anne.

[29] Counsel believe that these estate files are in the possession of the law firm, Weiler, Maloney, Nelson.

[30] Gary contends that Rudy is suffering from the effects of dementia, such that he lacks capacity to make a new will.

[31] In conjunction with this application, Gary sought a Certificate of Pending Litigation on the subject lots, a motion that was opposed by the respondents: see Prosser v. Jaun et al., 2024 ONSC 5056, at para. 42.

[32] Justice Wojciechowski granted the certificate but flagged several evidentiary problems standing in the way of the applicant’s claim for a secret trust:

a. Because of Anne’s death, her express intentions are not available for the court’s consideration;
b. Because of Rudy’s dementia, he is unable to confirm or deny the existence of a secret trust;
c. The presumption of joint ownership in s. 14 of the Family Law Act, R.S.O. 1990, c. F.3, as amended;
d. The presumption of advancement;
e. Section 13 of the Evidence Act, R.S.O. 1990, c. E.23 as amended, requiring the applicant’s evidence to be corroborated by some other material evidence; and
f. The evidence necessary to establish the existence of a secret trust described at paras. 49–50 of Geffen Estate, which includes the intention of the donor and the communication of this intention to a donee who accepts the obligation expressed by the donor.

Has the Applicant Met His Onus to Establish a Secret Trust?

[33] In Gefen Estate, at para. 49, the Court of Appeal described the three certainties that must be proven in a secret trust: the words making the trust must be imperative; the subject of the trust must be certain; and the object or person benefitting from the trust must be certain.

[34] The applicant submits that the legal files relating to Rudy’s wills and property transfers are not privileged because they relate to the secret trust of which Gary is the beneficiary. He argues that a person who can show a prima facie beneficial interest in a trust has a prima facie proprietary right to the trust documents, and his trustee may not withhold those documents from him: see Patrick v. Telus Communications Inc., 2005 BCSC 1762, at para. 39.

The applicant cites the joint interest principle, where a lawyer’s advice obtained for the administration of the trust or estate is not privileged because it is intended to serve the joint interests of the beneficiary and the trustee. [Citations omitted].

[35] In these circumstances, the onus is on the applicant to show that there is a secret trust in which he has a beneficial interest.

[36] Gary argues that receiving a copy of the reporting letter from the conveyancer who completed the transfer of the Sibley properties at Rudy’s direction was evidence of the joint interest principle, or alternatively, constituted a waiver of privilege over these transfer documents.

[37] I agree that Rudy waived his privilege in the reporting letter to the extent that he instructed the conveyancer to copy Gary on the reporting letter gifting him certain Sibley properties. However, being the recipient of these lands is not sufficient to establish there was a trust. What is missing from Gary’s motion material is any evidence that Anne’s intention to create a trust was conveyed to Rudy, who then accepted the responsibility to carry it out.

[38] Gary seeks disclosure of Rudy’s documents to build his case that a secret trust was created by his mother and Rudy and breached by Rudy’s subsequent Will. The evidence filed on this motion is to the contrary.

[39] For example, Anne’s addition of Rudy as a joint tenant in the Sibley properties does not indicate that the conveyance was part of a trust, although that option was open to her. Rather, the reporting letter indicates that the effect of the joint tenancy was to pass ownership in the lands to the survivor.

[40] Furthermore, there is no corroboration for Anne’s estate as required by s. 13 of the Evidence Act, R.S.O. 1990, c. E.23, which provides as follows:

13 In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

[41] Rudy’s Survivorship Declaration, followed by a Statutory Declaration, also confirm that he is the sole owner of the lands; he does not indicate that he holds them in trust.

[42] Furthermore, Rudy’s transfer of a portion of the Sibley properties to Gary was characterized as “from stepfather to stepson for natural love and affection.” If a trust was intended in relation to the other properties, no mention is made of it in this document.

[43] I conclude that Gary has not met his onus to establish that the joint interest principle for trusts applies on this motion, such that disclosure should be ordered.

Are Rudy’s Documents Privileged?

[44] Even if I am incorrect that the applicant has not met his onus of establishing a trust, there are two additional problems with the applicant’s argument: first, whether Rudy’s documents are subject to solicitor-client privilege to which no exception applies, and second, even if not privileged, are Rudy’s documents relevant?

[45] If the documents are privileged, and the privilege has not been waived, Gary’s arguments that Rudy’s documents are relevant to his case and constitute the best evidence also fail.

[46] The burden is on the respondents to establish, on a balance of probabilities, that Rudy’s documents are protected by solicitor-client privilege. The communication must be between solicitor and client for the purpose of seeking or giving legal advice, intended to be confidential: see SNC-Lavalin Engineers & Constructors Inc. v. Citadel General Assurance Co. (2003), 63 O.R. (3d) 226, at para. 54 (Sup. Ct.).

[47] It is settled law that, subject to certain exceptions for fraud, crime, evasion, or civil wrong, none of which apply here, communications between a solicitor and his client, whether oral or documentary are protected; they cannot be compelled without the client’s consent: see Re: Combines Investigation Act (1972), 26 D.L.R. (3d) 745 (B.C. Sup. Ct.).

[48] The Supreme Court of Canada characterized solicitor-client privilege as “fundamental to the proper functioning of our legal system” with exceptions narrowly applied: see Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555, at para. 20.

[49] The policy reason for the privilege is to permit clients to communicate openly with their solicitors and to seek advice without fear of having these confidences disclosed: see Sidney N. Lederman, Michelle K. Fuerst, and Hamish C. Stewart, eds., Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 6th ed., (Toronto: LexisNexis Canada Inc., 2022), at p. 1060.

[50] In Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809, at para.15, the Supreme Court of Canada outlined the following criteria for establishing solicitor-client privilege:

(i) a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice; and (iii) which is intended to be confidential by the parties. Though at one time restricted to communications exchanged in the course of litigation, the privilege has been extended to cover any consultation for legal advice, whether litigious or not.

[51] In Palichuk v. Palichuk, 2023 ONCA 116, 84 E.T.R. (4th) 199, at para. 71, Trotter J.A. explains the public policy reasons behind preserving the testator’s privacy prior to death:

To the contrary, there are strong public policy reasons not to permit a challenge to a will prior to the death of a testator. A testator may change their will as often as they like. It is entirely unknown how much, if any, money or property there will be left to dispute until the testator dies. It cannot be known if any of the beneficiaries will have predeceased the testator. Thus, the common law insists upon the death of the testator before litigation. Otherwise, the courts would be inundated with litigation that is hypothetical during the lifetime of the testator, with the potential for re-litigation after their death.

[52] Solicitor’s notes constitute a form of solicitor-client privilege because they are considered a written record of the communication with the solicitor’s client: see Mamaca v. Coseco Insurance Co., [2004] 12 E.T.R. (3d) 268, at paras. 21–22.

[53] The applicant submits that even if privilege exists, it has been waived by the voluntary disclosure of the November 2, 1994, property transfer, the September 8, 1995, Land Registry deposit, Rudy’s 1999 will, and various reporting letters from solicitors disclosed in the litigation.

[54] Counsel agree that whether solicitor-client privilege has been implicitly waived is guided by principles of fairness and consistency: see Spicer v. Spicer, 2015 ONSC 4175, at para. 13. The onus is on the party claiming waiver to prove on a balance of probabilities that the privilege should be set aside: see Montemarano v. Montemarano. 2020 ONSC 1393, at para. 19.

[55] In Procon Mining and Tunnelling Ltd. v. McNeil, 2009 BCCA 281, 94 B.C.L.R. (4th) 243, at para. 19, the court determined that to establish waiver of privilege, the disclosure must be necessary to the moving party’s ability to answer an allegation; the waiver does not necessarily provide widespread access to the client’s legal file.

[56] For an implicit waiver of privilege to be made out, the party must make the client’s state of mind material to its claim. If the client’s state of mind is not material to resolution of any issue in the case, waiver will not be implied: see Doman Forest Products Ltd. v. GMAC Commercial Credit Corp. – Canada, 2004 BCCA 512, at para. 12.

[57] This principle was narrowed in Joshi v. Chada, 2020 ONSC 1367, at para. 11, when the court determined that even when state of mind is put in issue, this does not result in sweeping waiver of solicitor-client privilege.

[58] Applying the criteria in the Pritchard case, I conclude that Rudy’s instructions to his solicitor involving his wills and real estate transactions, and his solicitors’ notes related thereto, are a communication between a solicitor and client entailing the seeking of legal advice intended to be confidential by the parties. The applicant has failed to prove an implicit waiver of these documents.

[59] In my view, the exception to solicitor-client privilege described in Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, at para. 59, which permits an exception to solicitor-client privilege in estate litigation to ascertain the testator’s wishes, does not apply in this case. As the respondents point out, this is not a wills case where that exception may apply, albeit narrowly.

[60] Rudy’s wills were made in 1995, 1999, and 2007. There is no medical evidence as to his condition or capacity at the time his wills were made, which is the relevant time. Rudy is still very much alive and available to testify about his intentions. The fact that he is represented by litigation guardians is not determinative of his capacity to make a new will.

[61] In Johnson v. Johnson, 2022 ONCA 682, 81 E.T.R. (4th) 7, at para. 13, the Court of Appeal held that a diagnosis of dementia by itself does not determine a testator’s capacity. The Court observed that to hold otherwise “risks falling into impermissible stereotypes about individuals with mental health and other challenges.”

[62] Making a will necessarily involves emotional content, whereby the testator reflects on his life and relationships and considers his mortality. It is an intimate exercise, intended to be private.

[63] Whether Rudy suffers from dementia and may, as Gary argues, be incapable of making a new will, does not give Gary carte blanche to examine Rudy’s confidential communications to his solicitors and the estate planning that he put in place after the death of his wife.

[64] The fact that Gary did not have his expectations realized by his mother’s estate plan is not grounds for the court to impose on Rudy’s dignity and privacy by ordering the disclosure of his solicitors’ notes and records.

[65] The solicitors’ files containing notes and documents relative to Rudy’s instructions for the Wills and real estate transactions are subject to privilege and shall not be disclosed without the client’s consent.

[66] As previously indicated, Anne’s solicitors’ notes and records relating to her real estate transactions and Will shall be disclosed.

Relevance

[67] If I am incorrect in my conclusion that Rudy’s documents are not privileged, are they relevant? I conclude they are not for this reason: if there is a secret trust, the applicant must prove that Anne, as the donor, intended to create a trust and communicated her intention to Rudy at the time the subject properties were converted to a joint tenancy between them. Then, Gary must prove that Rudy accepted the obligation at the time he alleges the trust was created.

[68] Since the purpose of the Wills exception is to ascertain the testator’s intention, it is Anne’s intention, and not Rudy’s, that is relevant. Rudy’s subsequent Will documents, and his solicitors’ notes and records, are irrelevant.

Procedural Right to Production

[69] In view of the foregoing conclusions, it is unnecessary to consider the respondent’s argument that the applicant has no procedural right to production of Rudy’s documents.

Conclusion

[70] The respondents do not contest the disclosure of Anne’s documents. Accordingly, an order will issue as follows:

1. Atwood Labine LLP shall produce to the lawyer for the applicant, within 30 days of being served with this order, the complete files, notes and records in their possession that relate to the transfer/deed of land receipted as #350985 on August 27, 1993, regarding the sale of land by Catherine Anne Prosser to Arie Rustenburg.

2. de Bakker Law shall produce to the lawyer for the applicant within 30 days of being served with this order, the complete files, notes and records in their possession which relate to the transfer/deed of land receipted as #337133 on May 8, 1992, and registered by Mr. Robert Mullen.

3. Erickson LLP shall produce to the lawyer for the applicant within 30 days of being served with this order the complete files, notes and records in their possession which relate to the Last Will and Testament of Anne Jaun dated December 19, 1990.

4. The applicant shall bear the costs of the documents produced and shall produce to the respondents the records ordered to be produced within 30 days of receiving them.

[71] For the reasons above, the following documents are not required to be produced:

1. The complete files, notes, records and documents in the possession of Ericksons LLP which relate to:

(i) the Transfer/Deed of land receipted as #362630 on November 2, 1994, and registered by Anthony Zurich of the law firm Kovanchak Ferris Ross;

(ii) the Survivorship Declaration receipted as #368645 on July 26, 1995, and registered by Anthony Zurich of the law firm Kovanchak Ferris Ross;

(iii) the Survivorship Declaration receipted as #370027 on September 8, 1995, and registered by Anthony Zurich of the law firm Kovanchak Ferris Ross;

(iv) Transfer/Deed of Land receipted as #370792 on October 5, 1995, and registered by Anthony Zurich of the law firm Kovanchak Ferris Ross;

(v) The Last Will and Testament of Rudy Jaun dated October 19, 1995;

2. The complete files, notes, records, and documents in the possession of the law firm Petrone & Partners which relate to:

(i) the Last Will and Testament of Rudy Jaun dated July 14, 1999; and

(ii) the Last Will and Testament of Rudy Jaun dated November 27, 2007.

Costs

[72] Unless otherwise agreed, costs are reserved to the disposing judge.

“original signed by”
H. M. Pierce

Released: April 29, 2025