CITATION: De Miranda et al. v. King, 2026 ONSC 4520

COURT FILE NO.: CV-23-80478

DATE: 20260804

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Cristina Maria De Miranda and Paul Edward King

Plaintiffs

• and -

James Vincent King, as trustee for the estate of Anne Margaret King

Defendant

Richard A. Wellenreiter, for the Plaintiffs

Matthew J. Jantzi, for the Defendant

M. Scott Martin, for the non-party, Christine Lewis

HEARD: July 16, 2026

ENDORSEMENT

Associate Justice J. Kriwetz

Background

1The plaintiff, Cristina Maria De Miranda (“Cristina”) and the plaintiff, Paul Edward King (“Paul”) are husband and wife. They commenced this action against Paul’s mother, Anne Margaret King (“Anne”) for, among other things, a declaration that they are the legal and beneficial owners of the property located at 170 Aberdeen Avenue, Hamilton, Ontario (the “Property”).

2The plaintiffs allege that Anne, who had moved to Ireland with her husband, decided to return to Canada after her husband passed away, but she was of limited means. Therefore, to assist Anne, the plaintiffs proposed that they purchase a property in which she could live independently. They further allege that they and Anne reached an agreement to purchase the Property, the terms of which included that Anne would be registered on title as a joint tenant along with the plaintiffs but that she would hold her interest in trust for the plaintiffs, who were at all times the beneficial owners. The plaintiffs also allege that, because Paul was working out of the country at the time and was unavailable to sign the required documents on closing, title to the Property was taken in the names of Cristina and Anne, as joint tenants. Despite that, the plaintiffs maintain that the terms of the aforesaid agreement continued to apply.

3The purchase of the Property was completed on March 9, 2007. Christine Lewis was the lawyer who acted for Cristina and Anne on the purchase.

4The plaintiffs claim that Anne subsequently breached the terms of the agreement by unilaterally severing the joint tenancy on January 21, 2022.

5The claim has been defended and there is a counterclaim for a partition and sale of the Property.

6Anne passed away on April 21, 2023. Her son, James Vincent King (“James” or the “defendant”), is the trustee of her estate and is defending the claim on its behalf. He was examined for discovery on March 13, 2024.

7The plaintiffs and defendant each brought motions for summary judgment, both of which were dismissed by Mr. Justice Bordin on August 14, 2025.

The Motion

8The plaintiffs move for: (a) an order pursuant to rule 31.10 for leave to examine Ms. Lewis, for discovery as a non-party, and (b) an order compelling the defendant to answer an outstanding undertaking.

The Outstanding Undertaking

9I will first address the outstanding undertaking part of the plaintiffs’ motion.

10During submissions, counsel for the defendant advised that he had provided the answer to the undertaking, in writing, to the plaintiffs’ counsel and repeated the answer during the hearing. Counsel for the plaintiffs was content with the answer but asked that the defendant’s counsel to, once again, provide written confirmation of it. The defendant’s counsel agreed to do so. Therefore, this issue was resolved and no order is required.

The Examination for Discovery of the Non-Party, Ms. Lewis

11I now turn to the issue of whether the plaintiffs should be granted leave to examine Ms. Lewis as a non-party pursuant to Rule 31.10.

The Plaintiffs’ Position

12The plaintiffs submit that Ms. Lewis has information relevant to the issues in this action which, because of Anne’s passing and because James was not involved in any of the discussions, is not available from anyone else.

13They also submit that it would be unfair for them to hear Ms. Lewis’ testimony for the first time at trial.

14The plaintiffs further submit that the order sought would not cause undue delay, cause unreasonable expense, or result in unfairness to Ms. Lewis.

15They also assert that the defendant agreed to the examination of Ms. Lewis but then later took the position that solicitor-client privilege would not be waived. They argue that, without the waiver, the examination would be pointless, and the defendant’s consent is no consent at all.

16With respect to the issue of solicitor-client privilege, the plaintiffs submit that the defendant’s waiver is not required because, as parties to the joint retainer, there is no privilege between Cristina and Anne. They also argue that Paul was an integral party to the alleged agreement which formed the basis for the purchase of the Property. He was, therefore, not a third-party stranger to the transaction and submits that he is entitled to the disclosure of the communications between Ms. Lewis and Cristina and Anne.

17The plaintiffs cited authorities to support their argument that the Court will permit the disclosure of solicitor-client privileged communications in exceptional circumstances when the information is otherwise not available. They argue that exceptional circumstances exist in this case.

18In response to the defendant’s assertion that Ms. Lewis’ evidence would be hearsay, the plaintiffs submit that issue is one which should be addressed at trial. In any case, they also argue that such evidence would be admissible under an exception to the hearsay rule.

19The plaintiffs directed the Court to various authorities in support of their arguments. I will discuss them in further detail below.

The Defendant’s Position

20In summary, the defendant submits that the plaintiffs have not met the test set out in Rule 31.10.

21The defendant agrees that Ms. Lewis’ communications are not privileged as between Cristina and Anne, but that, because Paul was not a party to the joint retainer, the privileged communications should not be disclosed to him.

22He also submits that, through Cristina, the plaintiffs already have access to the information they seek.

23The defendant further argues that there is no unfairness to the plaintiff because the evidence from Ms. Lewis is inadmissible in two respects. First, it is hearsay and second, it is protected by solicitor-client privilege.

24The defendant also asserts that, if the order is granted, it risks delaying the trial, increasing expenses and introducing untested evidence.

25The defendant also referred to various authorities, some of which will be discussed below.

Ms. Lewis’ Position

26Ms. Lewis will attend to be examined for discovery as a non-party if so ordered but asks that the order include a term waiving solicitor-client privilege.

Analysis and Law

27Rules 31.10(1) and (2) state,

“31.10 (1) The court may grant leave, on such terms respecting costs and other matters as are just, to examine for discovery any person who there is reason to believe has information relevant to a material issue in the action, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation.

(2) An order under subrule (1) shall not be made unless the court is satisfied that,

(a) the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine;

(b) it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and

(c) the examination will not,

(i) unduly delay the commencement of the trial of the action,

(ii) entail unreasonable expense for other parties, or

(iii) result in unfairness to the person the moving party seeks to examine.”

28The test under Rule 31.10 has two main components. First, there must be reason to believe that the person sought to be examined has evidence relevant to a material issue in the action. Second, the factors set out in Subrule 31.10(2) must be satisfied. The onus is on the moving party to satisfy the Court that the test has been met: Rupani v. Willett, 2023 ONSC 3743, at paras. 25 and 26, and Manga Hotels (Toronto) Inc. v. GE Canada Equipment Financing G.P., 2014 ONSC 2699, at para 2.

29Once the test in rule 31.10 has been satisfied, the Court has the discretion to permit the examination for discovery of a non-party. If it is in the interests of justice that the examination be permitted, the Court will make such order: McDermid Paper Converters Inc. v. McDermid, 2010 ONSC 5404, at para. 25.

Relevance

30One of the core issues in this case is what were the terms of the agreement between the plaintiffs and Anne regarding the purchase of the Property. As the lawyer who was retained to complete the purchase of the Property, Ms. Lewis would have “information relevant to a material issue in the action”. She is not “an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation”, and, therefore, she would not be disqualified from being compelled under Rule 31.10 on that basis.

Rule 31.10(2) Factors

31Rule 31.10(2)(a) requires that the moving party “to have been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine.”

32“(T)here must be a refusal, active or constructive, to obtain the information before the applicant will be able to meet the onus under Rule 31.10(2)(a)”: Famous Players Development Corp. v. Central Capital Corp., 1991 CanLII 7202 (Ont. Div. Ct.).

33The plaintiffs argue that this branch of the test has been satisfied because Anne is deceased, the defendant has no personal knowledge of the arrangements made at the time the Property was purchased, the defendant refuses to waive solicitor-client privilege, and Ms. Lewis will not attend unless the privilege is waived or there is a Court order.

34The defendant seemed to have initially consented to the examination for discovery of Ms. Lewis but then subsequently advised that he will not waive solicitor-client privilege. In any event, at the hearing, the defendant was opposed to the order being granted.

35In this case, had Anne not passed away, she would have been required to attend at examinations for discovery and answer all proper questions relevant to the issues in the action. However, I am of the view that she would not have been required to answer questions which would have resulted in her disclosing information which was protected by solicitor-client privilege.

36The plaintiffs’ position is that, because Anne is deceased, Ms. Lewis should be examined for discovery as a non-party and be permitted to disclose privileged information.

37There is no dispute between the parties that, as parties to the joint retainer, there is no solicitor-client privilege as between Cristina and Anne. In such case, the clients are treated as one: Capital Sports Management Inc. v. Trinity Development Group Inc., 2022 ONSC 2657, at para. 29. Paul, however, was not a party to the joint retainer and the defendant objects to the disclosure of the privileged information to him.

38Based on the foregoing, I am satisfied that there has been a sufficient refusal from the defendant allowing the plaintiffs to obtain that information. That in and of itself, however, does not entitle the plaintiffs to obtain such information.

39Although, in their factum, the plaintiffs concede that, as a general principle, “(s)olicitor-client privilege belongs to the client, endures after death, and is protected”, they submit that such privileged communications may be disclosed in exceptional circumstances. They cited Descoteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860 and Boe v. Whitby, 2021 ONSC 6998 in support of this submission.

40In Descoteaux, an applicant for legal aid was charged with an indictable offence for incorrectly reporting a lower income in order to obtain legal aid. The investigating peace officers, in executing a search warrant, obtained the accused’s application for legal aid. The accused argued that the documents seized were protected by solicitor-client privilege. The Supreme Court held that the information relating to the financial means of the accused were a material element of the crime with which he was charged and was not privileged.

41In Boe, the defendant sought to examine a non-party lawyer, who at one time represented the plaintiff in a family law case, to prove certain allegations. The Court noted, at paragraph 12, “that privileged communications are only to be disclosed in exceptional circumstances and communications between lawyers and clients are generally sacrosanct”. In dismissing the motion, the Court stated that it was premature because there were other avenues which the defendant could have first taken which did not involve disclosing privileged communications.

42Apart from establishing the general principle that exceptional circumstances must exist before the Court will consider ordering the disclosure of privileged communications, the Descoteaux and Boe cases are distinguishable from this case on their facts.

43The plaintiff also relies on Goodman Estate v. Geffen, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353, which involved a challenge to a trust agreement entered into by the deceased in which gave herself a life interest in a property, provided that, on her request, the trustees would consider a sale of the property as long as it was in her best interests, and directed that, on her death, the property would be divided amongst her surviving children, nephews and nieces. One of the issues on appeal was whether the trial Judge was correct in allowing evidence from the lawyer who drafted the trust agreement. The Supreme Court noted that the lawyer’s testimony may help to ascertain the circumstances under which the deceased entered into the trust agreement, and it was vital to determine whether the deceased obtained independent legal advice. While the Court affirmed the importance of maintaining the solicitor-client privilege, it noted the development of an exception in wills cases. Although the case did not involve a will, the principles by which the privilege in those cases was waived, applied in that case. Therefore, its admission was “interests of justice”.

44The plaintiffs also referred to Allison v. McBride, 2025 ONSC 2828, in which the files of the deceased person’s lawyer were sought in the hope of finding evidence to determine the deceased’s final testamentary intention to a sufficient degree to be recognised as a will. There, the Court refused to use the wills exception to grant the order requested.

45The plaintiffs argue that this case is analogous to the situation in Goodman Estate in that the disclosure of the privileged communications will provide evidence of Anne’s intentions at the time the Property was acquired, and it may corroborate Cristina’s evidence.

46I do not agree. The transaction at issue in this case is not a will, nor is it a trust document in the nature of the one considered by the Court in Goodman Estate . What the wills cases and Goodman Estate have in common is that the document in question was entered into by the deceased and the deceased alone. Therefore, where the intentions of the deceased in entering into such documents become an issue, the evidence of the lawyer who took instructions from the deceased is of vital importance to assist the Court in determining the issue, and it is likely to be the only evidence which can shed any light on the issue.

47In this case, though, Anne was not the only party to the transaction. Cristina was also a party to it, and she is aware of the discussions which took place with Ms. Lewis at the time. Whether Ms. Lewis evidence will corroborate Cristina’s evidence is not, in my view, a relevant consideration.

48The plaintiffs also referred to Ontario (Attorney General) v. Ballard Estate, 1994 CanLII 7513 (ON CTGD), [1994] O.J. No. 2281 (Gen. Div.) in which the Court, relying on Goodman Estate n, held that solicitor-client privilege did not apply to a residual legatee under a will and trust on the basis that the residual legatee had a “joint interest” in the administration of the estate and the residual legatee’s interests were the same as those of the “clients” who retained counsel.

49The plaintiffs submit that Paul is in an analogous situation and, as such, no privilege attaches to the communications between Ms. Lewis, Cristina and Anne as against him.

50Once again, I must disagree with the plaintiffs’ submissions on this point. Ballard is also distinguishable on its facts, and I am of the view that the “joint interest” principle does not extend to the circumstances in this case.

51The parties agree that Ms. Lewis is a compellable witness at trial. It will be up to the trial judge to determine the extent to which she may give evidence at trial. Likewise, it will be up to the trial judge to determine whether any hearsay testimony from her is admissible.

52Once again, this motion is not concerned with whether Ms. Lewis’ evidence is admissible at trial, but rather whether she ought to be ordered to be examined for discovery as a non-party. In my view, for the reasons stated above, the plaintiffs have not met the requirements of Rule 31.10(2)(a). That is a sufficient basis to dismiss the motion. Nevertheless, I will address Rules 31.10(2)(b) and (c).

53Having determined that the plaintiffs have not met the that part of the test set out in Rule 31.10(2)(a) and given that Cristina is aware of the discussions which took place with Ms. Lewis at the time, they cannot reasonably establish unfairness under Rule 31.10(2)(b).

54With respect to Rule 31.02(c), the defendant submits that, if the order is granted, it “poses a risk of delaying the trial, increasing expenses and introduce a plethora of untested evidence.” The plaintiffs submit that there are no such concerns as the examinations of Ms. Lewis could be completed by early August and the trial is not until November. Though it does not affect the outcome of the motion, I am not persuaded by the defendant’s submissions on this point because there is no evidence to support them. What little evidence there is supports the plaintiffs’ position. Therefore, on this point only, I accept the plaintiffs’ submissions.

Disposition

55For the foregoing reasons, the motion is dismissed.

Costs

56If the parties are unable to agree on the costs of the motion, they may forward written submissions, not exceeding 3 pages in length, excluding costs outlines, via e-mail, to HamiltonSopinka.SCJJA@ontario, within 14 days of the date of the release of this endorsement.

Associate Justice J. Kriwetz

Released: August 5, 2026

CITATION: De Miranda et al, 2026 ONSC 4520