Wayne v Wayne, 2012 ABQB 763

Court of Queen ’ s Bench of Alberta Citation: Wayne v Wayne, 2012 ABQB 763 Date: 20121218 Docket: DA01 012187 Registry: Calgary Court File Number DA01 012187 Court Court of Queen ’ s Bench of Alberta (Surrogate Matter) Judicial District Calgary Dependent Adult Name Doreen Margaret Wayne Applicant William H. Wayne Respondent John Allen Wayne Hugh A. McQueen _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Bryan E. Mahoney _______________________________________________________ 1.

Introduction [ 1 ] This Application concerns a trustee’s ability to obtain from a solicitor confidential information contained in an estate file of a represented adult to whom the solicitor gave legal advice. 2.

Summary of Decision

[ 2 ] The Applicant, William H. Wayne (“William”), has established that the file at issue is relevant to the exercise of his duties and responsibilities as a trustee. William therefore has the right to access Doreen Margaret Wayne’s estate file held by the law firm Stones Carbert Waite LLP where Doreen Margaret Wayne’s lawyer, the Respondent, Hugh A. McQueen, was a member (“Stones Carbert”). 3. Background [ 3 ] Doreen Margaret Wayne (“Margaret”) resided in Calgary until 2006, but now lives in Vancouver. She suffers from dementia.

She had three children: the Applicant, William; John (“John”); and Maureen, who died several years ago. Margaret’s husband died in 2006. [ 4 ] On or about November 12, 2003, Margaret appointed John as her Attorney under an Enduring Power of Attorney, and granted a Personal Directive also appointing him to act as her Agent pursuant to the Personal Directives Act , RSA 2000, c P-6. [ 5 ] Margaret’s Last Will and Testament (the “Will”) is dated June 6, 2007. The Will appoints John as her Executor and Trustee and leaves to him the residue of her estate. [ 6 ] Margaret’s Will was drafted by Hugh A.

McQueen, Q.C., formerly of Stones Carbert Waite LLP and now retired. Mr. McQueen acted as Margaret’s solicitor for her estate matters (the “estate file”). [ 7 ] Margaret owned a home in Calgary. The Calgary property was sold for $300,000 in March 2009 when its assessed value at the time was $659,000. The house re-sold six months later for $542,000.

No realtor was involved in the sale. [ 8 ] On September 2, 2010, the British Columbia Supreme Court declared that, by reason of mental infirmity arising from disease, Margaret was mentally incapable of handling her affairs, and appointed William as the committee of her estate. In Alberta a committee under similar legislation would be called a trustee. An incapable adult would be called a represented adult. [ 9 ] Stones Carbert has given William copies of Margaret’s Will, Enduring Power of Attorney, and Personal Directive.

Stones Carbert takes the position that it has a duty to claim solicitor-client privilege over the remainder of the estate file. [ 10 ] In February 2011, William appeared before this Court seeking an Order for production of the estate file. He based his claim on the fact that Stones Carbert acted as Margaret’s solicitor for her estate matters, and may have provided advice with certain inter vivos transfers of land that he now challenges.

This Court declined to grant the Order, finding a lack of relevance between the estate file and the real estate transaction. [ 11 ] On March 17, 2011, William filed a statement of claim challenging the real estate transaction. [ 12 ] John, the executor to Margaret’s will, is not opposed to a certified copy of the estate file being provided to William’s counsel, provided that a certified copy of the entire file is also provided to his counsel at the same time. 4.

Issue [ 13 ] Do sections 55 and 72(4) of the Adult Guardian and Trustee Act , SA 2008, c A-4.2 (“ AGTA ”) or the common law waive solicitor-client privilege between the represented adult and his or her solicitor, such that a trustee essentially steps into the shoes of the represented adult, and has full access to file material that is otherwise protected by solicitor-client privilege?

5. Legislation [ 14 ]

Section 55 of the AGTA concerns the property subject to trusteeship order and the authority of a trustee over that property: 55(1) Except as otherwise provided by the terms of the trusteeship order, this Act or the regulations, a trusteeship order (

a) applies to all of the represented adult's real and personal property, except real property located outside Alberta, and (

b) authorizes the trustee, with respect to the property to which the order applies, (

i) to take possession and control of the property, (ii) to do anything in relation to financial matters of the represented adult that the represented adult could do if the represented adult were capable of making decisions with respect to financial matters... [ 15 ] Section 72(4) of the AGTA concerns a trustee’s access to personal information: 72(4) A trustee is entitled to access, collect or obtain from a public body, custodian or organization personal information about the represented adult that is relevant to the exercise of the authority and the carrying out of the duties and responsibilities of the trustee. 6. Argument

a) William ’s Argument [ 16 ] William asserts that sections 55 and 72(4) of the AGTA , or the common-law, place solicitor-client privilege of a represented adult in a trustee. [ 17 ] William also submits that the term “organization” in section 72(4) of the AGTA includes law firms by virtue of section 1(1) (g.2)(i)(iv) of the Protection of Personal Information Act , SA 2003, c P-6.5 [ PIPA ] and

section (

g) of the Partnership Act , RSA 2000, c P-3. This is not in dispute. [ 18 ] William argues that he can access Margaret’s personal information because he is pursuing a civil claim on behalf of her or her estate. He says that he is acting in her best interests to ensure that her estate has not suffered any damages as a result of the wrongful conduct alleged in the statement of claim. [ 19 ] William acknowledges that he could make an application inside the lawsuit for the estate file. However, William brings this Application because be believes that this is the most expeditious way to gain access to the estate file.

Both William and Stones Carbert agree that the result of this application does not turn on whether the materials can be obtained through this application or another proceeding. [ 20 ] Neither William nor Stones Carbert could provide an Alberta case on whether a trustee has the ability to assert or waive privilege or otherwise gain access to a represented adult’s file materials. William provided the Court with some case law summarizing

British Columbia jurisprudence on this issue with respect to the Patients Property Act , RSBC 1996, c 349 [ PPA ].

b) Respondent ’s Argument [ 21 ] Stones Carbert submits that it has a professional responsibility to assert or defend solicitor-client privilege and to obtain the court’s direction where there is any issue or uncertainty regarding the scope of the privilege or the trustee’s authority. [ 22 ] The law firm also asserts that the British Columbia jurisprudence summarizes the general state of the law that ought to apply in Alberta, i.e . if a trustee can make out a need for material that would otherwise be protected by solicitor-client privilege for the purposes of carrying out his or her duties and responsibilities as trustee, then the court may choose to order that access.

Therefore, Stones Carbert submits that the law requires William to persuade this Court:

i) that the material he seeks is relevant; and ii) that the material is required for him to carry on his duties and responsibilities as trustee. [ 23 ] Stones Carbert also submits that sections 20 , 61(1) (e), and 4(5) (

a) of the PIPA suggest that a trustee’s right to access to information on behalf of a represented adult covers everything except material protected by solicitor-client information. [ 24 ] Stones Carbert claims that

section 20 of the PIPA describes the situations where consent is not needed for the disclosure of personal information: 20 An organization may disclose personal information about an individual without the consent of the individual but only if one or more of the following are applicable: (

a) a reasonable person would consider that the disclosure of the information is clearly in the interests of the individual and consent of the individual cannot be obtained in a timely way or the individual would not reasonably be expected to withhold consent; (

b) the disclosure of the information is authorized or required by (

i) a statute of Alberta or of Canada... [ 25 ] Stones Carbert submits that

section 61 of the PIPA sets out who can act on behalf of an individual in exercising an individual's right under the legislation. Section 61(1) (

e) allows a trustee to exercise any and all rights under the PIPA that can be exercised by a trustee on behalf of a represented adult: 61(1) Any right or power conferred on an individual by this Act may be exercised ... (

e) if a guardian or trustee has been appointed for the individual under the Adult Guardianship and Trusteeship Act , by the guardian or trustee if the exercise of the right or power relates to the powers and duties of the guardian or trustee... [ 26 ] Stones Carbert claims that, under section 4(5) (a), the PIPA is not to be applied so as to: (

a) affect any legal privilege... [ 27 ] Stones Carbert acknowledges that the William had brought section 4(5) (

b) to his attention, which also states that the PIPA is not to be applied so as to:

(

b) limit the information available by law to a party to a legal proceeding... 7. Analysis [28] Neither section 55(2) nor section 72(4) of the AGTA have been judicially considered on this point. There is no clearjurisprudence in Alberta which dictates the circumstances in which a trustee has access to materials that would otherwise be protected bysolicitor-client privilege.

a) Solicitor-Client Privilege [29] A communication made between a lawyer and a client, in the course of seeking or providing legal advice, and intended by theparties to be confidential, is protected by solicitor-client privilege: Scott & Associates Engineering Ltd v Ghost Pine Windfarm LP, 2011ABQB 339 at para 15, 520 AR 173.

The Supreme Court of Canada has characterized solicitor-client privilege as a “fundamental andlegal right”: Solosky v The Queen, (SCC), [1980] 1 SCR 821 at 839. [30] Solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance: R vMcClure, 2001 SCC 14 at para 35, [2001] 1 SCR 45. The courts have held that communications subject to solicitor-client privilegeshould yield to disclosure only in the most clearly defined circumstances: Re: Elsie Jones Fawcett Estate, 2009 BCSC 1306 at para 17,[2010] BCWLD 703.

The decision to exclude evidence because it is protected by solicitor-client privilege is effectively a policydecision, and other societal values can prevail in certain circumstances: Smith v Jones, (SCC), [1999] 1 SCR 455 atpara 51.

b) Legislative

Interpretation [31] The Supreme Court of Canada in Rizzo and Rizzo Shoes Ltd (Re), (SCC), [1998] 1 SCR 27 at 21 held thatthe preferred approach to statutory

interpretation is as follows: ...the words of

an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of theAct, the object of the Act, and the intention of Parliament. [32] The text is an important element of legislative communication, and must be taken into consideration: Pierre-André Côté, TheInterpretation of Legislation in Canada, 4th ed (Toronto: Thompson Reuters Canada, 2011) at 273.

The ordinary or common meaning is“...the natural meaning that appears when the provision is simply read through as a whole...[and] the meaning which commends itselfwhen the structure and nature of the provision are examined”: Canadian Pacific Air Lines Ltd v Canadian Air Line Pilots Assn, (SCC), [1993] 3 SCR 724 at 735. The prima facie assumption is that the statue has been properly drafted: Ontario (Ministryof Health and Long-Term Care) v Georgiou (2002), (ON CA), 61 OR (3d) 285 at para 16 (CA).

c) Legislative Analysis [33] The AGTA and PIPA contain the relevant legislative scheme. Courts have confirmed that privilege may be overridden bylegislation, but such intent would have to be clearly stated: Canada (Privacy Commissioner) v Blood Tribe Department of Health, 2008SCC 44 at para 11, [2008] 2 SCR 574.

i) PIPA [34] The PIPA overrides other legislation, unless the other legislation contains an express provision that it prevails notwithstanding the PIPA, or the other legislation is the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25: PIPA s

4(6). The AGTA contains no such express provision. [ 35 ] Under sections 20 and 61(1)(

e) of the PIPA , a law firm may disclose personal information about a represented adult to a trustee but only if

a) a reasonable person would consider that disclosure of the information is clearly in the interests of the represented individual and consent of the represented individual cannot be obtained in a timely way or the individual would not reasonably be expected to withhold consent, or

b) the disclosure of information is authorized or required by the AGTA. Personal information is any information about an individual: Suncor Energy Inc v CEP, Local 707, [2009] AWLD 2843 at para 99 . It is important to note that the law firm may , not must, disclose personal information, and then only in limited circumstances. [ 36 ] Sections 20 and 61(1) (

e) of the PIPA must be read in the context of section 4(5) of the PIPA which says that the PIPA is not to be applied to affect any legal privilege or to limit the information available by law to a party to a legal proceeding. In this case, solicitor-client privilege is at issue.

Therefore, the PIPA cannot be applied to affect solicitor-client privilege with respect to the estate file, or to limit the information by law to William, who has filed a statement of claim with respect to the real estate transaction. ii) AGTA [ 37 ] Under section 55(1) of the AGTA , except as otherwise provided by the terms of the trusteeship order, the AGTA or the regulations, William’s trusteeship order applies to Margaret’s real and personal property. William, with respect to the property to which the order applies, is authorized to take possession and control of Margaret’s property.

He can do anything in relation to Margaret’s financial matters that she could do if she were capable of making such decisions. [ 38 ] Section 72(4) of the AGTA states that a trustee is entitled to access, collect or obtain from a law firm personal information about the represented adult that is relevant to the exercise of the authority and the carrying out of the duties and responsibilities of the trustee. The wording of section 72(4) implies that the trustee does not have access to material covered by solicitor-client privilege.

Rather, the wording of section 72(4) requires that the trustee have a purpose in order to access such material. Section 72(4) requires that the trustee demonstrate that there is a rational connection between the personal information sought and the trustee’s exercise of authority and the carrying out of his or her duties and responsibilities. iii) Analysis [ 39 ] Therefore, considering the rules of statutory

interpretation, the legislative scheme in Alberta does not grant a trustee full access to the represented adult’s file. Rather, a trustee is entitled to material, otherwise protected by solicitor-client privilege, that is relevant to the exercise of the trustee’s authority and the carrying out of the trustee’s duties and responsibilities. [ 40 ] In February 2011, William sought an Order for production of the estate file. This was denied because the Court found a lack of relevance between the estate file sought and the real estate transaction.

In March 2011, William filed a statement of claim to challenge the real estate transaction. Margaret’s house was sold for approximately $240,000 less than its appraised value. William claims that he has concerns with respect to Margaret’s capacity at the time the real estate transaction was entered into. [ 41 ] Pursuant to section 56(1)(

a) of the AGTA , a trustee shall exercise the trustee’s authority in the best interests of the represented adult. Pursuant to

section 2 of the AGTA , in determining whether a decision is in an adult’s best interests, consideration must be given to any wishes known to have been expressed by the represented adult while the adult had capacity, and any values and beliefs known to have been held by the represented adult while the adult had capacity. [ 42 ] William submits that, in filing a statement of claim on behalf of Margaret and her estate, he is acting in her best interests to ensure that her estate has not suffered any damages as a result of the wrongful conduct alleged in the statement of claim.

In all the circumstances, William has established that the estate file is relevant to his exercise of authority and carrying out of his duties and responsibilities as trustee.

d) Common-law principles [43] Ronald Manes and Michael Silver in Solicitor-Client Privilege in Canadian Law (Markham: Butterworths, 1993) at 178 citeCurtis v Beaney, [1911] P 181; Stewart v Walker (1903), 6 OLR 495 (CA) at para 1; and Hicks Estate v Hicks (1986), 15 CPC (2d) 146at para 15 (ON Dist Ct) [Hicks]; for the proposition that: ...privilege survives the death of the client and the deceased’s representatives step into the deceased’s shoes, enabling them to assert theprivilege or waive it, just as the client, if living, would have been entitled to do. [44] The Court in Hicks at para 15, states: It is clear, therefore, that the privilege reposes in the personal representative of the deceased client who in this case is the plaintiff, theadministrator of the estate...The plaintiff can waive the privilege and call for disclosure of any material that the client, if living, wouldhave been entitled to from the two solicitors. [45] More recently, the Supreme Court of Canada in Descôteaux v Mierzwinski, (SCC), [1982] 1 SCR 860 at para27 held that solicitor-client privilege is a substantive rule that can be stated as follows: 1.

The confidentiality of communications between solicitor and client may be raised in any circumstances where such communicationsare likely to be disclosed without the client's consent. 2. Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person'sright to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting theconfidentiality. 3.

When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with thatconfidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to notinterfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation. 4.

Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpretedrestrictively. [46] The Supreme Court of Canada held in Geffen v Goodman Estate, [1991] 2 SCR 333 at para 58 [Geffen] that theconfidentiality of communications between solicitor and client survives the death of the client and enures to his or her next of kin, heirsor successors in title.

As described in Bre-X Minerals Ltd (Trustee) v Verchere, 2001 ABCA 255 at para 23, 293 AR 73: Disclosure in estate cases has been allowed to promote the deceased client’s wishes and true testamentary intentions through disclosureof privilege communications.

The interests that solicitor-client privilege seeks to protect are not compromised where the waiver willdisclose the testator’s intentions...The rationale for the disclosure is not only that disclosure is inconsistent with what the testator wouldhave wanted, but also that the client’s communication is presumed to have been intended to remain a secret only during the testator’slifetime...Thus, the exception in Geffen allows the testator’s intention to be carried out but should not be misinterpreted as authority for awidespread, case-by-case assessment of requests for waiver of privilege by third parties...

e) Statutory

Interpretation in British Columbia [47] While there are no Alberta cases on point, British Columbia jurisprudence concerning the PPA provides some guidance.

[ 48 ] In Re: Elsie Jones Fawcett Estate , 2009 BCSC 1306 at para 12 , [2010] BCWLD 703 the Court held that the right to assert or waive solicitor-client privilege belongs to the client, and that a committee stands in the place of an incapable person, and therefore has the authority to make decisions with respect to the patient’s property, including legal files. The Court’s reasoning was based on an

interpretation of

section 15 of the PPA , which states: 15(1) Subject to

section 16, (

a) the committee of a patient as defined by paragraph (

a) of the definition of patient in

section 1 has all the rights, privileges and powers with regard to the estate of the patient as the patient would have if of full age and of sound and disposing mind, and (

b) the committee of a patient (

i) declared to be incapable of managing his or her affairs has all the rights, privileges and powers with regard to the estate of the patient as the patient would have if of full age and of sound and disposing mind, (ii) declared to be incapable of managing himself or herself has the custody of the person of the patient, and (iii) declared to be incapable of managing himself or herself or his or her affairs has all the rights, privileges and powers with regard to the estate of the patient as the patient would have if of full age and of sound and disposing mind, and as well the custody of the person of the patient. [ 49 ] I note that the powers bestowed on a trustee under the AGTA, as discussed above, are more limited. [ 50 ] In Palamarek, Re , 2010 BCSC 1894 at paras 40-41 , [2011] BCWLD 3915 the Court took the opposite position, holding: I also do not think that the common law that successors in title can receive and take ownership and control of solicitor-client privilege governs in all circumstances.

There are limits to that principle. It is qualified by the nature of the title which has been inherited. It is not a principle of absolute or general application. A committee could not simply go and request access to a patient’s legal file for the purpose of changing a will, for example. There are restrictions that qualify the powers of a committee over a patients privilege reflected in the structure of the Patients Property Act. ...The committee does not have an untrammelled right in all circumstances to deal with the privilege of the patient.

The risks of prejudice of such conclusion are real and would potentially defeat the principle of solicitor-client privilege. 8. Conclusion [ 51 ] William seeks the direction of this Court regarding the circumstances that gave rise to the real estate transaction. He has concerns regarding Margaret’s capacity at the time the real estate transaction was entered into.

William asks the Court to direct disclosure of the entire estate file which Stones Carbert claims may be protected by solicitor-client privilege. [ 52 ] Regardless of common law principles, the Legislature has restricted a trustee’s access to materials otherwise covered by solicitor-client privilege.

The legislative scheme entitles trustees to access a law firm’s personal information on represented adults that is relevant to the exercise of the authority and the carrying out of the duties and responsibilities of the trustee. [ 53 ] For these reasons, I find that the William has established that access to the estate file is relevant to the exercise of his authority

and the carrying out of his duties and responsibilities as trustee. Therefore, William, on behalf of Margaret, can have access to Margaret’s estate file at Stones Carbert notwithstanding solicitor-client privilege. Heard on the 13 th day of November, 2012. Dated at the City of Calgary, Alberta this 18 th day of December, 2012. Bryan E. Mahoney J.C.Q.B.A. Appearances: Jennifer R. Lamb, Borden Ladner Gervais LLP for the Applicant B.R. Carbert, Stones Carbert Waite LLP for the Respondent, Hugh A. McQueen