Widney Estate (Re), 2021 ABQB 361

Court of Queen’s Bench of Alberta Citation: Widney Estate (Re), 2021 ABQB 361 Date: 20210507 Docket: ES03 140594 Registry: Edmonton Court File Number ES03 140594 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Edmonton Estate Name Roy Daniel Widney Applicant (Plaintiff) Dean Widney Respondent (Defendant) Jerome Nicholas Muench and Wilhelmina Kearns Tyler _______________________________________________________ Endorsement of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A.

Introduction [ 1 ] Counsel for the personal representatives of an estate applies to strike part of an affidavit sworn by an estate beneficiary in an application for an administration freeze, an accounting, and case management. [ 2 ] The challenged parts of the affidavit relate to complaints to the Law Society of Alberta against that counsel and also against one of the personal representatives, who is also a lawyer. The beneficiary included copies of his complaint letter (with various

attachments) against both, the Law Society’s acknowledgement-of-receipt-of-complaint letters, and associated emails. [ 3 ] Counsel for the PR points to ss. 78(3) of the Legal Profession Act (pre-hearing proceedings private) as requiring the striking of these materials. [ 4 ] The beneficiary counters that the materials are relevant to his applications and that, in any case, the call on relevancy should be made by the justice hearing the application. [ 5 ] I find that I am equally well-placed (i.e. in comparison to the application justice) to decide relevancy, that the complaint letters themselves, the initial-response Law Society letters, and the associated emails are not relevant, and that accordingly they must be struck under Rule 3.68(4) (“strike out … irrelevant … information), all aside from the possible effect of ss. 78(3) LPA . [ 6 ] As for the attachments to the complaint letters, I leave determination of their relevancy (if any) for the application justice.

B. Background [ 7 ] The beneficiary contends that the lawyer personal representative, who was also counsel for the deceased before his death, neglected to take certain steps that would have eliminated or minimized possible U.S. tax consequences for the estate. [ 8 ] His concerns on that front and about the estate administration sparked his complaints to the Law Society about that lawyer and now the lawyer acting for the estate. C.

Nature of beneficiary’s applications [ 9 ] The beneficiary seeks to “freeze (Mareva injunction) the estate …, [obtain] disclosure of estate financials, and to appoint a Case Management Justice.” [ 10 ] The “grounds for request” in his application are: The [PRs] and their lawyer … have blocked the primary beneficiaries from receiving any information relating to the potential United States citizenship of [the deceased].

The potential United States tax liability (exceeding ten (10) million dollars) could create a significant prejudice against the residual beneficiaries if the [PRs] [erred] in the process of dealing with the Internal Revenue Service. The [PRs] have provided no information relating to a potential Internal Revenue Service appeal process, if necessary. Millions of dollars have already been paid to the residual beneficiaries prior to the United States tax liability issue being raised by the [PRs], which creates a significant prejudice for the beneficiaries that are still owed money from the estate of [the deceased].

The [PRs] lack the ability, proper due diligence and experience in dealing with the [deceased’s] estate matters involving the potential of tax liability associated with the Internal Revenue Service and the associated United States citizenship potential of [the deceased]. Errors and/or omissions made by the [PRs] in dealing with the potential United States estate tax liability will cause irreparable harm to the estate’s beneficiaries. The [PRs] have been negligent in performing their duties as personal representatives for the estate … The respondents are not acting in the best interests of the beneficiaries .

The [PRs] have hired a lawyer … to act on their behalf as a “legal firewall” between themselves and the beneficiaries of the estate … The Court of Queen’s Bench of Alberta has no jurisdiction in dealing with any relevant … estate matters involving the United States Government including the Internal Revenue Service taxation of the estate … or United States citizenship issues involving [the deceased]. I have not received the at least three (3) million dollars I was to be paid on January 16, 2020 as directed in the will of [the deceased].

The [PRs] have not provided any financial reporting or summaries of the … estate since [they] filed the application for the Grant of Probate nearly seven (7) years ago, in March 2014. I have repeatedly requested the proper financial reporting of the estate numerous times. [The lawyer PR] has a history of not producing financial statements as ordered by the Court of Queen’s Bench of Alberta, as noted in my affidavit dated February 8, 2021.

The outstanding issues involving the estate … are complex and the many beneficiaries require the assistance of the Court of Queen’s Bench of Alberta, including a case management justice . [emphasis added] [ 11 ] In

summary, the beneficiary seeks a hold on further estate administration in light of perceived suboptimal performance by the lawyer PR before the deceased’s death and by both PRs after that, financial reporting , and appointment of a case-management justice. D. Issue [ 12 ] The issue is whether the beneficiary’s complaints to the Law Society and the Society’s “complaints received” responses are relevant to any of these issues. E. Analysis

[ 13 ] As explained below, I conclude that the complaints, on their own, are not relevant . On their own, they do not make more likely (or, for that matter, less likely) that either lawyer has performed below par (assuming that would bear on freezing the estate administration), that financial reporting is overdue, or that case management is required. [ 14 ] It may be that the contents of the complaint (i.e. the perceived actions or inactions of either lawyer) are relevant (more on that below).

The application judge will form his or her own view on the “freeze estate”, accounting, and case-management issues, including whether the perceived underlying actions or inactions of the lawyers have any bearing on any of them. [ 15 ] However, his or her views will not be informed by the existence of the complaints to the Law Society i.e. by the beneficiary’s opinion that those underlying actions or inactions amount to sanctionable conduct. [ 16 ] This is particularly so in light of no evidence about the post-receipt status of the complaint review , let alone any findings by any Law Society decision-maker(s). [ 17 ] On this aspect, I review below the status of the complaint reviews and the complaint-review process generally , showing various possible outcomes . • the complaints here are relatively recent: the first submitted via letter dated December 27, 2020, the other via letter dated December 29, 2020; • the applicant’s most current state-of-proceedings evidence is acknowledgment-of-receipt-of-complaint letters from the Law Society, both dated January 5, 2021; • the letters (materially identical) advise (in part): The Law Society reviews all information brought to its attention to determine if it falls within our mandate or if there is a concern that merits further action .

If our further involvement is needed, the matter will be addressed through either our Early Intervention programs and resources or more formal discipline . Most matters will be handled by our Early Intervention team.

The Early Intervention team works with lawyers to address issues before they become bigger problems. … • no evidence shows whether the Law Society has completed its “mandate review” or, if it has, whether it has identified a concern meriting further action; • it is the outcome of a Law Society examination of a complaint, including an investigation (if one is launched), that may affect the ability of a Law Society member to practice law: Warman v Law Society of Alberta , 2015 ABCA 368 at para 38 i.e. not the existence of a complaint or the launching of an investigation ; • in terms of possible further action and outcomes generally, I note that (among other options): o the Law Society’s Executive Director may attempt to the resolve the complaint : para 53(2)(

a) LPA ; o if the complaint is so resolved, the ED “may direct that no further proceedings be taken ”: para 53(2)(b); o the ED may direct that the complained-of conduct be investigated : para 53(3)(b); o at the conclusion of his or her review, the ED may “ direct that the matter be dismissed ”: para 53(4)(a); o a complainant can appeal such a dismissal to the Appeal Committee, which can dismiss the appeal or refer the matter to the Conduct Committee: ss 54(1) and (2); o alternatively, the ED may refer the matter to the Practice Review (PR) Committee, the Conduct Committee, or both: para 53(4)(b); o the PR Committee may, but is not obliged to, make recommendations of steps to improve the member’s conduct: para 58(4)(a); o a dismissal by the ED can be appealed to the Appeal Committee (ss 54(1), which itself can dismiss the complaint (para 54(2)(a)) or refer it to the Conduct Committee: para 54(2)(b); o matters making their way to the Conduct Committee can be dismissed (para 56(3)(a)) or moved to a Hearing Committee (para 56(3) (b); o a matter en route to, or under review by, a Hearing Committee may be discontinued : ss 62(1) and (2); o on completing its hearing (if the matter gets that far), a Hearing Committee may find the member not guilty of conduct deserving sanction , with no further proceedings ensuing: ss 71(2); o alternatively, it may find the member guilty, with various possible consequences ensuing: ss 72 and 73; o the member may appeal such a finding to the Benchers (s 75), who may (among other options) quash a finding of guilt : subpara 77(1)(a)(ii); and o a member can appeal further to the Alberta Court of Appeal (ss 80(1), which may (among other options) quash that finding (ss 82(1). [ 18 ] All these on-ramps and off-ramps show that a complaint may or may not be recognized, confirmed, or upheld and, in any case, may or may not lead to a finding of guilt .

[ 19 ] No evidence shows that any investigations here have concluded or even been launched. [ 20 ] Beyond that, we have no idea what responses may have been made by the members (under para 53(3)(a), ss 55(2) or otherwise). [ 21 ] In terms of any pending-completion-of-complaint-review consequences , the Law Society can impose a suspension during conduct-review proceedings: s. 65.

No such suspensions are in place here. [ 22 ] In answer to the beneficiary’s invocation of CLM v DWG , 2004 ABCA 112 , Gauchier v Cunningham , 2012 ABQB 513 (Gates J.) and Oor v Alook , 2019 ABQB 713 (Friesen J.), the relevance issue here is much narrower and simpler, and I am in as good a position as the (eventual) application justice to decide this point i.e. hearing the application will not afford a broader view on this issue than from my current perch. [ 23 ] In view of all of the above, and in the circumstances here, I see the mere existence of complaints , on its own, as a neutral factor on the beneficiary’s applications i.e. as not relevant to the issues.

Neither members’ ability to practice law has been affected, and it is premature to regard the complaints as casting any particular shadow over any of their words or actions at this stage (or possibly ever). [ 24 ] For other examples of relevance principles in action in a similar context, see GC v Jugenburg , 2021 ONSC 3118 , Perell J. (paras 14-33) and P and A Holdings Inc v Jae Kim , 2019 ONSC 3680 , Broad J. (paras 34-39). F.

Conclusion [ 25 ] Given that the complaints themselves, the acknowledgement-of-receipt letters from the Law Society, and associated emails have no bearing on any of the application issues, I direct, under Rule 3.68(4) (“strike out … irrelevant … information”), that the complaint letters (December 27, 2020 and two December 29, 2020 letters) and Law Society response letters (both dated January 5, 2021), plus associated emails, be struck from the beneficiary’s affidavit. [ 26 ] In line with that direction, the first and last sentences of para 3.2 of the beneficiary’s affidavit are also struck. [ 27 ] I note that the affidavit includes various statements of opinion by the beneficiary.

With no application for any striking to extend to such portions, I simply note that (per B. Nixon J. in PricewaterhouseCoopers Inc v Perpetual Energy Inc , 2020 ABQB 513 at para 77 affd on this point 2021 ABCA 16 at para 46 ): Generally, affidavits that includes opinions, arguments, conclusions and law will be st ruck out or ignored: Canapen (Phipps- McKinnon) Ltd v Edmonton (City) , 2016 ABQB 501 at para 12 ; see also IMD v RAD , 2019 ABQB 963 at paras 94-97 [ IMD ]; Engler v Engler , 2012 ABQB 442 at para 47 ; and Sturgeon Lake Indian Band v Canada (Attorney General) , 2016 ABQB 384 at paras 155-161 .

Any conclusion based on the evidence is the function of the court, not the affiant: IMD at para 95 . [ 28 ] As for the attachments to the complaint letters, I see no reason why they cannot be attached, on their own, as exhibits to the beneficiary’s affidavit. (One exception is a court decision, which should be put forward, as part of the beneficiary’s argument, at the application i.e. not put forward as evidence.) [ 29 ] I make no ruling on the relevance of any of those attachments, only that they are not caught by the sweep of my no-relevance- of-complaints-themselves ruling. [ 30 ] The PRs are entitled to their costs of the application.

G. Closing note [ 31 ] My understanding is that no formal notice of this “strike” application or request was provided to the Law Society of Alberta. [ 32 ] In the absence of such notice and any intervention by the Law Society, I decline to make any ruling on the breadth of ss. 78(3) of the Legal Profession Act e.g. whether its “pre-hearing proceedings are private” effect extends to complaint letters themselves or to the very existence of such letters. Heard on the 22 nd day of March, 2021. Dated at the City of Edmonton, Alberta this 7 th day of May, 2021. M. J. Lema J.C.Q.B.A. Appearances:

Dean Widney Self-Represented Applicant Anne S. de Villars, QC de Villars Jones for the Respondents (Personal Representatives)