Re Kathleen Palamarek, 2010 BCSC 1894

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Re Kathleen Palamarek, 2010 BCSC 1894 Date: 20101208 Docket: 07-3415, 08-0327 Registry: Victoria In the Matter of the Patients Property Act , R.S.B.C. 1996, C. 349 and Amendments thereto and In the Matter of Kathleen Palamarek, Patient Before: The Honourable Mr. Justice Harris Oral Reasons for Judgment In Chambers Counsel for Ralph and Robert Palamarek: L.J. Jamieson Counsel for Lois Sampson: L. Duhaime Place and Date of Trial: Victoria, B.C. December 7, 2010 Place and Date of Judgment: Victoria, B.C.

December 8, 2010 [ 1 ] THE COURT: I am required to rule on a matter that has arisen during Patients Property Act , R.S.B.C. 1996, c. 349 proceedings, the subject matter of which is to decide who should be appointed the committee of the estate and the person of Mrs. Kathleen Palamarek. [ 2 ] The immediate question is whether to admit into evidence an audio recording in which Mrs. Palamarek apparently discusses a number of issues with a solicitor who was acting for her at the time. I understand that the subject matter of the audio recording may well include statements by Mrs.

Palamarek about her preferences, intention or wishes or desires concerning where she should live and who should care for her. On the face of it, those communications were solicitor-client communications and apparently privileged. The question therefore is whether that privilege, if it exists, should be upheld or whether it should be set aside and the recording and perhaps other materials be reviewed by counsel and possibly admitted into evidence. [ 3 ] To appreciate the context in which I am ruling, it is necessary to set out a number of basic background facts. [ 4 ] Mrs.

Palamarek is a widow, her husband having died in 2001. She is 87 years old. Mrs. Palamarek has four children: three sons and a daughter. Currently, one of her sons, Ralph, is the interim committee by an earlier order of this court. He and his brother, Robert, are applying for an order that they be appointed committees of Mrs. Palamarek’s estate and person. Their application is opposed by Mrs. Palamarek’s daughter, Mrs. Sampson, who applies in her own proceeding to be appointed her mother’s committee. [ 5 ] In November of 2006, Mrs.

Palamarek, who was at that time suffering from failing health and who had apparently expressed a desire to be cared for in some kind of care facility, and had identified Broadmead Lodge as the place that she would like to reside, suffered a heart attack and fractured her vertebrae. She was admitted to hospital in Saanich, where she remained until mid-2007, when she was transferred to the Broadmead Lodge. [ 6 ] While she was in the hospital, Mrs.

Palamarek, who had previously given a power of attorney to her son Ralph, signed a first Representation Agreement appointing her son Ralph as her representative. [ 7 ] In mid-2007, the first proceeding seeking to appoint a committee was brought by her sons, Ralph and Robert. In August 2007, the necessary affidavits were prepared in which opinions were expressed that Mrs. Palamarek was incapable of managing her affairs or her person. [ 8 ] After taking up residence in Broadmead Lodge in July 2007 and through 2008, Mrs.

Palamarek at different times appears to have expressed various but conflicting views about whether she wished to remain in the Lodge, who she wished to care for her, or whether she was happy there. During that period, Mrs. Sampson became concerned about the level and nature of care that her mother was receiving. Specifically, she believed her mother was being prescribed anti-psychotic drugs that were dangerous to her health and were “chemically restraining” Mrs. Palamarek to make her behaviour more manageable for the staff at the Lodge.

She also believed her mother was receiving other unnecessary and harmful medications and that, at worst, her mother was subject of abuse in the Lodge or, at best, that the care provided to her was inadequate. Mrs. Sampson formed the opinion both that it was not in her mother’s interests to remain in the Lodge and that her mother was unhappy there and wished to leave, either to return home or to live with her. [ 9 ] In January of 2008, Mrs. Sampson commenced her own petition in which she sought to be appointed co-committee along

with her brothers, in the event that there was a declaration by the court that Mrs. Palamarek was incapable of managing her affairs. That petition has since been amended so that Mrs. Sampson now applies to be appointed sole committee of her mother’s estate and person. [ 10 ] Sometime in 2008, Mrs. Palamarek was introduced to a solicitor, apparently by her daughter. This was the second solicitor to whom she had been introduced. The first declined to act, apparently in light of the expressions of opinion about Mrs. Palamarek's capacity to manage her own affairs.

That solicitor was concerned about whether he could accept instructions from her. The second solicitor, however, satisfied himself, as he has sworn, that he could accept instructions from Mrs. Palamarek. The communications between that second solicitor and Mrs. Palamarek form the subject matter of this application. [ 11 ] The meetings with the second solicitor culminated in a second Representation Agreement executed on October 27, 2008. That Representation Agreement revoked the first Representation Agreement and appointed Mrs.

Sampson as her mother's representative in place of Ralph Palamarek. [ 12 ] The audiotape that forms the subject matter of this application was, as I understand it, recorded in July of 2008. [ 13 ] On October 28, 2008 the Representation Agreement was served on Broadmead Lodge and Ralph and Robert Palamarek at approximately 2:00 p.m. and within the hour, Mrs. Palamarek was removed from residence at Broadmead Lodge and took up residence for a few days with her daughter. [ 14 ] On October 30, 2008 Dr. Nichol signed a Form 4 Mental Health Act certificate. The next day, Mrs.

Palamarek was apprehended under the authority of the Vancouver Island Health Authority, taken to hospital and then released under conditions by a Dr. Cooper to Broadmead Lodge, where Mrs. Palamarek continues to live. [ 15 ] It seems that this crisis, if I can call it that, or these events, led to proceedings before this court in which Mr. Justice Johnston appointed Ralph Palamarek interim committee. He also declared that Mrs.

Palamarek was incompetent to manage her person and affairs, but he left open the status of the second Representation Agreement and did not pronounce on its effect or whether it had any validity. That order was not appealed [ 16 ] In August 2009, the solicitor, while still acting for Mrs. Palamarek, was asked to disclose his file by counsel for the Palamarek brothers on the basis that the file was relevant to the issues that the court would have to decide on the final committeeship application.

The solicitor refused to disclose his file on the basis that it was confidential, by which I understand that he asserted a privilege over it on behalf of his client. There matters stood. [ 17 ] The petitions to appoint Mrs. Palamarek’s committee have come before me. They were set to be heard for five days. I have, by my count, 60 affidavits. There has been no cross-examination on the affidavits. There is a mass of conflicting evidence in the affidavits, going to a large number of issues which are critical to the ultimate decision.

I will not comment here on to what extent that evidence is admissible. [ 18 ] There are conflicts in the evidence relating to Mrs. Palamarek's wishes. There are statements that she has said that she wishes to leave the Lodge and live with her daughter. There are assertions that she is content to remain in the Lodge. There is evidence that she is suggestible. There is evidence that she is vulnerable. There is evidence that she has said one thing at one moment and contradicted herself at the next.

It is said that when she returned to Broadmead Lodge, having been apprehended at the end of October in 2008, she declared herself “happy to be home”. [ 19 ] This leaves the court in a difficult situation. The evidentiary status of these statements will need careful analysis in deciding the applications. Moreover, included in the material is a second affidavit by the solicitor. On the face of it that affidavit discloses privileged information because it contains a transcript of a conversation between the solicitor and Mrs. Palamarek about her desire to live with and be cared for by her daughter.

On what basis this apparently privileged material is included in the affidavit, I do not know. It is not apparent whether the solicitor had instructions from his client to disclose that conversation, if indeed it is privileged. I have noted that the solicitor is careful to state, when he records Mrs. Palamarek's views, that those views were expressed while Mrs. Palamarek was in the company of a Mrs. Pickup; a senior’s advocate. Whether that is said in order to suggest that the communications were not privileged, because they were communications in the presence of a third party, I do not know. [ 20 ] If Mrs.

Pickup was acting as an agent for Mrs. Palamarek in those conversations, then they may be privileged. If so, there has been a disclosure of privileged information and possibly a waiver of privilege, if the disclosure of Mrs. Palamarek’s conversations was made on her instructions. [ 21 ] I do not have sufficient evidence to conclude whether any solicitor-client privilege has been waived by the existing partial disclosure of the transcript of the conversation between the solicitor and Mrs. Palamarek.

The argument before me proceeded on the basis that the recording of the conversation that had partially been transcribed in the affidavit, was privileged. No argument was advanced that any existing privilege had been lost because of that disclosure. I will proceed to deal with this application on the assumption that there has been no waiver of privilege by Mrs.

Palamarek. [ 22 ] I note in passing that what also seems to be clear is that the parties hope that I will be able to resolve the petitions on the basis of the record before me, notwithstanding the conflicts in the evidence, the absence of cross-examination, and the fact that no party sought fit to apply to have these proceedings removed to the trial list. [ 23 ] On the third day of the hearing, events occurred that precipitated this application. A question arose as to the date of the conversation partially transcribed by the solicitor set out in the solicitor's second affidavit.

That date appeared to postdate the execution of the Representation Agreement. It appeared to be an error. Counsel for Mrs. Sampson made inquiries to determine whether it was an error, came back to court, and informed the court that it was. He had an affidavit to that effect. Counsel for the Palamarek brothers considered the affidavit to be inadequate. He requested a better evidentiary foundation for determining the correct date. [ 24 ] As a result of those further inquiries, Mr. Duhaime, on the fifth and anticipated final day of the hearing, advised the court of

the existence of the audiotape and urged that I hear it because it was material to my assessment of both Mrs. Palamarek’s wishes and her capacity validly to express her own preferences. [ 25 ] Counsel discussed with the court how best to deal with this matter. Mr. Jamieson appropriately expressed concerns about whether he should listen to the tape. He did begin to listen to the tape. He determined that in his view the tape recorded solicitor-client communications, that there was a privilege issue and stopped listening to it.

His assessment of the situation thereby crystallized this application. [ 26 ] I should say, before I turn to articulate the principles on which I consider that this matter should be dealt with, that in my view the positions taken throughout this episode by both parties have been based appropriately on principle, notwithstanding submissions to the contrary. In particular, I am satisfied that there is no merit to the submission that Ralph and Robert Palamarek's position was driven by tactical gamesmanship.

The position they have taken through counsel is a principled position which, if correct, counsel had an obligation to take. I deal with this application on the basis that the positions taken have been principled positions taken in good faith by both counsel. [ 27 ] Mr. Duhaime says, on behalf of Mrs. Sampson, that Mr. Palamarek, as interim committee, has, under the Patients Property Act , full ownership of Mrs. Palamarek’s privilege. At common law he is Mrs. Palamarek’s successor in title and has full right to review and take a decision about waiving the privilege in her best interests. Mr.

Duhaime says that this is an obligation which is imposed on Ralph Palamarek by the Act , in any event. On this argument, Ralph Palamarek must review the audio recording and discharge a responsibility to decide whether in his mother’s best interests the recording should be made available to the court. Since the recording captures his mother expressing her desires about her care, there is only one rational decision to take.

The court should be provided with the recording. [ 28 ] The second argument is that whether the privilege can stand as a bar to the reception of the recording by the court is governed by the principles set out in Geffen v. Goodman Estate, [1991] 2. S.C.R. 353. That case dealt with the application and scope of the so- called wills exception to solicitor-client privilege where a testator’s intentions are material to inheritance issues and those intentions are evidenced in communications between the deceased and his or her solicitor. Mr. Duhaime submits that the right to committeeship is claimed under Mrs.

Palamarek, just as heirs claim under a testator and that no privilege can be set up as a result. Moreover, there is no conflict between the interests of Mrs. Palamarek and her children that warrants protection of the confidentiality of solicitor-client communications. These proceedings are not adversarial and should be seen as investigatory, designed to identify Mrs. Palamarek’s best interests. United Kingdom and United States jurisprudence supports abrogating privilege. Relevant material should be admitted in these circumstances.

Privilege cannot be set up as a bar to the court receiving it. [ 29 ] In any event, Mr. Duhaime submitted, Ralph and Robert Palamarek own the privilege and have impliedly waived it by their conduct in this litigation. [ 30 ] Mr. Jamieson submits that committeeship does not carry with it the right to exercise the full panoply of the powers of the patient without qualification.

He says that there are limits to the exercise of the patient’s powers; that there is no general or unqualified transfer of the control of privilege to a committee; and hence the committee does not necessarily have a right to waive that privilege. There are, he acknowledges, very limited exceptions to the protection of solicitor-client privilege, but, in his submission, the facts before me do not fall within the principle exemplified by the case of Geffen Estates . Moreover, control of the privilege is not found within the Patients Property Act in the manner that was suggested by Mr. Duhaime. [ 31 ] Mr.

Jamieson points out that Mrs. Palamarek is alive. There is a possibility that she may recover and be declared capable of managing her affairs. There is a risk of prejudice to her and this process if the solicitor-client communication is abrogated. The principled basis for extending the “wills exception” to other dispositions of property to the heirs or successors of a deceased does not apply to the facts before me. He submits that the extension of the “wills exception” in Geffen was limited and a further extension of it unwarranted by the principles stated in the case. [ 32 ] Mr.

Jamieson reminds me that the solicitor-client privilege is a fundamental civil right; a cornerstone of our system of law. It is to be assiduously protected and not lightly cast aside. [ 33 ] In my opinion, my ruling is to be guided by certain fundamental principles. The ultimate issue before me is what is in Mrs. Palamarek's best interests. In this case that question boils down to who should be appointed as Mrs. Palamarek’s committee? Should it be her daughter, Mrs. Sampson?

Should it be two of her sons? [ 34 ] In this particular case, that decision is bound up with a variety of other assessments, including; an assessment of Mrs. Palamarek's state of health; the quality and the appropriateness of the medical care she has received; the views of both the two Palamarek brothers and Mrs. Sampson about how best to manage Mrs. Palamarek's care; whether Mrs. Palamarek can or should be cared for at home, presumably in Mrs.

Sampson's home; whether her interests are better served if she remains a resident at Broadmead Lodge; the relative merits of the candidates for committeeship; and my view of their capacity to exercise sound judgment about the appropriateness of care that Mrs. Palamarek receives. [ 35 ] Although Mrs. Palamarek has been declared to be incapable of managing her estate and person, the law is clear that I nevertheless have to have regard to the wishes of a patient. Those wishes may be a relevant factor in deciding where the patient's best interests lie.

That is so, whether or not the patient has been declared to be incapable. It obviously raises questions about the reliability of those views, but that is another matter. [ 36 ] What the patient's intentions or wishes are is not the ultimate issue that I must decide. The ultimate issue is what is in her best interests? But in my view, it may not be possible to answer the ultimate question without attempting to assess the patient's intentions or wishes to the extent that they can be reliably ascertained.

That is not to suggest that those wishes determine the outcome. [ 37 ] The second fundamental principle is the protection of solicitor-client privilege. Solicitor-client privilege is a fundamental civil right.

[ 38 ] I adopt the language of Mr. Justice Cory in the Supreme Court of Canada in the decision of Smith v. Jones , in which he said: Clients seeking advice must be able to speak freely to their lawyers secure in the knowledge that what they say will not be divulged without their consent. It cannot be forgotten that the privilege is the privilege of the client, not the lawyer. The privilege is essential if sound legal advice is to be given in every field.

It has deep significance in almost every situation where legal advice is sought whether it be with regard to corporate and commercial transactions, to family relationships, to civil litigation or to criminal charges. Family secrets, company secrets, personal foibles and indiscretions all must on occasion be revealed to the lawyer by the client.

Without this privilege clients could never be candid and furnish all the relevant information that must be provided to lawyers if they are to properly advise their clients..It is an element that is both integral and extremely important to the functioning of the legal system.

It is because of the fundamental importance of the privilege that the onus properly rests upon those seeking to set aside the privilege to justify taking such a significant step. [ 39 ] Turning to the particular submissions, I do not accept the proposition that full ownership of the privilege has been transferred to Ralph Palamarek by virtue of his being an interim committee. The first argument in support of that proposition was s. 17 of the Patients Property Act provided that result. In my view that

section relates to powers in limited circumstances that a committee has where a patient was exercising certain functions, as defined by that section. Mr. Duhaime effectively conceded the point when I took him to the language of the section. [ 40 ] 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 . [ 41 ] The proposition put to me by Mr. Duhaime is, therefore, too general. 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 a conclusion are real and would potentially defeat the principle of solicitor-client privilege. [ 42 ] I also find the principles articulated in Re L [1996] All ER 78 (House of Lords) of only limited assistance. There is a critical distinction between these circumstances and that decision. That case involved care proceedings concerning a minor. The issue was whether litigation privilege should be waived over an expert report that had been prepared for the purpose of that litigation.

The House of Lords expressly distinguished the situation from one where the issue was solicitor-client privilege. I will return to some of the propositions in that case later, however. [ 43 ] In my view, the governing principles on this application are found in the Reasons of Wilson J. in Geffen . Wilson J. considered whether the established so-called “wills exception” to solicitor-client privilege should extend also to instructions given in respect of a trust agreement that had a testamentary effect where the settlor of the trust had died.

The result was that the wills exception to the solicitor-client privilege rule was extended to those circumstances. [ 44 ] In wills cases, determining the testator's intent is necessary and fundamental in deciding what interest successors or heirs to the estate take. The rights of heirs or successors are determined by that intent. That is what is meant by saying that the heirs “claim under” the testator. It is not apt, therefore, in my opinion, to regard Ralph and Robert's claim on the one hand or Mrs. Sampson's claim on the other to committeeship as falling “under” Mrs. Palamarek in that sense.

Their rights to committeeship are not purely a function of Mrs. Palamarek's intentions in the same way. Their rights, insofar as they are asserting rights, are determined by Mrs. Palamarek's best interests. At most those best interests may be informed by her intentions or wishes, but that does not end the matter. [ 45 ] In my view, it is necessary to understand and apply the rationale in Geffen to resolve this application. In considering the rationale for the exception Wilson J. examined a number of theories to explain and justify it.

Wigmore, for example, writing in an American context, had suggested that the rationale for the exception was that a testator's intentions were intended to be kept secret only during the lifetime of the testator. It therefore followed that the confidence that was reposed in the solicitor for the purpose of the communication was intended to be temporary only. Wigmore concedes that that rationale does not take explain allowing evidence of solicitor-client communications where the issue is the validity of the will. In his view, that question was not one of privilege.

If that view is correct it suggests that receiving evidence of communications with a solicitor to assess whether the client could reliably or validly express desires or preferences may not raise an issue of privilege at all. It is not necessary, however, to decide that question. [ 46 ] The second rationale considered by Wilson J. is the rationale from Phipson. In essence, that boils down to the proposition that there is a joint interest in the subject of the communication and privilege cannot be raised as between testators and those who claim under a testator.

Viewed in that way, the wills exception is not an exception to the existence of the solicitor-client privilege; privilege does not arise as between the testator and his or her heirs. [ 47 ] Wilson J. observed that Canadian cases have taken a unique approach. At page 17 of the report provided to me, there is reference to a decision of the Ontario Court of Appeal where that court said: The nature of the case precludes the question of privilege from arising.

The reason on which the rule is founded is the safeguarding of the interest of the client, or those claiming under him when they are in conflict with the claims of third persons not claiming, or assuming to claim, under him. And that is not this case, where the question is as to what testamentary dispositions, if any, were made by the client. The Ontario Court of Appeal identified the decision of the English courts, Russell v.

Jackson , as the origin in the Anglo-Canadian tradition of this exception. [ 48 ] Wilson J. cited Re Ott , in which the following was said: . . . where the issue was whether the testator by tearing it up intended to revoke a later will and revive an earlier one, Anderson Surr. Ct. J. held that the discussion that took place between the deceased and his solicitor at the time of the destruction of the will was admissible.

At page 11 he said: . . . since it is of essence to the case to find out the intention of the testator when he destroyed the will whether or not he was revoking his will unconditionally or whether he was only tearing it up on condition that an earlier will was thus revived, the whole issue turns on this question and it would seem to me that to invoke the privilege of the client, after the client is deceased would make it impossible for the Court to determine the intention of the testator in tearing up the will.

In the interests of justice, it is more important to find out the true intention of the testator. [ 49 ] As I have already indicated, the origin of the case and the principles that still seem to be applicable were derived from the case of Russell v. Jackson , (1851) 9 Hare 387 where the rationale was explained thusly. Lord Brougham in Greenough v. Gaskell gives, I think, the true foundation of it.

He says: “It is founded on a regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the Courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings.

If the privilege did not exist at all, everyone would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case” This, then, being the foundation of the rule, the Courts, when called upon to apply it, must of course have regard to the foundation on which it rests, and not extend it to cases which do not fall within the mischief it was designed to prevent.

In cases where the rights and interests of the client or of those claiming under him come in conflict with the rights and interests of third persons there can be no difficulty in applying the rule. If it is not applied in such cases the client could never with safety state to his solicitor the true position of his case. He would be driven to speculate as to what it would be for his interest to divulge.

The prosecution or defence of his rights could not be adapted to the circumstances as they really existed, and the Courts of Justice would be embarrassed with imperfect information arising from imperfect communication; but when we pass from the case of conflict between the rights and interests of the clients and parties claiming under him, and those of third persons, for the case of testamentary disposition by the client, do the same reasons apply? The disclosure in such cases can affect no right or interest of the client.

The apprehension of it can present no impediment to the full statement of his case to his solicitor, unless indeed he is contemplating an illegal disposition, a case to which I shall presently refer; and the disclosure when made can expose the Court to no greater difficulty than presents itself in all cases where the courts have to ascertain the views and intentions of parties, or the objects and purposes for which dispositions have been made.

In the case of testamentary dispositions the very foundation on which the rule proceeds seems to be wanting; and in the absence, therefore, of any illegal purpose entertained by the testator there does not appear to be any ground for applying it. [ 50 ] Wilson J. in Geffen took these considerations and applied them to the context of a testamentary trust document. She took the view that a more principled approach to the issue of solicitor-client privilege had to be adopted.

In particular, in the case before it, she concluded as follows: 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 "[i]n the interests of justice" to admit such evidence. [ 51 ] In my view, those principles support applying the exception in the circumstances that I have before me. First of all, while it is true that the intentions may be relevant to answering the ultimate issue as to the best interests of Mrs. Palamarek, and without the evidence it may not be possible properly to ascertain those best interests, in expressing that view, I accept and acknowledge that it is not the only relevant evidence of those intentions. It may not be reliable evidence. [ 52 ] This evidence comes from July of 2008.

We are now at the end of 2010. I am fully aware that there is conflicting evidence of Mrs. Palamarek’s wishes. I am aware of the resistance of Mrs. Sampson to attempting to solicit Mrs. Palamarek's current wishes. I appreciate that that resistance is conditional. I am also aware of the opinions of the lack of capacity and concerns about how reliable any expression of her desires may be. There is, however, an important issue at stake, an important issue of furthering Mrs. Palamarek's interests by understanding or attempting to understand what her wishes are.

It may not be possible to understand Mrs Palamarek’s best interests without an effort to understand her desires. The evidence is clearly potentially material. [ 53 ] In my view, the case before me does not raise the issue of conflicts with third parties in the same way that is typically the case when solicitor-client communications are being protected and, to adopt the words from Russell , "the foundation of the principle is found wanting".

I do not think that there are legitimate issues of conflict between the mother and her children. [ 54 ] So I do think that receiving the audio recording will perhaps assist me in understanding the views of Mrs. Palamarek. In my view, when she was discussing the situation with her solicitor, she was doing so in circumstances where there was an ongoing committeeship application. Assuming that she had the capacity to instruct counsel, she must have understood that that was the situation and that she was providing information that was relevant to these proceedings.

I think that goes some way to address the very legitimate concern expressed by Mr. Jamieson about the potential prejudice of breaching solicitor-client privilege. [ 55 ] In these circumstances, the probability is, in my view, that the communications will bear on and be material to the matters I have to decide. In that sense, I do not think that allowing the admission of the evidence would violate the general policies that support privileging solicitor-client communications because to do so would further her interests. [ 56 ] I am very aware that Mrs. Palamarek is not deceased.

She is, however, subject to a declaration of incapacity. This evidence may nonetherless provide some assistance to me.

[ 57 ] In my view, it is also relevant that there should be no conflicts as to the best interests of Mrs. Palamarek between the children and their mother. To this extent, Re L is helpful and also supports the proposition that these proceedings are investigatory. They do not involve conventional adversities of interest. [ 58 ] In

summary, on the facts before me the general policy that supports privileging such communications is not violated. The proceedings before me are investigatory in nature rather than adversarial. Privileging the communications is not necessary to protect them in the light of conflicts of interest with Mrs. Palamarek’s children. Moreover, the interests of the patient are furthered in that the purpose of allowing the evidence to be admitted is precisely to ascertain, if that is possible, what her true desires are; an issue material to the determination of Mrs.

Palamarek’s best interests. [ 59 ] In my view, it is in the interests of justice that I receive the evidence, but as I have indicated, I do consider the point that Mr. Jamieson has made about the potential prejudice that is always present in abrogating in any way a solicitor-client privilege is a real concern. We are dealing with an absolutely fundamental principle; protecting clients in communicating with their solicitors. [ 60 ] In my view, the jurisdiction I have to make this order is in part based on my inherent jurisdiction.

It is likely also encompassed by s. 28 of the Patients Property Act , but to the extent that there is a gap revealed in that section, I am satisfied that the parens patriae jurisdiction that I have provides a sufficient jurisdictional basis for the order that I am about to make, in order to attempt to protect the interests of Mrs. Palamarek. [ 61 ] The order is as follows: I am going to require that the audiotape and the solicitor's file be provided to me for my review.

I will undertake a review of the file and I will determine what should be disclosed in this proceeding, taking into account the principles that I have articulated in these reasons. [ 62 ] If I have questions that arise from my review of the file, because I cannot understand something in the file or I need assistance to understand the nature of the communication, then I will require the solicitor to appear before me. I will investigate the situation by asking questions to determine the nature of the material that I am reviewing. [ 63 ] That process, if it is necessary, will be conducted on the record.

The record will, however, be sealed until further order of the court. [ 64 ] I do not intend to solicit any views or any evidence from the solicitor beyond determining the scope of the communications. [ 65 ] As to timing, although I will be prepared to hear submissions on this, I am hopeful that it will be possible for the solicitor's file, the audiotape, and the affidavit that Mr.

Duhaime had with him yesterday, to be delivered to me by the end of this week in Vancouver. [ 66 ] I hope that I will be able to finish my review of the file and those materials by the end of next week and be able to advise the parties of what materials will be disclosed to them. [ 67 ] If there are further applications or matters arising out of the disclosure, whatever it turns out to be, then I would suggest, though again I am happy to listen to submissions, that those applications or matters be dealt with by January 21, 2011.

They should be dealt with, to the greatest extent possible, by written submissions, but they can be supplemented orally. I will be available either at nine o'clock or at four o'clock by telephone conference to deal with those matters. “Harris J.”