JONATHAN LEIER, ADMINISTRATOR DE BONIS NON OF THE ESTATE OF MARGARET LYNN LEIER, v. DAVID LEIER, 2022 SKKB 247

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 247 Date: 2022 11 10 Docket: QBG-RG-01373-2021 Judicial Centre: Regina ___________________________________________________________________________ BETWEEN: JONATHAN LEIER, ADMINISTRATOR DE BONIS NON OF THE ESTATE OF MARGARET LYNN LEIER, and DAVID LEIER Plaintiffs - and - BARRIE PROBE Defendant Counsel: Virgil A. Thomson for the plaintiffs Kevin C. Mellor for the defendant ___________________________________________________________________________ DECISION DOVELL J.

November 10, 2022 ___________________________________________________________________________ Introduction [ 1 ] Prior to the statement of claim issuing in this action, two originating applications had been brought to this Court on behalf of the Estate of Margaret Lynn Leier: 1. QBG-RG-01163-2020 – Leier v Probe – for an accounting from Barrie Probe [Barrie] as the power of attorney of Margaret Lynn Leier from September 1, 2013, to July 8, 2019.

A very detailed consent order was made on August 24, 2020, ordering an accounting of all the affairs and decisions taken by Barrie on behalf of the late Margaret Leier [Margaret] for the period that Margaret was under Barrie’s care, from September 1, 2013, until Margaret’s demise on or about the 8th day of July, 2019, within 30 days. 2 QBG-RG-02056-2020 – Leier v Probe – to have Barrie Probe removed as executor of the Estate of Margaret Lynn Leier and have the alternate executor, Jonathan Leier, appointed as executor.

The decision of Klatt J. dated February 8, 2021 ( Leier v Probe , 2021 SKQB 41 ), removed Barrie Probe as executor of the estate and appointed Jonathan Leier as executor of Margaret’s estate. [ 2 ] After both of these originating applications were dealt with by the Court, a statement of claim in this action issued on June 24, 2021, claiming in excess of $1 million in general damages against Barrie Probe for breach of duty to account, breach of fiduciary duty, breach of trust and unjust enrichment. A statement of defence was filed on August 31, 2021, denying the claims of the Estate of Margaret Lynn Leier.

The parties attended mediation in December 2021, and although the plaintiffs served their affidavit of documents in January 2022, the defendant did not serve his affidavit of documents until May 10, 2022, after the estate brought an appearance day notice for the production of an affidavit of documents. Within

Schedule 2 of his affidavit of documents, Barrie Probe is claiming as a relevant and material document in his possession or control for which there is an objection to produce: • March 8, 2022 Berger Cavan Group Report. [ 3 ] Jonathan Leier, administrator de bonis non of the Estate of Margaret Lynn Leier, and David Leier brought an amended amended notice of application: a. pursuant to Rules 5-12(1)(

e) and 5-12 (2)(

a) of The Queen’s Bench Rules , for an order requiring Barrie Probe to disclose or provide access to: i. copies of the three Symbiotic Books as listed in

Schedule 1, Document 12, of the affidavit of documents sworn by Barrie Probe; and ii. copies of the accounting material completed by Berger Cavan Group; b. an order that Barrie Probe file with the Court the accounting report so as to assess whether it is a privileged document and is not subject to disclosure; and c. an order that Barrie Probe file a supplemental affidavit of documents listing all documents which it claims privilege over with

sufficient detail so as to allow the plaintiffs to challenge this privilege if they should choose to do so. [ 4 ] In support of the a pplication , the Estate filed the a ffidavit of Jonathan Leier exhibiting amongst other documents the affidavit of documents of Barrie Probe and a copy of the July 8, 2022 , letter from counsel for the d efendant to counsel for the p laintiffs enclosing the March 24, 2022, invoice of Berger Cavan Group for payment.

In response , Barrie Probe filed the a ffidavit s of Glen Berger and Desiré Turner. [ 5 ] Following argument in chambers, counsel for both the plaintiffs and defendant filed briefs of law with regard to whether or not the Estate should be responsible for payment at this time of the invoice of Berger Cavan Group in the amount of $58,830.00, which was forwarded to counsel for the plaintiffs on July 8, 2022, by counsel for the defendant. [ 6 ] In addition, counsel for the defendant provided to the Court a sealed envelope containing the “March 8, 2022 Berger Cavan Group Report” for access by myself if I decided to do so.

Counsel for the plaintiffs had no objection to my accessing the sealed envelope if I felt it necessary to determine if litigation privilege attached to the “Report”.

As it turned out, after my initial assessment of the materials filed by both parties, I decided to access the sealed envelope containing what counsel for the defendant had described as the March 8, 2022 Berger Cavan Group Report. [ 7 ] Primarily as a result of the unconventional makeup of the document entitled by counsel for the defendant as a “Report”, on October 31, 2022, an interim fiat was made by myself asking for clarification from the defendant’s counsel that all of the contents of the sealed envelope were in fact the “March 8, 2022 Berger Cavan Group Report” referred to within

Schedule 2 of the defendant’s affidavit of documents, and to which the defendant was claiming litigation privilege. It was not clear to me after inspecting the contents of the sealed envelope what the “Report” consisted of. [ 8 ] In his responding letter of November 3, 2022, counsel for the defendant stated, in part: In response to the interim fiat the communication by Glen Berger to Kevin Mellor dated Tuesday March 8, 2022, at 3:42pm with the subject line Probe 1 was not a document provided under the Berger Cavan Report. This communication was in response to a question posed by Mr. Mellor to Mr.

Berger about the report and therefore not a part of the report. This document was included by error as it was dated on March 8 and should have been its own document number 2 under privileged

schedule 2. The remaining document’s [ sic ] in the folder is the report. This report is incomplete because the expert has not been able to meet with counsel or the client to discuss it. [ 9 ] Words matter. Even now after receiving a response to the interim fiat, I would not necessarily describe these materials as a report, expert or otherwise – at best, it is a preliminary synopsis or opinion subject to change.

The materials are perhaps more accurately described as a preliminary consultant’s analysis clearly prepared by an accountant at the request of counsel for the defendant and to which litigation privilege attaches as the analysis was prepared for the dominant purpose of this case and thus not disclosable at this time. [ 10 ] The reasons for this conclusion will be outlined within this decision. [ 11 ] In chambers, it was confirmed that Document 12 within

Schedule 1 of the defendant’s affidavit of documents had already been provided to counsel for the plaintiffs and thus no longer at issue in this application.

In addition, counsel for the defendant undertook as an officer of the court to provide to counsel for the plaintiffs a list of all documents used and/or referred to within the March 8, 2022 Berger Cavan Group report not already disclosed to counsel for the plaintiffs without an order of the Court confirming whether or not a claim of litigation privilege was being made with regard to each document. [ 12 ] The issues thus yet to be determined at this time are: 1.

Is the March 8, 2022 Berger Cavan Group Report a consultant/expert report of the defendant, Barrie Probe, prepared for the dominant purpose of litigation and to which litigation privilege would attach? 2. If so, has the litigation privilege been waived expressly, by implication or where fairness and consistency so require? 3.

Who is responsible at this time for payment of the March 24, 2022, invoice of Berger Cavan Group in the amount of $58,830.00? [ 13 ] Prior to accessing and inspecting the March 8, 2022 “Berger Cavan Group Report” as contained within the sealed envelope provided to the Court by counsel for the defendant, the Court carefully examined the wording of the documents filed in this application by both counsel for the plaintiffs and for the defendant.

The first thought I had, which this case clearly demonstrates in spades, is the phrase “words matter”. [ 14 ] As a positive example of clear and unequivocal wording is the wording within the affidavit of Glen Berger sworn on October 6, 2022. Within that affidavit, Glen Berger swore that on or about August 12, 2021, Kevin Mellor of Nychuk & Company contacted him requesting his services to prepare an analysis for him regarding issues raised within the statement of claim in this action. At paragraph 2 of his affidavit, Glen Berger swore, “Mr.

Mellor asked me to prepare an analysis for him that he may use in litigating Mr. Probe’s defence.” The timing of this request by Mr. Mellor appears appropriate as the statement of defence was filed by Mr. Mellor on August 31, 2021. [ 15 ] Since being retained by Mr. Mellor, Glen Berger has reviewed the statement of claim, has met with Barrie Probe on several occasions and has spoken with Mr. Mellor about his comments and analysis of the claim against Barrie Probe. At paragraph 4 of his affidavit, Glen Berger swore, “On March 8, 2022 I provided Mr.

Mellor with my preliminary analysis of the statement of claim that he had requested me to perform together with documents that I had relied upon in performing my analysis.” The Court accepts that there is further work that has to be done by Glen Berger to assist Mr. Mellor in his representation of Barrie Probe in this case.

[ 16 ] The clear and unequivocal wording as contained within the affidavit of Glen Berger was of great assistance to the Court in determining whether or not litigation privilege attaches to the “Report” even before accessing the contents of the sealed envelope. [ 17 ] Another example of clear and unequivocal wording is the Berger Cavan Group invoice of March 24, 2022. It reads, in part: Prepare materials for civil matter in Leier v Probe … Response to statement of claim with detailed support and analysis to assist counsel [Emphasis of the Court] [ 18 ] There is, however, documentation filed within this application that is far from clear in meaning and is open to different

interpretations depending upon different contexts. An example of unfortunate and imprecise wording open to

interpretation is the July 8, 2022 letter from counsel for the Defendant to counsel for the Plaintiffs. That letter reads, in part: “Enclosed please find an invoice from Berger Cavan Group in respect of a full accounting for Margaret Leier. This accounting has been professionally prepared by a certified professional accountant as requested. Please attend to its payment. Further, given that this is an estate matter, we ask for your confirmation that all legal fees will be payable by the estate. This is normal process in an estate matter. If you desire case authority to this effect, please advise.

In the event your clients do not agree the expenses in this litigation are payable from the estate, I will bring an application to the court to determine this issue. [Emphasis of the Court] [ 19 ] Counsel for the plaintiffs and defendant argue the imprecise and open-to-interpretation wording of this letter mean totally different things. [ 20 ] With regard to the “accounting as requested”, counsel for the plaintiffs argue that the report of Berger Cavan was prepared to respond to and address two previous orders of this Court that Barrie Probe was to prepare a complete accounting of both his actions as power of attorney and executor of the Estate of Margaret Lynn Leier and thus the Report should be disclosed.

Within QBG-RG-01163-2020, there was a detailed consent order on August 24, 2020, for the preparation of an accounting by Barrie Probe. Within QBG-RG-02056-2020, there was a further order at paragraph 26 of the February 8, 2021, judgment of Klatt J. ( Leier v Probe , 2021 SKQB 41 ) that Barrie Probe was to prepare a full accounting of his administration of Margaret’s estate from the date of her death to the date of the judgment. As such, that accounting is disclosable as no litigation privilege attaches to it. [ 21 ] Counsel for the Defendant argue that the Report was prepared by the accountant at his request.

Glen Berger has sworn this to be the case within his affidavit. Context is important. At the time both court orders were made, Barrie Probe was representing himself; Mr. Mellor only later representing him with regard to this action for damages. As at July 8, 2022, counsel for the defendant had no knowledge of any previous court orders for an accounting by his client and, accordingly, the only meaning to the words “as requested” would be “I requested it from the accountant”. As an aside, I accept that the first time Mr.

Mellor had ever seen the consent order of August 24, 2020, was in chambers when this application was argued on October 20, 2022, and that, according to Mr. Mellor, Glen Berger was not aware of these court orders for an accounting either. [ 22 ] The Court has concluded that the words “accounting as requested” do not have anything to do with any previous court order for an accounting by Barrie Probe. As at July 8, 2022, I accept that Mr. Mellor had no knowledge of any court order for an accounting by his client.

The words “accounting as requested” refer to counsel for the defendant’s request of his accountant to prepare a consultant report for the purpose of assisting Barrie Probe defend himself against the statement of claim commenced against him by the plaintiffs as opposed to providing an accounting with regard to either QBG-RG-01163-2020 or QBG-RG-02056-2020. Court orders do not request things be done; court orders order things to be done – there is a difference. Words matter.

As a document created for the dominant purpose of litigation involving this specific case, litigation privilege attaches and thus is not disclosable at this time. [ 23 ] Accordingly, as a result of first perhaps poor wording on the part of counsel for the defendant and second an incorrect recitation of law regarding estates always paying everyone’s costs, including disbursements, within the July 8, 2022, letter from counsel for the defendant, there was much confusion and uncertainty which no doubt resulted in this application having to be made. [ 24 ] Counsel for the defendant argue that the Estate of Margaret Lynn Leier is responsible for payment of the invoice of Berger Cavan Group, being his client’s consultant, as estates always pay everyone’s accounts in estate litigation.

That bold statement is not accurate. Simply, it depends. In this case, the Estate has sued the defendant for over $1 million in damages for breach of duty to account, breach of fiduciary duty, breach of trust and unjust enrichment. The case law provided by counsel for the defendant confirms that only after a trial in estate litigation after findings of fact have been made by a trial judge can a trial judge exercise his/her discretion in awarding costs in an appropriate manner. Each case is case-specific.

In some situations, the estate may end up paying some or all parties’ costs within the litigation; however, there is no legal presumption that estates always pay everyone’s legal fees. That theoretically can happen; however, in this case, on the basis of the evidence before me at this juncture, that is not the case, and all costs of Berger Cavan Group for services rendered as a consultant for Barrie Probe at first instance are the responsibility of Barrie Probe. [ 25 ] Accordingly, in

summary, litigation privilege attaches to the “March 8, 2022 Berger Cavan Group Report” as disclosed within

Schedule 2 of the defendant’s affidavit of documents. It is clear to me that the Berger Cavan Group Report of March 8 2022, is a preliminary analysis/consultant/expert report prepared for the sole purpose of the within action against Barrie Probe and to which litigation privilege attaches. In the circumstances of this case, that litigation privilege has not been waived expressly, by implication or otherwise where fairness and consistency so require by counsel for the Defendant requesting counsel for the Plaintiffs pay the March 24, 2022, invoice of Berger Cavan Group.

I have concluded that, at this juncture, the disclosure of the preliminary report would be highly prejudicial to the Defendant. In addition, at this time, the invoice of Berger Cavan Group dated March 24, 2022, in the

amount of $58,830.00 is not payable by the Estate of Margaret Lynn Leier. [ 26 ] The application of the plaintiffs is therefore dismissed. As the end result of this application is mixed as between the plaintiffs and the defendant, there shall be no costs awarded to either party with regard to this specific application. [ 27 ] At the expiry of all appeal periods or upon further order of the Court, the sealed envelope provided to the Court by counsel for the defendant shall be returned to counsel for the defendant resealed. [ 28 ] Rule 10-4 of The Queen’s Bench Rules is waived. “M.L. Dovell” J. M.L. DOVELL