RONALD IRA FIGLEY APPLICANT/(DEFENDANT) - v. -, 2018 SKQB 102

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2018 SKQB 102 Date: 2018 04 02 Docket: QBS 621 of 2007 Judicial Centre: Saskatoon ___________________________________________________________________________ IN THE MATTER OF THE ADMINISTRATION OF ESTATES ACT AND THE ESTATE OF RAY K.

FIGLEY (RAY FIGLEY), LATE OF SASKATOON, SASKATCHEWAN BETWEEN: RONALD IRA FIGLEY APPLICANT/(DEFENDANT) - and - EUGENE FIGLEY, in his personal capacity, and as Executor and Power of Attorney of the Estate of Ray Figley and PUBLIC GUARDIAN AND TRUSTEE OF SASKATCHEWAN as Administrator of the Estate of Ray Figley RESPONDENTS/(PLAINTIFFS) - and - CLAYTON BARRY NON-PARTY TO BE EXAMINED Counsel: Curtis J. Onishenko for Eugene Figley John B. Benesh for Ronald and Stanley Figley Karen M.T. Prisciak, Q.C. for Clayton Barry ___________________________________________________________________________ DECISION MILLS J.

April 2, 2018 ___________________________________________________________________________ Introduction [ 1 ] Ronald Figley seeks to examine under oath under Rule 5-20 of The Queen’s Bench Rules a non-party to this action, Clayton Barry, and for an order compelling Mr. Barry to produce documents under Rule 5-15. [ 2 ] This action involves the estate of Ray Kenneth Figley who died on October 4, 2007. Eugene Figley, as plaintiff, is submitting for probate what purports to be a Last Will and Testament of Ray Figley. Dovell J. ordered that Eugene Figley prove the Will in solemn form.

Despite the passage of almost 10 years since that order, no trial has yet been held. The applicant, Ronald Figley, is one of the defendants in this action along with his brother Stanley Figley.

The two of them oppose Eugene Figley’s assertion that the Will dated September 17, 2007 and the Codicil dated September 21, 2007 are Ray Figley’s valid testamentary documents. [ 3 ] The proof in solemn form was to determine whether Ray Figley was of testamentary capacity when the Will was executed and whether Ray Figley was subjected to undue influence when executing his Will and Codicil. [ 4 ] Clayton Barry is a lawyer with the McDougall Gauley law firm in Saskatoon, and he was a witness to the Will being advanced by Eugene Figley.

The original notice of application was amended to include a request for production of certain documents from Clayton Barry relating to the preparation and execution of the Will. [ 5 ] Mr. Barry argues the application should be dismissed on two grounds. [ 6 ] The first ground is that the applicant has not complied with Rule 5-20 by failing to satisfy preconditions for questioning. [ 7 ] The second argument advanced is that as Mr.

Barry provided legal advice to the deceased, Ray Figley, solicitor-client privilege is in issue for both questioning under Rule 5-20 and production of documents under Rule 5-15. [ 8 ] In dealing with the first part of the application, that is relating to the questioning of Mr. Barry pursuant to Rule 5-20, the leading case is Custom Cycle

(1996) Ltd. v Honda Canada Inc. , 2013 SKQB 335 , 429 Sask R 251 [ Custom Cycle ] . [ 9 ] Rule 5-20 reads: 5-20

(1) The Court may grant leave to question any person who may have information relevant to any matter in issue in the action, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation.

(2) The Court may grant leave pursuant to subrule (1) on any terms respecting costs and other matters that the Court considers just.

(3) An order pursuant to subrule (1) must not be made unless the Court is satisfied that: (

a) the applicant has been unable to obtain the information from other persons whom the applicant is entitled to question or from the person the applicant seeks to question; (

b) it would be unfair to require the applicant to proceed to trial without having the opportunity of questioning the person; and (

c) the questioning will not: (

i) unduly delay the commencement of the trial of the action; (ii) entail unreasonable expense for other parties; or (iii) result in unfairness to the person the applicant seeks to question.

(4) Any party who attended or was represented on the questioning is entitled to a copy of the transcript or affidavit in answer, as the case may be, on payment of the appropriate fee, unless the Court orders otherwise.

(5) The questioning party is not entitled to recover the costs of the questioning from another party.

(6) The evidence of a person questioned pursuant to this rule must not be read into evidence at trial pursuant to rule 5-34. [ 10 ] In coming to a consideration as to whether to allow a questioning of a third party Custom Cycle provides that the factors listed must be satisfied for the questioning to take place. [ 11 ] I need only to refer to Rule 5-20(3)(a). [ 12 ] Eugene Figley was examined for discovery, as questioning was then called, in 2009.

The applicant had the opportunity at that time to question Eugene Figley in his capacity as the purported executor of the estate and the person advancing the validity of the Will. Eugene Figley would have to inform himself of the discussions that the deceased had with his lawyer surrounding the Will, including documents prepared by the lawyer, and provide answers to questions surrounding that situation to Ronald Figley. Ronald Figley did not ask any questions of Eugene Figley to attempt to obtain this information. He has not satisfied this precondition. The application fails on this basis.

[13] The second part of the application is for production of documents from Mr. Barry under Rule 5-15 which reads: 5-15(1) On application, and after notice of the application is personally served on the person affected by it, the Court may order theproduction of a document from a person who is not a party at a date, time and specified place if: (

a) the document is in the possession, custody or control of that person; (

b) there is reason to believe that the document is relevant to any matter in issue; and (

c) the person who has possession, custody or control of the document might be required to produce it at trial.

(2) In addition to an order pursuant to subrule (1), the Court may give directions respecting the preparation of a certified copy of adocument that may be used for all purposes instead of the original, saving all just exceptions.

(3) The person producing a document pursuant to this rule is entitled to receive the same conduct money that the person would beentitled to receive if he or she were questioned pursuant to Subdivision 3.

(4) Subject to subrule (5), the costs of an application must be borne by the party making the application.

(5) If the Court is satisfied that, by reason of the production of the document, there has been a saving of expenses, the Court may awardthe whole or part of those costs to the party making the application. [14] Mr. Barry has raised the issue of solicitor-client privilege, and in his brief talks about the sanctity of thesolicitor-client relationship with the privilege that attaches to those communications. [15] The argument of solicitor-client privilege fails.

In Geffen v Goodman Estate, (SCC), [1991] 2SCR 353 at 384 [Geffen], the Court when dealing with the solicitor-client privilege as related to a trust agreement fully canvassed theissue in relation to that privilege as it relates to Wills. The discussion follows: So important is the privilege that the courts have also stipulated that the confidentiality of communications between solicitor and clientsurvives the death of the client and enures to his or her next of kin, heirs, or successors in title: see Bullivant v. Attorney-General forVictoria, [1901] A.C. 196; Stewart v.

Walker (1903), 6 O.L.R. 495; and Langworthy v. McVicar (1913), 25 O.W.R. 297. An exception has, however, developed to permit a solicitor to give evidence in wills cases and a variety of explanations for thisexception to the general rule concerning solicitor-client privilege have been advanced by commentators and courts alike. In Wigmore onEvidence (vol. 8, (SS) 2314), for example, the author suggests that, in so far as issues relating to the execution or contents of a will areconcerned, the rationale underlying the exception relates to the testator’s desire for secrecy.

At page 610 of vol. 8, Professor Wigmorestates: But for wills a special consideration comes into play. Here it can hardly be doubted that the execution and especially the contents areimpliedly desired by the client to be kept secret during his lifetime, and are accordingly a part of his confidential communication. It mustbe assumed that during that period the attorney ought not to be called upon to disclose even the fact of a will’s execution, much less itstenor. But, on the other hand, this confidence is intended to be temporary only. That there may be such a qualification to the privilege isplain.

In those cases dealing with the validity of a will as opposed to its execution or contents Professor Wigmore acknowledges that thesecrecy rationale does not fully explain why a testator’s communications with his solicitor should be admitted.

In such circumstances hesuggests at pp. 612-13 that a solicitor may testify as to the state of mind of the testator since, if the testator were insane or undulyinfluenced, his utterances were “obviously not confidentially made with reference to the secrecy of the fact of insanity or undueinfluence, for the testator of course did not believe those facts to exist and therefore could not possibly be said to have communicatedthem”.

Professor Wigmore then goes on to cite numerous American cases in which a solicitor has been permitted to testify where thevalidity of a will has been challenged on the ground that the testator was unduly influenced. Professor Phipson, on the other hand, appears to be of the view that a different rationale supports the exception to the solicitor-clientprivilege in the wills context. In his opinion, any time claimants have a joint interest with the client in the subject matter of thecommunication, whether dealing with wills or some other matter, no privilege attaches.

Hence, he states that as between joint claimantsunder a testator as to communications between the latter and his solicitor, the privilege does not apply: see Phipson on Evidence (13th ed.1982), at p. 300. In The Law of Evidence in Civil Cases (1974), the authors argue that Canadian courts have approached the admissibility of this sort ofevidence in a unique way, although the same result has been arrived at. For instance, in Stewart v. Walker, supra, [(1903), 6 OLR 495] itwas alleged that the testator had died intestate.

The deceased’s solicitor, however, had in his possession a copy of a will providing thathe, the solicitor, was to be left the greater part of the deceased’s estate and was appointed as sole executor. It was contended that thesolicitor should not be permitted to give evidence as to the existence or validity of the will. The Ontario Court of Appeal, however, feltthat the solicitor should have been permitted to testify, saying at pp. 497-98: The nature of the case precludes the question of privilege from arising.

The reason on which the rule is founded is the safeguarding ofthe interests of the client, or those claiming under him when they are in conflict with the claims of third persons not claiming, orassuming to claim, under him. And that is not this case, where the question is as to what testamentary dispositions, if any, were made bythe client. As said by Sir George Turner, Vice-Chancellor, in Russell v. Jackson (1851), 9 Ha. 387, at p. 392: “The disclosure in suchcases 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 hissolicitor ... 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.” It has been theconstant practice to apply the rule here stated in cases of contested wills where the evidence of the solicitors by whom the wills wereprepared, as to the instructions they received, is always received. And the application of a different rule in this action would deprive theplaintiff of a considerable part of the proof of his case. Similarly, in Re Ott, (ON SC), [1972] 2 O.R. 5 (Surr.

Ct.), where the issue was whether the testator by tearing it upintended to revoke a later will and revive an earlier one, Anderson Surr. Ct. J. held that the discussion that took place between thedeceased 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 hiswill unconditionally or whether he was only tearing it up on condition that an earlier will was thus revived, the whole issue turns on thisquestion and it would seem to me that to invoke the privilege of the client, after the client is deceased would make it impossible for theCourt 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 trueintention of the testator. [16] Most recently our Court applied Geffen in Choquette v Viczko, 2017 SKQB 191 at para 14, where Scherman J.stated: 14 There has long been a so-called “wills exception” to solicitor-client privilege, by which communications of a testator with a solicitorrelating to his or her will is held not privileged given that such evidence is seen as necessary to determine a testator’s intent.

In Geffen, acase involving a trust document rather than a will, the Supreme Court of Canada expanded the scope of the theretofore narrow willsexception and adopted a principled approach to admissibility questions arising from claims of solicitor-client privilege. … [17] The file of Clayton Barry as it relates to receiving instructions for the Will, preparation of that Will andexecution of the Will, including the thoughts of Mr. Barry as related to the testamentary capacity and issues of undue influence as itrelates to the Will, are not protected by solicitor-client privilege and those documents created by Mr.

Barry must be disclosed to theapplicant. [18] The documents referred to are in the possession of Mr. Barry. The documents are clearly relevant to the issue oftestamentary capacity and undue influence which are set to go forward at trial. [19] Mr. Barry is not able to assert solicitor-client privilege and as such will be required to produce the documentsand comment on them at trial. [20] Under Rule 5-15(1) I order Mr.

Barry to produce his file on Ray Figley as it relates to receiving instructions forthe Will of September 17, 2007 and Codicil of September 21, 2007 and the preparation and execution of those documents. He shalldeliver the same to the office of the solicitor for Stanley and Ronald Figley by April 20, 2018. [21] Rule 5-15(4) would normally provide that the costs of this application fall to the applicant; however, theapplicant was successful in obtaining Mr. Barry’s file information. The costs shall be equal and offset each other. J. R.C. MILLS