Archibald v Archibald, 2018 SKCA 86

Court of Appeal for Saskatchewan Docket: CACV3052 Citation: Archibald v Archibald , 2018 SKCA 86 Date: 2018-11-01 Between: Barrie Archibald as Co-Executor of the Estate of Margaret Ethel Archibald Appellant And Norman Gordon Archibald and Kanuka Thuringer LLP Respondents Before: Jackson, Herauf and Schwann JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr.

Justice Herauf The Honourable Madam Justice Schwann On Appeal From: QB1348/2016, Regina Appeal Heard: April 16, 2018 Counsel: Alan McIntyre, Q.C., for the Appellant Travis Avery for Norman Archibald Randall Sandbeck, Q.C., and Michael MacDonald for Kanuka Thuringer LLP Jackson J.A. I. Introduction [ 1 ] This is an appeal from a decision of a judge of the Court of Queen’s Bench, sitting in Chambers, refusing to order the production of documents pertaining to the execution of certain testamentary dispositions (February 28, 2017, decision [ Chambers Decision ]).

One of two co-executors applied, by way of originating motion, to obtain the order. The law firm that had acted for the testator resisted production of the documents on the basis that the documents were subject to solicitor–client privilege and to a specific assertion of confidentiality imposed upon the firm by the testator. [ 2 ] The Chambers judge dismissed the application, holding that the documents were subject to solicitor–client privilege and no exceptions to that privilege apply in this case.

While the applicant had insisted on the existence of a joint retainer, the Chambers judge found that no such joint retainer existed. She found further that some of the documents being sought included solicitor’s notes, which were not producible as they had been prepared for the benefit or protection of the solicitors involved. [ 3 ] On appeal, the executor challenges the Chambers judge’s decision that no joint retainer existed and also raises what might be considered a new ground of appeal pertaining to what is referred to as the common interest exception to solicitor–client privilege.

A significant additional aspect of this appeal concerns the use of an originating application to obtain the relief sought. [ 4 ] For the reasons that follow, the appeal is dismissed. The Chambers judge committed no error. On the question of the use of the originating application to obtain the requested documents, it is quite clear from a review of the record that both parties were content to seek a decision from the Court of Queen’s Bench using this procedure.

Having regard for the submissions received, this Court can take no issue with the Chambers judge’s decision to accede to the parties’ choice of procedure as it relates to this particular case. II. Background [ 5 ] By way of brief background, Mr. James Archibald and Ms. Margaret Archibald were married and had two children: Mr. Gordon Archibald and Mr. Barrie Archibald [the Appellant]. Mr. James Archibald created a Holograph Will in 1977. The Holograph Will bequeathed $100,000 to each of Ms. Archibald and Mr. Gordon Archibald, with the residue of the estate being left to the Appellant.

A significant part of that estate included what the parties referred to as the Condie Farmland. Following Mr. James Archibald’s death in 1991, a Printed Will (dated 1986), signed by him, was discovered. The Printed Will left all of his estate to Ms. Archibald. The Appellant and Ms. Archibald consulted with Mr. Randall Baker of Kanuka Thuringer LLP [the Law Firm] about these conflicting wills. In the result, the Printed Will was probated. [ 6 ] Ms. Archibald passed away on August 21, 2015.

Under the terms of her most recent will, dated September 17, 2009 [the 2009 Will], she named her two sons, the Appellant and Mr. Gordon Archibald, as executors. She left 100% of the Condie Farmland to Mr. Gordon Archibald, with specific bequests to the Appellant. [ 7 ] Ms. Archibald’s 2009 Will has not yet been probated. III. Procedure in the Court of Queen’s Bench

[ 8 ] To be clear, there has as yet been no action brought in the Court of Queen’s Bench to contest the 2009 Will or any aspect of the administration of the estate. Instead, on June 16, 2016, the Appellant brought an originating application in his name as “Co-Executor of the Estate of Margaret Ethel Archibald”, naming “Norman Gordon Archibald and Kanuka Thuringer LLP” as the respondents. The application was brought pursuant to Rule 1-5 and Rule 3-49(1)(

a) of The Queen’s Bench Rules . The application requests this relief: Remedy claimed [or] sought: 12. An Order that Kanuka produce any and all documents in its possession related to Margaret Archibald and/or her estate prepared on or after March 14, 1991, to the Executors of the estate of Margaret Archibald, including but not limited to: (

a) any and all Wills, Codicils, and Powers of Attorney executed by Margaret Archibald on or after March 1, 1991; and (

b) any and all documents related to the assets or former assets of the James Norman Archibald estate including the land registered in the name of Margaret Archibald as a personal representative of the estate of James Norman Archibald; and (

c) any and all consents, waivers and/or documents relating to consents given to or documented by Kanuka by Mother and/or myself regarding the matters set out above from 1991 forward; and (

d) any correspondence, reports, memos, billing invoices or other documents related to the documents set out in (a), (

b) and (

c) above. (Bold emphasis in original) [ 9 ] An affidavit of the Appellant, sworn May 27, 2016, accompanied the originating application. According to this affidavit, the Appellant contends he and Ms. Archibald entered into a verbal agreement to resolve the question of the validity of his father’s Printed Will [the Verbal Agreement]. The Appellant attests that he and his mother jointly retained the Law Firm to resolve the matters with respect to a share purchase and sale agreement regarding the family businesses as well as settling his father’s estate, including the agreement to probate the Printed Will.

The Appellant asserts that he agreed not to contest the validity of the Printed Will, and the bequests therein, in exchange for Ms. Archibald’s promise to bequeath certain assets to him upon her death and to forgive the amount owing for the purchase price of certain shares. The Appellant claims further that Ms. Archibald promised to bequeath her shares in a family company to him, plus the Condie Farmland. (The Appellant indicates that this latter request was changed by mutual agreement to bequeath the Condie Farmland to him and Mr.

Gordon Archibald equally.) These promises were the primary basis upon which the Appellant requested the production of the documents over which the Law Firm asserts solicitor–client privilege on behalf of the deceased Ms. Archibald. [ 10 ] In support of its opposition to produce the requested documents, the Law Firm filed an affidavit from Mr. Baker and from Mr. Paul Korpan. Mr. Baker attests that, around late 1993 or early 1994, Ms. Archibald retained the Law Firm in her name only to assist with drafting her testamentary documents. To that end, he and a colleague prepared several wills, including the 2009 Will.

In his affidavit, Mr. Baker states affirmatively that “there has never been a joint retainer between Margaret Ethel Archibald, Barrie Archibald and Kanuka Thuringer LLP with respect to this file”. He disclaimed any knowledge of the Verbal Agreement. Mr. Baker retired from the Law Firm effective December 31, 2009. Mr. Korpan assumed responsibility for advising Ms. Archibald at that time. [ 11 ] In his affidavit, Mr. Korpan asserts that he is “not aware of any joint retainer agreement between Barrie Archibald, Margaret Ethel Archibald and Kanuka Thuringer LLP”. Indeed, he attests that Ms.

Archibald asked him to keep all communications between them in confidence and not to disclose them to the Appellant. He acted for Ms. Archibald until her death in 2015. [ 12 ] In response to the Law Firm’s affidavits, the Appellant swore a second affidavit, dated August 4, 2016. In this affidavit, he explains his long-standing relationship with the Law Firm. He states Mr. Baker and Mr. Korpan acted as counsel on his behalf on numerous occasions. He refers to an agreement signed by his mother and him after a consultation with the Law Firm.

The agreement pertains to one of the family’s businesses, which would have been in the name of Ms. Archibald. The agreement, originally prepared and witnessed by Mr. Baker on December 31, 1993, transfers a license to a taxi company in which the Appellant is the majority shareholder. Mr. Korpan finished preparing this agreement for signature on January 6, 1994, which was one day before Ms. Archibald’s First Will was executed. The First Will was prepared by another lawyer in the Law Firm, who had been assisting Ms.

Archibald directly. [ 13 ] The Appellant asserts that his mother’s 2009 Will is contrary to the Verbal Agreement that followed his father’s death in 1991 and settled the issues of the probated Printed Will. The Verbal Agreement, he claims, was based in part on research and advice provided in the time period from 1991 to 1993 by Mr. Baker. [ 14 ] This second affidavit contains a number of references to occasions when the Law Firm acted for the Appellant with respect to the family businesses, which are said to support the existence of a joint retainer between him, Ms. Archibald and the Law Firm. IV.

Issues [ 15 ] The issues on this appeal are best encapsulated as follows: (

a) Was the appropriate procedure followed in this case?

(

b) Did the learned Chambers judge err by finding no joint retainer existed? (

c) Should the Law Firm be compelled to produce a list of documents? V. Was the Appropriate Procedure Followed in this Case? A. Introduction [ 16 ] By way of a recap, the Appellant asked for the production of documents pursuant to Rule 1-5 and Rule 3-49(1)(a). The salient part of Rule 1-5, and the whole of Rule 3-49, read as follows: Orders respecting practice or procedure 1-5(1) To implement and advance the purpose and intention of these rules described in rule 1-3, the Court may, subject to any specific provision of these rules, make any order with respect to practice or procedure, or both, in an action, application or proceeding before the Court.

(2) Without limiting subrule (1), and in addition to any specific authority the Court has pursuant to these rules, the Court may do one or more of the following: … (

c) give orders or directions or make a ruling with respect to an action, application or proceeding or a related matter …. … Actions started by originating application 3-49

(1) An action may be started by originating application if the remedy claimed is: (

a) the opinion or direction of the Court on a question affecting the rights of a person with respect to the administration of the estate of a deceased person or the execution of a trust; (

b) an order directing executors, administrators or trustees to do or abstain from doing any particular act with respect to an estate or trust for which they are responsible; (

c) the removal or replacement of one or more executors, administrators or trustees, or the fixing of their compensation; (

d) the determination of rights that depend solely on the

interpretation of: (

i) a deed, will, contract or other instrument; or (ii) an enactment, order in council or municipal bylaw or resolution (

e) the declaration of an interest in or charge on land, including the nature and extent of the interest or charge or the boundaries of the land, or the settling of the priority of interests or charges; (

f) the approval of an arrangement or compromise or the approval of a purchase, sale, mortgage, lease or variation of trust; (

g) the judicial review of a decision, act or omission of a person or body; (

h) for a remedy pursuant to the Canadian Charter of Rights and Freedoms ; or (

i) with respect to any matter where it is unlikely that there will be any material facts in dispute.

(2) An action may be started by originating application if an enactment or these rules authorize or require an application, an originating application, an originating notice, an originating summons, a notice of motion or a petition to be used.

(3) An action may be started by originating application if an enactment provides for a remedy, certificate, direction, opinion or order to be obtained from the Court without describing the procedure to obtain it.

(4) An originating application must: (

a) be in Form 3-49; (

b) state the claim and the basis for it; (

c) state the remedy sought; and (

d) identify the affidavit or other evidence to be used in support of the originating application.

[ 17 ] On the hearing of the appeal, this Court raised with counsel the preliminary issue of whether the Court of Queen’s Bench had the authority, pursuant to the cited rules, to make the order that the Appellant had requested. [ 18 ] At least facially, in the circumstances of this case, an application seeking the determination as to whether documents are protected by solicitor–client privilege is not an application under Rule 3-49(1)(

a) to obtain “the opinion or direction of the Court on a question affecting the rights” of an executor with respect to the administration of the estate of a deceased person: MacDonald v Department of National Defence , 2012 ONSC 4155 , 80 ETR (3d) 134. Further, jurisprudence of the Court would appear to limit the use of Rule 3-49(1)(d): Fisher v Fisher Estate , 2008 SKCA 165 , 314 Sask R 315 [ Fisher ]. Having regard for these principles, this Court was concerned that, in the long run, the limited nature of the procedure could cause the parties difficulties in the event that further litigation were to ensue.

With these concerns in mind, the Court asked counsel to provide supplementary factums addressing the question whether the Court of Queen’s Bench had the authority to resolve this dispute using Rule 3-49. Counsel for the Appellant and the Law Firm each provided a supplementary factum, as did counsel for Mr.

Gordon Archibald (in his capacity as a co-executor of the estate). [ 19 ] In his supplementary factum, the Appellant took the new position that the appeal should be allowed without prejudice to the parties to seek the same remedy in the context of a different procedure – so as to prevent the findings of the Chambers judge from being considered res judicata . He further advised the Court that the decision to apply under Rule 3-49(1)(

a) had been made in anticipation that a consent would be forthcoming. [ 20 ] In its supplementary factum, the Law Firm maintained its earlier position that the appeal be dismissed with costs in its favour. Counsel for the Law Firm indicated that, in the Court of Queen’s Bench, he did not argue strenuously against the procedure adopted by the Appellant, preferring to concentrate his submissions on the substantive issues raised by the motion. In this Court, he concedes Rule 3- 49(1) arguably does not confer express authority to grant the Appellant’s application, particularly where no action has been commenced.

Nonetheless, he submits this Court should recognize that the new rules of the Court of Queen’s Bench are intended, in part, to eliminate (or to step-over as much as possible) arguments that, when deconstructed, are essentially questions of the appropriate procedure and respond accordingly. [ 21 ] Mr. Gordon Archibald, who did not make any submissions on the appeal proper, also filed a supplementary factum, making it plain that he was making his submissions in his capacity as a co-executor only.

His counsel took a similar position to that of the Law Firm on the question of the Court’s authority to resolve the application before it. In addition to submitting the appeal should be dismissed, he asks the Court to express the opinion that if the Appellant wishes to pursue a cause of action in his personal capacity against either the estate or the Law Firm, he must do so using the appropriate commencement documents and procedures. He asks that the costs of this application not be borne by the estate. B. Analysis [ 22 ] Clearly, problems exist with the application made to the Court of Queen’s Bench.

As counsel for Mr. Gordon Archibald submits, the originating application pleads contentious legal issues as the basis for seeking the evidence necessary to prove the very contentious matters it puts forth to obtain the remedy the Appellant seeks – all without the commencement of an action and without any desire that the originating application be converted into an action. Instead, the Appellant wants the Court to order disclosure of the documents as a stand-alone remedy to determine whether to commence an action, which could serve to ground a challenge to Ms.

Archibald’s 2009 Will. [ 23 ] Having said that, it is apparent from the authorities cited by all counsel that the new rules of the Court of Queen’s Bench mark the beginning of an era intended to provide access to justice in the cheapest and most efficient way possible, particularly where the parties agree to the procedure followed. Rule 3-49(1)(

a) is part of this new era. Moreover, and perhaps more importantly, the Court of Queen’s Bench has embraced the change that The Queen’s Bench Rules represent. [ 24 ] For example, in Dyck v JCL Property Management Ltd ., 2014 SKQB 274 , 454 Sask R 238 [ JCL Property ], the applicant applied, by way of originating application under Rule 3-49, for a determination as to whether the testator had a half interest in a certain condominium property owned by the respondents. No objection had been made to the procedure. As a preliminary issue, Wilkinson J. addressed the question of whether the matter could be resolved in a

summary fashion. After mentioning Fisher , she noted that, under the former rules, the originating notice procedure was not well-suited to the determination of serious questions of fact and law. However, Wilkinson J. observed, relying on Hryniak v Mauldin , 2014 SCC 7 , [2014] 1 SCR 87 [ Hryniak ], that there had been a “significant doctrinal shift in the approach to

summary procedures, favouring such approaches wherever appropriate in order to simplify and expedite court processes and thereby lessen the cost of litigation” (at para 34). In accordance with this new approach, Wilkinson J. proceeded to determine the application before her, ultimately dismissing it on substantive rather than procedural grounds. [ 25 ] Following JCL Property in Veitch v Wollf , 2017 SKQB 252 [ Wollf ], Elson J. proceeded similarly to resolve an estate matter using the authority of Rule 3-49. In doing so, he remarked that “the introduction of Rule 3-49 coincided with a noticeable shift in the approach taken by Canadian courts to

summary disposition of certain civil proceedings” ( Wollf at para 9 ). [ 26 ] Relying on these decisions, I find myself in agreement with counsel for the Law Firm and Mr. Gordon Archibald.

A doctrinal approach that resists access to the Court of Queen’s Bench on technical or procedural grounds only, in the circumstances such as exist here, is inconsistent with the modern approach to access to justice and litigation economy. [ 27 ] Thus, I conclude that this Court should resolve this appeal on the basis on which the Appellant presented it to the Court of Queen’s Bench, which was to seek the opinion of the Court of Queen’s Bench as to whether he was entitled to the production of the contested documents currently held by the Law Firm. To be clear, if counsel for the Law Firm or Mr.

Gordon Archibald had resisted proceeding under Rule 3-49, perhaps on the basis of prejudice to one or either of them, this Court may have taken a different approach. VI. Did the Learned Chambers Judge Err by Finding

No Joint Retainer Existed? A. Decision of the Chambers judge [28] Relying on Boreta v Primrose Drilling Ventures Ltd., 2010 ABQB 383 at para 58, 500 AR 137, the Chambers judge recitedthe principle that there is no privilege regarding communications between parties to a joint retainer. In such circumstances, the clients tothe retainer are treated as one.

She acknowledged that a joint retainer may be created by an oral or written contract, or may be inferredfrom the conduct of the parties: see Texas Industries Limited v Siewert (1996), (AB KB), 194 AR 303 (QB) atpara 18 (aff’d 1998 ABCA 367, 228 AR 90). [29] The Chambers judge then reviewed the evidence that the Appellant had identified in support of the proposition that he and hismother had jointly retained the Law Firm (Chambers Decision at 12): 1. Mr. Baker assisted Barrie and Margaret with James’s estate and prepared the Application for Probate of the Printed Will onDecember 7, 1992; 2. Mr.

Baker prepared the Purchase Agreement on December 31, 1993; and 3. Mr. Korpan represented [the family company] when the City of Regina attempted to revoke its broker’s license. Margaret signedan agreement with the City of Regina one day prior to the execution of her First Will in January 1994. [30] She understood that the Appellant was relying upon Mr. Baker knowing about the Verbal Agreement, which the Appellantdescribed as his and his mother’s reason for jointly-retaining him. [31] After reviewing the law and the evidence, the Chambers judge was unable to conclude that Mr.

Baker had any knowledge ofthe Verbal Agreement. But, more importantly, she concluded that the Verbal Agreement was not determinative of the joint retainer issuebecause the substance of the Verbal Agreement would have had minimal impact on demonstrating whether the Law Firm had beenjointly retained by the Appellant and Ms. Archibald to prepare her wills. In that regard, the determining factor to the resolution of theapplication before her was Ms. Archibald’s own actions. [32] The Chambers judge found that Ms.

Archibald had specifically asked the Law Firm not to disclose to the Appellant anyinformation connected to the legal work the Law Firm had done on her behalf regarding her wills. The Chambers judge found support forthis conclusion in a letter dated January 29, 2004, where Mr. Baker confirmed that Ms. Archibald would not permit the accountant whohad provided tax advice to her to speak with the Appellant. From the fact that Mr. Baker had thought it necessary to seekMs. Archibald’s permission, the Chambers judge concluded that neither Mr. Baker nor Ms.

Archibald appeared to have proceeded asthough a joint retainer existed. Simply put, Mr. Baker would not have needed to seek out Ms. Archibald’s authorization if Ms. Archibaldand the Appellant had retained the Law Firm jointly. From these actions, the Chambers judge concluded that Ms. Archibald had clearlyindicated she had solely retained the Law Firm to prepare her wills (Chambers Decision at 13–14): When the information before the Court is taken at its highest, there may be some evidence of a joint retainer for the work undertaken forJames’s estate.

Documents relating to James’s estate have been provided to Barrie. Even if a conclusion could be reached that the jointretainer included the Verbal Agreement (which I have previously stated it could not), there is simply no evidence that any joint retainercovered the preparation of Margaret’s wills and advice provided with respect to her estate. [33] In short, she was unable to infer a joint retainer from the conduct of the parties with respect to the preparation ofMs. Archibald’s testamentary dispositions. B.

Arguments of the Appellant [34] On appeal, the Appellant submits that the Chambers judge erred by considering his and his mother’s interaction with the LawFirm on an individual basis; rather, she should have viewed the Law Firm’s representation of the two “more broadly”. In support of abroad view of the law on this point, counsel referred to the following: Alan W. Bryant, Michelle Fuerst, and Sidney N. Lederman, TheLaw of Evidence in Canada, 4th ed (Markham, Ont: LexisNexis, 2014) at 936–937; Pax Management Ltd. v A.R.

Ristau Trucking Ltd., (BC CA), [1987] 5 WWR 252 (BCCA) at 14; and R v Dunbar, (ON CA), [1982] 138 DLR (3d) 221(Ont CA) at para 56. [35] The Appellant’s counsel then proceeded to review the evidence, which he says supports a finding of a joint retainer betweenthe Appellant and Ms. Archibald. He asserts that the Law Firm initially received instructions from “the Archibald family” to act for thefather’s estate because the Law Firm had accepted instructions from both Ms. Archibald and the Appellant and had addressedcorrespondence to both parties. For example, on September 4, 1991, Mr.

Baker advised the Appellant and Ms. Archibald that the LawFirm would hold their file in abeyance “pending the decision of yourself [the Appellant] and your mother [Ms. Archibald] to proceedwith the Court application respecting the Wills” (referring to the Holographic Will and Printed Will). In his factum, the Appellant refersto the subsequent invoices from the Law Firm to the estate as illustrative of the continuum of services that was provided to him andMs.

Archibald, jointly, to deal with the father’s estate by way of the Verbal Agreement: 37. … The subsequent invoice from Kanuka to the estate illustrates the continuum of services … 29 Apr 92 Telephone attendance on Barrie Archibald re: income tax returns to be filedby estate and timing to obtain Letters Probate; 30 Apr 92

Research law on contracts during lifetime to make a bequest of certainproperty by Will; telephone attendance on Barrie Archibald re: agreementbetween himself and Margaret Archibald for her to transfer shares in BuffaloCabs to him at her death;01 May 92 Finalize Research04 May92 Telephone attendance on Barrie Archibald re: inter vivos trust on contractbetween Barrie Archibald and Margaret Archibald re: shares in BuffaloCabs Ltd.24 Jun 92 Telephone attendance on Barrie Archibald re: opinion letter on trustarrangement; amend opinion letter and forward to Barrie Archibald10 Aug 92 Telephone call with Margaret Archibald re: copy of 1977 Will (Italic emphasis added by appellant) [36] The Appellant argues that not only was the Law Firm communicating with both Ms.

Archibald and him with respect to theadministration of his father’s estate, but the time entries show the firm contemplated the execution of an agreement between the motherand son to deal with the shares in the company. From this, in his factum, the Appellant asserts it is “illogical to conclude that [the LawFirm] would have proceeded with probate in the context of having two contradicting wills, without having any knowledge of whatagreement was reached between Margaret and Barrie, whom they were jointly representing” (at para 38).

As part of this, the Appellantfound it significant that the Law Firm represented the corporate interests of the taxi company originally belonging to the parents – themanagement and future ownership of which has now devolved to him. As a further plank to his argument, the Appellant submits that theLaw Firm was in a potential conflict of interest in purporting to act solely for Ms. Archibald and owed a duty of loyalty to him. C. Standard of review [37] At this point, it is important to refer to the nature of the finding that the Chambers judge made in resolving the joint retainerquestion.

It is common ground that no written agreement existed. The existence of a joint retainer, if any, had to be inferred from thewhole of the evidence. As such, we are clearly in the realm of fact-finding by judges of first instance. In my view, the determination thatthere was no joint retainer in these circumstances is a question of fact.

Since the Appellant does not allege that the Chambers judge madeany error in her statement of the law, the question for this Court is whether the Chambers judge made a palpable and overriding error offact when she concluded there was no joint retainer. [38] I appreciate that counsel for the Appellant submits that the standard of review for findings of fact based on affidavit evidenceis one of reasonableness, largely stemming from a line of authority beginning with Valley Beef Producers Co-operative Ltd. v FarmCredit Corporation, 2002 SKCA 100 at paras 117–118, 218 DLR (4th) 86.

While there may not be any practical difference betweendeclaring a finding of fact unreasonable as opposed to being the product of a palpable and overriding error, the Supreme Court of Canadahas made it clear that the latter expression governs: Canada (Attorney General) v Bedford, 2013 SCC 72 at paras 55 and 56, [2013] 3SCR 1101. At the very least, the description of the standard of review, as requiring a finding of palpable and overriding error, is a furthercaution to appellate courts to approach the review of a fact with deference.

Simply put, the current law, which requires an appellate courtto review findings of fact on a palpable and overriding error standard, is an exacting standard: Benhaim v St–Germain, 2016 SCC 48 atparas 38–39, [2016] 2 SCR 352 [Benhaim]; Nelson (City) v Mowatt, 2017 SCC 8 at para 38, [2017] 1 SCR 138; and Canada (AttorneyGeneral) v Fontaine, 2017 SCC 47 at para 35, [2017] 2 SCR 205. D.

Applying the standard of review [39] Applying this standard, having nonetheless closely reviewed the evidence put forward by the Appellant, I cannot say that theChambers judge’s conclusion that there was no joint retainer constitutes a palpable and overriding error of fact. The Chambers judge wasfaced with the direct statement contained in affidavits from two lawyers employed by the Law Firm: there is no joint retainer. TheAppellant, of course, relies on other evidence, but it was up to the Chambers judge to weigh all of the evidence.

Further, in support of herconclusion, the Chambers judge pointed to independent evidence of Ms. Archibald’s refusal to permit the Appellant to be privy to herbusiness affairs. In such circumstances, I can find no obvious error or “error that goes to the very core of the outcome” (Canada v SouthYukon Forest Corporation, 2012 FCA 165 at para 48, leave to appeal to the SCC refused ), which, in Benhaim (atpara 38), the Supreme Court recently affirmed as one way to conceptualize the palpable and overriding error standard. [40] There is a final matter.

In the Appellant’s factum, he has used the expression “joint retainer” and “common interest” or“common interest retainer” in the same sentence and interchangeably. He has also mentioned authorities that pertain exclusively to theuse of common interest as a means to obtain documents that would otherwise be protected by solicitor–client privilege.

This was not anissue presented to the Chambers judge, but it is one that is easily addressed and is best put to rest. [41] As Dean Adam Dodek indicates in his text, Solicitor–Client Privilege (Markham, Ont: LexisNexis Canada, 2014) at 247,common interest has been referred to interchangeably with joint privilege, joint interest and joint retainer, resulting in confusion as to themeaning and the use of common interest privilege. Dean Dodek properly describes common interest privilege as an exception to thewaiver of privilege.

He defines the concept as follows: “The common interest privilege will allow parties with interests in common toshare certain privileged information without waiving their privilege” (at para 7.163). [42] While Pritchard v Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 SCR 809 [Pritchard], appears to haveexpanded the common interest privilege so as to permit it to act as a sword by a party seeking disclosure, subsequent authority hasconfined that decision to its result, which denied access to the requested documents. The result in Pritchard is best explained by Dean

Dodek (at 249–250): §7.168 This application of the common interest exception extends it beyond its foundations in the law of waiver. In Pritchard , there was no disclosure of privileged documents, so there was no issue of waiver. Pritchard sought to use the common interest exception to compel the disclosure of privileged documents. This has nothing to do with the law of waiver and confuses “joint privilege” (where parties share the same solicitor and have the right to access privileged documents) with “common interest”.

The court should have dismissed the application on this basis. … §7.170 As the British Columbia Court of Appeal explained in Maximum Ventures Inc. v. De Graaf [2007 BCCA 510], the issue of common interest privilege arises “in response to a plea of waiver of that privilege. The common interest privilege is an extension of the privilege attached to that relationship. The issue turns on whether the disclosures were intended to be in confidence and the third parties involved had a sufficient common interest with the client to support extension of the privilege to disclosure to them” (at para 14).

Simply put, the common interest doctrine should not be permitted to be invoked to access privileged documents. It only applies when there is a claim of waiver of the privilege. [ 43 ] In short, the Appellant’s use of the expression common interest privilege as a means to expand the notion of what constitutes a joint retainer is misplaced. Common interest privilege cannot be used to compel disclosure of documents that would otherwise be privileged in the circumstances as they exist here. VII.

Should the Law Firm Be Compelled to Produce a List of Documents? [ 44 ] The Appellant claims he is entitled to at least an index of the privileged documents, and he asserts the Chambers judge should have ordered the Law Firm to produce such an index. [ 45 ] In support of this ground of appeal, the Appellant first relies on Hawkins v Hawkins Estate , 2013 ONSC 661 , 34 CPC (7th) 292 [ Hawkins ], to demonstrate the difficulty in obtaining production when a party is unaware of the existence of potentially probative documents.

However, in paragraphs 25 to 32, the Court in Hawkins makes it clear that an action had already been commenced. During the course of that litigation, an application had been brought to remove the trustees of an estate. In support of that application, an index of documents was sought. [ 46 ] The Appellant’s reliance on McDonald v McDonald Estate , 2012 BCSC 275 , is similarly misplaced. It, too, emerged out of ongoing litigation, unlike the facts of the present appeal. [ 47 ] Next, the Appellant cites Re Kathleen Palamarek , 2010 BCSC 1894 [ Palamarek ].

There, siblings were disputing who should comprise their mother’s estate committee. Critical to the Court’s conclusion was the ambiguity regarding the mother’s wishes: [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. (Emphasis added) [ 48 ] Citing the above excerpt in his factum, the Appellant seeks to draw a parallel with the present appeal: “ I t was emphasized in the Court’s reasoning that the proceedings were investigatory as opposed to adversarial , and that the interests of the mother were furthered in that the purpose of allowing the evidence was to ascertain her true desires” (italic emphasis in original, at para 56). [ 49 ] In my respectful view, however, there is no parallel with the present appeal. From the perspective of the Law Firm, the proceedings are adversarial.

This argument also sidesteps the Chambers judge’s express finding: the Appellant is “actually seeking … information regarding why Ms. Archibald decided to bequeath the entirety of the Condie Farmland to Mr. Gordon Archibald, rather than divide it equally between Gordon and Barrie” ( Chambers Decision at 10). Moreover, according to the facts that the Chambers judge found, there is no ambiguity as to the mother’s intention to prevent the Appellant from knowing her precise wishes.

Therefore, Palamarek is inapplicable to the present appeal. [ 50 ] Lastly, the Appellant argues the Chambers judge’s refusal to order that an index of documents be provided runs contrary to Hryniak , regarding access to justice. The Appellant contends that he should not be required to commence separate legal proceedings in an effort to obtain a list of documents. But, with respect, the Appellant must still show a basis in law to obtain disclosure of documents, which the Chambers judge found were not producible to him.

Access to justice, a guiding principle in the administration of justice, is significant but its application to the present appeal does not stretch to the point that the Appellant wishes it would. Simply put, he has not demonstrated how the Chambers judge erred by not ordering the Law Firm to disclose the documents in its possession (or a list of documents in its possession). [ 51 ] It should be noted that the Law Firm, in its factum, has candidly provided a global description of the documents that it has not

disclosed: 90. In the present case, the following documents have not been disclosed: file (or files) concerning consultations with Margaret that took place after the execution of her 2009 Will; all solicitors working notes, including entries of attendances, inter-office memoranda, entries in diaries, office journals and books of account; documents provided by the client to her solicitor under express instructions to maintain confidentiality; and a Power of Attorney Document.

It is not readily apparent that these documents concern the drafting of the 2009 Will. [ 52 ] In any event, the Chambers judge did not foreclose the possibility that the documents would be disclosable in another forum: “It may be the case, as Kanuka has suggested, that if the Appellant launches a specific action, the relevancy of the documents may be determined with precision and the propriety of disclosure of those documents may be reconsidered” ( Chambers Decision at 15). [ 53 ] Thus, this aspect of the Appellant’s appeal fails as well. VIII. Conclusion [ 54 ] The appeal is dismissed.

The respondent Law Firm will have its costs in the usual way from the Appellant. There is no order of costs for or against Mr. Gordon Archibald. “Jackson J.A.” Jackson J.A. I concur. “Jackson J.A.” for Herauf J.A. I concur. “Schwann J.A.” Schwann J.A.