Is Social Media Relevant in Court?

Production of Social Media Documents

Almost all trial lawyers scour social media such as Facebook to find out more about the opposing counsel and parties and it is absolutely amazing what can frequently be found that is highly relevant to the court case. Even more amazing is the police in checking out social media even on occasion find incriminating statements by the likes of Hells Angels members – “loose lips sink ships” certainly does  apply in the age of narcissism and entitlement.”

If documents are on social media that are relevant to the court case, the opposing counsel can apply to court to have them produced under the rules of court and in particular Rule 7-1(14) .

This was done in Cui v Metcalfe 2015 BCSC 1195 where the plaintiff had 3600 hundred photos and videos of herself that could be relevant to the court action but the judge exercised his discretion and ordered some disclosure but not all.

The Law

In Fric v. Gershman, 2012 BCSC 614, Master Bouck dealt with an application in an action arising from a motor vehicle accident. She helpfully reviewed the earlier cases considering applications for production of photographic evidence on social media sites. She distinguished those cases in which disclosure was ordered from those in which it was not. She concluded, at para. 26, that the factor which distinguished the cases was whether the plaintiff claimed physical injuries arising from an accident as opposed to cognitive or psychological injuries. She said:

When physical impairment is alleged, the relevancy of photographs showing the plaintiff engaged in activities that require some physical effort seems rather clear.

[16]  In Fric, Master Bouck concluded that some of the plaintiff’s photographs ought to be disclosed. In para. 55 of her reasons, she makes it clear that she is ordering the disclosure under Rule 7-1(14), at the second stage of disclosure contemplated in the new Rules.

[17]  An order under Rule 7-1(14) follows counsel engaging in the demand and response process contemplated in Rules 7-1(10) to (13), during which the parties’ positions are clarified. As described by Justice Voith in XY, LLC v. Canadian Topsires Selection Inc., 2013 BCSC 584:

[22] The salutary objects of Rule 7-1(10)-(14) are many and varied. Several of these objects were identified by Justice Fitch in Lit v. Hare, 2012 BCSC 1918:

[67] The Rule is designed to promote dialogue between the parties, informal resolution of document production disagreements where that is possible and, where it is not, targeted litigation that focuses on those well-defined issues that remain contentious. The Rule operates to restrain the impulse to litigate document production issues as a course of first resort where those issues might be resolved through discussion, including by requiring the parties to articulate and defend their respective positions. In my view, the Rule is also designed to facilitate the adjudicative process by narrowing the issues and argument and particularizing, to the extent possible, the documents or categories of documents sought before an application is made. As Master Bouck observed in Balderston, at para. 29, in the context of the SCCR:

The intent of Rule 7-1(11) is to inform the opposing party of the basis for the broader disclosure request in sufficient particularity so that there can be a reasoned answer to the request. The Rule allows the parties to engage in debate or discussion and possibly resolve the issue before embarking on an expensive chambers application.

[23] To the various positive functions that were described by Justice Fitch and that are fostered by Rule 7-1(10)-(14), I would add that the exchange of correspondence which is required to take place between counsel under the Rules, and which inevitably forms a part of the application record, will often be extremely useful to the chambers judge or master who hears the production application. That correspondence serves to explain and crystallize the respective positions of the parties. In addition, the process described by Justice Fitch – discussion between counsel and winnowing the proper scope of expanded production – is consistent with the overarching goal of proportionality under the Rules

Admissibility of Non Disclosed Documents

Admissibility of Non Disclosed Documents

Tran v Kim le Holdings Ltd 2011 BCSC 1463 dealt with the circumstances where the court will exercise its discretion to admitted into evidence documents that were not listed on a parties list of documents. During that trial a party had attempted to cross examine an opposing party with the document that had not been listed on the examiners list of documents.

Rule 7‑1(21) pertains and  reads as follows:

“Unless the court otherwise orders, if a party fails to make discovery of or produce for inspection or copying a document as required by this rule, the party may not put the document in evidence in the proceeding or use it for the purpose of examination or cross-examination.”

[18] Even if the document has not been listed, as it ought to have been, it is still necessary for me to exercise my discretion. That discretion is governed by three Court of Appeal cases:  Stone v. Ellerman, decided June 24, 2009; Dykeman v. Porohowski, 2010 BCCA 36, decided January 26, 2010; and Cahoon v. Brideaux, 2010 BCCA 228, decided May 11, 2010.

[19] Both Cahoon and Dykeman refer to Stone. Cahoon does not, however, refer to Dykeman, even though both Cahoon and Dykeman are cases involving documents generated by the party who was to be cross-examined on them. What is clear, however, from these cases is that my discretion has to be exercised on the basis of the following principles:

(a) whether there is prejudice to the party being cross-examined ‑‑ in this case, of course, it is a witness who is being cross-examined, but the relevant prejudice is to the defendants;

(b) whether a reasonable explanation of the party’s failure to disclose has been provided;

(c) whether excluding the document would prevent the determination of the issue on its merits; and

(d)whether, in the circumstances of the case, the ends of justice require the documents to be admitted.

In this case, the court weighed the competing interests and decided to allow the document.

Discovery on Credibility Not Allowed

Discovery on Credibility Not Allowed

The issue of credibility in estate litigation is often raised as the stories between the conflicting parties are often so different that they are hard to reconcile in any way.

One of such credibility issues that sometimes occurs is the opposing counsel asking if the opposing party has a criminal record.

It is not permitted to ask questions relating only to credibility or have documents produced for the same purpose as to allow such would encourage ” fishing expeditions”

[24] The plaintiff has referred to Sandhu (Guardian ad litem of) v. Philipow (1996), 1996 CanLII 2368 (BC SC), 24 B.C.L.R. (3d) 78, 49 C.P.C. (3d) 317 (S.C.), in which the plaintiffs sought abstracts of the defendants’ driving records for the purpose of determining whether the defendants had been convicted of any offences arising out of the accidents in question or any other offences. The application was denied because whether the defendants had been convicted was a collateral issue going only to credibility. The plaintiff also refers to Stathis v. Jones, Gable & Co., [1982] B.C.J. No. 1337 (S.C.) for the same principle: discovery on the issue of credibility is not permitted. There is no dispute with the principles set out by these cases, but they do not assist the plaintiff as the medical issue in this case relates to the reliability of his memory which is not a collateral issue here.

See also:  Roberts v. Singh et al, 2006 BCSC 906

[11] The first question before me deals with whether or not these records, as sought by the defendants, are relevant and thereby produceable when they deal only with the issue of credibility.  This issue was addressed by Master Horn in the case of Sandhu (Guardian ad liten of) v. Philipow, [1996] B.C.J. No. 1113.  In that case Master Horn was dealing with a request that the Superintendent of Motor Vehicles be compelled to furnish the plaintiffs with an abstract of the driving records of the defendants in the action.  Master Horn, at paragraph 8 of his decision says as follows:

The issue whether a witness has been convicted or not is a collateral issue which goes to credibility only (see Clarke v. Holdsworth (1967) 62 W.W.R. 1 (S.C.)).  It is well established that the credibility of a party or of a witness is not a matter in issue in an action.  The credibility of a party is not a matter which is examinable on discovery (see M.(A.) v. Ryan (1994) 1994 CanLII 6417 (BC CA), 98 B.C.L.R. (2d) 1 (B.C.C.A.); Union Bus Sales v. Dueck on Broadway Ltd. (1958) 24 W.W.R. 644 (B.C.C.A.).  The document which plaintiff’s counsel seeks from the Superintendent is not relevant if it relates to credibility only.

[12] Although Master Horn went on to consider whether or not he could compel by court order the Superintendent to do something which by statute he had discretion not to do, that in my view, in no way weakens the statement of law which is reflected in ¶ 8 of Master Horn’s reasons.

[13] Credibility is a collateral issue.  In this regard the defendants already have the evidence of the plaintiff given at his examination for discovery.  The file material sought by the defendants in their Notice of Motion is in my respectful view irrelevant and accordingly I decline to order its production.

And:  Zecher v. Josh, 2011 BCSC 311 (CanLII),

[57] Based on the evidence presented, I agree with the plaintiff that the defendants are embarking on a fishing expedition for evidence from which an attack can be made on the plaintiff’s credibility. Such evidence will not be ordered produced under Rule 7-1 as credibility is not a material fact: Roberts v.Singh 2006 BCSC 906

Wills Variation and Discretion

Wills Variation and Discretion

One of the difficulties in advising clients in wills variation cases is that under the WESA provisions relating to the variance of wills, the trial judge has an absolute discretion in his or her award, if any, under the act. The five panel appeal decision of Kish v Doyle and Sobchak 2016 BCCA 65 dealt with the wills variation court  action of two parties who met late in life,  had children from previous marriages and did not wish to be treated as spouses.

In the course of their judgment, they examined  the fine line between the exercise of judicial discretion and the finding of facts , as well as the standard of review to the exercise should judicial discretion  on appeal.

Exercise of Discretion

[33]      The line between the exercise of judicial discretion and the finding of facts is not easy to enunciate. For purposes of this case, I respectfully adopt Lord Bingham’s description of judicial discretion given in The Business of Judging: Selected Essays and Speeches (2000):

According to my definition, an issue falls within a judge’s discretion if, being governed by no rule of law, its resolution depends on the individual judge’s assessment (within such boundaries as have been laid down) of what it is fair and just to do in the particular case. He has no discretion in making his findings of fact. He has no discretion in his rulings on the law. But when, having made any necessary finding of fact and necessary ruling of law, he has to choose between different courses of action, orders, penalties or remedies he then exercises a discretion. It is only when he reaches the stage of asking himself what is the fair and just thing to do or order in the instant case that embarks on the exercise of a discretion.

I believe this definition to be broadly consistent with the usage adopted in statutes. [At 36; emphasis added.]

Lord Bingham also explains that fact-finding is not “discretionary”, although some judges have described it as such. In his words:

… it is one thing to say that the responsibility of finding the facts is entrusted to a particular person or body, be he judge, arbitrator, official or public authority, and that such finding is to be treated as conclusive or virtually so. But it is quite another to describe that function as discretionary. It is, I suggest, nothing of the kind. In finding the facts the judge’s job is to consider all the conflicting evidence this wav and that and decide as best he can where the truth lies. It is very much the task performed, for instance, by the historian or the journalist as part of his stock in trade. The judges of course are constricted by formalities and rules of evidence which do not afflict them.

On the other hand, he has powers of compelling testimony which they would envy. It is none the less essentially the same function. Yet to say of a historian or journalist that he exercised a discretion in reaching conclusions of fact would, I suggest, be regarded as a libellous. The judge must exercise judgment, not discretion, in finding the facts, and it is usually the most difficult and often most exacting task which the civil trial judge has to undertake. [At 37; emphasis added.]

[34]      The standard of review applicable in Canada to the exercise of judicial discretion is found in Friends of the Oldman River Society v. Canada (Minister of Transport) [1992] 1 S.C.R. 3. There La Forest J. wrote for the majority:

Stone J.A. cited Polylok Corp. v. Montreal Fast Print (1975) Ltd., [1984] 1 F.C. 713 (C.A.), which in turn approved of the following statement of Viscount Simon L.C. in Charies Osenton & Co. v. Johnston, [1942] A.C. 130, at p. 138:

The law as to the reversal by a court of appeal of an order made by the judge below in the exercise his discretion is well-established, and difficulty that arises is due only to the application of well-settled principles in an individual case. The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations such as those urged before us bv the appellant, then the reversal of the order on appeal may be justified.

That was essentially the standard adopted by this Court in Harelkin v. University of Regina, [1979] 2 S.C.R. 561, where Beetz J. said, at p. 588:

Second, in declining to evaluate, difficult as it may have been, whether or not the failure to render natural justice could be cured in the appeal, the learned trial judge refused to take into consideration a major element for the determination of the case, thereby failing to exercise his discretion on relevant grounds and giving no choice to the Court of Appeal but to intervene. [At 76-7; emphasis by underlining added.]

This standard was affirmed and supplemented more recently in Penner v. Niagara (Regional Police Services Board) 2013 SCC 19, where the Court stated:

A discretionary decision of a lower court will be reversible where that court misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustice:

Elsom v. Elsom, [1989] 1 S.C.R. 1367, at p. 1375. Reversing a lower court’s discretionary decision is also appropriate where the lower court gives no or insufficient weight to relevant considerations: Friends of the Oldman River Society v. Canada …

[At para. 27.]

Public Policy Voids Homophobic Will

Public Policy Voids Homophobic Will

An Ontario judge in Royal trust Corp. of Canada v The University of Western Ontario et al 2016 ONSC 1143 has struck down a deceased doctor Priebe’s  attempt to set up university scholarships exclusively for white, single and heterosexual students, ruling the unusual stipulations clash with “public policy.”

Dr. Priebe’s will directed his trustee to set up bursaries for students in science but also directed that one should be to: Caucasian, male, single, heterosexual students”.

Another bursary was to a  ” hard -working, single, Caucasian ( white) girl who is not a feminist or lesbian”

Some male bursaries were peculiar such as the recipient should ideally demonstrate that” that are not afraid of manual work in the selection of their summer employment”.

The court deleted these bursary awards on the basis that they were discriminatory  of marital status, gender, race and sexual orientation , and thus were void on the ground of public policy and were deleted from the will.

The  Law

[9] The leading authority is Canada Trust Co. v. Ontario Human Rights Commission. 1990 CanLn 6849 at 22 (Ont. C.A.)

In that case, the indenture, under which the inter vivos trust was created, contained four recitals relating to race, religion, citizenship, anceshy, ethnic origin and colour with respect to the persons eligible to receive scholarships under the will. One recital stated: “The Settlor believes that the white race is, as a whole, best qualified by nature to be entrusted with the development of civilization and the general progress of the world along the best lines.”

[10] The Ontario Court of Appeal in Canada Trust Co. found the charitable trust to be void on the ground of public policy to the extent that it discriminated on the ground of race (colour, nationality, ethnic origin, religion and sex.

[11] As a guiding principle, the court in Canada Trust Co. stated that each trust must be evaluated on a case-by-case basis should its validity be challenged and cautioned that not all restrictions amount to discrimination and are therefore contrary to public policy. ethnic origin), religion and sex.

Enforcing Foreign Judgements

Enforcing Foreign Judgements

Ace Life Insurance Co. v Li 2015 BCSC 2533 held that a judgement against the defendant for $100,000 in Hong Kong as the personal representative of her late husband’s estate for court costs as the losing party in an action she brought on behalf of the estate, but stood to personally gain if she had won, could be enforced in British Columbia.

This area of law is known as Conflict of Laws and it can be very difficult to navigate- the facts of this case as such are limited to between Hong Kong and British Columbia and not every judgement from around the world will be enforced.

The Court held that the foreign judgments for court costs could be enforced in British Columbia for a few reasons including that to do so would not offend the basic morality of Canadians and the costs had been assessed on a legislated code after a fair trial.

The legal test for enforcing foreign judgements

[10] There was no dispute on the legal test to be applied when an application is made to enforce a foreign judgment. In Morguard Investments Ltd. v. The Savoye, [1990] 3 S.C.R. 1077, the Supreme Court of Canada considered whether an Alberta judgment could be enforced in the B.C. courts. It held that it could, and the Supreme Court of Canada adopted the “real and substantial connection” test. That test asks whether there is a real and substantial connection between the defendant in the domestic action and the subject matter of the litigation in the foreign judgment sought to be enforced. In 2003, the Supreme Court of Canada had occasion to consider whether the test should be applied to international judgments, and it held that it did in Beals v. Saldanha, [2003] 3 S.C.R. 416.

[11] Ms. Li does not deny that Ace Life Insurance has established the real and substantial connection test in this case. She says an exception applies and the judgment should not be enforced on that basis.

[12] In Beals, the court discusses the defences available to a domestic defendant at paras. 39 to 77, which include fraud, public policy and lack of natural justice. Ms. Li relies on public policy defence in this case.

[13] At paras. 71 to 77, Justice Major, on behalf of the majority of the court, sets out the scope of this defence. To be successful, the domestic defendant must establish that the foreign law is contrary to Canadians’ view of basic morality or where the outcome is so egregious it would shock the conscience or be unacceptable to reasonable Canadians. One example suggested would be enforcement of a judgment rendered by a court proven to be corrupt or biased.

[14] As noted by Justice Major, the public policy defence amounts to the impeachment of a foreign judgment by condemning the foreign law on which the judgment is based. He stressed it is not a defence to be granted lightly and ought to have narrow application.

[15] In that case, the plaintiff in the Canadian litigation was attempting to enforce an award it received from a jury in Florida. The Florida litigation involved a dispute about the sale of vacant land owned by residents in Ontario. The Ontario defendant chose not to actively defend the action and default judgment was entered. A jury awarded $210,000 in damages and $50,000 in punitive damages. The award was not appealed.

[16] The successful party in the Florida action then sought to enforce its award in Ontario. In the meantime, interest accrued such that by the time the case was heard in the Supreme Court of Canada, the award had grown to over $800,000. The majority of the Supreme Court of Canada concluded that although the amount involved was large, that did not on its own create a basis to refuse to enforce the judgment, and at para. 76 Justice Major stated:

Even if it could be argued in another case that the arbitrariness of the award can properly fit into a public policy argument, the record here does not provide any basis allowing the Canadian court to re-evaluate the amount of the award. The public policy defence is not meant to bar enforcement of a judgment rendered by a foreign court with a real and substantial connection to the cause of action for the sole reason that the claim in that foreign jurisdiction would not yield comparable damages in Canada.

[17] Ace Life Insurance submits it has easily met the test to enforce the Hong Kong judgment. It then asks this court to order the costs to be paid by Ms. Li in her personal capacity as opposed to as a representative of her husband’s estate.

Should the Hong Kong judgment be enforced?

[18] In relation to the first issue, Ms. Li argues that the award offends against the principles of proportionality and therefore would offend Canadians’ sense of basic morality. In my view this argument cannot succeed. It is akin to the argument that was raised and rejected in Beals that it was the amount of the award that would offend Canadians.

Mediation Procedurally Trumps Summary Trial

Mediation Procedurally Trumps Summary Trial

In an unreported decision Rennie v Rennie Estate et al, Vancouver Registry S148333, Master Taylor decided  to postpone the hearing of a summary trial until a mediation was held between the parties pursuant to a notice to mediate that the plaintiffs had served.

The court reviewed the law in detail and essentially held that unless something can be shown to override the mediation principle, the mediation principle takes first position over the setting of a summary trial, as summary trials can  reset while a mediation only occurs once. He further held that he did not see any prejudice to the parties in refusing the application that mediation be postponed until the summary trial had been heard.

This was the first time the case in relation to the postponement of a mediation in relation to a summary trial had been heard, and mediation prevailed, so far as it is to proceed first to that of a summary trial if both applications are served at about the same time.

The Law

[1] Rule 9-7 is the Rule governing the summary trials. I am told that it does not contemplate mediation, but that the mediation Regulations contemplates a summary trial. In particular, paragraph 25 of the Regulations:

On an application for an order under section 24(b), the court

(a) must take into account all of the circumstances, including

(i) whether a party intends to bring a motion for summary judgment, summary trial or for a special case…

[2]  24(b) provides:

A mediation session must occur within 60 days after the appointment of the mediator but not later than 7 days before the date of trial unless a later specified date…

(b) is ordered by the court.

[3] The applicant submits that he is making this application pursuant to s. 23(b) of the Regulations. It reads:

On an application, the court may direct that…

(b) the mediation be postponed to a later date on the terms and conditions, if any, that the court considers appropriate …

And (c) deals with exempting a party from attendance at a mediation.

[4] This appears to be the first case of its kind in British Columbia in dealing with a postponement. There are two cases that have been put before the court as authorities that deal with exemptions.

[5] One important case is that of Kent J. in Matsqui First Nation v. Canada (Attorney General) cited at [2015] B.C.J. No. 1720,2015 BCSC 1409. This is a case where the Matsqui First Nation Band was suing the Attorney General for Canada in respect of fishing rights on the Fraser River. The Crown was served with a notice to mediate which triggered a mandatory mediation process contemplated by the Regulations. The Crown argued that the case raises important issues that require resolution in court and which therefore makes mediation impracticable.

[6] That case was said to be a test case with broad implications because some of the issues to be determined were clarification of, and in this case a vindication of,

[13] At paragraph 17 of the Matsqui decision, Mr. Justice Kent said:

The Crown’s exercise of discretion and the exercise of its fisheries management licencing responsibilities, particularly in the context of the accommodation of Aboriginal titles; characterization as an Aboriginal title within the meaning of the s. 35(1) of the Constitution Act, the right to harvest salmon on the specified area of the Fraser River to satisfy Matsqui needs for food, ceremonial, and social purposes; and the highly controversial claim for damages, not so much in respect to the loss of salmon itself, but more so in respect of the existence and parameters of an alleged “cultural loss” arising from the infringement of the alleged right.

[11 ] Mr. Justice Kent went on to say at paragraph 8:

Once a Notice to Mediate is issued and served under the Regulation, it becomes mandatory for each party to a lawsuit to “engage in mediation”. The Regulation requires attendance of the parties at a mediation session, if not in person, then by way of a representative who must “have full authority to settle, or have access at the earliest practicable opportunity to a person who has… full authority to settle, on behalf of that participant”.

He goes on at paragraph 9:

Section 23 of the Regulation contemplates applications to court for directions respecting the terms or conditions on which a mediation might proceed, the timing and postponement of same, and the exemption of parties from attendance where the same would be “materially impracticable or unfair”.

[12] Justice Kent canvassed a case that we know as Le Soleil, but referred to as Executive inn inc. v. Tan, 2008 BCCA 93, and he also canvassed an Alberta Queen’s Bench decision, IBM Canada Limited v. Kossovan. He said the Kossovan case also made various observations about the alternative dispute resolution process which may be opposite here. At paragraph 39 of that decision found at 2011 ABQB 621, he said:

It is a fallacy to think that the outcome of a [mediation] will always result in a substantial compromise to one’s initial position. While one of objects of dispute resolution is to get both parties to “move” from their Initial positions to one upon which they can mutually accept, the ultimate objective is achievement of a judicious outcome that all parties can live with, put behind them and move on.

However, after participating in dozens of mediations in more than 30 years of practice at the bar before joining the bench, I agree with and endorse the observations made in the Kossovan case.

He went on to say at paragraphs 18 and 19:

[18] The beauty of mediation lies in its confidentiality and flexibility. With the assistance of a skilled mediator, the parties are free to speak to each other directly and to frankly express their concerns and interests without fear of prejudicing the litigation should the matter not settle.

That is to be encouraged. Empathy and apology can and often does play a powerful role. Seemingly intractable positions become less so.

The legal issues framed in the pleadings frequently do not reflect the real interests or concerns motivating the litigants. Creative remedies not available to the court can be forged to bridge differences.

Important relationships can be repaired.

[19] In this case, the Matsqui seek declaratory relief respecting a perceived aboriginal right protected and preserved by the Constitution. This is not the sort of remedy that is readily available in a mediation process. They undoubtedly know this, yet they have initiated the mediation nonetheless. Presumably they believe there is some basis for settling the claim available. It may have little to do with the formal legal relief sought in the litigation. One cannot help but ask what do the parties have to lose by confidentially exchanging and explaining perspectives and interests? If nothing else, perhaps some accommodations and efficiencies may be reached regarding evidence or other trial process that may reduce mutual inconvenience and cost.

At best, some sort of creative resolution in principle may emerge, albeit subject to later ratification by superiors if necessary. At worst, the case will simply proceed to trial in a couple months’ time with an interim “loss” of one or two days’ effort.

[14] Similar sentiments were expressed in Executive Inn Inc. v. 688571 British Columbia Ltd., a decision of our Court of Appeal, [2008] B.C.J. No. 429 and 2008 BCCA 93 and 77 B.C.L.R. (4th) 309, where in that case, the court at paragraph 17 said:

It is important to note that mediation undertaken pursuant to the Regulation is in the context of ongoing litigation. The mediation is an adjunct of a proceeding for which the court is responsible. I consider that s. 23 was enacted to ensure that a court in an appropriate case would be endowed with a broad power to make orders to ensure the efficacy of the mediation process. In the majority of cases, I would expect that the mediation process would proceed, as most do, without the necessity for any intervention by the court. However, in cases where the intervention of the court is thought requisite, s. 23 endows the court with a broad jurisdiction to make the orders necessary to ensure the mediation process is both effective and fair.

I consider s. 23 might be described as in the nature of a broad discretionary provision, designed to be utilized only when necessary to assist in the mediation process. As I noted earlier, I should think the large.majority of mediation proceedings would carry forward without the necessity of court intervention. 1 do not consider that in making the order she did, the chambers judge exceeded her jurisdiction. I would sustain the order and dismiss this appeal.

That order was for the multi-party litigation process to engage in mediation where it was thought to be completely intractable.

[15] The applicant says that, in this particular case, given the affidavits of the doctors and the lawyers involved and the examination of the various parties, he is confident that the matter would only take one day and that the issue could easily be resolved in relation to the issue of competence and it may also be of great assistance to determining what properties are part of the estate for the wills variation action. Counsel for the respondent in this case suggests that one day is not sufficient time for the hearing of this matter. Likely three days or more would be more appropriate, especially since a 10-day trial has been set for the 26th of September, 2016.

[16] So, really, we have two positions. One is that there is unassailable evidence on behalf of the applicant for the postponement that would be used at the summary trial versus the mediation process which the parties say is an important step in the litigation. So which takes precedence, the summary trial or the mediation process?

[17] The decisions in Executive inn Inc. by Madam Justice Dickson, who was the chambers judge, and the Court of Appeal in the reasons I just quoted from at paragraph 17, as well as the reasons of Mr. Justice Kent in Matsqui First Nation both dealt with the issue of exemption whereas the case before this court today is postponement.

[18] Notwithstanding that this is a case of postponement, I think the principles enunciated in the cases I have referred to are important principles and I think, in the circumstances, unless something can be shown to override the mediation principle, I think the mediation principle takes first position over the setting of a summary trial.

 

Without Prejudice and Blanket Privilege

Without Prejudice and Blanket Privilege

Settlement negotiations are carried out in the world of litigation by the use of without prejudice offers of settlement that have what is known as blanket privilege in that they should not be disclosed to the court.

An exception to this general rule is a line of case authorities stating that a competing public interest that outways the public interest in encouraging settlement, such as where the privilege is used as a cloak for perjury, blackmail, or other unambiguous impropriety, will set aside the privilege.

A recent case in BC relating to same is Monumental Mining Ltd. v Balendran Chong & Bodi 2012 BCSC 389

The Plaintiff  took action for damages against a law firm and its clients arising out of defamation .

The Defendants proposed an offer to settle “without prejudice.”

 One letter warned that if settlement proposal was not accepted, the law firm’s clients could bring action against plaintiff alleging fraud and other misdeeds and could inform markets of alleged misconduct.

The  Plaintiff sought to admit the without prejudice settlement letters into evidence and the  Defendants argued that settlement letters were privileged under recognized class of settlement privilege and thus inadmissible.

The Court held that  Settlement privilege was a blanket protection that applied whether or not settlement negotiations succeeded, but there were exceptions to general rule — Litigation privilege did not attach to egregious threats.

The  Intent of reservation of rights was to put improper pressure on entities not involved in litigation .

The threat was of such character that public interest in its disclosure outweighed public interest in protecting settlement communications and thus the  settlement letters were admissible.

 

The Law

19. Settlement privilege is a blanket protection which applies whether or not settlement negotiations succeeded. In Middelkamp v. Fraser Valley Real Estate Board (1992), 71 B.C.L.R. (2d) 276 (B.C. C.A.), McEachern C.J.B.C. described the scope of the privilege at paras. 19-21:

19. I find myself in agreement with the House of Lords that the public interest in the settlement of disputes generally requires “without prejudice” documents or communications created for, or communicated in the course of, settlement negotiations to be privileged. I would classify this as a “‘blanket’, prima facie, common law, or ‘class'” privilege because it arises from settlement negotiations and protects the class of communications exchanged in the course of that worthwhile endeavour.

20. In my judgment this privilege protects documents and communications created for such purposes both from production to other parties to the negotiations and to strangers, and extends as well to admissibility, and whether or not a settlement is reached. This is because, as I have said, a party communicating a proposal related to settlement, or responding to one, usually has no control over what the other side may do with such documents. Without such protection, the public interest in encouraging settlements will not be served.

21. I recognize that there must be exceptions to this general rule. An obvious exception would be where the parties to a settlement agree that evidence will be furnished in connection with the litigation in which the application is made. In such cases, the public interest in the proper disposition of litigation assumes paramountcy and opposite parties are entitled to know about any arrangements which are made about evidence. Other exceptions could arise out of such matters as fraud, or where production may be required to meet a defence of laches, want of notice, passage of a limitation period or other similar matters which might displace the privilege. As we did not have argument on these matters I prefer to say nothing further about them.

20. In Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada (2005), 2005 BCCA 4 at paras. 17-20, 40 B.C.L.R. (4th) 245 (B.C. C.A.), Finch C.J.B.C. expanded on the exceptions to blanket privilege:

[17] In Middelkamp, supra, Chief Justice McEachern said there must be exceptions to the blanket privilege for settlement communications. Notably, he referred to the proper disposition of litigation (para. 20).

[18] In my view, Middelkamp did not close the door on what might constitute a valid exception to the blanket privilege (see reviews of types of exceptions to the rule in Berry v. Cypost Corp. (2003), 43 C.P.C. (5th) 275, 2003 BCSC 1827, and Unilever plc v. The Proctor & Gamble Co., [2000] 1 W.L.R. 2436 (C.A.)).

[19] However, the test for discharging the burden to establish an exception should not be set too low. The public policy behind settlement privilege is a compelling one. It is so compelling that even threats arising in the context of settlement negotiations may not justify an exception: Unilever, supra at p. 2449-2450.

[20] To establish an exception in this case, the defendant must show that a competing public interest outweighs the public interest in encouraging settlement. An exception should only be found where the documents sought are both relevant, and necessary in the circumstances of the case to achieve either the agreement of the parties to the settlement, or another compelling or overriding interest of justice.

Lawyer Solicitor Client Privilege

Lawyer Solicitor Client Privilege

With very rare exceptions, a lawyer must never disclose communications or instructions between the lawyer and the client without the express permission of the client, as such communications are protected by solicitor client privilege. The privilege continues after death and is assumed by the executor or administrator of the estate.

Lawyers are the only profession that cannot be compelled to breach this privilege either by court order or interrogation. Other professions and institutional  records are routinely ordered by the court to be produced in litigation but it is relatively rare that a lawyers file will be compelled to be produced unless the privilege has been waived by conduct or consent has been provided.

The law relating to solicitor and client privilege is well known and set forward clearly in Smith v. Bell, [1968] S.C.R. 664 at 671:

It is rather astounding that Mr. Schreiber should be subpoenaed to give evidence on behalf of the defendants as against his former clients and that he should produce his complete file including many memoranda and other material all of which were privileged as against the plaintiffs and whether the plaintiffs’ counsel objected or not that he should be permitted to so testify and so produce without the consent of the plaintiffs being requested and obtained.

Lord Chancellor Eldon said, in Beer v. Ward (1821), Jacob 77, 37 E.R. 779, at p. 80:

…it would be the duty of any Court to stop him if he was about to disclose confidential matters…the Court knows the privilege of the client, and it must be taken for granted that the attorney will act rightly, and claim that privilege; or that if he does not, the Court will make him claim it.

Because the solicitor owes to his former client a duty to claim the privilege when applicable, it is improper for him not to claim it without showing that it has been properly waived. Especially is this so when, as here, the circumstances are such as to make it most unlikely that a waiver would be given. Also, because it is improper to induce a breach of duty, I have serious doubts about the propriety of putting to a solicitor questions that involve the disclosure of confidential information without first bringing in evidence of a proper waiver. In any case, because the client’s privilege is a duty owed to the Court, no objection ought to be necessary and the evidence in violation of the privilege should not be received.

Solicitor Client Privilege and the Will File

Solicitor Client Privilege Upheld By Highest Court

Solicitor client privilege and the will file can often end up in a tug of war between the executor upholding a claim of privilege after the death of the estate deceased, and beneficiaries who want to see the lawyers notes and other file contents of the same deceased.

The decision of Chang v. Lai Estate 2014 BCSC 128 discusses these competing principles in the context of the advice re a   wills variation action was also in the same file as advice and documentation relating to the administration of the estate.

The court held that solicitor client privilege should apply where the beneficiaries are in an adversarial relationship with the executor. Solicitor client privilege will remain in place to preserve the confidentiality of those communications. There must be a joint for common interest before the court will entertain disclosing such communications, as otherwise they will remain privileged.

[16] It is well established that a beneficiary has a proprietary interest in and a right to production of any document relating to advice sought and obtained by an executrix or trustee in connection with the administration of an estate. The executrix cannot claim solicitor-client privilege over such documents because they have a commonality of interest with the beneficiaries in the administration of the estate. The advice taken by the executrix is for the benefit of all beneficiaries under the will. There is no need to protect solicitor-client communications from disclosure because the beneficiaries and the executrix have a joint interest in the advice: Re Ballard Estate at p. 354. The same principle applies to legal opinions the executrix obtains regarding the proper administration of the estate. No solicitor-client privilege applies because the legal opinion sought by the executrix was to further the interests of the beneficiaries under the will: Re Ballard Estate at p. 354.

[17]         The beneficiary is not, however, entitled to production of all communications between legal counsel and the executrix. Where there is an adversarial relationship between a trustee and a beneficiary, there is no “joint interest” that compels disclosure of communications that would normally be protected by solicitor-client privilege. As Lederman J. says in Re Ballard Estate at p. 354:

… there is no need to protect the solicitor-client communication from disclosure to those very persons who are claiming under the estate. The communications remain privileged as against third parties who are strangers or are in conflict with the estate, but as was stated in Stewart v. Walker, supra, not those who are claiming under the estate. And that is because the trustee and beneficiary have a joint interest…

[18]         The requirement for a joint or commonality of interest was recognized in MacPherson, where Humphries J. says at para. 18:

Both sides cited cases which stand for the same basic proposition:  A beneficiary has a proprietary interest in and is entitled to production of documents relating to advice sought and obtained by a trustee in connection with the administration or management of, for instance, a pension plan, or an estate (see Froese v. Montreal Trust Co. of Canada [1993] B.C.J. No. 1529 (S.C.), aff’d [1993] B.C.J. No. 1847 (C.A.); Re Ballard Estate [1994] O.J. No. 2281 (Gen. Div.); Cooke et al v. Canada Trust  (Van. Reg. No. S011763, October 22, 2004; leave to appeal granted); Merritt v. Imasco Enterprise Inc. [1992] B.C.J. No. 2011; Thomas v. Secretary of State for India in Council (1870) 18 W.R. 312 (Ch.)), but not to documents that arise in the course of an adversarial relationship between the trustee and beneficiary.

[19]         There are clearly conflicting principles in this case. On the one hand, it is of the utmost importance to protect solicitor-client communications from disclosure. The law has consistently upheld the confidential nature of such communications and strictly construed the circumstances that may be regarded as an implicit waiver of the privilege. On the other hand, the beneficiaries of a trust are entitled to production of documents that fall broadly within the category of administration of the estate.

[20]         Balancing these conflicting principles, I find that the issue in this case must be resolved in favour of the plaintiffs. The underlying basis for exempting from solicitor-client privilege those documents that relate to advice sought in connection with the administration of the estate is the joint or common interest of the trustee and the beneficiary. It follows that where the beneficiary is in an adversarial relationship with the executrix, solicitor-client privilege remains in place to preserve the confidentiality of those communications. In this case the defendants do not have a common or joint interest with the plaintiffs regarding the wills variation action. Their interests are clearly in conflict due to the variation of the will sought by the plaintiffs. Thus legal advice sought and received for that purpose remains privileged.

[21]         Furthermore, the fact that the plaintiffs retained the same legal counsel to act for them in regard to the wills variation action and the administration of the estate does not amount to a waiver of solicitor-client privilege. Regardless of whether Mr. Takahashi was in a conflict of interest position (and in light of the practice in estate law this is questionable), the plaintiffs cannot be taken to have waived solicitor-client privilege because he acted in both capacities. The fact that Mr. Takahashi kept the same file for both the wills variation litigation and the administration of the estate is unfortunate; however, it does not evidence a waiver of solicitor-client privilege by his clients qua plaintiffs in the wills variation action.

[22]         For these reasons, I dismiss the defendants’ application for production of the remaining documents from Mr. Takahashi’s file”