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PROCEEDINGS - Evidence - Production of documents

Tuesday, December 11, 2018 @ 8:36 AM  


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Appeal by the Co-Executor of the Archibald Estate from refusal of documentary production. The appellant sought to enforce a verbal agreement to reconcile conflicts between the 1977 Holograph Will and the 1986 printed Will of the Testator's late husband, through the Testator's own 2009 Will. By way of originating application, the appellant sought an order for production of documents pertaining to the execution of certain testamentary dispositions. The respondent law firm that had acted for the testator resisted production on the basis the documents sought were subject to solicitor–client privilege and to a specific assertion of confidentiality imposed upon the firm by the testator. The chambers judge refused production, citing solicitor-client privilege, and finding that no exceptions to privilege applied, including that of a joint retainer involving the Testator and the appellant. To the extent that the documents sought included solicitor's notes, the chambers judge found they were not producible, as they had been prepared for the benefit or protection of the solicitors. The Executor appealed.

HELD: Appeal dismissed. The problematic approach to seeking production by way of originating application was not objected to at first instance. A doctrinal approach that resisted access to the Court of Queen’s Bench on technical or procedural grounds only, in such circumstances, was inconsistent with the modern approach to access to justice and litigation economy. The Court of Appeal thus considered the substantive merits of the appeal. The chambers judge's finding that the appellant and Testator had not jointly retained the law firm was supported by the evidence, particularly evidence that the Testator had specifically asked the law firm not to disclose information regarding preparation of her Will. Common interest privilege was not available to compel disclosure of documents that would otherwise be privileged in the circumstances as they existed here. If the appellant brought a specific action, the relevancy of the documents could be determined with precision with the possibility of reconsideration of the propriety of disclosure.

Archibald Estate v. Archibald, [2018] S.J. No. 420, Saskatchewan Court of Appeal, G.R. Jackson, M.J. Herauf and L.M. Schwann JJ.A., November 1, 2018. Digest No. TLD-December102018003