Braden v. Knisley Estate, (2010) 361 Sask.R. 130 (QB)

• Judge: Popescul, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 15, 2010
• Jurisdiction: Saskatchewan
• Citations: (2010), 361 Sask.R. 130 (QB);2010 SKQB 335

Braden v. Knisley Estate (2010), 361 Sask.R. 130 (QB)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. SE.078

Patricia Braden (plaintiff/applicant) v. Douglas Grant Knisley, Wanda Ann Knisley and Douglas Grant Knisley as personal representative of the estate of Rodney Davis Knisley (defendants/respondents)

(2008 Q.B.G. No. 913; 2010 SKQB 335)

Indexed As: Braden v. Knisley Estate

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Popescul, J.

September 15, 2010.

Summary:

The plaintiff and one of the defendants applied for orders relating to production of documents and examination for discovery.

The Saskatchewan Court of Queen's Bench determined the applications.

Evidence - Topic 4166

Witnesses - Privilege - Communications - General - Offers of settlement or settlement negotiations - [See both Practice - Topic 4261 ].

Evidence - Topic 4258

Witnesses - Privilege - Lawyer-client communications - Waiver - By inadvertent or partial disclosure - [See Practice - Topic 4577 ].

Practice - Topic 4194.1

Discovery - Examination - General - Witness non-responsive - The defendant sought an order requiring the plaintiff to answer five series of questions that were refused during examination for discovery on the basis that they were "asked and answered" - The Saskatchewan Court of Queen's Bench ordered the plaintiff to provide proper, full and complete answers to the refused questions together with answers to any questions that might arise as a result of the plaintiff's responses to the refused questions - The five "refusals" followed a similar pattern - A question was asked - An imprecise answer was provided - Further questions of clarification were asked and were met with further imprecise responses - Before counsel could obtain a definitive response, counsel for the plaintiff objected on the basis of "asked and answered" - An examination for discovery was in the nature of cross-examination - Counsel for the party being examined was not to interfere except where it was clearly necessary to resolve ambiguity in a question or to prevent injustice - Rigid limitations rigidly applied could negatively affect the right to a proper examination for discovery - That was what occurred here - See paragraphs 42 to 55.

Practice - Topic 4261

Discovery - Examination - Range of - Privileged topics or communications - Knisley was the executor of his father's estate - Knisley's sister, Braden, commenced an action against Knisley and the estate, requesting, inter alia, a full accounting - Knisley, through his solicitor, provided a written accounting of the estate administration - This was marked as an exhibit in Knisley's examination for discovery - Braden sought to ask Knisley questions regarding the document - Knisley objected on the basis that the document was settlement privileged - The Saskatchewan Court of Queen's Bench held that the document was not settlement privileged and that Knisley was to answer relevant and appropriate questions pertaining to it - Although a litigious dispute was in existence or within contemplation, the communication was not made with the express or implied intention that it would not be disclosed to the court in the event negotiations failed - Although there was a "proposal" contained on the last page of the letter, the mere fact that there was an "offer" contained in the letter did not, in and of itself, make the letter settlement privileged - The purpose of the communication was not to attempt to effect a settlement - The document appeared to be primarily intended to convey information and "clear up misunderstandings" by explaining circumstances from Knisley's point of view, after which a proposal was made - See paragraphs 30 to 36.

Practice - Topic 4261

Discovery - Examination - Range of - Privileged topics or communications - Knisley was the executor of his father's estate - Knisley's sister, Braden, commenced an action against Knisley and the estate, requesting, inter alia, a full accounting - Knisley, through his solicitor, provided a "draft Executor's Statement of Accounts" accompanied by a letter that explained Knisley's version of events and made a specific offer to settle - The documents were marked as exhibits in Knisley's examination for discovery - Braden sought to ask Knisley questions regarding the documents - Knisley objected on the basis that they were settlement privileged - The Saskatchewan Court of Queen's Bench held that the documents were privileged and that Knisley was justified in refusing to answer questions pertaining to their contents - When the documents were sent, litigation was only 1.5 months away and was clearly contemplated - The documents' purpose was to "settle the matter" before it reached the litigation stage - The offer and the proposed settlement was marked "without prejudice" and, as such, was prima facie a negotiating document - The without prejudice label was consistent with the contents which appeared to be clearly created and communicated as part of a settlement process - See paragraphs 37 to 41.

Practice - Topic 4577

Discovery - What documents must be produced - Privileged documents - Attorney-client communications (legal advice privilege) - As part of pre-trial disclosure, the defendant disclosed to the plaintiff an invoice for legal services - The plaintiff requested production of the letter from the solicitor that accompanied the invoice - The defendant asserted solicitor client privilege - The Saskatchewan Court of Queen's Bench, having examined the letter, ordered its full disclosure - While the letter's primary purpose appeared to be to accompany and enclose the statement of account, there were aspects of the letter that might constitute the provision of legal advice - The letter did contain a communication that would be privileged - However, the defendant had waived the privilege "by implication" - Having made partial disclosure of the invoice, the interests of fairness and consistency dictated that full disclosure of the letter accompanying the invoice was required - The court noted that nothing would turn on "anything contained in this innocuous correspondence" - See paragraphs 19 to 29.

Practice - Topic 4585

Discovery - What documents must be produced - Privileged documents - Waiver - [See Practice - Topic 4577 ].

Cases Noticed:

Saskatchewan Government Insurance v. Medynski, 2007 SKQB 394, refd to. [para. 7].

SaskPower International Inc. et al. v. UMA/B&V Ltd. et al., [2009] 3 W.W.R. 373; 319 Sask.R. 144; 2008 SKQB 294, refd to. [para. 22].

Ontario (Attorney General) v. Information and Privacy Commissioner (Ont.) (2005), 197 O.A.C. 278; 251 D.L.R.(4th) 65 (C.A.), refd to. [para. 23].

Lac La Ronge Indian Band et al. v. Canada and Saskatchewan, [1996] 10 W.W.R. 625; 147 Sask.R. 257 (Q.B.), refd to. [para. 25].

Histed v. Law Society of Manitoba, [2008] 2 W.W.R. 189; 225 Man.R.(2d) 74; 419 W.A.C. 74; 2007 MBCA 150, refd to. [para. 33].

Costello and Dickhoff v. Calgary (City) (1997), 209 A.R. 1; 160 W.A.C. 1; 152 D.L.R.(4th) 453 (C.A.), refd to. [para. 33].

Authors and Works Noticed:

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), para. 14.207 [para. 32].

Wigmore on Evidence (3rd Ed. McNaughton Rev. 1961), vol. 8, pp. 635, 636 [para. 27].

Counsel:

Fred C. Zinkhan, for the plaintiff;

Eileen V. Libby, Q.C., for the defendant.

These applications were heard by Popescul, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following fiat on September 15, 2010.