D.A. v. L.A., (2014) 420 N.B.R.(2d) 133 (CA)

• Judge: Drapeau, C.J.N.B., Deschênes and Quigg, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 06, 2014
• Jurisdiction: New Brunswick
• Citations: (2014), 420 N.B.R.(2d) 133 (CA);2014 NBCA 39

D.A. v. L.A. (2014), 420 N.B.R.(2d) 133 (CA);

    420 R.N.-B.(2e) 133; 1091 A.P.R. 133

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] N.B.R.(2d) TBEd. JL.040

Renvoi temp.: [2014] N.B.R.(2d) TBEd. JL.040

Brenda G. Noble, Q.C. and Mary-Eileen O'Brien (appellants) v. Denis Arsenault and Lise Arsenault (respondents)

(87-13-CA; 89-13-CA; 2014 NBCA 39)

Indexed As: D.A. v. L.A.

Répertorié: D.A. v. L.A.

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Deschênes and Quigg, JJ.A.

February 6, 2014.

Summary:

Résumé:

Parties in divorce proceedings sought disclosure of their former collaborative law process lawyers' (the lawyers) files. The parties had waived solicitor-client privilege. The lawyers resisted disclosure on the grounds of confidentiality and privilege.

The New Brunswick Court of Queen's Bench, Family Division, in a decision reported at (2013), 409 N.B.R.(2d) 219; 1062 A.P.R. 219, ordered disclosure. The lawyers appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Practice - Topic 4230

Discovery - Examination - Persons who may be examined - Nonparties - [See Practice - Topic 4604 ].

Practice - Topic 4574.8

Discovery - What documents must be produced - Privilege - Collaborative law process - Parties in divorce proceedings sought disclosure of their former collaborative law process lawyers' (the lawyers) files - The parties had waived "any and all" privilege - The lawyers resisted disclosure on the grounds of confidentiality and privilege - The motion judge found that class privilege applied to the collaborative family law process, but that all documents compellable under the Marital Property Act, the Divorce Act, the Federal Child Support Guidelines and the Rules of Court as well as documents produced to verify financial information were subject to disclosure and production - The New Brunswick Court of Appeal, in dismissing the lawyers' appeal, discussed the collaborative family law process and the role of the lawyers involved - The court concluded that, in New Brunswick, "the process of collaborative law is not defined in the Code of Professional Conduct for lawyers, the Rules of Court or any other legislation. Moreover, there is no standard contract for participants in a collaborative law process. The rights and obligations of the participants stand to be determined on the basis of the legally valid contractual arrangements they have reached." - See paragraphs 19 to 30.

Practice - Topic 4574.8

Discovery - What documents must be produced - Privilege - Collaborative law process - Parties in divorce proceedings sought disclosure of their former collaborative law process lawyers' (the lawyers) files - The parties had waived "any and all" privilege - The lawyers resisted disclosure on the grounds of confidentiality and privilege - The motion judge, in granting the parties' motion, stated, that "all communications, discussions, proposals whether written or oral, and documents created during the collaborative law process remain privileged, in the context of this current motion, except for the signed marriage contract itself". - The New Brunswick Court of Appeal disagreed with this statement - The court stated that, in New Brunswick, "there is no class privilege in the Collaborative Law Process for the benefit of the participating lawyers. In that regard, I will underscore the obvious: (1) this province does not have a long-standing history with collaborative law; (2) there is no provincial statute on point; (3) there is no Rule of Court directly on topic; (4) no provision in the Code of Professional Conduct for lawyers is specifically directed at collaborative law; and (5) no standard contract has been adopted. Before the existence of a privilege inuring to the lawyers could be judicially considered, a clear provision to that effect would have to be included in the Collaborative Law Contract." - See paragraph 46.

Practice - Topic 4574.8

Discovery - What documents must be produced - Privilege - Collaborative law process - Parties in divorce proceedings sought disclosure of their former collaborative law process lawyers' (the lawyers) files - The parties had waived "any and all" privilege - The lawyers resisted disclosure on the grounds of confidentiality and privilege - The motion judge found that class privilege applied to the collaborative family law process, but that all documents compellable under the Marital Property Act, the Divorce Act, the Federal Child Support Guidelines and the Rules of Court as well as documents produced to verify financial information were subject to disclosure and production - The New Brunswick Court of Appeal dismissed the lawyers' appeal - It was important to note the case's uniqueness - The lawyers were asserting a privilege against their former clients' interests - The privilege claim asserted here was "one that would allow collaborative law lawyers to disregard instructions from their clients and to deny them disclosure of relevant information and production of relevant documents in their former clients' files. It should go without saying that this claim of privilege to the benefit of the lawyers is prima facie objectionable." - See paragraph 39.

Practice - Topic 4574.8

Discovery - What documents must be produced - Privilege - Collaborative law process - Parties in divorce proceedings sought disclosure of their former collaborative law process lawyers' (the lawyers) files - The parties had waived "any and all" privilege - The lawyers resisted disclosure on the grounds of confidentiality and privilege - The motion judge found that class privilege applied to the collaborative family law process, but that all documents compellable under the Marital Property Act, the Divorce Act, the Federal Child Support Guidelines and the Rules of Court as well as documents produced to verify financial information were subject to disclosure and production - The New Brunswick Court of Appeal dismissed the lawyers' appeal - Before the existence of a privilege inuring to the lawyers could be judicially considered, a clear provision to that effect would have to be included in the collaborative law process contract - The lawyers relied on clause 10.4 of the contract, which addressed confidentiality, but that clause accorded rights and obligations to the parties, not the lawyers - The parties simply wanted disclosure of the information and production of the documents that were relevant to their dispute - These were documents that were the parties' property and which, under the Law Society of New Brunswick's Code of Professional Conduct, had to be returned to the parties when requested - No privilege stood in the way of the parties' discovery of communications, discussion, and proposals (whether written or oral) and documents created during the collaborative law process - See paragraphs 39 to 49.

Practice - Topic 4580

Discovery - What documents must be produced - Privileged documents - Documents prepared for purpose of settlement - [See all Practice - Topic 4574.8 ].

Practice - Topic 4604

Discovery - Production of documents by nonparties - When ordered - Parties in divorce proceedings sought disclosure of their former collaborative law process lawyers' (the lawyers) files - The parties had waived "any and all" privilege - The lawyers resisted disclosure on the grounds of confidentiality and privilege - The motion judge found that class privilege applied to the collaborative family law process, but that all documents compellable under the Marital Property Act, the Divorce Act, the Federal Child Support Guidelines and the Rules of Court as well as documents produced to verify financial information were subject to disclosure and production - The New Brunswick Court of Appeal dismissed the lawyers' appeal - Even though this was a collaborative family law case, the rules of court were in play, including rule 31.11(3), regarding making an order for production against a non-party, and rule 32.10, regarding obtaining information from a non-party - On the motion judge's findings of fact, the preconditions for an order for production under rule 31.11 and for an order under rule 32.10 were satisfied - See paragraphs 31 to 38.

Procédure - Cote 4230

Enquête préalable - Interrogatoire - Personnes susceptibles d'être interrogées - Non-parties - [Voir Practice - Topic 4230 ].

Procédure - Cote 4574.8

Enquête préalable - Documents à produire - Documents privilégiés - Démarche de droit collaboratif - [Voir Practice - Topic 4574.8 ].

Procédure - Cote 4580

Enquête préalable - Documents à produire - Documents privilégiés - Documents préparés en vue d'un règlement - [Voir Practice - Topic 4580 ].

Procédure - Cote 4604

Enquête préalable - Production de documents par des non-parties - Circonstances justifiant une ordonnance de production - [Voir Practice - Topic 4604 ].

Cases Noticed:

Veno v. United General Insurance Corp. (2008), 330 N.B.R.(2d) 237; 845 A.P.R. 237; 2008 NBCA 39, refd to. [para. 1].

Irving (J.D.) Ltd. v. Hughes and Astle - see/voir Hughes v. Astle et al.

Hughes v. Astle et al. (2010), 358 N.B.R.(2d) 49; 924 A.P.R. 49; 2010 NBCA 23 (C.A.), refd to. [para. 1].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 18].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 18].

LeBlanc v. Fundy Drywall Ltd. et al. (2014), 414 N.B.R.(2d) 339; 1075 A.P.R. 339; 2014 NBCA 2, refd to. [para. 18].

Baniuk v. Filliter et al. (2011), 381 N.B.R.(2d) 352; 984 A.P.R. 352; 2011 NBCA 110, refd to. [para. 18].

Webb v. Birkett et al. (2011), 499 A.R. 274; 514 W.A.C. 274; 2011 ABCA 13, refd to. [para. 22].

New Brunswick (Minister of Family and Community Services) v. W.A. (2002), 254 N.B.R.(2d) 153; 664 A.P.R. 153; 2002 NBCA 100, refd to. [para. 32].

H.C. v. New Brunswick (Minister of Family and Community Services) (2003), 263 N.B.R.(2d) 106; 689 A.P.R. 106; 2003 NBQB 196, refd to. [para. 33].

Sable Offshore Energy Inc. et al. v. Ameron International Corp. et al. (2013), 446 N.R. 35; 332 N.S.R.(2d) 1; 1052 A.P.R. 1; 2013 SCC 37, refd to. [para. 43].

Statutes Noticed:

Rules of Court (N.B.), rule 31.11 [para. 35]; rule 32.10 [para. 36].

Authors and Works Noticed:

Cameron, Nancy, Collaborative Practice in the Canadian Landscape (2011), 49:2 Fam. Ct. Rev. 221, pp. 224 to 226 [para. 28].

Fairman, Christopher M., A Proposed Model Rule for Collaborative Law (2005), 21:1 Ohio St. L. Disp. Resol. 73, p. 84 [para. 24].

Lande, John, Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in a New Model of Lawyering (2003), 64 Ohio St. L.J. 1315, p. 1322 [para. 20].

Moulton, Donalee, Collaborative Family Law and Mediation are Similar but Different (2002), 22 The Lawyers Weekly 5, generally [para. 20].

Osborne, Ann, The Shift Required of the Family Lawyer is from Zealous Representation to Problem Solving, Educating, Role Modeling and Facilitating (2005), 24 The Lawyers Weekly 34, generally [para. 21].

Schmitz, Cristin, Collaborative Lawyers Must Observe Same Standard as Family Law Litigators: Alta. C.A. (2011), 30 The Lawyers Weekly 38, generally [para. 20].

Uniform Law Commission, Committees, Collaborative Law Act, online <http://www.uniformlaws.org> [para. 27].

Wiegers, Wanda and Keet, Michaela, Collaborative Family Law and Gender Inequalities: Balancing Risks and Opportunities (2008), 46 Osgoode Hall L.J. 733, pp. 735 [para. 19]; 763 [para. 25].

Counsel:

Avocats:

Darren G. Blois, for the appellant, Brenda G. Noble, Q.C.;

Matthew R. Letson, for the appellant, Mary-Eileen O'Brien;

Marie-Claude Bélanger-Richard, Q.C., for the respondent, Denis Arsenault;

Brenda McMullen Brown, for the respondent, Lise Arsenault.

This appeal was heard on January 16 and February 6, 2014, by Drapeau, C.J.N.B., Deschênes and Quigg, JJ.A., of the New Brunswick Court of Appeal. The court rendered its judgment orally on February 6, 2014. On June 16, 2014, Quigg, J.A., delivered the following written reasons for judgment for the court in both official languages.