Makhan et al. v. McCawley et al., (1998) 58 O.T.C. 283 (GD)

• Judge: Lax, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: February 19, 1998
• Jurisdiction: Ontario
• Citations: (1998), 58 O.T.C. 283 (GD)

Makhan v. McCawley (1998), 58 O.T.C. 283 (GD)

MLB headnote and full text

Temp. Cite: [1998] O.T.C. TBEd. AP.018

Kamla Makhan, Indriani Makhan, Sharmila Makhan, Ben Makhan, Tamara Sanowar-Makhan and Ariana Zeppieri-Makhan, an infant by her Litigation Guardian, Kamla Makhan (plaintiffs) v. Susan L. McCawley and Simmons, da Silva & Sinton (defendants)

(Court File No. 97-CU-11757)

Indexed As: Makhan et al. v. McCawley et al.

Ontario Court of Justice

General Division

Lax, J.

March 23, 1998.

Summary:

Zeta Makhan gave the defendant solicitors instructions to proceed with a divorce and equalization proceedings. She also instructed them to draw a will benefiting her children and a grandchild (the plaintiffs). She died before a will was executed and equalization proceedings were commenced. The plaintiffs, as disappointed beneficiaries, sued the defendant solicitors on the grounds that they negligently advised or failed to advise their mother so as to give effect to her testamentary intentions. The defendants claimed privilege over documents in their files relating to their retainer and communications with Zeta. The plaintiffs sought an order compelling disclosure of those documents. The defendants applied for summary judgement dismissing part of the claim alleging failures to sever Zeta's interest in jointly held properties, to change beneficiary designations on her investments and to commence equalization proceedings.

The Ontario Court (General Division) allowed the motion for production of the documents on the basis that, until Zeta's intentions were ascertained, neither the defendants nor Zeta's husband, had a privilege to waive. The court dismissed the motion for a partial summary judgment on the basis that there was a genuine issue for trial.

Practice - Topic 4577

Discovery - What documents must be produced - Privileged documents - Attorney-client communications - See paragraphs 1 to 3 and 13 to 16.

Practice - Topic 4577.1

Discovery - What documents must be produced - Privileged documents - Solicitor's files, notes, etc. - See paragraphs 1 to 3 and 13 to 16.

Practice - Topic 4585

Discovery - What documents must be produced - Privileged documents - Waiver - See paragraphs 1 to 3 and 13 to 16.

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - See paragraphs 1 to 12.

Cases Noticed:

Earl v. Wilhelm et al. (1997), 160 Sask.R. 4 (Q.B.), refd to. [para. 5].

Hickson v. Wilhelm - see Earl v. Wilhelm et al.

Whittingham v. Crease & Co., [1978] 5 W.W.R. 45 (B.C.S.C.), refd to. [para. 5].

Heath v. Ivens, McGuire, Souch & Ottho (1991), 57 B.C.L.R.(2d) 391 (S.C.), revd. (1993), 77 B.C.L.R.(2d) xxxi (C.A.), refd to. [para. 5].

Smolinski v. Mitchell (1995), 10 B.C.L.R.(3d) 366; 8 E.T.R.(2d) 247 (S.C.), refd to. [para. 5].

Ross v. Caunters, [1979] 3 All E.R. 580 (Ch. D.), refd to. [para. 6].

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 6].

McAlister (Donoghue) v. Stevenson - see Donoghue v. Stevenson.

White et al. v. Jones et al., [1995] 1 All E.R. 691; 179 N.R. 197 (H.L.), refd to. [para. 7].

Carr-Glynn v. Frearsons (a firm), [1997] 2 All E.R. 614 (Ch. D.), dist. [para. 8].

Clarke v. Bruce Lance & Co. (a firm), [1988] 1 All E.R. 364 (C.A.), refd to. [para. 8].

Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R.(2d) 225 (Gen. Div.), refd to. [para. 12].

Goodman Estate v. Geffen (1991), 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81; 81 D.L.R.(4th) 211 (S.C.C.), refd to. [para. 13].

Ott, Re (1972), 24 D.L.R.(3d) 517 (Ont. Surr. Ct.), refd to. [para. 14].

Counsel:

I. Barmania, for the plaintiffs;

W.S. O'Hara, for the defendants;

J. Demaray, for Dr. Bernard Makhan.

These motions were heard on February 19, 1998, by Lax, J., of the Ontario Court (General Division), who delivered the following judgment which was released on March 23, 1998.