Schwartz Estate v. Kwinter et al., 2009 ABQB 128

• Judge: Clark, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 20, 2009
• Citations: 2009 ABQB 128;(2009), 459 A.R. 61 (QB)

Schwartz Estate v. Kwinter (2009), 459 A.R. 61 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. MR.044

Elaine Gayle Myron (plaintiff) v. Shelley Rae Kwinter, Alyse Schwartz and Justin Kwinter (defendants)

(0501 17525; 2009 ABQB 128)

Indexed As: Schwartz Estate v. Kwinter et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Clark, J.

February 26, 2009.

Summary:

The parties were engaged in a number of actions in an estate matter. The litigation regarding the validity of the deceased's will was effectively resolved by a case management judge. The only matter that remained outstanding was the question of costs. The case management judge allowed the parties to conduct examinations for discovery. During her examination for discovery, the defendant Schwartz objected to 33 items on the basis of solicitor/client or litigation privilege. The plaintiff applied for an order compelling Schwartz to answer the questions and requests for undertakings.

The Alberta Court of Queen's Bench dismissed the application.

Editor's note: there are a number of decisions related to these parties. For the Court of Appeal decision affirming this decision, see (2009), 460 A.R. 307; 462 W.A.C. 307.

Evidence - Topic 4254

Witnesses - Privilege - Lawyer-client communications - Waiver - General - The parties were engaged in a number of actions in an estate matter - The litigation regarding the validity of the deceased's will was effectively resolved by a case management judge - The only matter that remained outstanding was the question of costs - The case management judge allowed the parties to conduct examinations for discovery - During her examination for discovery, the defendant Schwartz objected to 33 items on the basis of solicitor/client or litigation privilege - Asserting that privilege was waived over all of the defendants' solicitors' files in this matter because the words "I consulted with my solicitors in this regard" established that the defendants were relying on legal advice to justify their course of conduct and to support their position on the costs issue, the plaintiff applied for an order compelling Schwartz to answer the questions and requests for undertakings - The Alberta Court of Queen's Bench dismissed the application - A mere reference to the receipt of legal advice did not constitute waiver - Waiver required not simply disclosing that legal advice was obtained, but pleading reliance on that advice - Further, where multiple parties to an action shared a solicitor, all shared in the resulting solicitor/client privilege - One party could not waive that privilege without the others' consent - The 33 items were properly objected to - The court refused to allow any "fishing expeditions" by the plaintiff.

Evidence - Topic 4256

Witnesses - Privilege - Lawyer-client communications - Waiver - Putting communication in issue - [See Evidence - Topic 4254 ].

Practice - Topic 4261

Discovery - Examination - Range of - Privileged topics or communications - [See Evidence - Topic 4254 ].

Practice - Topic 4264

Discovery - Examination - Range of - Fishing expeditions - [See Evidence - Topic 4254 ].

Cases Noticed:

R. v. McClure (D.E.), [2001] 1 S.C.R. 445; 266 N.R. 275; 142 O.A.C. 201, refd to. [para. 22].

O'Scolai et al. v. Antrajenda (2008), 447 A.R. 357 (Q.B.), refd to. [para. 23].

Olson (Stuart) Construction Inc. v. Sawridge Plaza Corp. et al. (1995), 176 A.R. 120; 34 Alta. L.R.(3d) 147 (Q.B.), affd. (1996), 193 A.R. 173; 135 W.A.C. 173 (C.A.), refd to. [para. 25].

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. 26].

Iozzo v. Weir et al. (2004), 365 A.R. 115; 2004 ABQB 259, refd to. [para. 27].

3557537 Canada Inc. et al. v. Howard et al. (2008), 467 A.R. 283; 2008 ABQB 586, refd to. [para. 29].

Moseley v. Spray Lakes Sawmills (1980) Ltd. et al. (1996), 184 A.R. 101; 22 W.A.C. 101; 39 Alta. L.R.(3d) 141 (C.A.), refd to. [para. 30].

Alberta (Treasury Branches) v. Ghermezian (1999), 242 A.R. 326; 1999 ABQB 407, refd to. [para. 31].

Counsel:

Ariel Z. Breitman, for the plaintiff;

S.H. Leitl and K.R. Seidenz, for the defendants.

This application was heard on February 20, 2009, by Clark, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of judgment on February 26, 2009.