Warde v. Slatter et al., (2016) 383 B.C.A.C. 40 (CA)

• Judge: Neilson, Goepel and Savage, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 30, 2015
• Jurisdiction: British Columbia
• Citations: (2016), 383 B.C.A.C. 40 (CA);2016 BCCA 63

Warde v. Slatter (2016), 383 B.C.A.C. 40 (CA);

    661 W.A.C. 40

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. FE.020

Naomi Elaine Warde also known as Naomi Elaine Slatter also known as Elaine Slatter (respondent/claimant) v. Slatter Holdings Ltd. (appellant/respondent) and Brian Grant Slatter and Fern Slatter (respondents)

(CA42545; 2016 BCCA 63)

Indexed As: Warde v. Slatter et al.

British Columbia Court of Appeal

Neilson, Goepel and Savage, JJ.A.

February 11, 2016.

Summary:

This appeal concerned the ongoing operations of the appellant, Slatter Holdings Ltd. (the "Company"), a corporate entity whose shares and assets might or might not be family property in the underlying family law proceeding. The order appealed required the Company to pay all of its funds into court pending agreement of the parties or further court order. See [2015] B.C.T.C. Uned. 219 and [2015] B.C.T.C. Uned. 826. The order appealed was founded on an alleged breach of a prior court order (the "Williams Order"). The Company denied that it had breached the Williams Order. It claimed that the Chambers judge failed to consider the proper test for the order that it pay its funds into court. The Company also appealed the Chambers judge's finding that it had waived solicitor-client privilege respecting certain banking transactions.

The British Columbia Court of Appeal allowed the appeal. The wife had sought a declaration that the Company had breached the Williams Order, citing rule 20-4(1) of the Supreme Court Family Rules. However, rule 20-4(1) did not authorize a party to seek a declaration by way of an interlocutory application. The wife had not brought the breach application as a contempt application under rule 21-7. Absent contempt proceedings, the Chambers judge should not have entertained the wife's application for a declaration or finding that the Company breached the Williams Order; there was no authority to make the order sought. The alleged breaches were properly characterized as findings. However, those findings should not have been set out in the court order. There was longstanding authority that orders did not include recitals of arguments or reasons. The real issue before the Chambers judge should have been whether the Company should be enjoined from the use of its assets pending trial. On appeal, the parties made submissions as to whether a Mareva injunction should be granted. However, it was not appropriate for the Court of Appeal to make that determination in the first instance. Further, the Chambers judge erred in her interpretation of the Williams Order; her finding that the Company had breached the Williams Order had to be set aside. The Chambers judge also erred in holding that the Company had waived privilege. It was doubtful that the violation of a court order (if established) was sufficient "wrongful conduct" to waive privilege. Further, taking the position in the litigation that it was entitled to use the funds in its bank account funds for litigation purposes could not form the basis for a loss of the very privilege the Company was seeking to protect. The court awarded the Company costs of the breach application in any event of the cause, and costs of the appeal.

Company Law - Topic 9715

Actions against corporations and directors - General - Restraining or compliance order or injunctive relief - See paragraphs 1 to 76.

Contempt - Topic 684

What constitutes contempt - Judgments and orders - Disobedience of or non-compliance with - See paragraphs 58 to 68.

Contempt - Topic 690

What constitutes contempt - Judgments and orders - Injunctions - Disobedience of - See paragraphs 58 to 68.

Contempt - Topic 5003

Practice - General principles - Procedural rules applicable - See paragraphs 46 to 53.

Evidence - Topic 4254

Witnesses - Privilege - Lawyer-client communications - Waiver - General - See paragraph 72.

Evidence - Topic 4256

Witnesses - Privilege - Lawyer-client communications - Waiver - Putting communication in issue - See paragraphs 73 and 74.

Injunctions - Topic 1681

Interlocutory or interim injunctions - Continuation of interim injunction - General - See paragraphs 54 to 57.

Practice - Topic 3378

Interim proceedings - Preservation of property - Mareva injunction - See paragraphs 54 to 57.

Practice - Topic 4577.1

Discovery - What documents must be produced - Privileged documents - Solicitor's files, notes, etc. - See paragraphs 69 to 74.

Practice - Topic 4585

Discovery - What documents must be produced - Privileged documents - Waiver - See paragraphs 69 to 74.

Practice - Topic 7364

Costs - Costs of interlocutory proceedings - Costs of motions or applications - See paragraph 75.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - See paragraphs 54 to 57.

Cases Noticed:

Kaiser Resources Ltd. v. Western Canada Beverage Corp. (1992), 71 B.C.L.R.(2d) 236 (S.C.), refd to. [para. 48].

Armstrong v. West Vancouver Police Board; [2007] B.C.T.C. Uned. 363; 2007 BCSC 164, refd to. [para. 48].

Rusche v. Insurance Corp. of British Columbia (1992), 4 C.P.C.(3d) 12 (B.C.S.C.), dist. [para. 48].

Bassett v. Magee (2015), 377 B.C.A.C. 249; 648 W.A.C. 249; 2015 BCCA 422, refd to. [para. 50].

Carey v. Laiken - see Sabourin and Sun Group of Companies v. Laiken.

Sabourin and Sun Group of Companies v. Laiken (2015), 470 N.R. 89; 332 O.A.C. 142; 382 D.L.R.(4th) 577; 2015 SCC 17, refd to. [para. 51].

Bishop of Victoria v. Victoria (City), [1933] 4 D.L.R. 524; [1933] 3 W.W.R. 332 (B.C.C.A.), refd to. [para. 53].

British Columbia (Attorney General) v. Lindsay, [2009] B.C.A.C. Uned. 25; 2009 BCCA 159, refd to. [para. 53].

Knapp et al. v. Faro (Town) et al. (2010), 291 B.C.A.C. 224; 492 W.A.C. 224; 2010 YKCA 7, refd to. [para. 53].

Tracy v. Instaloans Financial Solutions Centres (B.C.) Ltd. et al. (2007), 246 B.C.A.C. 296; 406 W.A.C. 296; 2007 BCCA 481, refd to. [para. 55].

Sutherland et al. v. Reeves (2014), 357 B.C.A.C. 46; 611 W.A.C. 46; 2014 BCCA 222, refd to. [para. 65].

Statutes Noticed:

Supreme Court Family Rules (B.C.), rule 20-4(1) [para. 47]; rule 21-7 [para. 49].

Counsel:

H.A. Taylor and J.D. Flannigan, for the appellant, Slatter Holdings Ltd.;

P.S. Boles and M. Katerberg, for the respondent, Naomi Elaine Warde.

This appeal was heard at Vancouver, B.C., on November 30, 2015, by Neilson, Goepel and Savage, JJ.A., of the British Columbia Court of Appeal. Goepel, J.A., delivered the following decision for the court on February 11, 2016.