Candice Chan-Glasgow, Director, Review Services and Counsel
August 20, 2020
A recent Court of Appeal of Alberta decision, Tolton v Tolton, 2020 ABCA 218, provides a helpful reminder on the law of relevance and waiver of privilege.
Betty Tolton and Elwood Tolton separated in 1990, and Betty filed for divorce in 2002. The Toltons entered into minutes of settlement in 2007 which contained a provision indicating that Elwood was required to disclose further information related to a dispute about certain assets and accounts receivable. In 2008, Betty filed an application seeking disclosure of the items listed in the minutes of settlement. Elwood died in 2009 and litigation continued against his estate. Murray Tolton (Betty and Elwood’s son) served as the executor of Elwood’s estate.
Murray was in the cattle business with Elwood. Betty alleged that Murray was in receipt of matrimonial property and that Elwood’s estate was not probated because Murray owed money to the estate for cattle. Murray responded that he relied upon legal advice in deciding not to probate the will. He also permitted questioning of the initial estate solicitor, who had no recollection of the details of Elwood’s estate and spoke about his general practice.
Betty brought an application directing Murray to produce his personal financial, tax and other records related to the cattle business with Elwood. She also sought production of the estate solicitor’s file relating to the decision not to probate the estate and disclosure of Elwood’s records.
The chambers judge dismissed Betty’s applications noting, among other things, that Murray was not a party to the matrimonial property action and would not normally be required to disclose his personal records. It was further held that the requested information was not relevant or material to the matrimonial property dispute and that the request was speculative. The chambers judge also dismissed the request for the estate solicitor’s file, finding that Murray’s statement that he relied on legal advice in deciding not to probate did not waive privilege over the file.
The Court of Appeal found that the chambers judge erred in dismissing Betty’s application for production of Murray’s personal records related to the cattle business with Elwood, noting:
If the relevance of a record is disputed and relevance turns on how one interprets the contract being litigated, a chambers judge should not interpret the contract before trial …
A record should be produced if it is relevant and material … “Relevant” refers to the issues in the pleadings and “material” refers to whether the information can help, directly or indirectly, prove a fact in issue.
The Court found that Murray’s records regarding the cattle business with Elwood were relevant and material and ordered him to produce his 2003-2007 personal and tax records related to the cattle business with Elwood.
Finally, the Court disagreed with the chamber judge’s conclusion regarding the solicitor file. It found that Murray waived solicitor-client privilege over a portion of the estate file and ordered him to produce all privileged communications related to the decision not to probate and the disclosure and production of estate records.
