When an irresistable force meets an immovable object, we appeal to the Supreme Court of Canada.
In Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, the force is the Personal Information Protection of Electronic Documents Act ("PIPEDA") and the object is solicitor-client privilege. Section 12 of PIPEDA grants the Privacy Commissioner express statutory power to compel a person to produce any records that the Privacy Commissioner considers necessary to investigate a complaint “in the same manner and to the same extent as a superior court of record”. The issue in Blood Tribe was whether this conferred a right of access to documents protected by solicitor-client privilege. The Court held unanimously that the broad grant did not contain the requisite specific express authority to override privilege.
The Court stated the rule that "general words of a statutory grant of authority to an office holder such as an ombudsperson or a regulator do not confer a right to access solicitor-client documents, even for the limited purpose of determining whether the privilege is properly claimed. That role is reserved to the courts. Express words are necessary to permit a regulator or other statutory official to “pierce” the privilege."
The Court also noted that "while the solicitor-client privilege may have started life as a rule of evidence, it is now unquestionably a rule of substance applicable to all interactions between a client and his or her lawyer when the lawyer is engaged in providing legal advice or otherwise acting as a lawyer rather than as a business counsellor or in some other non-legal capacity."
Speaking of the Supreme Court of Canada, the law you’re looking for just might be in the "unreported judgments" section of the Supreme Court’s user-friendly website. How does a Supreme Court decision go unreported?
Have a great day,
Listen to Developments in Will Changes.
This week on Hull on Estates, Ian and Suzana discuss developments in will changes. They reference cases from Key Developments in Estates and Trusts Law in Ontario ed. 2008.
This week on Hull on Estates, Rick and Sean discuss evidence issues in estate matters when a main party is deceased. They reference "Burns Estate and Mellon"; a 2000 Court of Appeal Case cited in 34 Estates and Trusts Reports, 2nd Edition, p.175.
How does one prove a negative? This is a challenge facing many estates: after a person dies, individuals spring forth requesting compensation for services rendered on a quantum meruit basis or alleging that promises were made by the deceased. A common example is a claim that one provided domestic services such as cleaning, shopping or laundry.
The riddle of proving a negative is quite relevant to estates litigation because the star witness for the estate is usually, by definition, dead. Fortunately, since estate trustees can’t prove negatives, they don’t have to. Section 13 of the Evidence Act specifically addresses this scenario, requiring independent corroboration of evidence in claims against estates. The provision is designed to prevent claims that consist of mere allegations, which are easy to make, difficult to refute and expensive to litigate. There is a great deal of case law on what constitutes corroboration, the standard of proof and so forth but the provision is a great deterrent to frivolous claims.
It seems trite to say but the Act is worth a review, even for non-litigators. It’s full of counter-intuitive gems that are easily forgotten: for instance, section 9 the Evidence Act states that witnesses are not excused from answering questions tending to criminate them under any Act of the Legislature.
Have a great day,
This week on Hull on Estates, Diane and Craig discuss what to consider when dealing with experts and expert reports in cross examination.
Listen to the deemed undertaking rule.
This week on Hull on Estates, Paul and Allan discuss the deemed undertaking rule and its application to estate matters.
Listen to Experts in Estate Matters.
This week on Hull on Estates, Craig Vander Zee and Sarah Fitzpatrick discuss expert evidence in estate matters. In this episode they outline circumstances when one should use expert evidence, different types of experts, timing of reports, limitations of experts and the court appointed expert.
Listen to Karkus v. Cotroneo 2007
This week on Hull on Estates, Paul Trudelle and Diane Vieira discuss the case of Karkus v. Cotroneo 2007. The case addresses many of the issues that estate lawyers face on a daily basis, such as: proving or disproving gifts, slander of title and the importance of corroborative evidence.
Listen to Preparing for Trials in the Context of Contested Passing of Accounts
In this podcast, Craig Vander Zee and Paul Trudelle discuss trial preparation considerations in the context of a contested passing of accounts.