ALLAN v EPP, 2018 ABQB 933

Hughes J

5.2: When something is relevant and material
5.4: Appointment of corporate representatives
6.14: Appeal from master’s judgment or order

Case Summary

This was an Appeal of Master’s Decision to compel answers to questions and Undertakings refused during Questioning. The parties were engaged in litigation regarding a family business. The majority of the disputed questions and Undertakings related to the Appellant Peter Epp’s (“Epp”) Will, his meetings with counsel regarding estate planning, and his conversations with his common-law spouse, the Appellant Eva Allenby (“Allenby”). Some of the other disputed questions and Undertakings related to the personal finances of the corporate representative for the family business. Master Robertson ruled in his Decision that most of the disputed questions and Undertakings should be answered.

Hughes J. confirmed that the standard of review for an Appeal of a Master’s decision is correctness. Her Ladyship then quoted Rule 6.14 which states that an Applicant or Respondent can appeal a Judgment or Order by a Master, and a Justice may consider the record that was before the Master as well any additional evidence the Justice deems relevant and material. Moreover, Hughes J. confirmed that questions must be answered if they are “relevant and material” as defined by Rule 5.2.

Hughes J. noted that there were a number of matters of law that were pertinent to the Appeal. First, the Alberta Evidence Act, RSA 2000, c A-18, attaches privilege to communications between spouses. Secondly, though the common-law “wills exception” allows for a waiver of solicitor/client privilege when a will is being challenged, Epp’s will was not being challenged in this case, and though a personal representative may waive privilege over a testator’s solicitor’s file, this cannot be done while the testator is still alive, and Epp was still alive at the time of the Application, although lacking capacity. Thirdly, Hughes J. stated that as Rule 5.4 provides that a corporate representative’s evidence is evidence given by the corporation, a corporate representative cannot be compelled to answer questions about her personal finances.

Given the principles of law stated above, Hughes J. ruled that only two of the twenty-nine outstanding questions or Undertakings should be answered, as the remainder were not relevant. Costs were awarded to the Appellants on the basis of substantial success.

The Action was set for Trial. The Defendant then applied for Summary Judgment dismissing part of the Plaintiff’s claim.


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