KOCHAN v KOCHAN

The Plaintiff, Jerry Kochan, applied to compel the Respondents, Penny Frederiksen (“Ms. Frederiksen”) and Emery Jamieson LLP, to answer 20 Undertakings that were refused during Ms. Frederiksen’s Questioning. Ms. Frederiksen prepared Helen Kochan (“Helen”)’s 2017 Will (the “Will”), and the validity of the Will was one issue in broader litigation concerning farmland, capacity, undue influence, contract, trust, and unjust enrichment claims. The Plaintiff also requested that Ms. Frederiksen or Emery Jamieson LLP produce Helen’s entire file so that Justice Renke, who was acting as Case Management Justice, could review the file pursuant to Rule 5.11.

In its analysis, the Court observed that the Rules apply to Applications arising from Questionings in surrogate matters. As such, Justice Renke treated the Rules as the general disclosure framework but held that privilege decided the Application. Rule 5.1 informed the purpose of disclosure by promoting evidence gathering and efficiency. However, the Court held that those disclosure objectives could not override solicitor-client privilege or litigation privilege.

Solicitor-client privilege survives the death of a client. An exception has been made to permit lawyers to testify in testamentary matters respecting the validity, execution, and contents of a will (this is known as the “Wills Exception”). The Wills Exception is codified in Surrogate Rule 85(2). Renke J. emphasized that the Wills Exception is a narrow exception to privilege, not a broad discovery mechanism.

Justice Renke considered Rule 5.2, which addresses relevance and materiality. The Court held that the pleadings define relevance, and that records must still be producible rather than privileged. For example, the Court rejected Undertaking 13 which was to “…determine if Helen Kochan’s identity was ever verified”, because identity verification was not an issue in the pleadings and was immaterial. The Court also rejected several other undertakings because their potential relevance did not bring them within Surrogate Rule 85(2).

Where production is relevant and material, a Court is empowered to make an Order concerning production pursuant to Rule 5.11. Rules 5.17 and 5.25 governed the scope of Questioning and objections. The Court confirmed that a party may ask about relevant and material information, but a witness may object on grounds including privilege, lack of relevance and materiality, or other legal grounds. Justice Renke upheld objections where the questions sought privileged information from Helen’s litigation file, which was not directly connected to the Will. The Court rejected the Plaintiff’s attempt to characterize the broader litigation context as part of the circumstances of the Will.

Undertakings were requested pursuant to Rule 5.30. The Court refused to direct responses to said Undertakings when the requested information was privileged, outside Surrogate Rule 85(2), or unnecessary. The Court allowed the Application in part, and directed that responses be provided to Undertakings 8 and 21, but upheld the remaining objections.

In response to the Application brought pursuant to Rule 5.11, for the Court to inspect Emery Jamieson LLP’s files, Justice Renke refused to review the entire file, holding that inspection of privileged records should occur only where the Applicant provides evidence supporting a reasonable inference that privilege was improperly claimed or that an exception to privilege may apply. The Plaintiff had shown only that Emery Jamieson LLP had produced some documents from files other than the Will file. That fact did not justify having the Court “check” counsel’s review. The Court found no evidence that Emery Jamieson LLP overlooked producible records or incorrectly applied Surrogate Rule 85(2).