Alberta Court of Appeal upholds privileged communication status of emails in estate dispute

The Alberta Court of Appeal has upheld a decision confirming that two emails central to ongoing litigation among siblings over their deceased mother's estate remain privileged.

The court rejected the appellants' argument that the emails should be disclosed, affirming that the privilege belongs to the respondents, Dorothy Lethbridge and Larry Hirch.

Reinhold and Charlotte Hirch had five children—Sheila, Rolf, Linda, Dorothy and Larry. Following Reinhold's death in September 2018, Dorothy hired lawyer Daniel Smith to prepare estate planning documents for Charlotte, including a new will and enduring power of attorney. Throughout October 2018, Dorothy communicated with Smith on behalf of Charlotte and herself.

In January 2019, Dorothy informed Smith that Charlotte wanted to finalize the documents. By April 2019, Charlotte had executed the estate planning documents, which included transferring the land to Dorothy and Larry. After Charlotte's death in March 2020, the siblings filed multiple legal actions contesting the new will and the land transfers.

The consolidated legal proceedings necessitated the disclosure of Smith's files related to Charlotte's estate planning. During this process, the respondents' litigation counsel inadvertently included two emails from Dorothy's file that the respondents later argued were privileged. The emails contained Dorothy's communications with Smith's assistant, discussing the cancellation of Charlotte's appointment and seeking legal advice for herself.

The chambers judge ruled that Dorothy had not waived her privilege over the emails, despite their inadvertent disclosure.

The appellants contended that any privilege over the emails belonged to Charlotte and was waived by the consent order requiring the disclosure of Charlotte's files. They argued that the emails primarily related to Charlotte's estate planning and were essential to understanding her intentions.

However, the Court of Appeal upheld the chambers judge's decision, confirming that the emails were privileged communications between Dorothy and Smith, and Dorothy had not waived this privilege. The court emphasized that solicitor-client privilege is critical for maintaining the integrity of legal communications and should not be easily set aside.

The court found that while the first two lines of the initial email related to Charlotte's estate planning were not subject to Dorothy's privilege, the remainder fell within the "continuum of communication" protected by solicitor-client privilege. The court noted that even though the emails contained information relevant to Dorothy's and Charlotte's retainers, the dominant purpose test did not apply to solicitor-client privilege.

Ultimately, the court underscored the importance of solicitor-client privilege in legal disputes and confirmed that such privilege can only be waived by the client. The court's ruling ensured that the privileged communications between Dorothy and her lawyer remained protected, except for the specific parts of the emails directly related to Charlotte's retainer.