DeCotiis v. DeCotiis Estate

2026 BCSC 672 DeCotiis v. DeCotiis Estate IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: DeCotiis v. DeCotiis Estate, 2026 BCSC 672 Date: 20260416 Docket: S216393 Registry: Vancouver Between: Ivano DeCotiis Plaintiff And: The Estate of Innocenzo DeCotiis Deceased by its executors, Rossano DeCotiis, Giulio DeCotiis, IDC Alter Ego Trust (2019), Rossano DeCotiis and Giulio DeCotiis in their capacity as trustees of the IDC Alter Ego Trust (2019) and in their personal capacity, Morris DeCotiis, Paolo DeCotiis, and RPMG Capital Corp. Defendants Before: Associate Judge Peck Reasons for Judgment Counsel for the plaintiff: J. Watson Counsel for the defendants Giulio DeCotiis, Morris DeCotiis, Rossano DeCotiis, IDC Alter Ego Trust (2019), RPMG Capital Corp., and The Estate of Innocenzo DeCotiis, Deceased: M. De Haas and L. Praill, articled student Place and Date of Hearing: Vancouver, B.C. March 3, 2026 Place and Date of Judgment: Vancouver, B.C. April 16, 2026 Table of Contents Introduction.. 3 Background.. 4 The DeCotiis Order 5 The Documents Sought 8 The Plaintiff's Position.. 10 The Respondents' Position.. 13 Analysis. 15 The Lee and Geddes Reports. 15 The Redacted Documents. 16 Summary. 20 Introduction [1] The plaintiff commenced this action as a wills variation proceeding of his father's 2016 will. In his claim, he now also alleges breach of trust and breach of fiduciary duty as against his brothers Giulio and Rossano De Cotiis, who are the trustees of a trust under which the plaintiff is a beneficiary, and for a declaration that certain transfers of assets into a second trust under which the plaintiff is not a beneficiary are invalid, on the basis of fraudulent conveyan [2] e, among other reasons. [3] The plaintiff applies pursuant to the so-called "wills exception" for disclosure of four specific privileged documents: a) two reports prepared by litigation lawyers that have not yet been disclosed - the Lee and Geddes reports, and b) two legal memos that have been disclosed in redacted form - ROS00000673 ("Document 673") and ROS0000682 ("Document 682") (collectively the "Redacted Documents"). [4] The Redacted Documents were disclosed pursuant to a court order made in this proceeding on May 23, 2024; the legal reports are referred to in the documents produced pursuant to that order but were not produced themselves. The reasons for judgment on the prior disclosure order are indexed as DeCotiis v. DeCotiis Estate, 2024 BCSC 892 ("DeCotiis"). [5] While in his notice of application the plaintiff also sought a declaration related to the two legal reports, the declaration was not pressed at the hearing given information plaintiff's counsel learned subsequent to filing his materials that changed his position, discussed further below. This is, therefore, in substance, simply a very tailored document production application that raises some peculiar privilege issues. [6] The defendant respondents resist production on the basis that the plaintiff is impermissibly attempting to re-litigate the DeCotiis order. Alternatively, if the application is not an abuse of process, they say it should be dismissed for the same reasons that the production now sought was not included in the DeCotiis order. They say the wills exception does not apply given the creation dates of the documents in question, and in any event, they are protected by solicitor-client and litigation privilege and thus should be afforded an additional degree of protection. [7] For the reasons that follow, I order the respondents to produce unredacted versions of Document 673 and Document 682 within seven days of this order. The plaintiff's application for disclosure of the Lee and Geddes reports is dismissed. Background [8] The plaintiff is the third of seven sons born to Innocenzo De Cotiis, the now-deceased founder of the Vancouver real estate development organization known as the Onni Group. Given that most key players share a last name, I will refer to them by first name to avoid confusion. [9] Innocenzo died on September 26, 2020 and left a will and two alter-ego trusts that treated the three eldest brothers, the plaintiff and his older brothers Donato and Vittorio, materially differently from the younger four brothers, Giulio, Rossano, Morris and Paolo. The younger four brothers were at all material times involved in the management and operation of the Onni Group. The older three brothers were not, though one or more of them received limited employment income from the Onni Group at various times. [10] The impugned estate documents are Innocenzo's final will prepared in 2016 (the "2016 Will") and two trusts set up in 2019: the Onni Alter Ego Trust and the 2019 IDC Alter Ego Trust (collectively, the "2019 Trusts"). The 2019 IDC Alter Ego Trust benefitted the three older sons, and the Onni Alter Ego Trust benefitted the four younger sons, as well as Innocenzo himself while he was alive. [11] On May 9, 2020,[1] attached as Exhibit B to the Affidavit #1 of Les Fovenyi made February 13, 2026, Innocenzo swore three affidavits apparently describing his intentions and understanding of his estate plan, including the 2016 Will and the 2019 Trusts (collectively, the "Sworn Declarations"). The Sworn Declarations are the most recent documents in the estate plan that forms the basis of this dispute. The DeCotiis Order [12] The plaintiff brought a document production application that was heard in March 2024. The notice of application sought the following substantive orders in Part 1: Orders Sought: 1. An order pursuant to Supreme Court Civil Rule Rule 7-1(11) and 7-1(18) that the files of Steve M. Cooks [sic] with respect to May 2020 affidavits signed by Innocenzo De Cotiis be produced within 14 days of delivery of the entered order made herein; 2. An order pursuant to Supreme Court Civil Rule Rule 7-1(11) and 7-1(18) that the files of Sally Dennis with respect to the 2016 Will of Innocenzo De Cotiis, the 2019 ICD Alter Ego Trust, and the Onni Alter Ego Trust be produced within 14 days of delivery of the entered order made herein; 3. An order pursuant to Supreme Court Civil Rule Rule 7-1(11) and 7-1(18) that the files of Chris Jackson with respect to the 2016 Will of Innocenzo De Cotiis be produced within 14 days of delivered of the entered order made herein[.] [13] Steve Cook is the lawyer who was largely responsible for the 2019 estate planning work done on Innocenzo's behalf, including the creation of the 2019 Trusts and the Sworn Declarations. Sally Dennis is counsel who assisted with the 2016 Will and the 2019 Trusts. Chris Jackson was in-house counsel at the Onni Group at the time who also assisted with the 2016 Will. [14] The plaintiff relied on the wills exception as set out in Geffen v. Goodman Estate, [1991] 2 SCR 353 ("Geffen"), given that the documents sought were almost certainly privileged. The Geffen case confirmed that privileged documents may need to be disclosed in estate litigation to evaluate allegations of undue influence, to determine the testator or settlor's true intentions, and/or to determine testamentary capacity. The wills exception may apply to documents beyond simply the will or trust in issue; it may apply to documents involved in other transactions that are part of the overall estate planning process, as well. [15] The respondents submitted before me that at the March 2024 hearing they consented to production of documents and communications in the lawyers' files directly related to instructions and advice given regarding the contents of the 2016 Will and the creation of the Onni Alter Ego Trust.[2] They resisted production of any other legal file materials on the basis that the plaintiff was seeking evidence to defeat Innocenzo's intentions rather than to simply ascertain what those intentions were, which is not permissible per Brown v. Terins, 2015 BCSC 775. Alternatively, if broader production was to be ordered, they argued there should be a temporal limit. In particular, they argued that disclosure should not be granted related to the Sworn Declarations since they were too distant in time to be probative of Innocenzo's intentions in making the 2016 Will. [16] The application response of Rossano in his personal capacity and in his capacity as executor of Innocenzo's estate for the March 2024 hearing is framed slightly differently. It consented to production of Ms. Dennis and Mr. Jackson's files as they related to instructions and advice given with respect to the 2016 Will up to its execution. It also consented to production of Ms. Dennis's file regarding the Onni Alter Ego trust only and only up to its creation in December 2019. It opposed production of any other documents, including Mr. Cook's file in its entirety and any documents related to the 2019 IDC Alter Ego Trust. [17] The plaintiff describes the respondents' position in March 2024 differently still, saying they asserted this was essentially a wills variation action that did not engage issues about Innocenzo's true intentions at all. He says the court disagreed in finding the wills exception applied to many of the documents sought. [18] There was no transcript of the March 2024 hearing provided so some of these inconsistencies in the descriptions of the respondents' position cannot be resolved. I raise them simply to show that disclosure of the various categories of documents was discussed with some granularity. [19] In DeCotiis, the court found that, despite the legitimate claims of privilege over the documents sought, the wills exception applied, and that it applied to the 2016 Will as well as the making of both 2019 Trusts. The court reviewed the pleadings in detail and found that while there was no specific allegation that the 2019 IDC Alter Ego Trust was invalid, the plaintiff's claim was broad enough to assert undue influence on the part of Rossano and Giulio over Innocenzo's entire estate planning process, including both 2019 Trusts. The court found further that, absent any contradictory evidence submitted by the defendants as to the purpose of the Sworn Declarations, they were made "solely to create evidence in direct support of the contents of the other [estate-planning] documents" (DeCotiis at para. 39). As such, the Sworn Declarations themselves and certain documents surrounding their creation were also producible. [20] Production was ordered of the documents sought in paras. 1-3 of the plaintiff's notice of application reproduced at para. [11] above but was limited in scope to "the file materials directly related to instructions and advice given, and communications with the client [Innocenzo] or his agent, in respect of the creation and contents of the 2016 Will, the Onni Alter Ego Trust, the 2019 IDC Alter Ego Trust and the Sworn Declarations, up to the point in which those documents were executed" (DeCotiis at para. 41, emphasis added). Further with respect to temporal limitations, the court ordered that "such production is to be limited to the communications between solicitor and client, and instructions taken and given, leading up to the execution of each document, or creation of each trust" (at para. 40). The Documents Sought [21] The Redacted Documents were produced in redacted form pursuant to the order in DeCotiis. The plaintiff says the DeCotiis order requires their production in unredacted form. [22] In fact, with respect to the Redacted Documents, defendants' counsel inadvertently disclosed them in unredacted form and plaintiff's counsel reviewed them at least in part before being advised that the unredacted production was in error. While plaintiff's counsel does not recall the content of the redacted material word for word, he says that in principle he agrees with some of the redactions but not with others. He did not provide any specifics about the redactions he agreed were appropriate. Nor did he argue that the inadvertent disclosure was a stand-alone waiver of privilege. There appears from the record to have been a number of documents produced, recalled and then redacted, but the plaintiff takes issue with Document 673 and Document 682 only. [23] With respect to the Lee and Geddes reports, plaintiff's counsel says he was not aware of their existence until they were referred to in the documents disclosed pursuant to the DeCotiis order. The Lee report is dated June 2, 2020 and the Geddes report is dated August 25, 2020. Plaintiff's counsel advised that he was not aware of the dates of the reports until he received the respondents' application response materials. Their dates have not dissuaded him from pursuing their disclosure. They have simply required him to modify his justification for their production. These are the documents covered by the declaration originally sought in the notice of application but then abandoned, as noted above. [24] The Lee report is authored by litigator Roger Lee, who was engaged by Ms. Dennis to provide advice to Innocenzo. It was obviously provided after the Sworn Declarations were complete, and the respondents, through the Affidavit #1 of Mr. Fovenyi, the Onni Group's current chief operating officer and one of Innocenzo's most trusted advisors, say that the report discussed potential claims by the older three sons against Innocenzo's estate and related litigation advice. [25] The Geddes report was made by litigator Kelly Geddes, whom Mr. Cook engaged to provide advice to Innocenzo. Again, Mr. Fovenyi deposes in his Affidavit #1 that the purpose of the Geddes report was the same as for the Lee report, and it, too, was prepared after the Sworn Declarations were made. [26] Given the respective dates of those reports, plaintiff's counsel acknowledged in submissions that they are not disclosable pursuant to the terms of the DeCotiis order but says they should now nevertheless be produced pursuant to the wills exception. [27] With respect to the Redacted Documents, Document 673 is an undated memo from Mr. Cook to Mr. Fovenyi summarizing Mr. Cook's involvement in the development of Innocenzo's estate plan. The respondents describe the redactions as being for relevance and to remove legal advice related to contemplated litigation. There are redactions to pages 1, 7 and 8 of that document. [28] Document 682 is an email from Mr. Cook to Ms. Dennis dated November 13, 2019 that attaches a memo of Mr. Cook's notes from a meeting with Innocenzo, Rossano and Mr. Foveyni in November 2019. Again, the redactions are described as having been made to remove litigation advice related to contemplated litigation against Innocenzo's estate. There is only one redaction in this document, on the last page of the memo, the penultimate page of the document. [29] In correspondence from June 2024, attached as Ex. I to the Affidavit #8 of Ivano De Cotiis made January 25, 2026, counsel for the respondents identified Document 673 as containing information covered by solicitor-client privilege belonging to Rossano, and Document 682 as information protected by solicitor-client and litigation privilege belonging to Innocenzo's estate. [30] At the hearing, respondents' counsel provided me with sealed envelopes including unredacted versions of the Redacted Documents and the Lee and Geddes reports. All counsel agreed I could review them should I deem it necessary, and I committed to informing the parties if I chose to do so. By these reasons, I confirm that I have reviewed the Redacted Documents but not the Lee or Geddes reports. The Plaintiff's Position [31] The plaintiff's position with respect to the Lee and Geddes reports is now that the existence of arguably relevant legal reports outside the temporal limitation of the prior order was unknown to the plaintiff and to the court as of March 2024. As such, the plaintiff should be allowed to argue that the wills exception justifies the production of these additional reports, as well. Plaintiff's counsel submitted that because neither he nor the court were aware of the existence of these reports they cannot be subject to a res judicata argument. To make that finding would be unfair to litigants who are necessarily in the dark about what privileged documents may or may not exist until they receive additional information. [32] The plaintiff denies the respondents' argument that the Lee and Geddes reports are protected by litigation privilege and thus not disclosable on that basis. He says neither document meets the two requirements to establish litigation privilege, as discussed in Blank v. Canada (Minister of Justice), 2006 SCC 39 ("Blank"). He says these reports go directly to Innocenzo's intentions despite them having been prepared subsequent to the Sworn Declarations since they form part of the overall estate planning process. He notes that the reports were delivered to Mr. Cook and Ms. Dennis, the key architects of the estate plan. [33] In further resisting the litigation privilege claim, the plaintiff first says no litigation was in reasonable prospect in or about the summer of 2020 since a reasonable person would not conclude at that time that resolution of a claim for loss would be unlikely without litigation (see Himalainen v. Sippola (1991), 62 BCLR (2d) 254 (CA)). At that time, there was no extant claim for loss, there was simply a hypothetical claim in the future subsequent to Innocenzo's death, which did not occur until some time later. The plaintiff had sent no demand letters or draft pleadings; the only documents created at that point were the estate planning documents themselves. [34] Second, the plaintiff says the dominant purpose of the reports was to assist in the estate planning process not in the conduct of ongoing or anticipated litigation. The fact that the memos may speak to ways to avoid potential pitfalls or reduce the likelihood of or negative outcomes in litigation is part and parcel of estate planning and other business services that lawyers provide. To consider such memos to be covered by litigation privilege would expand the concept much too far, he says. The plaintiff points out that there are many references to potential future litigation in the documents already disclosed, such that the respondents' own production proves their claims of litigation privilege over the Lee and Geddes reports are an overreach. [35] The plaintiff says further that even if these reports may be covered by litigation privilege in addition to solicitor-client privilege, that does not change the analysis that the wills exception applies. The court in DeCotiis was persuaded that the wills exception applied to the documents sought because Innocenzo's intentions were being questioned. Whether that exception applied to documents covered by litigation privilege or solicitor-client privilege was not specifically discussed in the reasons for judgment, but he says the distinction is irrelevant. In particular, the plaintiff says the rationale for production has not changed, despite an additional form of privilege being raised. [36] In addition, the plaintiff says that even if there was a theoretical distinction to be drawn between solicitor-client and litigation privilege, the DeCotiis order required production of documents covered by solicitor-client privilege. Since documents that were subject to a privilege that is often described as near sacrosanct were ordered produced, it is illogical to prohibit production of similar documents now based on a lesser form of privilege. [37] The plaintiff cites the following passage from Smith v. Jones, 1999 CanLII 674 (SCC) ("Smith") at para. 44, where the court was assessing whether the public safety exception to privilege mandated disclosure of privileged information in a criminal context: Both parties made their submissions on the basis that the psychiatrist's report was protected by solicitor‑client privilege, and it should be considered on that basis. It is the highest privilege recognized by the courts. By necessary implication, if a public safety exception applies to solicitor‑client privilege, it applies to all classifications of privileges and duties of confidentiality. It follows that, in these reasons, it is not necessary to consider any distinctions that may exist between a solicitor-client privilege and a litigation privilege. The plaintiff says in his notice of application that this passage confirms that where solicitor-client privilege yields to disclosure, so too must any other form of privilege. [38] Fundamentally, the plaintiff describes the wills exception as broad, not narrow as the respondents suggest. Anything that would shed light on the testator or settlor's true intentions is producible. [39] The plaintiff goes on to allege that the disclosure made pursuant to the DeCotiis order has raised even more suspicions about Innocenzo's intentions. He points to Rossano's involvement in the estate planning process, Mr. Cook's allegedly conflicting role as counsel for Innocenzo and also for the Onni Group, and a number of Innocenzo's apparent intentions that were not ultimately included in the estate documents, though I was not taken to many examples of these allegedly suspicious circumstances in the documents themselves. Fundamentally, the plaintiff suggests the documents show some of the defendants were directly involved in Innocenzo's estate planning, which he says assists his undue influence claim. The plaintiff also references changes to the draft Sworn Declarations over time, more specifically the changing descriptions of Innocenzo's relationship with Donato. [40] With respect to Mr. Cook's role in particular, counsel for the plaintiff points to Fowler Estate v. Barnes et al., 1996 CanLII 11726 (NL SC), which discusses at paras. 45-48 the factors the court must consider when a claim of undue influence is raised. One such factor is whether the allegedly influenced person received independent legal advice. The plaintiff seeks to impugn Mr. Cook's independence. He believes that the document redactions are an attempt to obscure the true nature of Mr. Cook's professional relationship with the Onni Group and Rossano, to further preserve the illusion of independence. [41] In sum, the plaintiff says that the documents he is demanding either should already have been produced pursuant to the DeCotiis order or should be produced now pursuant to the wills exception since if anything, the justification for production has strengthened since the DeCotiis order was made. The Respondents' Position [42] The main thrust of the respondents' submissions is that this application is res judicata, prohibited by issue estoppel, and/or generally an abuse of process. They say the DeCotiis order has already determined that the documents the plaintiff seeks are not producible and as such, the issue has already been decided. [43] The respondents focus on the temporal limitations built into the DeCotiis order and emphasize that disclosure was ordered "up to the point in which those documents [the 2016 Will, the 2019 Trusts and the Sworn Declarations] were executed" (DeCotiis at para. 41). They describe the plaintiff's arguments now as being the same arguments put before the court in DeCotiis and thus having already been decided. [44] The respondents argue that it was open to the court to reject their temporal limitations proposal if it found that a broader range of dates was relevant in determining Innocenzo's true intentions. In imposing the date limit, the court must be taken to have decided that privileged documents outside the timeframe specified did not speak to Innocenzo's intentions or the undue influence point such that the wills exception did not apply. [45] Alternatively, the respondents say that solicitor-client privilege and litigation privilege protects all of the documents sought and the wills exception does not apply. They stress what they call the narrow parameters of the wills exception as only requiring production of privileged documents to the extent necessary to ascertain the testator or settlor's true intentions at the time of execution of the impugned documents and no further. In other words, they say that even if the exception applies, that does not mean a lawyer's entire file is producible. They refer to Becker v. Hagehassan, 2021 BCSC 1508, as supporting that interpretation. [46] The respondents repeat in particular that the Lee and Geddes reports are protected by litigation privilege and have nothing to do with Innocenzo's intentions vis-à-vis his estate plan, a condition precedent to the application of the wills exception. They argue that the only plea the plaintiff makes in his notice of civil claim that could justify the application of the wills exception is his allegation of undue influence since that is the only allegation that calls Innocenzo's intentions into question. They say the Lee and Geddes reports do not assist in determining that allegation. [47] The respondents also dispute that they are adding another layer to the privilege analysis on this application and say that they argued both solicitor-client and litigation privilege at the document production application in March 2024. I note that the respondents' application response on the March 2024 application at Part 5, para. 26 does specifically argue that the production sought would require disclosure of documents covered by litigation privilege, which they said would not assist in identifying Innocenzo's true intentions and thus should not be disclosed pursuant to the wills exception. [48] With respect to the distinction between litigation privilege and solicitor-client privilege, the respondents acknowledge that litigation privilege is a lesser form of privilege but say it is also broader and relates to a party's right to a fair trial. They argue that it is not consistent with the principles of justice to allow one party to see litigation advice or strategy about claims against that very party. Counsel submitted in response to a question from the bench that even if the wills exception mandates disclosure of documents covered by solicitor-client privilege, a party can still argue the documents remain protected from disclosure via litigation privilege. [49] Finally, specifically with respect to the redactions on the Redacted Documents, the respondents say that one redaction relates to legal advice provided to a different client on a different topic and thus should not be disclosed on that basis. Analysis The Lee and Geddes Reports [50] Issue estoppel prevents litigants from pursuing a matter already finally decided between the parties. Even where the requirements of issue estoppel are not met, the doctrine of abuse of process prevents re-litigation of matters already decided by the court (Cliffs Over Maple Bay (Re), 2011 BCCA 180 ("Cliffs") at paras. 26 and 31). [51] Despite the use of the term "final" in the authorities, it is clear that the determination of an issue on an interim application can attract the application of these doctrines unless a party is specifically given liberty to reapply or the determination is by its terms only a temporary or limited one. The issue is whether a "right, question or fact [has been] distinctly put in issue and directly determined by a court of competent jurisdiction" (Cliffs at para. 31, citing McIntosh v. Parent, [1924] 4 D.L.R. 420 (Ont. C.A.). See also Tung Wise Co Ltd. v. Park Georgia Realty Ltd., [1994] BCJ No 47 at para. 8, citing Diamond v. The Western Realty Company, [1924] SCR 308 at 315). [52] I agree with the respondents that the Lee and Geddes reports are not producible. Based on a consideration of the previous and current application materials, the court's discussion and submissions reflected in DeCotiis, and the parties' submissions before me, the reports are in my view clearly included the categories of documents that were previously sought and are excluded from production by the temporal limitation imposed. The DeCotiis order was not appealed and in that sense is final and binding on the parties, and seeking production of these reports through this application is an impermissible attempt to relitigate the point. [53] Imposing a temporal limitation on document production under the wills exception is a common way to circumscribe the disclosure obligation (see, e.g., Kobzos v. Kobzos Estate, 2019 BCSC 2254). The court in DeCotiis directly considered that, at the respondent's invitation, and ultimately imposed one. [54] I disagree with counsel for the plaintiff's position that because he and the court were not aware that the Lee and Geddes reports existed, I should not apply res judicata principles to them. It is often the case that when the court is asked to order production of privileged materials such as a solicitor's file, it will have very little information about the file's specific contents. Whether or not to order production is based on an analysis of the legal principles applicable to the justification for the exception and the nature of the materials that the file may contain. The identification of these two reports in this case does not supersede this analysis. To order otherwise would open the floodgates to piecemeal document production applications. While in some cases the subsequent discovery of specific documents or categories of documents may warrant a renewed disclosure application, that is a fact-specific analysis to be done on a case-by-case basis. The Lee and Geddes reports are not such documents here. [55] The allegation that the additional documents disclosed reveal additional "suspicious circumstances" related to the allegations of undue influence also fails to assist the plaintiff now. I make no finding on whether or not the circumstances the plaintiff mentions are, in fact, suspicious or "more" suspicious. However, even if they are, the plaintiff can continue to argue what consequences should flow from those allegedly suspicious circumstances, based on context and the other documents produced. That issue will have to be litigated at trial since it is fundamental to the undue influence allegations. These circumstances do not, however, allow the plaintiff to relitigate the related disclosure issue. The Redacted Documents [56] I see the redacted documents as different from the Lee and Geddes reports. I agree with the plaintiff that since the wills exception applies and mandates disclosure of privileged documents, then disclosure is warranted regardless of the nature or extent of the privilege claimed. In other words, the fact that the documents may be covered by more than one type of privilege does not mean that there is a renewed opportunity to argue against their disclosure. [57] DeCotiis at paras. 21-28 sets out a summary of the law on the wills exception as was argued at the March 2024 hearing and I will not repeat it at length here. Suffice to say that there is a clearly established principle that in some circumstances mandates disclosure of documents and information covered by solicitor-client privilege in the context of wills and estate planning. The exception to disclosure has developed because as a matter of policy, the courts have accepted that disclosure of privileged material may be necessary in order to determine a deceased testator or settlor's true intentions, which is ultimately in the deceased's interest and in the interests of justice (see Geffen at p. 387). [58] This is despite the fact that solicitor-client privilege has grown beyond a rule of evidence and has achieved the status of a rule of substantive law (Blank at para. 24) and that of a "fundamental civil and legal right" (Geffen at p. 383). Even in the face of almost inviolable protection of information, the wills exception allows for disclosure of information covered by solicitor-client privilege, "the highest privilege recognized by the courts" (Smith at para. 44), if the exception is found to apply. [59] I specifically reject the respondents' argument that where a document protected by solicitor-client privilege has been ordered disclosed, production can continue to be resisted on the basis of litigation privilege. They pointed me to no caselaw where such an order had been made. Further, while it is true that the wills exception cases brought to my attention are almost exclusively focussed on information covered by solicitor-client privilege, the law's general approach to and discussion about solicitor-client versus litigation privilege supports my conclusion. [60] The Supreme Court of Canada in Blank discusses the differences between solicitor-client and litigation privilege at some length. They characterize solicitor-client privilege as protecting the relationship between lawyer and client and litigation privilege as facilitating the litigation process (at paras. 27-28); "they are complementary [privileges] and not competing in their operation" (at para. 31). One of the ways in which this difference asserts itself is the length of time the privilege exists. Solicitor-client privilege is forever, whereas litigation privilege ceases when the litigation in question and any related litigation ceases (at para. 37). These privileges may, and often do, overlap in a litigation process (at para. 49). [61] The Supreme Court of Canada's analysis in Smith is also helpful, if in the context of a different disclosure exception. That case involved the application of the public safety exception to disclosure of solicitor-client information rather than the wills exception, but the privilege principles remain applicable. As highlighted by the plaintiff noted above and repeated here for convenience, Justice Cory for the majority of the court specifically states at para. 44 that: By necessary implication, if a public safety exception applies to solicitor-client privilege, it applies to all classification of privileges and duties of confidentiality. It follows that, in these reasons, it is not necessary to consider any distinctions that may exist between a solicitor-client privilege and a litigation privilege. [emphasis added] [62] If a substantive rule (solicitor-client privilege) is abrogated by an exception to force disclosure of privileged materials, the shroud of a mere evidentiary rule (litigation privilege) cannot assist. [63] The documents in question were acknowledged by all parties to be covered by solicitor-client privilege, both at the hearing before me and in March 2024. It is not controversial that solicitor-client privilege is the highest form of privilege the law protects. If the wills exception applies to negate that form of privilege, by necessity documents that are covered by lesser forms of privilege must also be disclosed. I thus do not need to determine whether the respondents' assertions of litigation privilege are justified to order production. [64] The respondents also admitted that they argued solicitor-client and litigation privilege in the prior document disclosure application, and production was nevertheless ordered on that application, by implication specifically overriding both forms of privilege. I see the respondents raising litigation privilege as a shield on this application as the opposite side of the abuse of process coin the respondents allege the plaintiff is guilty of - reasserting a position that has already been considered and rejected by the court. [65] The respondents did not argue in their application response or at the hearing the Redacted Documents are not "file materials directly related to instructions and advice given, and communications with the client or his agent, in respect of the creation and contents of the 2016 Will, the Onni Alter Ego Trust, the 2019 ICD Alter Ego Trust [or] the Sworn Declarations" and thus not producible pursuant to the DeCotiis order on that basis. Rather, they say the documents provide advice to Innocenzo that is covered by litigation privilege. [66] The respondents' materials suggest that some of the redactions were also made for relevance, without providing much detail. This may be their way of asserting that some of the redacted material is covered by privilege for the benefit of persons other than Innocenzo. [67] I am in the position of being able to review the documents myself in order to assess whether any elements of the documents are appropriately redacted for relevance. I have chosen to do so, particularly given that there was the potential for disclosure of information covered by solicitor-client privilege that was not required under the DeCotiis order. [68] After that review, I do not agree that the documents should be redacted as suggested by the respondents. There is no basis to redact the documents for relevance, given that the documents were created in the context of Innocenzo's estate plan and as such are relevant in their entirety. To the extent that the redactions could be considered information covered by litigation privilege, I have already determined that the DeCotiis order pursuant to the wills exception has overridden any such privilege. [69] I also disagree that because the privilege asserted is in part in favour of others, that justifies the redactions. My view is that the privilege is Innocenzo's. To the extent that more than one party may assert claims of privilege over the redacted contents, I find the circumstances similar to those in Durand v. Durand (Estate of), 2015 MBQB 132, and find that the privilege cannot be separated and since it has been essentially waived for Innocenzo by virtue of the application of the wills exception, it is producible in full. [70] I note that one of the redactions to Document 673 refers to receipt of the Lee and Geddes reports by name. However, that did not change my view that those reports are not producible. They are clearly outside the temporal limitation that was considered and imposed by DeCotiis; the court's decision on that point is final. I do note that the reference to those reports in Document 673 suggests that that document was almost certainly created sometime after August 2020 but the document has been disclosed pursuant to the DeCotiis order for close to two years and cannot be withdrawn at this stage. The respondents did not argue that Document 673 was disclosed in error or that any part of Document 673 should be shielded from disclosure other than the redactions. [71] Given the reasons for my decision, I did not find it necessary to review the Lee or Geddes reports so I did not do so. Arrangements will be made to shred these documents, as well as the Redacted Documents that I did review, on or about May 15, 2026 unless respondents' counsel advises through the registry prior to that date that they would like the documents returned. Summary [72] I accept that the DeCotiis order temporally limited the application of the wills exception to documents created before May 9, 2020 such that the Lee and Geddes reports are not producible. The issue of production of any of Mr. Cook, Ms. Dennis or Mr. Jackson's privileged solicitor files on the basis of the wills exception has been heard and determined by the court. [73] I also accept that the Redacted Documents were produced pursuant to the DeCotiis order and as such they should be produced in their entirety, in unredacted form. The respondents will do so within seven days of this order. [74] Given the divided success on this application, each party will bear their own costs. "Associate Judge Peck" [1] DeCotiis refers to the Sworn Declarations as having been made in September 2020 but it is not disputed by the parties that they were, in fact, made in May 2020. I mention that inconsistency only because the date of the Sworn Declarations marks the end date of the previously ordered disclosure, which has implications for the documents sought on this application. [2] Rossano and Giulio were represented by different counsel at the hearing of the March 2024 application but that was not explained or raised as an issue that has any bearing on the position of the parties on this application. Since Rossano and Giulio are now represented by the same counsel, and no arguments were made or evidence presented by any party otherwise, I have considered their positions to have been the same on these disclosure issues throughout.