P.F. v. P.T.

2010 BCSC 599 P.F. v. P.T.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: P.F. v. P.T., 2010 BCSC 599 Date: 20100429 Docket: 12958 Registry: Nelson Between: P.F. Plaintiff And P.T. Defendant Before: The Honourable Mr. Justice Slade Reasons for Judgment - Mistrial Application The Plaintiff: Appearing on her own behalf Counsel for the Defendant: D. Skogstad Place and Date of Hearing: Nelson, B.C April 12, 2010 Place and Date of Judgment: Nelson, B.C. April 29, 2010 [1] Subsequent to the release of my Reasons for Judgment dated May 20, 2009 [2009 BCSC 674], the defendant applied for an order declaring a mistrial. [2] The basis for this application is that the plaintiff allegedly gained access to the defendant's e-mail account, and thus became privy to communications between him and his legal counsel in the period leading up to trial, and during the course of trial. The defendant says that most of his contact with legal counsel was by e-mail. It is contended that the trial process was contaminated as the plaintiff was in possession of privileged information, including information on trial strategy. [3] The plaintiff denies that she had access to the defendant's e-mail account before or during the trial. She admits that she has gained access to the defendant's account since the trial. By her account, she learned in May 2009 that the defendant intended to purchase a recent model pre-owned vehicle from a

private seller. This information reinforced her suspicion that the defendant had misled the court at trial with his assertion that he not shared in his late father's estate. [4] In an affidavit sworn March 5, 2010, the defendant set out two bases for his belief that the plaintiff had accessed his e-mail account before or during the trial. These are: 1. the plaintiff's coming into possession of e-mails said to have been authored by their daughter. These, he maintains, were obtained by the plaintiff through access to the daughter's computer. These included one or more e-mails to the plaintiff from the daughter; 2. the plaintiff claimed, at trial, to have spoken to a Ms. Cespedes concerning stock in a Costa Rican teak plantation. The defendant says that he has recently been informed by Ms. Cespedes that she did not speak with the plaintiff. He attributes the plaintiff's knowledge of information concerning these shares to her interception of an e-mail sent by Ms. Cespedes to his brother, and forwarded to him. [5] All that is established by the plaintiff's possession of e-mails authorized by her daughter is that her daughter gave them to her, or the plaintiff had access to her daughter's computer. This does not establish that the plaintiff had access to the defendant's e-mail account. [6] The e-mail exhibited to the defendant's affidavit in which Ms. Cespedes disclaims having been

in contact with the plaintiff contains one line on the subject: " I didn't receive an e-mail from you before nor have I been in contact with [the plaintiff]". This e-mail is dated July 4, 2009. The defendant's request for information from Ms. Cespedes has not been provided. It is apparent from her e-mail that the subject at hand was the defendant's then current interest in disposing of the share. In these circumstances, no time frame can be attributed to Ms. Cespedes' denial of contact with the plaintiff. Even if this hearsay evidence is admissible, it lacks any significant probative value. Moreover, I accept the plaintiff's evidence that her knowledge of the existence of the share in question, and that the share may have some value, was not based on her interception of the defendant's e-mail communications, but was due to a conversation with Ms. Cespedes prior to trial. [7] The defendant also relies on a report authorized by Mr. Nigel Holmes, a member of a firm of computer experts, TCS Forensics Limited. Mr. Holmes was provided the hard drive from the computer used by the parties' daughter. He was tasked to search for evidence of the defendant's former wife, the plaintiff, "gaining access to [the defendant's] Telus e-mail account". [8] Mr. Holmes discovered that the computer had three user names, the defendant's, and names used by each of the parties' two children. He found

that the computer had been used to log on to the Telus e-mail web page at various times between March and October 2008, and once in March 2009, at times when, according to the defendant, the computer was in the possession of the daughter, and the daughter was with the plaintiff. This is not evidence that the defendant's e-mail account was accessed. This information, generated by Mr. Holmes, merely indicates that the general e-mail web page, maintained by Telus, was accessed. The user names associated with these examples of internet access to the Telus e-mail webpage were the son and daughter's user names. They may have been accessing their respective e-mail accounts. If the plaintiff was using the computer, and the children's user names, she could have been accessing her e-mail account. The report does not establish that anyone accessed the defendant's e-mail account. [9] The defendant also relies on a report prepared by Mr. Nick Hurst. Mr. Hurst operates a computer company. He opines that the plaintiff had access to the defendant's e-mail account for a period of one year up to June 1, 2009. This is on the basis that she did send an e-mail, on June 1, 2009, using the defendant's account. The plaintiff admits this. To go back a year, Mr. Hurst bases his opinion entirely on the defendant's statement that he believed that the plaintiff had, over that period, accessed his account. [10] In short, the evidence does not establish, on the balance of probabilities, that the plaintiff accessed the defendant's e-mail account at any time up to and including the December 2008 trial. [11] The application for an order declaring a mistrial is dismissed, with costs to the plaintiff. "H.A. Slade J." The Honourable Mr. Justice H.A. Slade