IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Bartch v. Bartch, |
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2018 BCSC 811 |
Date: 20180516
Docket: E108417
Registry: Kelowna
Between:
Terry Lynn Marie
Bartch
also known as Terry Lynn Bartch
Claimant
And
Bradley Dean
Bartch
also known as Brad Bartch
Respondent
Before: Master Wilson
Reasons for Judgment
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Counsel for the Claimant: |
S.L. Specht |
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Counsel for the Respondent: |
D.L. Polley |
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Place and Date of Hearing: |
Kelowna, B.C. May 7, 2018 |
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Place and Date of Judgment: |
Kelowna, B.C. May 16, 2018 |
[1] The respondent applies pursuant to Rules 9-1(7), (8), (10) and (11) of the Supreme Court Family Rules for production of the claimant’s journals from December 1, 2012 to August 31, 2014, inclusive.
[2] This is an acrimonious family law proceeding. The parties commenced cohabitation in 1995 and married one year later. There are no children. The parties do not agree on the date of separation for the purposes of the Family Law Act. The claimant says it was in December 2012 following an incident in a Las Vegas nightclub. The respondent says that separation was in August 2014 around the time the parties’ home was sold.
[3] In approximately October 2009, the parties became involved in a multi-level marketing business known as NuCerity International (“NuCerity”) with the claimant initially signing up as a distributor and the respondent following some time thereafter. This has proven to be an extremely lucrative venture for the parties who were able to get involved in what has become a very successful venture at an early stage.
[4] While the parties were together, both were involved in promoting the business. In 2013, the claimant incorporated 0970023 B.C. Ltd. and rolled the NuCerity business from the parties’ jointly owned corporation into that new entity. The claimant is the sole shareholder and director of 0970023 B.C. Ltd. (“097”).
[5] The business of 097 has been extremely successful. At the risk of oversimplification, the claimant’s position is that the success of 097 is almost exclusively as a direct result of the efforts she has made since separation to build, develop and nurture the business. For his part, the respondent says that the parties’ joint efforts during their time together are the cause of 097’s success and that the claimant wrongfully converted the business opportunity by transferring it from the parties’ jointly held corporation to 097.
[6] Each party has an expert report from a business valuator – the claimant retained Mr. Ron Tidball (“Tidball Report”) and the respondent retained Mr. Don Spence. Although the report itself was not in evidence before me, the Tidball Report contains as Appendix D a bundle of information provided by 097’s bookkeeper, Tannis Taylor. The information provided by Ms. Taylor includes advocacy on behalf of the claimant, followed by a chronology of activities. The chronology contains certain references to the respondent (referred to in the most part as “X”) including editorial comments about the respondent’s behaviour.
[7] The chronology was provided to Mr. Tidball to outline the efforts made by the claimant in what she says is her development of the NuCerity business post-separation.
[8] The chronology is very detailed for the 2013 calendar year to the extent that there are approximately five and a half pages of notations for that year. Starting January 22 and continuing until the end of the year, almost everyday is accounted for in some fashion. Starting on the eighth of the nine pages:
Highlights for 2014, 2015, 2016
+++ Marta, [the claimant’s former lawyer] I can’t find my 2014 journal, I lost it in the move!! Wtf so have to just go off the visa timeline and you have it.. I will send it again, … every Mon thru Friday at 7am BC time, team conference call… Fearless Friday is my day.. I get on every day because the culture of saying hi/bye is connecting people to know I care.
[9] The years 2014 to 2016 are then summarized in approximately half a page.
[10] The chronology is followed by this notation:
Also, in your personal experience, can you make a list of the things that Bartch DIDN’T do that is required to run a successful NuCerity business. I have done all of the required work to run a successful NuCerity Business.
1. Make lists of people to join.
2. Write down your goals.
3. Make a Vision board.
4. Speak to minimum to 2 people a day about the Nucerity Opportunity
5. Set 2 business launches.
6. Attend weekly meetings (if there are none Make Shit Happen)
7. Attend local Super Saturdays
8. Attend weekly corporate Getting Started Call.
9. Attend weekly corporate Recognition Call
10. Attend Corporate Conventions.
11. Attend Corporate Regional events.
12. Write your Why. Write your story, it must make you cry.
13. Order business cards.
14. Make a commitment to work a plan to Rank advance every convention.
15. Keep a Journal. (emphasis added)
16. Keep Skincerity bottle with you at all times.
17. Keep a presentation book with all product info. Point Guide Direct
18. Have a Mentor
19. Take responsibility of yourself, do Personal Development. “Seldom does income exceed personal growth” Past President Jeff Graham.
[11] It appears that the first sentence is a question that the claimant received from someone else, with the remainder being her answer.
[12] A trial in this matter was scheduled to take place in February 2018, but was adjourned by me on application by the respondent after he had a stroke.
[13] The respondent says that the journals are clearly relevant as they are the source documents for much of the chronology that was provided to Mr. Tidball in preparation of his report. He says that the nature and extent of the claimant’s efforts is squarely in issue in the litigation.
[14] The claimant says that Appendix D was not used to instruct Mr. Tidball, and to the extent that the respondent says he intends to testify that he was actively involved in the business and was participating in the various matters that are enumerated, he has the ability to give evidence on those matters. The question for the court will not be her journals but the claimant’s contributions as distinct from the respondent’s contributions in the development of the business, and that this application is a ‘fishing expedition’. She says that credibility, while squarely in issue in the case, is not a reason to order production of documents.
[15] The claimant also argues that production of the journals would be intrusive and is disproportionate here because they include personal thoughts and emotions and opinions, and that she never intended that anyone else read them.
[16] Finally, the claimant says she might have lost or disposed of the journals.
[17] This application is for what is often referred to as tier two disclosure, lists of documents having been exchanged. The respondent has given notice to the claimant regarding the journals and the respondent is therefore at liberty to bring this application. The issue is therefore whether the journals should be disclosed.
[18] For the reasons that follow, I conclude the journals must be disclosed.
[19] The chronology forms a part of the Tidball Report and the efforts of the parties is a critical issue in this case. Does that make the journals relevant? In my opinion it does. The claimant downplays the role the journals took in the preparation of Appendix D. She says at paragraph 10 of her 12th affidavit as follows:
10. For the information that was compiled on my dates for work events, this came from multiple sources. First and foremost it came from memory, that of both myself and Ms. Taylor who assisted me in making the list. Many of the events listed were regularly scheduled events such as Fearless Friday calls or other team building events that I regularly scheduled. It came from talking to other members of my NuCerity team, many of whom are witnesses at trial and who will give evidence as to my involvement and support to them as the Respondent appears to be alleging that I am lying about the work that I did for my business. It also came from Visa statements for the business which verified where I was at specific times and which have been produced in this litigation. There is actually not much which came from the journals themselves, but rather they were only a cross reference for a few things.
[20] However, the high level of detail in the chronology for 2013 is in stark contrast with the sparse detail for 2014, which is the journal the claimant said she could not find. The claimant has told Mr. Tidball that keeping a journal is one of things required to run a successful NuCerity business, so a journal of some form is presumably a record kept for business purposes. Since the claimant provided a significant amount of detail with regard to her work activities for the period when she had her journal at hand, but very little information regarding other periods, I am left to infer that the details of her daily events for 2013 were compiled primarily from a review of the journal, notwithstanding her suggestion that it was done mainly from memory. If her memory were the primary source, one would expect a similar if not greater level of detail for subsequent years.
[21] Since the journals formed the basis for the information provided to Mr. Tidball for the preparation of his report, I find that they may well be relevant. The chronology was prepared in late 2016 and provided to Mr. Tidball to evidence the claimant’s efforts in building the NuCerity business. The journal may or may not also include information about the efforts of the respondent over the same period.
[22] In my view, it is no answer for the claimant to say that the respondent would know when he was present and that nothing would be gained by ordering production of the journals. The claimant indicated in the note to her former lawyer that she would need to use her credit card in order to put together her timeline since she had lost or misplaced her journal. It is not clear to me why the respondent should be expected to remember all of the details but the claimant would not.
[23] I conclude that the journals are relevant.
[24] The respondent says that her journals were intended to be private and confidential. At paragraph 11 of her 12th affidavit, she says the following:
11. My journals are a private, personal space where I write my thoughts, emotional and personal struggles or opinions. I never intended for these journals to be shared with anyone, nor have I ever shared them with any one.
[25] The court has previously considered whether journals ought to be disclosed or should remain confidential. In Taylor v. Cooper, 2013 BCSC 2073, Warren J. considered all of the authorities, including the decision of Madam Justice McLachlin in A.M. v. Ryan, [1997] S.C.J. No. 13 at paragraph 22 as follows:
[22] The next question is whether the plaintiff has established that the Journals are privileged. A privacy claim over a communication is properly analyzed under the rubric of common law privilege: A.M. v. Ryan. As explained by Madam Justice McLachlin at para. 20, this involves the application of the four-part Wigmore test:
1. The communication must originate in a confidence.
2. The confidence must be essential to the relationship in which the communication arises.
3. The relationship must be one which should be “sedulously fostered” in the public good.
4.If all these requirements are met, the court must consider whether the interests served by protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation.
[26] Warren J. then went on to review the Court of Appeal’s decision in K.L.V. v. D.G.R., [1994] B.C.J. No. 1978, and whether the Wigmore test would apply to journals. Wigmore involved communications between two parties that were intended to remain confidential; K.L.V. considered journals that were not intended to be communications between parties at all. At para. 23, Warren J. summarized the Court of Appeal’s decision as follows:
[23] In K.L.V., the Court of Appeal considered whether the Wigmore test could apply to journals, which by definition are not communications between people. In that case the plaintiff sued her former stepfather for sexual assaults that occurred when she was between the ages of 7 and 15. The stepfather had been criminally convicted, and so liability was not an issue. The stepfather applied for production of the plaintiff’s journals. The chambers judge reviewed the journals and found that they may be relevant to the issue of damages and ordered them to be produced to counsel for the defendant. The Court of Appeal overturned that decision and in so doing applied the following reframed Wigmore test:
1. The writings must originate in a confidence that they would not be disclosed.
2. The activity of the secret writing is important if not essential to the healing process.
3. The healing process is such that in the opinion of the specialists (and therefore society) it ought to be strongly encouraged.
4. The possible injury to the ongoing healing process is far greater than the benefit gained by disclosure.
[24] In my view, it is readily apparent that a significant connection between the confidential writing and the healing process is a necessary element of this test.
[27] Warren J. starting at para. 35 confirms that the party resisting production must establish the privilege of the journal, and in the case before her concluded that the plaintiff had not established that the writing was an essential component of the plaintiff’s healing process. The respondent in this application says the plaintiff’s claim for confidentiality over journals suffers the same flaw.
[28] At paras. 36 and 37, Warren J. said the following:
[36] There are several potential reasons for keeping a journal. These include a desire to maintain a contemporaneous record of events, feelings and thoughts for no particular purpose, or a desire to do so as an aide-memoire for future reference. A journal may also be kept as an outlet for creative writing. I also accept that journals may be kept for therapeutic purposes, to explore feelings and attempt to gain perspective on life experiences. Here, however, the only evidence of why this plaintiff kept these Journals is her statement that they were kept as a repository of her private thoughts and feelings. In my view, this does not establish that the Journals were kept for therapeutic purposes. The plaintiff in effect concedes as much in her application response, which states in part as follows:
It is not suggested that all the diaries were written for a therapeutic purpose, but this application raises the issue of the special privacy accorded to personal diaries and journals, as well as the impact of the production of those diaries on the therapy of the plaintiff.
[37] In my view, to read the K.L.V. test as if it were not necessary to establish that the Journals were written for a therapeutic purpose would deprive the second criterion of meaning. There is no evidence from which I could conclude that any of the Journals were important, if not essential, to the plaintiff’s healing process. As such, it is not necessary to consider the other elements of the K.L.V. test.
[29] The term ‘journal’ has no particular legal meaning. She has indicated in Appendix D that keeping a journal is a requirement of a successful NuCerity business, which would suggest that at least some portion of the journal was maintained for business reasons. I must infer that her “thoughts, emotional and personal struggles or opinions” as referred to in her paragraph 8 are intermingled with her recordings of her daily work events, all within the same document.
[30] In this case, there is no evidence that the claimant kept her journal for any therapeutic purpose. In Taylor, there was evidence from the plaintiff’s psychologist, but Warren J. found that evidence fell short of establishing that the writing was an important if not an essential part of the plaintiff’s healing process. There is no evidence that the claimant has undergone any sort of therapy or that she has ever been told that she should undertake some form of therapeutic writing process. The evidence here is weaker than in Taylor, there being no evidence of therapeutic purpose. Warren J.’s decision in Taylor is binding on me. The claimant’s claim to confidentiality must fail.
[31] On the issue of proportionality, the claimant refers to the decision of Master Young, as she then was, in Mossey v. Argue, 2013 BCSC 2078. From my review of that decision, Master Young’s concerns about proportionality were focused on the amount of time and money parties must be expected to expend chasing down documents of nominal probative value.
[32] The information I have here is that the NuCerity business has generated substantial income, and whether its value is derived from the joint efforts of the parties pre-separation or from the claimant’s post-separation efforts is of significant importance. I am satisfied that the journals may well contain probative information about the parties’ respective involvement in the business which is clearly of critical importance in the case. The documents sought do not require the claimant to track down individual cheques and receipts along the lines of what might be required for a forensic audit, which was Master Young’s concern in Mossey v. Argue.
[33] Disclosure of what is sought here is not disproportional given what is in issue here.
[34] At para. 8 of her affidavit, the claimant deposes that she does not know whether she has the documents and says as follows:
8. With respect to the demand for my personal journals, I do not consent to production of same. I do not even know if I have any from the period of time requested, being 2012 – 2014 as I lost several during two moves and I also disposed of some. What remains is in storage and I have not had an opportunity to attend that storage and review same with the little notice that was given with the Respondent’s application and my travel schedule.
[35] It is not clear why she would have disposed of any of the documents, and I am satisfied from a review of Appendix D that she at least had a journal for 2013 in hand at the time of the instructions to Mr. Tidball at the end of 2016.
[36] The evidence is that the respondent has been asking for these documents since December but the claimant has until her affidavit #12 filed in response to this application only resisted production, as opposed to suggesting loss or destruction. The claimant does not explain why she would have disposed of her journals, which implies a deliberate act, especially when she had at least some of them in December 2016 when she provided Mr. Tidball with the chronology in Appendix D. The initial request was only two months before the trial was supposed to take place. Even though the respondent did not give proper notice of this application, the claimant has had almost five months to determine if she has the documents requested by the respondent. If the documents no longer existed, arguments about confidentiality, relevance and proportionality would have been moot, and time and money could have been saved.
[37] The claimant will produce the documents sought in the notice of application within 28 days of the date of this decision. If she is unable to do so for any reason, she is to provide an affidavit that outlines the efforts she has made to locate the documents and her explanation as to why they no longer can be found. With reference to paragraph 8 of her affidavit #12, the claimant’s affidavit will identify which documents she disposed of.
[38] Although the respondent was successful on the application with regard to the journals, I note that the notice of application originally also sought production of telephone records that were within his control. That relief was abandoned prior to the hearing. I also note that the respondent filed this application on April 4 and made it returnable on the week of April 9, 2018, to be heard in conjunction with an application filed by the claimant.
[39] The respondent did not seek or obtain short leave, even though short leave was required. Master Baker in his decision in O’Callaghan v. Hengsbach, 2017 BCSC 2182, summarized some of the general principles associated with short leave applications. Even before O’Callaghan, it was not appropriate to simply schedule a matter on less than the required notice and seek as a term of the order that the matter be heard on less than the required notice, or indeed to simply ignore the notice requirements under the Rules.
[40] If either party seeks an order for costs, they may make arrangements with Supreme Court Scheduling to speak to the matter, within 14 days of the date of these reasons.
“Master Wilson”