Executive summary: key legal and evidentiary issues

• Joseph McLean's oppression petition under s. 227 of the Business Corporations Act alleges the directors of the Business Entities failed to act on evidence that Joel McLean conducted a defamatory campaign against him.

• Two pieces of correspondence — the April 28, 2025 Letter and the September 16, 2021 SRT Email — are at the centre of competing applications for declarations that they are not subject to settlement privilege.

• The court found settlement privilege initially attached to both the April Letter and the SRT Email, as each was written on a "without prejudice" basis in the context of a litigious dispute.

• An exception to settlement privilege was established for the April Letter because the petition squarely put its contents into issue, making disclosure both relevant and necessary for a just resolution.

• Implied waiver of privilege was found against the petitioner regarding the April Letter, as he selectively relied on its evidence while attempting to shield the settlement terms — an impermissible use of privilege as both "sword and shield."

• Joel McLean's application to dismiss the petition was denied, and the SRT Email remains protected by settlement privilege as it was neither referenced in the petition nor necessary to its resolution.

Background and family dynamics

The dispute arises from a family-controlled corporate group originally established by Raymond McLean. The Business Entities include McLean Capital Corporation ("MCC"), 0943750 BC Ltd., and the McLean Family Foundation. Joseph McLean, the petitioner, is a director and shareholder. Four of the personal respondents — Joel McLean, Jonathan McLean, Taylor McLean, and James Cory McLean — are all nephews of Joseph McLean and are alleged to be, together with Joseph McLean, the directing minds of the corporate respondents. MCC also has two independent directors, Dru Narwani and Darryl Eddy, both of whom are also respondents to the petition. At the heart of the family tensions is a trust known as the Skeena River Trust ("SRT"), of which Joseph McLean is the primary beneficiary and Joel McLean formerly served as trustee for a period of time ending April 26, 2021.

The alleged defamatory campaign

Joseph McLean alleges that beginning in the spring of 2022, Joel McLean launched a campaign of harassment and defamation against him and a charity he created called the Rainbow Lodge Charity, following a series of disputes between them concerning the SRT. Joseph McLean states that in February 2025 he investigated certain social media postings and determined that the "Becky See Facebook Account was run from Joel McLean's home." A separate defamation action was filed by Joseph McLean and the Rainbow Lodge Charity against Joel McLean on October 10, 2025, in the Supreme Court of British Columbia.

The April letter and the board's response

On April 28, 2025, Joseph McLean provided the board of MCC with a letter dated April 28, 2025, written by his counsel, setting out evidence alleged to prove that Joel McLean was responsible for the defamatory campaign, and including a report from an online investigator and a draft notice of civil claim against Joel McLean (the "April Letter"). The April Letter was stated to be written on a without prejudice basis for the purpose of settlement "in relation to the potential litigation described within this letter." The same day, Joseph McLean met individually with each of the independent directors, Darryl Eddy and Dru Narwani, and explained to them the evidence. At the same time, Joseph McLean's spouse, Blair Younghusband, met with Cory McLean and provided him with the same information. Despite receiving this evidence, the boards of MCC and the other Business Entities did not take any meaningful steps to address Joel McLean's alleged misconduct. Joseph McLean stated he expected the board would act in good faith to investigate the allegations, place Joel McLean on leave, retain an independent third party to investigate, and gather more information from him.

The oppression petition

Joseph McLean filed his petition on November 7, 2025, supported by an affidavit sworn November 12, 2025, alleging oppression under s. 227 of the Business Corporations Act, S.B.C. 2002, c. 57. He also sought to have Joel McLean removed as a director of the McLean Family Foundation. His reasonable expectations included that the affairs of the Business Entities would be conducted in a manner consistent with family harmony and respect; that the boards would treat him fairly and act in good faith to investigate allegations of serious misconduct by a director; and that no director would be permitted to remain in office if he unlawfully inflicted serious financial and emotional harm against a fellow director, shareholder, Family Trust beneficiary, and society member. The petition did not expressly reference the April Letter by name but clearly described the evidence delivered to the board on April 28, 2025.

Settlement privilege and the April letter

Both MCC and Joel McLean brought applications seeking declarations that the April Letter and the SRT Email were not subject to settlement privilege. The court, applying the test confirmed in Stancor Enterprises Ltd. v. Fiorvento, 2022 BCSC 1842, found that the April Letter initially satisfied the requirements for settlement privilege: a litigious dispute was in contemplation, the communication was made with the intention it would not be disclosed to the court if negotiations failed, and its purpose was to attempt a settlement. However, the court determined that an exception applied because the petition put the April Letter squarely into issue — paragraphs 54–58 of the petition clearly referenced the evidence contained in the April Letter and asserted a claim in oppression based on the respondents' failure to act in response. The respondents submitted that the only way to establish whether their actions were objectively reasonable was to allow production of the entire April Letter. Independent director Narwani deposed that he was skeptical the April Letter was an attempt to resolve any outstanding dispute with MCC in good faith, and that he suspected gaining control of the SRT was Joseph McLean's motivating factor in sending the April Letter to MCC, in addition to engaging MCC in exacting retribution on Joel McLean.

Implied waiver and the "sword and shield" analysis

The court further found that Joseph McLean had impliedly waived settlement privilege over the April Letter by voluntarily taking a position in the litigation that was inconsistent with maintaining the privilege. Joseph McLean had argued that any waiver should extend only to the facts and evidence in the letter, and that the settlement terms must remain protected. The court disagreed, finding that to allow the petitioner to rely on the facts and evidence he presented in the April Letter, but to prevent the respondents from relying on the settlement terms that they said had a role in determining their reaction to the bona fides of the evidence, would be "unfair cherry picking." The court held it would prevent the court from fully assessing the reasonableness of the actions taken, or not taken, by the respondents. The petitioner was found to be using the privilege as a sword to justify his oppression claim while using it as a shield to prevent the respondents from testing the reasonableness of his assertion.

The SRT email remains privileged

In contrast, the court found that the SRT Email — a September 16, 2021 "without prejudice" email from Joseph McLean to Joel, Jonathon, and Jordan McLean proposing settlement of issues related to the SRT — remained protected by settlement privilege. The existence of the SRT Email was not referenced in the petition. While Joseph McLean's affidavit put into issue a proposal with respect to the SRT made in 2022, it made no reference to the proposal advanced in 2021 by way of the SRT Email. The court found that the specific settlement proposal contained in the SRT Email was neither relevant nor necessary to the resolution of the petition, and the public interest in encouraging settlement outweighed its production.

Ruling and outcome

Madam Justice W.A. Baker, in a decision dated February 23, 2026, granted the declarations sought at paragraphs 1 and 2 of the applications filed by MCC and Joel McLean, finding the April Letter excepted from settlement privilege and subject to implied waiver by the petitioner. The declarations sought at paragraph 3 of the applications — pertaining to the SRT Email — were dismissed, preserving its privileged status. The SRT Email is to remain sealed pending further order of the court. Joel McLean's application to dismiss the petition, sought at paragraph 4 of his application, was also dismissed, as the court held that the assertion of privilege over the SRT Email does not undermine the petition such that it cannot continue. No exact monetary amount was awarded or ordered in this decision. The matter of costs was reserved, with written submissions to be delivered no later than March 31, 2026, if the parties cannot agree on the appropriate order.