The plaintiff brought a motion seeking an order to compel the defendant Thames Valley District School Board (TVDSB) to produce its lawyers' accounts and dockets for April 2015, or alternatively, to strike a specific paragraph from the TVDSB's affidavit filed in support of its pending motion for summary judgment.
The TVDSB had relied on the absence of a docket entry in its lawyer's accounts to dispute a phone conversation alleged by the plaintiff's counsel, which was relevant to the TVDSB's defence of abuse of process and limitations.
The court found that while legal accounts are prima facie privileged, the TVDSB's reliance on the information from these accounts in an affidavit constituted an implied or deemed waiver of privilege.
However, instead of ordering full disclosure, the court exercised its discretion to balance the competing interests by ordering a confidential in camera review of the legal accounts by the judge to determine if they contained references to the disputed telephone contact.
The plaintiff's specific requests for full production or striking the paragraph were denied, but a mechanism for limited judicial review was established.
