Allan O’Brien

The plaintiff municipality brought a motion to compel the defendant engineering firm to produce a Risk Management Report and answer questions refused at cross-examination.

The defendant argued the report was protected by litigation and common law privilege.

The court found the report was relevant to the issue of discoverability, as the plaintiff alleged the defendant acted in a conflict of interest by reassuring it about the quality of work.

The court held the report was not protected by litigation privilege because it was not prepared for the dominant purpose of litigation, nor was it protected by common law privilege as it did not meet the Wigmore criteria.

The motion was granted.

The defendant physician sought leave to appeal to the Divisional Court from a decision dismissing his motion for summary judgment on the basis that the claim against him was statute‑barred under the Limitations Act, 2002.

The underlying malpractice action concerned a stroke allegedly resulting from negligent emergency room treatment and subsequent consultation with a neurologist.

The motions judge had concluded that the summary judgment motion was premature due to uncertainty surrounding expert evidence relevant to discoverability of the claim.

On the leave motion, the court held that the earlier judge properly understood and applied the principles governing summary judgment and discoverability, including those articulated in Combined Air Mechanical Services Inc. v. Flesch and Hryniak v. Mauldin.

The court found no conflicting legal test and no serious reason to doubt the correctness of the decision, and therefore declined to grant leave to appeal.

The court determined costs following a motion concerning whether a proceeding could continue as a representative action under Rule 12.08 of the Rules of Civil Procedure.

Success on the underlying motion was divided: the moving party succeeded on the central issue that the action could proceed as a representative proceeding meeting the test analogous to certification under the Class Proceedings Act, but the responding parties succeeded on issues including that only individual union members, not the union itself, could act as representative plaintiffs and that particulars were required for a negligent misrepresentation claim.

Applying the factors in Rule 57, including relative success, complexity, and conduct of the parties, the court concluded that the moving party was overall more successful.

The court awarded reduced partial indemnity costs reflecting divided success and certain pleading deficiencies.