David Sterns

In a certified class action arising from the termination of automobile dealerships following the 2009 automotive industry restructuring, the plaintiff brought a Rule 30 motion seeking production of documents withheld on the basis of solicitor‑client privilege by a non‑party dealers’ association.

The court reviewed 211 disputed documents in camera to determine whether they constituted privileged legal advice or merely legal information.

Applying the distinction between general legal information and particularized legal advice concerning rights, duties, or liability, the court found that many communications concerned general information about potential bankruptcy proceedings under the CCAA rather than legal advice.

Of the documents reviewed, 60 were held to be privileged while the remainder were ordered produced.

The decision clarifies the analytical distinction between legal advice and legal information for purposes of solicitor‑client privilege in document production disputes.

Following the dismissal of two Rule 30 motions brought by the defendants seeking production of allegedly privileged documents in a certified class proceeding, the court determined the appropriate costs award.

Although the court agreed that solicitor-client privilege had been expressly waived during cross-examinations, the motions were dismissed because the legal advice received by an individual class member was irrelevant to the certified common issues.

On the costs issue, the court rejected the defendants’ submission that success was divided and held that the responding party was substantially successful.

Applying the factors in Rule 57.01(1) and the guidance from the Court of Appeal in Boucher, the court fixed a fair and reasonable costs award below the amount claimed.

Costs of $20,000 all-inclusive were awarded to the responding party, divided equally between the two defendants.

In a certified class action involving former automobile dealers whose franchises were terminated during the 2009 automotive industry restructuring, the defendants sought production of documents relating to legal advice the representative plaintiff received from its own lawyer when signing wind‑down agreements.

The moving parties argued that solicitor‑client privilege had been waived and that the advice was relevant to issues such as causation and damages.

The court held that although privilege regarding advice about the wind‑down agreement had been expressly waived during earlier cross‑examination, relevance for discovery in a class proceeding prior to the common issues trial is confined to the certified common issues.

Because the certified issues focused on the defendants’ conduct under provincial franchise legislation and alleged professional duties, and did not require examination of the individual legal advice received by class members, the requested documents were not relevant at this stage.

The motions to compel production were therefore dismissed.

Following a successful motion setting aside opt-out notices in a class proceeding, the court determined the appropriate costs award.

The moving party sought costs after establishing that the opt-out process had been corrupted by a coordinated campaign that undermined the integrity of the class action.

The respondents argued for no costs or for their own recovery, relying on allegations that certain claims had been withdrawn and that the motion raised novel issues.

The court held that the motion was critical to preserving the integrity of the opt-out process and that the moving party was substantially successful.

Costs were fixed at $60,000, payable jointly and severally by the defendant and the respondent franchisees.

In a certified franchise class action concerning alleged failure to share supplier rebates, the representative plaintiff sought to set aside opt-out notices after a franchisee group launched a campaign encouraging class members to opt out.

The campaign included a coordinated telephone blitz and a public website listing franchisees who opted out while disseminating misleading information about the litigation and class counsel.

The court found that the communications exerted pressure on franchisees and undermined the fairness and integrity of the opt-out process.

Concluding that the process had been subverted by misinformation and intimidation, the court exercised its supervisory authority under the Class Proceedings Act to invalidate opt-out notices submitted after the campaign began.

Following reasons dismissing most aspects of a motion to strike, the court determined the appropriate costs award.

The responding parties were largely successful on the motion, though one claim for unjust enrichment was struck with leave to amend.

The court applied Rule 57 of the Rules of Civil Procedure and the principles from Boucher regarding fair and reasonable costs.

While the successful parties sought substantial indemnity or partial indemnity costs exceeding $19,000, the court found those amounts excessive for a short motion and fixed costs at $11,000 inclusive of HST and disbursements.

A proposed intervener sought leave under Rule 13.01 of the Rules of Civil Procedure to intervene as an added party in a defendant’s pending motion for summary judgment in a civil action.

The proposed intervener was the representative plaintiff in a certified class proceeding involving overlapping factual allegations but different legal theories from the individual plaintiffs’ action.

Although the court found that common issues of fact existed between the proceedings, it concluded that the proposed intervener had no direct interest in the subject matter of the individual action and would not be adversely affected by its outcome.

The court further held that the proposed intervener would not provide a useful contribution to the determination of the summary judgment motion and that intervention would unnecessarily expand the scope of the motion and increase costs.

Leave to intervene was therefore denied.