Jordan Elizabeth Dunlop

This addendum to reasons on undertakings and refusals motions addresses Delta Plus Group's claim of litigation privilege over Refusal No. 10, which arose during the examination for discovery.

The court found that Delta failed to provide firsthand evidence from the document's creator to establish that the document was created for the dominant purpose of litigation, as required for litigation privilege.

Consequently, the court ordered Delta to answer the question.

In a complex commercial dispute stemming from a Share Purchase Agreement and consulting agreements, both the plaintiffs (the Dentes and related entities) and the defendants (Delta Plus Group and its subsidiaries) brought motions to compel answers to undertakings and refusals arising from examinations for discovery.

The court addressed various issues including the relevance of financial information, the accessibility of manual journal entries, the sufficiency of particulars for damage claims, and the assertion of litigation privilege.

The court ordered some productions and dismissed others, emphasizing the principles of relevance and proportionality in discovery.

Given the mixed results, the court also ordered that each party bear their own costs and allowed for further limited examinations for discovery.

The plaintiffs brought a motion to remove the defendant's counsel, Zuber & Company LLP, alleging inappropriate direct communication with the plaintiff's treating doctors and improper requests for medical files without consent.

The court found that defence counsel's letter accompanying a summons to witness inappropriately sought production of medical files directly from the treating doctors, breaching confidentiality protocols established in Burgess v. Wu.

While the conduct was deemed inappropriate, the court, applying the high threshold for removal of counsel, determined that removal was not necessary in the interests of justice, especially since no new confidential information was disclosed.

However, due to the inappropriate conduct, the plaintiffs were awarded costs of the motion on a partial indemnity basis.