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 seeking a declaration that certain communications with their lawyers, which were inadvertently left on the defendants' email servers after a share purchase transaction, were subject to solicitor-client privilege.

The plaintiffs also sought leave to file a supplementary affidavit after cross-examinations.

The court granted leave to file the new affidavit.

On the privilege motion, the court found that the plaintiffs' law firm did not represent the target companies during the transaction, meaning no joint privilege passed to the purchaser.

The court also held that the plaintiffs did not waive privilege by using the company email servers, as the disclosure was inadvertent and they maintained a reasonable expectation of privacy.

The court reviewed the documents and declared which ones were privileged.

The plaintiffs brought a motion to amend their Statement of Claim to substitute a named defendant for a 'Jane Doe' following a motor vehicle accident.

The proposed defendant initially opposed the motion but ultimately consented.

The only issue remaining was costs.

The proposed defendant argued the plaintiffs should pay costs as they were granted an indulgence.

The court rejected this, finding the plaintiffs acted with diligence.

The court awarded the plaintiffs costs fixed at $12,000 on a partial indemnity basis, payable in the cause, noting it was reasonable for the proposed defendant to initially oppose the motion.

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.