Lauren Rakowski

The plaintiff brought a motion to inspect documents over which the defendant claimed solicitor-client and litigation privilege in an action for property damage allegedly caused by negligent road construction.

The court reviewed the disputed documents and found that most were protected by privilege, as litigation was contemplated early in the parties' negotiations.

The court ordered the production of a few documents that did not meet the test for privilege.

The court also dismissed the plaintiff's argument that the defendant had impliedly waived privilege in its Statement of Defence, but granted the plaintiff's motion to strike a paragraph of the Statement of Defence with leave to amend.

A case conference was held to manage multiple related actions.

The court noted that Commercial List matters were being traversed to the regular Civil list.

Directions were given for the filing of outstanding pleadings, setting aside defaults by consent, and establishing a mutually convenient discovery schedule with a target completion date of December 31, 2022.

The court also provided instructions for scheduling anticipated motions, including a potential Mareva injunction and a motion to join the trials.

A case conference was held regarding five related actions, three of which were on the Commercial List and two were regular civil matters.

Counsel agreed that the actions should be case managed together for efficiency.

The judge agreed to act as the case management judge for all five cases, which will require transferring the Commercial List actions to regular civil actions.

The plaintiff appealed an Associate Justice's decision removing its counsel of record due to a conflict of interest.

The defendant, a former lawyer for the plaintiff being sued for professional negligence, intended to call lawyers from the plaintiff's current firm as witnesses regarding advice they provided to the plaintiff before, during, and after the defendant's retainer.

The Superior Court dismissed the appeal, finding no palpable and overriding error in the Associate Justice's conclusion that the lawyers were likely to be material witnesses and that their continued representation would impair the administration of justice.

The defendants in a solicitor's negligence action brought a motion to remove the plaintiff's lawyers of record, arguing they had a conflict of interest and would likely be called as witnesses at trial.

The plaintiff's lawyers had represented the plaintiff in the underlying bankruptcy matters both before and after the defendants' retainer.

The court found that the lawyers' evidence regarding the advice they gave the plaintiff and the steps they took or failed to take was significant to the defendants' defence and mitigation arguments.

Applying the relevant principles, the court concluded that a fair-minded, reasonably informed member of the public would find the proper administration of justice required the lawyers' removal.

The motion to remove counsel was granted, while motions for production and leave to examine non-party witnesses were adjourned.

The defendant in a solicitor's negligence action appealed a master's order requiring him to answer five questions refused at his examination for discovery.

The Superior Court allowed the appeal in part.

The court held that the defendant did not have to answer questions asking him to identify primary and secondary legal sources regarding testamentary capacity, as this improperly required a fact witness to conduct legal research and provide an expert opinion on the standard of care.

However, the court upheld the master's order requiring the defendant to answer questions about his understanding of his duty to ascertain testamentary capacity and regarding his professional liability insurance coverage.

The defendants brought a motion to strike the plaintiff's statement of claim under Rule 21, arguing it was an abuse of process and barred by issue estoppel.

The plaintiff, a lawyer, sued the defendants for allegedly breaching solicitor-client privilege during a previous proceeding.

The court found that the issue of privilege and waiver had already been decided against the plaintiff in the prior proceeding by a Master.

Applying the test for issue estoppel, the court concluded the action was an impermissible collateral attack and struck the claim without leave to amend.

The plaintiff brought a motion to turn a second action against his real estate agents into a third party proceeding in his main action against the vendors for a failed real estate transaction, or alternatively to consolidate the actions.

The defendants opposed, arguing the motion was premature and should wait until their summary judgment motions were heard.

The court granted the plaintiff's motion, finding that leave to issue a third party claim is mandatory unless prejudice results, and the defendants would not be prejudiced by correcting the procedural error of commencing a separate action.

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.