Mandy L. Seidenberg

A third party sought leave to appeal an interlocutory order refusing summary judgment that would have dismissed a counterclaim as statute-barred under the Limitations Act, 2002.

The court reviewed the test under Rule 62.02(4) for leave to appeal interlocutory orders to the Divisional Court.

Although aspects of the motion judge’s reasoning raised issues open to debate, the order itself was supported by independent grounds, including triable issues relating to equitable set‑off and discoverability.

The court held there was no good reason to doubt the correctness of the order and that the proposed appeal did not raise issues of broader public importance warranting appellate intervention.

Leave to appeal was therefore refused.

In a franchise class action, the plaintiffs challenged the defendants' claims of solicitor-client privilege over certain documents and discovery refusals.

The court established seven general principles to govern the privilege claims, holding that requests for general legal information to understand rights are privileged, and that a lawyer's file compiled using professional skill is protected by work product privilege.

The court further held that pleading good faith in response to a bad faith claim does not impliedly waive privilege unless the party relies on legal advice as a material element of its defence.

The court outlined a process for the parties to apply these principles to the disputed documents and refusals ahead of a continued hearing.

The applicant sought an order referring a solicitor’s accounts to an Assessment Officer under the Solicitors Act after the final account had been paid and more than twelve months had elapsed since delivery.

The court considered ss. 4(1) and 11 of the Solicitors Act, which require proof of “special circumstances” where an assessment is sought after the limitation period or after payment of the bill.

The applicant provided no evidence demonstrating special circumstances, excessive billing, or dissatisfaction with the accounts at the time they were rendered and paid.

The court also found that the passage of time and potential prejudice to the law firm weighed against ordering an assessment.

The application was dismissed.