Court File and Parties
DIVISIONAL COURT FILE NOS.: 113/08 and 116/08
COURT FILE NO.: 03-CV-254744CM
DATE: 20080728
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT MOTIONS)
B E T W E E N:
PAUL W. CURRIE Plaintiff (Respondent)
- and -
SYMCOR INC., ROYAL BANK OF CANADA, THE TORONTO-DOMINION BANK and BANK OF MONTREAL Defendants (Appellants/Moving Parties)
Counsel: Joe Conforti and Lauren Butti for the plaintiff J. Brett Ledger, Sonia Bjorkquist and Jennifer Fairfax for Symcor Inc. Peter Griffin and Mark Veneziano for Royal Bank of Canada, The Toronto-Dominion Bank and Bank of Montreal
HEARD: April 16, 2008
Reasons for Judgment
FERRIER J.:
[1] The defendants seek leave to appeal the decision of Hoilett J., released March 4, 2008, dismissing appeals from the decision of Master Sproat, dated April 12, 2007, in which she ordered certain questions to be answered by the defendants on discovery.
[2] There are two motions for leave; one brought by Symcor and the other brought by the remaining defendants "the Banks". The Banks have pleaded collectively in one statement of defence, Symcor has pleaded separately in its own statement of defence, and each has retained independent counsel.
[3] Given the similarity of the issues it is appropriate to consider both motions for leave together. I note however that some differences in the pleadings are significant. They are referred to below.
[4] The action arises from a written Employment Agreement dated March 31, 2000 in which Paul W. Currie was hired as the Chief Executive Officer of Symcor, a private company then owned by the Bank of Montreal, the Royal Bank of Canada and the Toronto-Dominion Bank. Symcor was the product of the Banks collaborating to create a single entity for item processing (such as cheques) and related functions rather than each performing those functions. Symcor terminated the plaintiff's employment on January 7, 2003. Symcor did not allege cause and paid the plaintiff sums in accordance with the termination provisions of the Employment Agreement. There are remaining disputes regarding employment-related damages, but the crux of this action is Paul Currie's alleged contractual entitlement to a substantial share of equity in Symcor. The plaintiff commenced this action for breach of contract against Symcor and the Banks, as independent corporate entities, claiming $190.1 million dollars (an alleged 10% equity interest in Symcor), in addition to the amounts he has already received.
[5] The plaintiff relies on s.2.07 of the Employment Agreement to substantiate his alleged contractual entitlement to equity in Symcor. Both Symcor and the Banks plead that the clause is vague and unenforceable, constituting at best an agreement to agree to some form of a reasonable long-term incentive arrangement.
[6] The Employment Agreement contained the following provision:
2.07 Equity Plan
The Employer will provide to the Employee an Equity Plan allowing the Employee to acquire 10% of the equity of the Employer from the original partners or the Employer at net book value as determined at September 30, 1999 in such manner as the parties agree on a basis which is tax effective for the Employee with ownership funded from each of the partners as required. This may take the form of options, special warrants, share purchases or such form as agreed by the parties. The holding of this equity will be subject to the terms and conditions as agreed to by the Employer and Employee. Within thirty days of the execution of this Agreement, the parties will enter into a Shareholder's Agreement, which will provide, in addition to the usual terms, the following:
- Both drag-along and tag-along rights.
- In the event of an IPO, the Employee or the holder of his equity instrument will abide by all regulatory hold periods.
- The strike price or purchase price on the Employee's equity instrument will be decreased in respect of any dividends paid or return of capital.
- The Shareholders or the Employer will provide financing for the Employee to exercise his equity instruments and it will be secured only by the equity represented by that instrument.
[7] As seen, section 2.07 of the Employment Agreement specified that, within 30 days of its execution, the plaintiff and the defendants were to enter into a shareholders' agreement. This was not done. Instead, the existing shareholders' agreement between the Banks and Symcor was amended and restated as of September 2000 (the "Shareholders' Agreement"), some six months after the execution of the Employment Agreement. The plaintiff was not a party to that agreement. The plaintiff signed the Shareholders' Agreement only as an officer and not as a shareholder of Symcor. This new shareholders' Agreement referred to the plaintiff's alleged equity entitlement as a "special option" to purchase shares.
[8] The following provisions are contained in the Shareholders' Agreement:
Section 2.01 Shareholders' Representations and Warranties
Each Shareholder [RBC, TD and BMO] represents and warrants to the other Shareholders [the Banks] and the Corporation [Symcor] that:
(b) Such Shares [the common shares of Symcor] are held by it free and clear of all claims, liens and encumbrances of any nature whatsoever and no Person has any agreement or any option or right capable of becoming an agreement for the purchase of any such Shares, except for the options to purchase shares granted by each of the Shareholders to Paul Currie in his employment agreement dated March 31, 2000 (the 'Special Option') or as this Agreement may otherwise provide;
Section 2.02 Corporation's Representations and Warranties
(f) There is no agreement, option or right capable of becoming an agreement for the purchase, subscription or issuance of any of its unissued Shares or securities capable of being converted or exchanged for its unissued Shares, except for the Special Option;
Section 3.04 Permitted Transferees
… Each Shareholder shall also be entitled, upon prior written notice to the Corporation and to the other Shareholders, to transfer a portion of its Shares as required pursuant to the Special Option.
Section 9.12 Special Option
The Shareholders and Symcor acknowledge that the rights of the Shareholders under Section 2, 3 and 6 hereof are subject to the rights granted to the option holder under the Special Option.
[Emphasis added]
[9] The appeal to Hoilett J. concerned two broad categories of discovery questions – one involving relevance, the other involving privilege. We are concerned here only with those alleged by the defendants to be matters of privilege. The relevant part of Hoilett J.'s decision is contained in paras. 14 to 23 thereof.
[10] Symcor argued that Hoilett J.'s reasons are insufficient and inadequate and accordingly raise good reason to doubt the correctness of his decision. I disagree.
[11] Hoilett J. did not express his own analysis of the propriety of the questions ordered to be answered, but he appears to have carefully examined the issues and the decision of Master Sproat. He agreed with her decision, found it to be correct, and in effect adopted her reasoning.
[12] The reader accordingly knows the basis upon which Hoilett J. reached his decision. Nevertheless, it is thus necessary to examine Master Sproat's reasons in determining whether leave should be granted. In doing so, it is also necessary to examine the particular questions under review, in groups if possible, or individually.
[13] The starting point is to reference the pleadings.
[14] The plaintiff says there was an employment agreement for a 10% equity share. The defendants say not, rather it was an agreement to agree and that there were significant terms yet to be agreed upon, which ultimately were not agreed.
[15] There is a significant difference in the statement of defence of the Banks, where it is alleged that:
- In any event, the Shareholders' Agreement between the Banks merely referred (as it turns out incorrectly) to the contents of the Employment Agreement but created no additional rights in the plaintiff. Given that he was not a party to that agreement, nor could it. [Emphasis added]
[16] The plaintiff relies on the Shareholders' Agreement as evidence of his claim that there was an agreement for a 10% equity.
[17] Although the issues related to alleged privileged communications are common to both Symcor's and the Banks' positions, it is necessary to examine the particular questions at issue in the context of the parties' independent pleadings.
Symcor
[18] I shall deal first with Symcor.
[19] The Banks, including representatives who were members of Symcor's Board of Directors at the time, negotiated the Employment Agreement. None of Symcor's managers or employees were involved in negotiating the Employment Agreement, nor did any of them know any details of s.2.07. As a result, no managers or employees at Symcor can speak knowledgeably about the original thinking behind s.2.07 and the Employment Agreement.
[20] Stikeman Elliot LLP ("Stikeman") acted as Symcor's external legal counsel during the negotiation of the Shareholders' Agreement, with the Banks and their legal counsel on the other side of the transaction. Since Symcor's inception in 1996, Stikeman has acted as Symcor's long-term external legal counsel on various matters, and not as counsel to the Banks. During the examination for discovery of Symcor's representative Gary Eisen (the Senior Vice-President, General Counsel and Secretary of Symcor) ("Eisen"), Eisen explained and confirmed the following facts under oath: that Stikeman acted as Symcor's external legal counsel; that Eisen distinguished between when he was giving/receiving legal advice and business advice; that when Eisen was dealing with Stikeman in general "that was clearly legal advice" from Stikeman; and that when Eisen was dealing with Stikeman on the Shareholders' Agreement, he did so in the context of requesting or receiving legal advice. The motion records in the courts below contained the transcripts with this sworn discovery evidence.
[21] I have appended to these reasons a concordance prepared by counsel listing the questions appealed regarding the issue of privilege and reflecting a summary of the position in reference to each.
[22] Items numbered 67 to 79 inclusive relate to the examination of Eisen as a representative of Symcor.
[23] Items 74 and 75 relate to Eisen's intention when he inserted language into the Shareholders' Agreement. No privilege attaches to the questions and there is no basis in rule 62.02 for leave to appeal.
[24] Leave to appeal is denied in reference to items 74 and 75.
[25] To the extent that items 71, 72 and 73 seek communications between Stikeman and "non-Symcor persons", no privilege could attach and leave is denied in that respect.
[26] Otherwise, for questions 71, 72 and 73 seeking communication between Stikeman and Symcor, and for the balance of the Symcor questions, issues of privilege arise.
[27] The learned Master summarized her determination of the motion as follows:
In disposing of this motion, I have done so on the basis that no privilege existed, that there are other valid reasons to require disclosure or alternatively, that no privilege was established as a result of the failure to lead evidence. I am aware that a ruling that the privilege has not been properly established is an extreme approach, but, in my view, Blair J., as he then was, accepted such a conclusion is justified in the absence of any evidence (see para. 37 of Davies, reproduced above). I would note that the extreme approach I have taken is attenuated by the position taken by counsel for Paul that he does not seek communications relating to 'legal advice' and, hence, there is little risk of overreaching in relation to solicitor client privilege claims.
Reasons, p.16 [emphasis added].
[28] The learned Master also noted (p.15) in her reasons (correctly) that Symcor did not file affidavit evidence to support its claim for privilege. At p.19 she refers again to the lack of evidence on the motion concerning privilege. She went on to hold that there "was no evidence to whether Mr. Eisen was acting in a business capacity in negotiating the Shareholders' Agreement or was acting in a legal counsel capacity." With respect, there was such evidence, as noted above.
[29] The learned Master also held that it was unclear as to who "the client" is, but a careful reading of her reasons satisfies me that she determined that there was no such issue as between Stikeman and Symcor. Furthermore, she noted that the Banks do not assert that Stikeman was their legal counsel in the preparation of the Shareholders' Agreement.
[30] In all of the foregoing references, the learned Master appears to have overlooked the uncontradicted evidence of Eisen, noted above, that whenever he dealt with Stikeman in connection with the Shareholders' Agreement it was for the purpose of receiving legal advice.
[31] In this respect, I am of the view that there is good reason to doubt the correctness of her decision.
[32] The learned Master further held that "it would be unfair to allow the defendants to plead and rely upon the failure to agree on the terms of the equity interest as provided for in the Employment Agreement and the Shareholders' Agreement and the discussions and negotiations, yet refuse questions relating to the same." (p.22)
[33] In this she followed Warren v. Insurance Exchange Ltd. (1982), 37 O.R. (2d) 717. However, Warren was quite a different case. There, the defendants alleged that the plaintiffs failed to reveal certain information as a result of which the business they purchased from the plaintiffs was worth substantially less than they agreed to pay for it. The defendants accordingly refused to pay on a promissory note executed as security.
[34] The plaintiffs alleged that the defendants were aware of the information and that documents received and generated by their solicitors would reveal the defendants’ knowledge.
[35] In these circumstances Master Peppiatt ordered production and referenced Nowak v. Sanyshyn (l979), 9 C.P.C. 303, where Grange J. said:
The issue – perhaps the only issue – in the case at Bar is the advice obtained by the plaintiff before she signed the documents. If she was advised fully her action will fail; if she was not it may succeed. It would, in my mind, be a distortion of the purpose of the rule to permit it to be used to prevent any inquiry into the matter by the defendants.
[36] In Nowak, the defendant had pleaded that “she had neither legal nor linguistic assistance sufficient to ensure her understanding of the documents.”
[37] Thus, Nowak was quite a different case.
[38] Master Sproat also held that the pleadings of the defendants were an express waiver of the matters relating to the preparation of the Shareholders’ Agreement.
[39] With respect to Master Sproat and Hoilett J., I am of the view that there is good reason to doubt the correctness of these findings. It seems to me that the ultimate effect of these findings is that in virtually every case where the intention of the parties concerning the meaning of an agreement is in issue, privilege would be waived – a proposition I cannot accept.
[40] The learned Master also held that because the Banks allege that the reference to the Employment Agreement in the Shareholders’ Agreement was “incorrect”, the plea renders relevant the instructions given to Stikeman concerning the preparation of the Shareholders’ Agreement and the inclusion of the “incorrect” term.
[41] However, Symcor made no such plea – rather, only the Banks did.
[42] In this, I am of the view that there is good reason to doubt the correctness of the decisions below in reference to Symcor.
[43] Furthermore, the learned Master also held that “instructions” are not privileged, relying on Zielienski v. Gordon, [1982] 1 W.W.R. (B.C.S.C.) at p.417.
[44] In my view, Zielienski and the decisions below, holding that instructions are not privileged, conflict with many authorities which hold that all communications made within the framework of the solicitor-client relationship are prima facie privileged.
[45] The Supreme Court of Canada has repeatedly confirmed that, once the solicitor-client relationship is established, solicitor-client privilege (as a class or blanket privilege) prima facie applies to all communications made within the framework of that relationship. Solicitor-client privilege is a fundamental Charter right that must remain as close to absolute as possible. The uncontroverted testimony of Eisen, which was before the courts below, established the solicitor-client relationship between Stikeman and Symcor in relation to the drafting of the Shareholders’ Agreement. As such, it is my view that the presumption of solicitor-client privilege applies with respect to Symcor’s communications with Stikeman.
Robert W. Hubbard, Susan Magotiaux, Suzanne M. Duncan, The Law of Privilege in Canada [Toronto: Canada Law Book, May 2006] at pp.11-13.
Maranda v. Richer, [2003] S.C.R. 193, at para.33.
Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809 at paras.16-18, per Major J.
Goodis v. Ontario (Minister of Correctional Services), 2006 SCC 31, [2006] 2 S.C.R. 32 (S.C.C.) at pp.39-40 and 42-43, at paras.14-17 and 23-24.
[46] Further, the application of solicitor-client privilege is very broad and includes not just the provision of “legal advice” but also the protection of factual, financial and administrative information provided to legal counsel, for the purpose of allowing legal counsel to give legal advice (so long as the advice is not purely business advice). It is not necessary that the communication specifically request or offer advice, as long as it can be placed within the continuum of communications in which the solicitor tenders advice. The privilege applies when a lawyer negotiates a commercial transaction (such as a share structuring agreement), draws up contracts or communicates with a client in the course of a transaction. Again, no evidence before the learned Master contradicted Eisen’s sworn discovery testimony that his communications with Stikeman about the Shareholders’ Agreement were for the purpose of receiving legal advice.
Smith v. Jones, [1999] 1 S.C.R. 455 (S.C.C.) at para.46, per Major J.
Maranda at para.22.
Cusson v. Quan (2004), 10 C.P.C. (6th) 308 (Ont.S.C.J.) at para.8, per Master Beaudoin.
[47] The learned Master further held, in ordering the questions answered, that facts are discoverable and are not privileged:
It is my view that the authorities cited by counsel for Paul and Maranda v. Richer, 2003 SCC 67, [2003] 3 S.C.R. 193, clearly establish that facts are discoverable and are not privileged. The exception to this general proposition is if the disclosure of the facts may reveal the nature of the legal advice thereby destroying the privilege. I acknowledge the difficulty, perhaps a practical difficulty, if the defendants were to isolate the ‘fact’ contained in privileged communications from the ‘legal advice’ sought or received. This practical difficulty referred to expressly by the Supreme Court in Maranda at p.213, that the fine distinction between ‘fact’ and ‘communication’, risks erosion of the privilege.
In Maranda, the Supreme Court acknowledged that certain facts, if disclosed, can speak volumes about a communication. This argument did not arise in Maranda, as counsel for the appellant relied solely on the general presumption that information is privileged because it is part of the solicitor client relationship (the same approach taken by the defendants on this motion, save the questions objected to by Symcor in relation to communications with PwC regarding the removal of the note to the audited financial statements, discussed more fully below).
In this case, there is no evidence to suggest that the disclosure of the facts would reveal the nature of the legal advice. It would seem to me that the ‘facts’ would have to be sufficiently interwoven with the ‘legal advice’, given that a communication is only protected for the purpose of obtaining or receiving legal advice. (The PwC communications may be an exception to this conclusion, given the submissions of counsel for Symcor on the PwC questions).
[48] The learned Master also referenced Susan Hosiery Limited v. The Minister of National Revenue, [1969] 2 Ex. C.R.27:
What is important to note about both of these rules is that they do not afford a privilege against the discovery of facts that are or may be relevant to the determination of the facts in issue. What is privileged is the communications or working papers that came into existence by reason of the desire to obtain a legal opinion or legal assistance in the one case and the materials created for the lawyer’s brief in the other case. The facts or documents that happen to be reflected in such communications or materials are not privileged from discovery if, otherwise, the party would be bound to give discovery of them.
[49] It is my view, however, that unless a fact or document exists independently from the solicitor-client relationship communications of those facts or documents are subject to privilege. See Susan Hosiery at pp.5282-5283 and 5286; Dusk v. Newton (1985), 1 D.L.R. (4th) 568 at para.13 (B.C.C.A.); Madge v. Thunder Bay (City), (1990), 72 O.R. (2d) 41 at 43-44.
[50] The learned Master concluded as follows:
Mistake
Lastly, and perhaps most importantly, the Banks specifically plead that the reference to the Employment Agreement in the Shareholders Agreement was incorrect. In my view, this allegation amounts to a pleading that someone made a mistake by including that reference in the Shareholders Agreement. This mistake must therefore have been a drafting error and presumably made by the solicitors, i.e. Stikemans, Mr. Eisen or other solicitors engaged in the preparation and review of the Shareholders Agreement on behalf of the Banks. While it is clear that the defendants can call witnesses to testify that they did not intend for Paul to have an equity interest, such testimony would not provide an explanation as to how or why the reference to the Employment Agreement was incorrect and came to be or as to the development of the discussions and negotiations leading to the incorrect reference. It is unfair to allow the defendants to plead mistake and then shield the evidence going to the mistake and thereby prevent Paul from knowing the evidence that he will be or may be faced with at trial.
[51] I note again that Symcor did not plead mistake, specifically Symcor did not plead that the reference to the Employment Agreement in the Shareholders’ Agreement was “incorrect”. Rather, only the Banks did.
[52] I am of the view that one defendant, by its pleading, may not waive the privilege claimed by another defendant.
[53] For the foregoing reasons I am of the view that there is good reason to doubt the correctness of the decision as it relates to the items in the appendix related to Eisen, except items 74 and 75.
[54] The issues are important to the administration of justice, the law of privilege and to the guidance of the legal profession.
[55] In its factum, Symcor raised for the first time its lack of control over the information and documentation requested. This was not argued below. Leave is denied in reference to this issue.
[56] Except for this last-mentioned issue, leave to appeal is granted to Symcor in reference to the above-noted items.
The Banks
[57] Dealing now with the Banks – items numbered 84 to 104. Michael Foulkes was examined for discovery as a representative of T-D Bank. Robert Aziz was T-D’s in-house counsel. It was Aziz who negotiated with the plaintiff in 2002 for an equity plan (arising out of the Employment Agreement).
[58] The learned Master dealt specifically with Foulkes’ examination as follows:
In or about April, 2002, Robert Aziz, the TD Bank’s in house legal counsel, was asked to negotiate an equity plan with Paul. Mr. Aziz met with Ms. Medland, Paul’s legal counsel, but negotiations were not successful. These negotiations were specifically pleaded by the Banks at paras. 22 and 35 of their statement of defence and counterclaim, as referenced above in these reasons. Questions relating to Mr. Aziz were objected to on the basis of solicitor client privilege.
Many of the comments above relating to solicitor client privilege discussed in relation to the Shareholders Agreement similarly apply to the communications with Mr. Aziz. I conclude that the communications must be disclosed because they are not privileged or the privilege has not been established.
As in the case of Mr. Eisen, there was no affidavit evidence to clarify the role of Mr. Aziz and whether he was fulfilling a business as opposed to a legal role in negotiating the terms of the equity plan. I am unable to conclude that Mr. Aziz performed a legal role when he was asked by the banks to negotiate Paul’s equity plan.
As well, I observe that there was no evidence as to the identity of Mr. Aziz’ ‘clients’. Counsel for the Banks refers to Mr. Aziz as counsel for the ‘Banks’. However, this is not entirely clear, as I query whether Mr. Aziz can act for all Banks when he in fact is employed by only one of them. I conclude that to the extent Mr. Aziz’ discussions or communications were entered with persons or entities that were not his client (i.e. non TD Bank entities), these discussions or communications must be disclosed as there would be no solicitor client privilege applicable to protect the communication.
[59] Mr. Foulkes was asked in a series of questions to make enquiries of Robert Aziz concerning communications and written material passing to or from Aziz.
[60] Although it is clear that Aziz was in-house counsel to T-D and that there could be said to have been a solicitor-client relationship, in the case of the Banks there was indeed no evidence as to what Aziz’ role was (as counsel or as a businessman negotiator). Nor was there any evidence as to whether, if he was acting as counsel, he was so retained by all three banks or just T-D.
[61] In my view this is a significantly different circumstance than that of Eisen who did give some evidence about his role.
[62] Despite the wording of the last sentence of this latter quote, I interpret the Master’s reasons as a whole to mean that even communications between “T-D persons” and Aziz must be disclosed because there was simply no evidence that Aziz was acting in a solicitor-client relationship.
[63] I view the situation of the Banks to be quite different than Symcor because of the plea that the reference to the Employment Agreement in the Shareholders’ Agreement was incorrect. In this respect, information and documentation passing to or from Aziz is relevant to that issue and the privilege has been waived. It is not waived because the terms of the Employment Agreement are at issue, rather it is waived because a reference in the Shareholders’ Agreement which could support Currie’s position is said to have been inserted incorrectly. This goes to the question whether the Banks intended that Currie was to have an equity position and whether that intention was effected.
[64] I am not of the view that there is good reason to doubt the correctness of the decisions below concerning the questions put to Mr. Foulkes; nor do I see conflicting decisions on the point. As well, the decisions below in this aspect are peculiar to the facts of this case and I am not of the view that it is desirable and in the interests of the administration of justice or the development of the law that leave be granted.
[65] Accordingly, leave to appeal in reference to those questions is denied.
[66] Lloyd Darlington was examined as a representative of the Bank of Montreal. He was also a member of Symcor’s Board of Directors. The questions put to him (items 105, 107 and 108) relate to relevant minutes of the Board of Symcor, discussions by the Board and steps taken in reference to the issue of Paul Currie’s equity interest.
[67] I fail to see how any privilege can attach to any of these questions. Leave to appeal in reference to them is denied.
Symcor’s Financial Statements
[68] The final set of questions concern Symcor’s audited financial statements.
[69] Symcor argues that answers to items 111 and 112, ought to be protected from disclosure as they are covered by litigation privilege. These questions arise from a change to Symcor’s financial statements. Specifically, in Symcor’s 2000, 2001 and 2002 financial statements, there is reference to the fact that Symcor had committed to issuing share options to employees in certain circumstances. The defendants concede that the references are to the plaintiff and his right pursuant to s.2.07 of the Employment Agreement. Partway through 2003, the reference to the respondent’s 10% equity was removed from the financial statements. Symcor has refused to provide an explanation or its auditor’s information in this regard.
[70] The plaintiff’s position is that the Master correctly acknowledged that while disclosure by Symcor to its auditor is not disclosure to the world (and thus does not constitute waiver), Symcor had an onus to lead evidence establishing whether the information or communication provided to its auditor was of the type which could properly be characterized as privileged.
[71] Symcor was required to demonstrate that the communications passing between it and its auditor were created predominantly for the purpose of litigation, or were merely customary work product provided in the usual course of business. Symcor did not discharge its evidentiary burden.
Phillip Services Corp. (Receiver of) v. Ontario securities Commission (2005), 77 O.R. (3d) 209 at para.38 (S.C.J.).
[72] The learned Master held that:
… Symcor must establish whether the information or communication provided to PwC as its auditors is privileged (for eg. The legal opinion was provided by the corporation to its auditor in the Philip case was obviously subject to solicitor client privilege) and/or that the communication was in a capacity of providing information to Symcor’s legal counsel, in the sense that PwC is acting as Symcor’s agent in that regard. The distinction is discussed in Philip, particularly commencing at para.34 thereof.
There was no affidavit evidence as to the circumstances giving rise to the communication, the nature of the communication (whether it is a legal opinion, as in Philip or for the purpose of obtaining or receiving legal advice), when the communication took place (relevant to determining if litigation privilege applies, although I observe that para.29 of Symcor’s factum refers to ‘Fall, 2003’), the purpose of the communication (if litigation privilege, was the communication for the dominant purpose of the litigation or considered the ‘lawyers brief’) and the identity of the persons to the communication. Therefore, I am unable to conclude whether any privilege applies and therefore, the questions must be answered.
Above, I have referred to Maranda and the comments of the Supreme Court as to the fine distinction that is drawn between ‘facts’ and ‘communications’. As I understand the submission of counsel for Symcor, the mere disclosure of the privilege claimed in relation to the removal of the note by PwC in 2003 will destroy the essence of the privilege. I do not accept that the privilege is destroyed by identifying the privilege claimed and disclosing particulars of the privilege and the grounds in support thereof. The Rules of Civil Procedure and cases require the disclosure of privileged documents in Schedule ‘B’ and there must be disclosure of basic information to allow the opposing party to assess the legitimacy of the claim of privilege (for eg., date of the document and whether the document was delivered to or from legal counsel). In Davies, Blair J., as he then was, observed at para.47:
The documents in the claims files are to be identified, and any claims for privilege are to be properly asserted in Schedule B of the new affidavit by identifying the document, describing its nature, and setting out the privilege claimed and the grounds for that privilege. The particulars are to be described sufficiently to enable the privilege to be challenged, if the plaintiff is so advised, and a just decision made by the court in that regard, if called upon to do so.
I cannot accept that the defendants ought to be excused from identifying the privilege claimed or as to the grounds for the claim of privilege.
[73] I do not see conflicting decisions in reference to the findings of the learned Master in this respect.
[74] I am unable to conclude that there is good reason to doubt the correctness of the decision. Philip Services would seem to make clear the need for evidence.
[75] Accordingly, leave to appeal in reference to items 111 and 112 is denied.
[76] If counsel are unable to agree on costs, written submissions may be filed within 30 days, not to exceed three pages each.
Ferrier J.
Released: July 28, 2008
cc
DIVISIONAL COURT FILE NOS.: 113/08 and 116/08
COURT FILE NO.: 03-CV-254744CM
DATE: 20080728
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT MOTIONS)
B E T W E E N:
PAUL W. CURRIE Plaintiff (Respondent)
- and -
SYMCOR INC., ROYAL BANK OF CANADA, THE TORONTO-DOMINION BANK and BANK OF MONTREAL Defendants (Appellants/Moving Parties)
REASONS FOR JUDGMENT
FERRIER J.
Released: July 28, 2008