CITATION: Nelson v. Lavoie et al, 2017 ONSC 6063
DIVISIONAL COURT FILE NO.: DC-1048-16AP
DATE: 20171010
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KITELEY, CONWAY and MULLIGAN JJ.
BETWEEN:
SHERYL NELSON
Peter Diavolitsis, for the Plaintiff
Plaintiff (Appellant)
– and –
ROLAND LAVOIE, INVESTMENT PLANNING COUNSEL INC., IPC INVESTMENT CORPORATION, IGM FINANCIAL INC., SERRE FINANCIAL CONSULTING SERVICES INC. AND DENNIS SERRE, DEFENDANTS
Kenneth A. Dekker, for the Defendants
Defendants (Respondents)
HEARD at Sudbury: October 10, 2017
CONWAY J. (Orally)
[1] The plaintiff appeals, with leave, the order of Justice Hennessy dated August 5, 2016 requiring the plaintiff to produce a copy of a letter sent by Mr. Heinsohn, an accountant, to Mr. Montgomery, the plaintiff’s lawyer. The letter was dated August 4, 2009.
[2] The plaintiff had retained Mr. Montgomery to provide her with advice on her earlier transfer of her Hydro One pension into an individual pension plan. The plaintiff is suing the defendants with respect to their advice in connection with this transfer.
[3] The plaintiff asserts that the August 4, 2009 letter from Mr. Heinsohn to Mr. Montgomery is covered by solicitor-client privilege.
[4] The motion judge found as a fact that in the plaintiff’s discovery in November 2014, she gave a clear undertaking to produce the letter.
[5] The standard of review with respect to a finding of fact is palpable and overriding error. We are not persuaded that the motion judge made a palpable and overriding error in determining that the plaintiff undertook to produce the letter. We further note that the undertaking was not made subject to any reservation of privilege or to any conditions other than the payment of Mr. Heinsohn’s costs. Privilege was asserted after the fact in August of 2015, originally as litigation privilege and subsequently asserted as solicitor-client privilege.
[6] In any event, we are not persuaded, based on the principles set out in General Accident Assurance Co. v. Chrusz, 1999 7320 (ON CA), [1999] O.J. No. 3291 (C.A.), that the motion judge erred as a matter of mixed fact and law in concluding that this case did not fall within the specific categories in which solicitor-client privilege is held to attach to communications with a third party.
[7] The appeal is dismissed. Costs are payable to the defendants, on consent of counsel, in the amount of $2500, all inclusive.
CONWAY J.
I agree
KITELEY J.
I agree
MULLIGAN J.
Date of Reasons for Judgment: October 10, 2017
Date of Release: October 13, 2017
CITATION: Nelson v. Lavoie et al, 2017 ONSC 6063
DIVISIONAL COURT FILE NO.: DC-1048-16AP
DATE: 20171010
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, CONWAY and MULLIGAN JJ.
BETWEEN:
SHERYL NELSON
Plaintiff
– and –
ROLAND LAVOIE, INVESTMENT PLANNING COUNSEL INC., IPC INVESTMENT CORPORATION, IGM FINANCIAL INC., SERRE FINANCIAL CONSULTING SERVICES INC. AND DENNIS SERRE, DEFENDANTS
Defendants
ORAL REASONS FOR JUDGMENT
CONWAY J.
Date of Reasons for Judgment: October 10, 2017
Date of Release: October 13, 2017