Licence Appeal Tribunal
Safety, Licensing Appeals and Standards Tribunals Ontario
Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario
Appeal from a Notice of Proposal and Decision of the Registrar, Real Estate and Business Brokers Act, 2002, to Revoke Registration as a Salesperson and Immediately Suspend Registration as a Salesperson
Between:
David McGee Appellant
and
Registrar, Real Estate and Business Brokers Act 2002 Respondent
MOTION DECISION & ORDER
ADJUDICATOR: Jeanie Theoharis, Vice-Chair
APPEARANCES:
For the Appellant: David McGee, Appellant
For the Respondent: Shane Smith, Counsel
Written Submissions: Appellant: October 28, 2020 Respondent: November 4, 2020
INTRODUCTION
1David McGee (“appellant”) is registered as a salesperson under the Real Estate and Business Brokers Act, 2002 (“Act”).
2He appeals a July 19, 2019 Notice of Proposal issued by the Registrar, Real Estate and Business Brokers, Act 2002 (“Registrar”) to revoke his registration, and an order to immediately suspend his registration as a salesperson, pursuant to sections 13 and 15 of the Act.
3The appellant requested a hearing to address the Registrar’s Notice of Proposal and immediate suspension order.
4The hearing commenced on August 7, 2019 and continued for several days. In the course of the hearing, the appellant introduced exhibits 55 and 56 into evidence, being email communications between him and counsel related to the sale of his home. Exhibit 55 was an email with his counsel at the Kalemi Law Offices dated March 13, 2019, with several attachments which were not disclosed. The respondent sought to obtain and view the attachments to this email, which the appellant objected to. The Tribunal asked the parties to provide submissions on the issue. These are my reasons in response.
ISSUE
5The issue to be decided is whether the attachments to the appellant’s email with his lawyer are subject to privilege, and if so, whether the appellant waived that privilege by disclosing and relying upon the email.
6Following a review of the written submissions received, I find that the remaining document, a notice of motion, ought to be produced. Assuming without deciding that the draft motion is privileged, I find that the appellant waived the privilege when he entered the email to his lawyer into evidence in order to support his case. In these circumstances, permitting the appellant to proceed without disclosing the draft motion would result in an incomplete picture before the Tribunal and would be unfair to the respondent.
ANALYSIS
7Although a number of documents were attached to the email, the appellant is only claiming privilege with respect to one – a draft notice of motion. He submits that he has already provided the other attachments to the respondent’s counsel. The appellant asserts that the draft motion was provided to his own counsel as part of ongoing litigation discussions that he had with his lawyer regarding a potential litigation against a contractor and is thus covered by privilege. He submits that in retaining the draft motion, he maintained privilege over it.
8In Solosky v. The Queen, 1979 CanLII 9 (SCC), at pages 834-35, the Supreme Court of Canada held that while privileged communications between a solicitor and client are fundamental to the administration of justice, the privilege can be waived in certain circumstances. At page 825, the court stated, “[w]here legal advice of any kind is sought from a professional advisor in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal advisor, except the protection be waived.”
9A communication and its attachments may both be privileged if the communication is between solicitor and client, if the email and attachments were prepared for the purpose of seeking legal advice and provided to counsel for that basis, and if they were intended to be confidential by the solicitor and client. In this regard, a document itself does not become privileged merely because it was sent to counsel.
10The appellant argues that the motion was drafted in contemplation of litigation against a contractor, sent to counsel to seek his legal advice, and that he assumed it was confidential.
11Although a document does not become privileged simply because it was sent to a lawyer, I find that I do not need to decide whether the draft motion was privileged. For the purposes of this decision, I am prepared to assume without deciding that it is privileged. However, I also find that when the appellant entered the email communication to his lawyer and its attachments as evidence at this hearing, and did so to support his case, he waived any privilege attached to the email and its attachments.
12The Law of Evidence in Canada1 at para. 14.138 articulates that a waiver of a privileged communication extends to other documents related to it:
An obvious scenario of waiver is if the holder of the privilege makes a voluntary disclosure or consents to the disclosure of any material part of a communication. … If a client testifies on his or her own behalf and gives evidence of a professional, confidential communication, he or she will have waived the privilege shielding all of the communications relating to the particular subject matter. Moreover, if the privilege is waived, then production of all documents relating to the acts contained in the communication will be ordered.
13In the course of his testimony, the appellant provided evidence about, and voluntarily disclosed, exhibits 55 and 56 to support his position at the hearing. In doing so, he waived any privilege that may have attached to the document and its attachments.
14Allowing the appellant to rely on the email to support his position while also refusing to disclose the email’s attachments would deprive the Tribunal of important context. It would provide an incomplete picture to the Tribunal, and would result in obvious unfairness to the respondent.
It is ordered that:
15The appellant shall provide to the respondent a copy of the Notice of Motion that was attached to the email dated March 13, 2019, (Exhibit 56) by December 11, 2020.
16The videoconference hearing will resume for a further 3 days in January or February 2021.
17The parties shall provide mutually agreeable dates to the Tribunal for which they and their witnesses are available to continue the hearing.
18The Tribunal will send a Notice of Hearing confirming the dates for the continuation of this hearing.
19The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice & Procedure, Version 1 (October 2, 2017) apply to this appeal, except where varied by this Order (the “Rules”).
20The case management process set out in this Order may be modified at the Tribunal’s discretion or subject to the submissions from the parties as deemed fit.
21If the parties reach an agreement on the issues in dispute prior to the continuation of the hearing they shall immediately advise the Tribunal. In the case of a withdrawal the appellant shall serve the respondent and file with the Tribunal a Notice of Withdrawal, after which the Tribunal file will be closed.
22Nothing in this Order affects any requirement under the Act.
LICENCE APPEAL TRIBUNAL
____________________________
Jeanie Theoharis, Vice-Chair
Released: December 4, 2020