COURT FILE NO.: CV-12-443718 DATE: 2020 02 24
Superior Court of Justice - Ontario
RE: CRAIG HURST, Plaintiff - and - JAMES HANCOCK, DARWIN PRODUCTIONS INC. and TRADEPOINT 360 INC., Defendants
BEFORE: Master Todd Robinson
COUNSEL: T. Gleason, for the moving parties, Graham Partners LLP, Graham, Wilson & Green and HGR Graham Partners LLP, defendants in CV-13-493058 M. Singh, for the plaintiff and the plaintiff in CV-13-493058 K. Marciniak, for the defendants, James Hancock and Darwin Productions Inc.
HEARD: October 25, 2019
Reasons for Decision
[1] Graham Partners LLP, Graham, Wilson & Green and HGR Graham Partners LLP (collectively, “HGR”), the defendants in a related action by the plaintiff in CV-13-493058, move for trial together of the two actions with common documentary and oral discoveries. The plaintiff, Craig Hurst, opposes the motion primarily on the basis that the relief sought would violate solicitor-client privilege. HGR argues that privilege has been waived. The defendants, James Hancock and Darwin Productions Inc. (“Darwin”) (together, the “Hancock Defendants”), support HGR’s motion, but did not file any motion materials. The remaining defendant, Tradepoint 360 Inc., was previously noted in default after its defence was struck.
[2] For the reasons that follow, I grant HGR’s motion for trial together, but dismiss the motion for common documentary and oral discoveries.
Background
[3] This action against the Hancock Defendants and Tradepoint 360 Inc. in CV-12-443718 (the “Employment Action”) arises from alleged breaches of Mr. Hurst’s employment contract with Darwin regarding, inter alia, unpaid wages and failure to issue stock certificates. James Hancock was the director and a shareholder of Darwin at the material times. Mr. Hurst seeks, among other relief, damages, a declaration that he has an equity interest in both corporate defendants (which are alleged to have merged in 2009), and relief pursuant to the oppression remedy. Among other defences, the Hancock Defendants argue that Mr. Hurst’s claims are statute-barred by operation of the Limitations Act, 2002, SO 2002, c 24, Sched B. Darwin counterclaims for losses and damages allegedly caused by Mr. Hurst during his employment. There appears to be a dispute regarding whether Mr. Hurst was a contractor or employee, but nothing turns on that distinction for the purposes of this motion.
[4] The related action by Mr. Hurst against HGR in CV-13-493058 (the “Solicitor Negligence Action”) arises out of Mr. Hurst’s retainer of HGR to assist him in resolving a dispute with Darwin, being at least part of the subject matter in the Employment Action. Mr. Hurst’s claim was commenced in response to the Hancock Defendants’ defence in the Employment Action that Mr. Hurst’s claims are statute-barred. Mr. Hurst sues HGR for damages from their alleged professional negligence in failing to commence legal proceedings within the applicable limitations periods, failing to properly instruct and supervise lawyers, employees and agents regarding expiration of the limitations periods and timely filing of pleadings and, in the alternative, failing to advise Mr. Hurst to commence legal proceedings earlier than he did. The claim, as framed, is essentially contingent on the determination of the limitations defence in a summary judgment motion brought by the Hancock Defendants, although damages are nevertheless sought against HGR for legal fees and disbursements incurred in responding to the limitations defence even if the summary judgment motion is dismissed. HGR denies any negligence.
[5] As noted, in the Employment Action, the Hancock Defendants moved for summary judgment on their limitations defence. Prior to that motion being heard, HGR moved before Master Sugunasiri for leave to intervene in the Hancock Defendants’ summary judgment motion and, if the summary judgment motion was dismissed, an order for trial together of the Employment Action with the Solicitor Negligence Action, with common documentary and oral discoveries. By consent order dated April 19, 2017, Master Sugunasiri granted HGR leave to intervene in the summary judgment motion, limited to filing a factum and making oral and written submissions. The balance of HGR’s motion was adjourned sine die pending disposition of the summary judgment motion.
[6] On July 25, 2018, Justice Cavanagh heard the Hancock Defendants’ motion for summary judgment. By reasons for judgment dated October 5, 2018, Justice Cavanagh rejected the plaintiff’s position that claim was a demand obligation and granted the motion, dismissing Mr. Hurst’s action as statute-barred: see Hurst v. Hancock, 2018 ONSC 5919.
[7] HGR appealed from the summary judgment decision, seeking to set aside the judgment and that, in its place, an order be granted dismissing the motion. HGR argued that anticipatory breach had not been properly analyzed and that the position of the Hancock Defendants could properly be characterized as an intention to breach the agreement to pay unpaid wages in the future, which had been agreed. HGR argued that, on the facts of the case, the plaintiff had a legal right to accept the anticipatory breach of the Hancock Defendants and sue, or choose to wait until performance was due.
[8] The appeal was successful. By reasons for judgment dated June 11, 2019, the Court of Appeal allowed the appeal and set aside both summary judgment and the subsequent costs award: see Hurst v. Hancock, 2019 ONCA 483. The Court of Appeal accepted HGR’s argument that if there was an anticipatory breach, then no cause of action accrued and further held that no finding had been made on the terms of the disputed oral agreement between Mr. Hurst and Darwin or if there was a breach of the agreement. The Court of Appeal held that determination of the limitations issue turns on the agreement and when the breach occurred.
[9] Mr. Hurst did not commence his own appeal and took no position on HGR’s appeal, as confirmed in the Court of Appeal’s decision.
[10] Following the appeal, HGR served a notice of return of motion bringing back its adjourned relief for trial together and common discoveries. At the initial return of the motion on September 5, 2019, a second motion in the Employment Action by the Hancock Defendants was also returnable. Two further motions by Mr. Hurst were also expected to be heard, but could not be booked concurrently with HGR’s motion and the Hancock Defendants’ motion because of the aggregate time booked for those two motions. I determined that all four motions needed to proceed together, and adjourned them all to be heard concurrently on a long motion date. The other three motions have been addressed by separate endorsement.
Analysis
Trial Together
Relevant Legal Framework
[11] Rule 6.01 of the Rules of Civil Procedure, RRO 1990, Reg 194 governs the trial together of two or more proceedings. It provides as follows:
6.01 (1) Where two or more proceedings are pending in the court and it appears to the court that,
(a) they have a question of law or fact in common;
(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or
(c) for any other reason an order ought to be made under this rule,
the court may order that,
(d) the proceedings be consolidated, or heard at the same time or one immediately after the other; or
(e) any of the proceedings be,
(i) stayed until after the determination of any other of them, or
(ii) asserted by way of counterclaim in any other of them.
(2) In the order, the court may give such directions as are just to avoid unnecessary costs or delay and, for that purpose, the court may dispense with service of a notice of listing for trial and abridge the time for placing an action on the trial list.
[12] Avoidance of multiplicity of legal proceedings, as far as possible, is expressly required by s. 138 of the Courts of Justice Act, RSO 1990, c C.43. The Court of Appeal has expressly held that, as a practical matter and as a matter of law, costly parallel proceedings that run the risk of inconsistent results are to be avoided: Dancap Productions Inc. v. Key Brand Entertainment, Inc., 2009 ONCA 135 at para. 42.
[13] The approach on a motion for trial of several actions together is, first, to ascertain whether the moving party has satisfied one or more of the three “gateway” factors set out in Rule 6.01(1)(a), (b), or (c) and then to consider all relevant factors, including s. 138 of the Courts of Justice Act, in exercising the court’s discretion: 1014864 Ontario Ltd. v. 1721789 Ontario Inc., 2010 ONSC 3306 (Master) at para. 17.
[14] In 1014864 Ontario Ltd., Master Dash also set out a non-exhaustive list of considerations on ordering trial together, which has been subsequently approved by Justice Price in 1623242 Ontario Inc. v. Great Lakes Copper Inc., 2013 ONSC 2548 at para. 16 and by Justice Leach in 969625 Ontario Ltd. v. Goldstone Resources Inc., 2015 ONSC 4363 at para. 21, as well as being cited in numerous other decisions. Those non-exhaustive considerations are set out at para. 18 of Master Dash’s decision.
Gateway Factors
[15] Dealing first with the “gateway” factors, I am satisfied that there are questions of fact and law in common and that Mr. Hurst’s relief in both actions arises out of the same transactions or occurrences.
[16] As pleaded, HGR was retained to advise and assist Mr. Hurst regarding the dispute that is now the subject matter of the Employment Action. I agree with HGR’s submission that factual findings in the Employment Action, particularly regarding the disputed terms of the agreement and if there was any breach by Darwin, will bear on determination of both liability and damages in the Solicitor Negligence Action. In my view, even if the Employment Action is held to be statute-barred, if it is also dismissed on other grounds, then that may bear on the measure of damages in the Solicitor Negligence Action, which claims “damages, interests and costs that would have otherwise been recoverable by the Plaintiff but for the Plaintiff’s Statement of Claim being dismissed due to the expiry of the limitation period.”
[17] HGR also clearly has an interest in the determination of the limitations issue in the Employment Action. That issue is central in the pleaded basis of liability against HGR in the Solicitor Negligence Action, and is a significant disputed issue in both actions. Any determination in the Employment Action that the claim is statute-barred will reasonably be used as a basis for recovery against HGR in the Solicitor-Negligence Action. That nexus was the basis for HGR’s intervention in the Hancock Defendants’ summary judgment motion. Factual findings underpinning the determination of a successful limitations defence may also impact liability of HGR, depending on HGR’s knowledge of those facts.
[18] Having considered the “gateway” factors, I turn to the additional considerations identified by Master Dash in 1014864 Ontario Ltd..
The Extent to Which the Issues in Each Action Are Interwoven
[19] I do not accept Mr. Hurst’s submission that, but for the question of whether or not HGR failed to commence the Employment Action within the applicable limitations period, there are no common questions of fact or law as between the two actions. As set out above, in my view, there is substantial overlap of the factual and legal determinations to be made in both the Employment Action and the Solicitor Negligence Action. Determinations in the Employment Action will have direct impacts on the disposition of the Solicitor Negligence Action.
Whether the Same Damages Are Sought in Both Actions, in Whole or in Part
[20] As outlined above, and as pleaded in Mr. Hurst’s statement of claim in the Solicitor Negligence Action, Mr. Hurst claims from HGR “the damages, interests and costs that would have otherwise been recoverable by the Plaintiff but for the Plaintiff’s Statement of Claim being dismissed due to the expiry of the limitation period.” Put simply, the full extent of damages that would otherwise be recoverable in the Employment Action but for the limitations defence are claimed against HGR in the Solicitor Negligence Action.
Whether Damages Overlap and Whether a Global Assessment of Damages Is Required
[21] As noted in paragraph 20 above, the damages claimed by Mr. Hurst in both actions evidently overlap.
Whether There Is Expected to Be a Significant Overlap of Evidence or of Witnesses Among the Various Actions
[22] I agree with HGR that determinations in the Employment Action will turn on what is found regarding the agreement between Mr. Hurst and Darwin, which will in turn drive the Hancock Defendants’ limitation defence, which will be directly relevant to liability in the Solicitor Negligence Action. The factual findings regarding the extent and breach of the agreement and discoverability bear directly on the Solicitor Negligence Action. In my view, there will be a significant overlap of evidence and witnesses in both actions if they are tried separately, since absent agreement or decision that the findings and determinations in the Employment Action bind the Solicitor Negligence Action, the factual issues relevant to determining the limitations defence may have to be tried in both proceedings.
Whether the Parties and the Lawyer Are the Same
[23] Although the defendants are different, the plaintiff is the same in both actions. The plaintiff is represented by the same counsel in both actions.
Whether There Is a Risk of Inconsistent Findings or Judgment if the Actions Are Not Joined
[24] HGR argues that this is the most important consideration for the court and that, here, there is a considerable risk of inconsistent findings. HGR argues that the risk is underscored by Mr. Hurst’s untenable position taken in response to the summary judgment motion that the wage claim was a demand obligation, by Mr. Hurst’s failure to appeal the summary judgment motion, and then by Mr. Hurst’s failure to take any position on the appeal. HGR argues that Mr. Hurst’s conduct demonstrates that he is content to have the Employment Action dismissed in order to pursue his claim against HGR with liability already established.
[25] I have already found that HGR has a clear interest in the determination of the limitations issue. If the actions proceed separately, in the absence of a stay of the Solicitor Negligence Action, the limitations issue may be decided separately by different judicial officers, as well as the underlying issues such as the terms of the agreement between Mr. Hurst and Darwin and if that agreement was breached. In my view, irrespective of Mr. Hurst’s conduct, it would be unfair to deny HGR the opportunity to tender and test factual evidence from the Hancock Defendants relevant to the determination of the limitations issue and to make submissions on it. Consistent with the concern noted by Justice Leach in 969625 Ontario Ltd. v. Goldstone Resources Inc., supra at para. 44, a determination reached on the limitations defence in the Employment Action (including factual findings underpinning that determination), where it does not involve HGR as participants, may or may not be binding in the Solicitor Negligence Action. If not binding, then in my view there is a strong likelihood of separate judicial determinations on the same factual and legal issues.
Whether the Issues in One Action Are Relatively Straightforward Compared to the Complexity of the Other Actions
[26] I do not find this consideration to be applicable. In my view, the complexity of issues in the Employment Action and the Solicitor Negligence Action are not significantly variant.
Whether a Decision in One Action, if Kept Separate and Tried First, Would Likely Put an End to the Other Actions or Significantly Narrow the Issues for the Other Actions or Significantly Increase the Likelihood of Settlement
[27] In 969625 Ontario Ltd. v. Goldstone Resources Inc., supra, Justice Leach considered this factor with reference to the impact of a first action on a subsequent solicitor negligence action, commenting at paras. 42-46 as follows:
[42] In that regard, Goldstone repeatedly suggested in its written and oral submissions that allowing the wrongful termination action to proceed first effectively would “narrow or settle” issues in the lawyer negligence action.
[43] In particular, it was suggested that parties to the legal negligence action would have far fewer issues to address once the merits of Goldstone’s arguments have been decided in the context of the first action, and/or damages have been quantified in the course of that proceeding,
[44] But how will Ms Patterson and her law firm be bound in any way by relevant rulings made in the wrongful termination action, if it is allowed to proceed first, and Ms Patterson and her firm are not participants in that proceeding?
[45] More pointedly, in a separate and subsequent trial of the lawyer negligence action, on what basis would further litigation by the Patterson defendants of precisely the same issues be precluded by concerns relating to issue estoppel and/or abuse of process, (the requirements of which already have been brought “front and centre” by Goldstone itself, in the context of the wrongful dismissal action)?
[46] In my view, Goldstone offered no satisfactory answer to these important questions.
[28] In my view, similar concerns arise here. I am not convinced that disposition of the Employment Action will narrow any issues for the Solicitor Negligence Action. HGR would need to be bound by the factual findings and legal determinations made in the Employment Action, yet would not be participants in that proceeding.
The Litigation Status of Each Action
[29] Both actions are at the same pre-discovery stage. It does not appear that any documentary production has occurred in the Employment Action beyond documents produced in the context of the summary judgment motion. No documentary production has occurred in the Solicitor Negligence Action. Examinations for discovery have not yet occurred in either action.
Whether There Is a Jury Notice in One or More but Not All of the Actions
[30] No jury notices have been served in either proceeding.
Whether, if the Actions Are Combined, Certain Interlocutory Steps Not Yet Taken in Some of the Actions, Such as Examinations for Discovery, May Be Avoided by Relying on Transcripts from the More Advanced Action
[31] In my view, given that the two proceedings are at the same early procedural stage, this consideration does not apply.
The Timing of the Motion and the Possibility of Delay
[32] Despite the age of both actions, given the similar stage, I see no additional delay to either proceeding from an order for trial together at this juncture.
Whether Any of the Parties Will Save Costs or Alternatively Have Their Costs Increased if the Actions Are Tried Together
[33] I agree with HGR’s submission that trial together of the two proceedings will result in costs savings for Mr. Hurst. While there could be increased costs to the Hancock Defendants, they support the relief sought.
Any Advantage or Prejudice the Parties Are Likely to Experience if the Actions Are Kept Separate or if They Are to Be Tried Together
[34] Mr. Hurst’s position is that the orders requested by HGR will violate solicitor-client privilege. Solicitor-client privilege may only be waived by the client, and Mr. Hurst has refused to waive privilege. Mr. Hurst argues he will inevitably be prejudiced in a manner that is not compensable in costs if his solicitor-client privileged communications with HGR are exposed to the Hancock Defendants.
[35] HGR argues that Mr. Hurst has already waived privilege by expressly placing in issue both his state of mind at the time of commencing this action and his instructions to HGR in response to the limitations defence. HGR relies on statements of Justice Cavanagh at paras. 35-39 of his summary judgment decision. Given the significance placed by HGR on Justice Cavanagh’s statements, I reproduce them below:
[35] In addition, the defendants rely upon evidence given by the plaintiff when he was cross-examined in relation to statements made in his statement of claim in litigation that he commenced against his former legal counsel, [HGR]. In the plaintiff’s statement of claim in his action against [HGR], he pleaded at paragraph 5:
On or about November 2009, the Plaintiff retained the services of Graham Law Firm to pursue recovery for damages against his former employer and the corporation, and its majority shareholder, in which he owns certain shares (hereinafter referred to as the “Legal Action”). The Plaintiff sought, among other things, unpaid wages owing, compensation in lieu of reasonable notice of termination, compensation for termination without just cause, production of a share certificate confirming his shareholder rights, and confirmation that the corporation in which he owned shares, his former employer, owns particular highly valuable intellectual property.
On his cross-examination, the plaintiff was asked whether he adopts the statements in paragraph 5 of his statement of claim against [HGR] as true and he answered that he does.
[36] At the time that [HGR] was retained in November 2009, the plaintiff was still employed by Darwin, so he would not have had a claim at that time for damages for compensation in lieu of notice of the termination of his employment. I accept that this may affect the evidentiary value of the plaintiff’s answer insofar as it relates to this claim. I do not agree that I should disregard the admission made by the plaintiff insofar as it relates to the other claims that are referenced in paragraph 5 of the original statement of claim. This answer could have been clarified through re-examination, if considered necessary. There was no re-examination.
[37] The plaintiff amended his statement of claim in the action against [HGR] on July 17, 2018 pursuant to r. 26.02(b) of the
Rule of Civil Procedure, with the consent of [HGR]. The language in paragraph 5 of the amended pleading differs from the language in the original statement of claim, which the plaintiff adopted on his cross-examination. The plaintiff pleads in his amended statement of claim that he retained the services of [HGR] “to assist him in receiving written confirmation of his shareholding interest in his corporate employer, written confirmation that his corporate employer had ownership of the corporation’s intellectual property, and written confirmation of the debt his employer owed to him ...” The plaintiff removed the statement in his original statement of claim, upon which he had been cross-examined, that the plaintiff retained the services of [HGR] “to pursue recovery for damages ...” in a proposed legal action.[38] The plaintiff submits that the defendants, in making their submission with respect to paragraph 5 of the original statement of claim, intentionally misquoted the plaintiff’s claim against [HGR]. I disagree. The fact that this amendment was made, on consent of [HGR], does not affect the evidence given by the plaintiff on his cross-examination when he adopted as true the statements made in paragraph 5 of his original pleading.
[39] In his June 11, 2018 affidavit that was delivered after he was cross-examined, the plaintiff also included additional statements with respect to the amendment of his statement of claim against [HGR], including statements that the “previous iteration” of his statement of claim was drafted in a way as to allow for the “possible misconstruing of the timeline of my previous counsel’s mandate”. This affidavit was clearly an attempt to diminish the effect of the admission made on cross-examination that the plaintiff adopted paragraph 5 of his original statement of claim against [HGR]. I have ruled that this affidavit is not admissible in evidence on this motion and I disregard these statements.
[36] HGR argues that Mr. Hurst explicitly placed his instructions to and retainer of HGR at issue when he was cross-examined, giving evidence about what HGR was retained to do, and subsequently attempted to adduce contradictory evidence about the nature of HGR’s retainer. HGR argues that what HGR was (or was not) retained to do is “at the very heart of discoverability” and relevant to disposition of both actions. In response, Mr. Hurst denies that any such waiver has arisen, argues that the June 11, 2018 affidavit is not in evidence and, in any event, it was held to be inadmissible by Justice Cavanagh so should not be considered on this motion.
[37] Solicitor-client privilege is a significant privilege that has historically, and continues to be, carefully protected by the court. I am asked to determine that Mr. Hurst has waived solicitor-client privilege on the basis of Justice Cavanagh’s observations regarding Mr. Hurst’s evidence on HGR’s retainer from the summary judgment motion. Mr. Hurst’s affidavit sworn June 11, 2018 is not before me. I am also mindful that Justice Cavanagh’s assessment was not made in the context of assessing waiver of privilege, but rather in the context of assessing evidence on the summary judgment motion.
[38] I am not convinced that adopting as true pleaded statements on the scope or nature of a retainer gives rise to waiver of privilege by itself. HGR relies on the allegedly contradictory position taken by Mr. Hurst in his June 11, 2018 affidavit as the basis of waiver. However, I have available only a few extracts of that affidavit as identified by Justice Cavanagh, together with his paraphrasing of the affidavit and interpretation of its intent. HGR argues these paragraphs represent a judicial finding and that there is no denial that the finding is accurate. In my view, given the completely different context in which Justice Cavanagh reviewed that affidavit, it would be inappropriate to consider whether or not the affidavit gives rise to waiver of solicitor-client privilege in the absence of being able to review it in its totality and receive submissions on the specific language used. Since the June 11, 2018 affidavit is the central document relied upon by HGR in asserting waiver, I find that the record before me is insufficient to make a determination regarding whether or not Mr. Hurst has waived solicitor-client privilege.
[39] However, I do not accept Mr. Hurst’s submission that solicitor-client privilege is itself a determinative factor against making an order that the Employment Action and the Solicitor Negligence Action be tried together. Put simply, trial together does not assure disclosure of privileged information to the Hancock Defendants. It will be open to the trial judge to determine how the actions should be tried together, to direct how alleged privileged communications are addressed, to order exclusion of witnesses as the trial judge may deem appropriate, to decide which parties will be permitted to cross-examine which witnesses of other parties, and otherwise take appropriate steps to protect concerns regarding disclosure of solicitor-client privileged matters to the Hancock Defendants.
[40] In assessing the consideration of advantages and prejudice of separate or concurrent trials, I accept HGR’s submission that there is an alignment of interest between Mr. Hurst and HGR in the determination of the limitations defence. In Gowling v. Meredith, 2011 ONSC 2686, a case relied upon by Mr. Hurst in which Master Dash declined trial together of a solicitor negligence action with a related proceeding, Master Dash commented on the circumstances in which trial together of solicitor negligence actions is commonly ordered, stating as follows at para. 21:
Although the court from time to time orders actions of solicitors’ negligence to be tried with the action in which the solicitor was allegedly negligent, this typically occurs when the solicitor is on the “same side of the fence” as the client. A typical example is when the underlying action is defended on the basis of expiry of a limitation period and the lawyer wishes to join with his former client in supporting a plea for example that the commencement of the limitation period was extended because the cause of action was not yet discoverable. Such a finding would be to the benefit of the client and the solicitor.
[41] That is the case here: HGR is on the “same side of the fence” as Mr. Hurst on the limitations issue and the two are aligned in arguing that the applicable limitations period had not expired. HGR has already demonstrated its intent to support Mr. Hurst in that regard by advancing the ultimately successful appeal from the summary judgment decision in the absence of an appeal by Mr. Hurst. In my view, there is a significant advantage to consolidating all evidence and arguments on the limitations issues if the actions are tried together, whereas the only prejudice argued by Mr. Hurst is disclosure of solicitor-client privileged communications, against which the trial judge will be able to protect.
Whether Trial Together of All of the Actions Would Result in Undue Procedural Complexities That Cannot Easily Be Dealt With by the Trial Judge
[42] I am satisfied there would be no undue procedural complexities arising from trial together of the two actions that the trial judge cannot readily address with the assistance of submissions from counsel for the parties.
Whether the Motion Is Brought on Consent or Over the Objection of One or More Parties
[43] Mr. Hurst opposes the motion. It is supported by the Hancock Defendants.
Intervention in Lieu of Trial Together
[44] Mr. Hurst argues that this court should decline trial together and instead grant HGR an extension to its intervention status through trial of the Employment Action, on the same terms as the intervention order granted for the summary judgment motion. Mr. Hurst argues that such limited intervention would satisfy HGR’s expressed desire to be heard at the trial in determining the limitations period issue, but still maintain Mr. Hurst’s solicitor-client privilege. That is not relief sought by HGR. I also do not agree that it adequately addresses the considerations outlined above, particularly the risk of inconsistent judicial findings.
[45] Having weighed and considered the gateway factors and the considerations given to motions of this nature, and for the reasons set out above, I am satisfied that it is in the interests of justice and will avoid multiplicity of proceedings and potentially inconsistent judicial findings for the Employment Action and the Solicitor Negligence Action to be tried together or one after another as the trial judge may direct.
Common Discoveries
[46] Rule 6.01(2) provides that the court may give such directions as are just to avoid unnecessary costs or delay when ordering trial together. In addition to trial together, HGR seeks an order that there be common documentary production and examinations for discovery in both the Employment Action and the Solicitor Negligence Action. The Hancock Defendants support that relief. Mr. Hurst opposes common discoveries on the basis that it would violate solicitor-client privilege.
[47] In my view, for reasons outlined above, HGR has good reason to wish to examine the Hancock Defendants. HGR argues that it has no present right to examine Darwin, and that HGR needs such an examination in order to prepare for and proceed to trial. As outlined above, I agree that factual evidence from the Hancock Defendants is likely to bear on the Solicitor Negligence Action. It also seems apparent that the Hancock Defendants have documents within their possession, control and power that are relevant to the disposition of the Solicitor Negligence Action.
[48] However, given my determination that the evidentiary record is insufficient to support any determination on waiver of solicitor-client privilege, I see no reasonable or fair means by which to order common discoveries in these actions. HGR submits that, if privilege is found not to have been waived, then privilege could be addressed on an issue-by-issue basis and transmission of HGR’s Schedule A productions could be deferred until any disputes between Mr. Hurst and HGR are resolved. While Mr. Hurst objects to any of HGR’s productions being provided to the Hancock Defendants, HGR argues that not all productions will be privileged, such as demand letters and correspondence with counsel for Darwin.
[49] I agree with HGR that not all of its productions will be privileged, but I also agree with Mr. Hurst that there may be disputes regarding what productions are privileged. Is it fair and just to require the Hancock Defendants to provide their complete Schedule A productions to HGR, but craft a more complex process for Mr. Hurst to first object to HGR providing its productions to the Hancock Defendants? Similarly, is it fair and just that the Hancock Defendants be subject to examination by HGR, but during an examination for discovery of HGR by the Hancock Defendants, Mr. Hurst’s counsel may necessarily be objecting to questions on the basis of privilege, even though he is not counsel for HGR?
[50] Since I am unable to determine on the record before me if there has been waiver of solicitor-client privilege, which is a significant hurdle to any fair and just order for common discoveries, I am not prepared to make any such order. I accordingly dismiss that portion of HGR’s motion.
[51] What HGR seeks is production of documents from a non-party to the Solicitor Negligence Action that are relevant to issues in that action and necessary for HGR to proceed to trial. HGR also seeks to examine Darwin as an entity with information relevant to issues in the Solicitor Negligence Action. The Rules of Civil Procedure already have a process for obtaining such production and discovery of non-parties in Rules 30.10 and 31.10. No relief under either of those rules was sought or argued before me, so I have not considered them. However, I encourage the parties to discuss them as alternative options. If examination of the Hancock Defendants by HGR (or examination of HGR by the Hancock Defendants) is pursued under Rule 31.10, and opposed, the parties are encouraged to coordinate any motion date in advance of the date scheduled for the examination for discovery, which may permit a single examination to proceed if leave is granted.
Orders
[52] For the foregoing reasons, I grant HGR’s requested relief for trial together, but dismiss HGR’s requested relief for common documentary and oral discoveries. I accordingly order as follows:
(a) The Employment Action and the Solicitor Negligence Action shall be tried together or one after another, as the trial judge may direct. (b) The balance of HGR’s motion regarding common discoveries is hereby dismissed. (c) This order is effective without further formality.
Costs
[53] HGR and Mr. Hurst have already filed costs outlines. If those parties are unable to resolve costs themselves, then HGR shall deliver written costs submissions by March 11, 2020. Mr. Hurst shall deliver his responding submissions by March 25, 2020. There shall be no reply or oral costs submissions unless I direct otherwise. Costs submissions shall not exceed four pages, excluding any offers to settle or case law. They may be submitted by email directly to me or via my Assistant Trial Coordinator with a scanned copy of proof of service. Original proof of service need only be filed if the court so directs. In the absence of receiving such written submissions, the parties shall be deemed to have agreed on costs.
MASTER TODD ROBINSON
