Court File and Parties

CITATION: Budds' BMW v. Joffe, 2023 ONSC 3896

DIVISIONAL COURT FILE NO.: 23-1357 (Oshawa)

DATE: 20230629

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: NEVILLE JOFFE and MARION JOFFE, Plaintiffs (Respondents)

AND: BUDDS' BMW, BUDDS' BMW MINI MOTORRAD OAKVILLE, STUART BUDD & SONS LTD., BUDDS' GROUP OF COMPANIES and JOHN DOE JUSTIN TAYLOR, Defendants (Appellants)

BEFORE: Corbett, Trimble, Schabas JJ.

COUNSEL: Sylvia Guirguis, for the Plaintiffs (Respondents) Andrew McCutcheon and Michael Grivich, for the Defendants (Appellants)

HEARD: June 28, 2023

Endorsement Delivered Orally

[1] I want to thank counsel for full and clear written submissions. We did not call on the Appellant, but we thank the Respondent for her oral submissions.

[2] With leave of a panel of this court comprising Backhouse, Matheson, & Kurz, JJ (Joffe v. Budds’ BMW, 2023 ONSC 442), the Appellant, Budd’s BMW, appeals from the 21 September 2022 interlocutory order of Christie, J., ordering it to produce to the Plaintiffs the statement taken by an adjuster from an employee of Budd’s BMW concerning issues involved in this action. We note that the motion before Her Honour was multi-faceted, and the issue on this appeal is the only issue complained of.

[3] With respect to the issue on this appeal, the statement was taken after the commencement of the litigation. The Defendants provided the relevant facts from the statement in its Examination for Discovery.

[4] The Appellants argue that the law requires that where party has a statement that is covered by litigation privilege, it must disclose the relevant evidence contained in the statement. It is not required to disclose those parts of the statement that deal with non-factual matters such as perspective, opinion or strategy. The Respondents argue that the learned motions judge was correct in holding that the issue was whether litigation privilege in the statement had been waived by disclosing its contents.

[5] The appeal is allowed.

[6] The parties agree that the standard of review is correctness.

[7] The learned motions judge erred when she concluded that privilege had been waived over the statement because the statement had been discussed at the Examination for Discovery, the Defendants had provided particulars of it, and had agreed to provide more particulars.

[8] In doing so, Her Honour failed to apply well established authority that holds that where a party on Discovery is asked for facts contained in his or her file relating either to his own case or to that of his opponent, he or she must disclose the relevant facts contained in any statement notwithstanding that the source of information is a privileged report or document (see: Pearson v. Inco Limited at para 15, Warman v. National Post Company, 2015 ONSC 267 at para 56, Sangaralingam v. Sinnathurai, 2011 ONSC 1618 (Div. Ct.), at para 1-2 and 20).

[9] Costs to the appellant fixed at $5,000 for both the leave application and the appeal.

Trimble J.

I agree.

I agree. Schabas J.

Date of Reasons for Decision: June 28, 2023

Date of Written Release: June 29, 2023```