In a personal injury action, the defendants inadvertently disclosed a litigation‑privileged witness statement to the plaintiff’s counsel during documentary discovery.
Despite the document being listed in Schedule B of the affidavit of documents as privileged, plaintiff’s counsel reviewed and relied upon it during discovery and in litigation materials, and refused to return it for an extended period after the error was identified.
The court applied the framework from Celanese Canada Inc. v. Murray Demolition Corp. to determine whether counsel should be removed following the breach of privilege.
The court held that the privileged nature of the document remained intact, prejudice was presumed and not rebutted, and the plaintiff’s counsel’s conduct in reviewing and using the document aggravated the breach.
The plaintiff’s motion for leave to seek production of witness statement summaries after setting the matter down for trial was denied, and the plaintiff’s law firm was removed as counsel of record.