R. Shekter

The Ontario Provincial Police executed search warrants at the applicants' premises as part of a fraud investigation and seized surreptitiously recorded telephone conversations with potential witnesses.

The applicants claimed these recordings were protected by litigation privilege.

The court held that litigation privilege protects a lawyer's work product and strategy, not the underlying facts or witness statements themselves.

The court ordered the recordings to be released to the police.

The applicants sought a determination of privilege claims over documents seized by the Ontario Provincial Police during a fraud investigation.

The court ruled that draft letters and internal emails prepared for counsel's review were privileged.

Regarding copies of non-privileged documents gathered for a lawyer's brief, the court analyzed conflicting appellate authorities and concluded that such copies are only protected by litigation privilege if their gathering reflects specialized skill and knowledge, and provided the original documents are otherwise produced.

Following an appeal that remitted the issue of the quantum of full indemnity costs back to the motion judge for reassessment, the court reviewed the applicant's bill of costs for $707,173.00.

The respondent challenged the costs on several grounds, including hourly rates, time spent, use of law clerks and students, and alleged over-lawyering.

The court rejected the respondent's critiques, finding the fees claimed were fair, reasonable, and proportionate to the complex estate litigation.

The court affirmed the original full indemnity costs award and awarded the applicant partial indemnity costs of $8,500 for the reassessment hearing.