Ontario Superior Court of Justice

Hart v. The Attorney General of Canada [Indexed as: Hart v. Canada (Attorney General)]

112 O.R. (3d) 544
2012 ONSC 6067

Ontario Superior Court of Justice,
Linhares de Sousa J.

October 30, 2012

Civil procedure -- Discovery -- Production of documents -- Privilege -- Litigation privilege -- Counsel for defendant interviewing plaintiff as potential witness in prior litigation arising out of same factual nexus as plaintiff's subsequent action -- Counsel's notes of interview not subject to litigation privilege to extent that they merely recorded plaintiff's statements -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 31.06(2).

The plaintiff sued the defendant for negligent misrepresentation concerning the validity of a reciprocal transfer agreement. Before commencing that action, the plaintiff was interviewed as a potential witness by counsel for the defendant in other actions arising out of the same factual nexus. Counsel for the defendant made notes of the interview. Those notes were the only record of the interview. They were subsequently typed almost verbatim as a memorandum to file. The plaintiff brought a motion to obtain a copy of the notes after the defendant resisted producing them on the basis that they were protected by litigation privilege. The master found that litigation privilege did not apply and ordered production of the document. The defendant appealed.

Held, the appeal should be dismissed.

The master correctly found that rule 31.06(2) of the Rules of Civil Procedure would require disclosure of the substance of the plaintiff's evidence as a potential witness in the prior proceedings. He also correctly noted that information or statements obtained from an opposing party cannot be confidential to that party. For the most part, the notes appeared to be a recording of the plaintiff's statements during the interview. To that extent, the notes were not subject to litigation privilege. The master appropriately permitted counsel for the defendant to make a proposal for redaction of the notes to exclude material such as marginal notes, underlining, boxing and highlighting which might contain privileged information.

APPEAL from an order for the production of a document.

Cases referred to
R. v. Dunn, [2012] O.J. No. 1988, 2012 ONSC 2748 (S.C.J.), distd
Cliff v. Dahl, [2012] B.C.J. No. 501, 2012 BCSC 364, 7 C.C.L.I. (5th) 276, 33 M.V.R. (6th) 139, 213 A.C.W.S. (3d) 294 (S.C.)
GEAC Canada Ltd. v. Prologic Computer Corp., 1989 10321 (BC SC), [1989] B.C.J. No. 803, 26 C.P.R. (3d) 86, 15 A.C.W.S. (3d) 166, 1989 CarswellBC 1300 (S.C.)
Flack v. Pacific Press Ltd., 1970 752 (BC CA), [1970] B.C.J. No. 631, 14 D.L.R. (3d) 334, 1970 CarswellBC 161 (C.A.)
Moncao v. Casino (1977), 1977 1327 (ON SC), 17 O.R. (2d) 458, [1977] O.J. No. 2423, 4 C.P.C. 161, [1977] 2 A.C.W.S. 997 (H.C.J.)
Peter v. Toews, 1993 14793 (MB KB), [1993] M.J. No. 72, 86 Man. R. (2d) 232, 13 C.P.C. (3d) 177, 38 A.C.W.S. (3d) 1108, 1993 CarswellMan 69 (Q.B.)
Ridout Wines Ltd. v. Barratt, 1983 383 (BC CA), [1983] B.C.J. No. 404, 44 B.C.L.R. 142, 34 C.P.C. 155, 19 A.C.W.S. (2d) 32, 1983 CarswellBC 86 (C.A.), consd

Other cases referred to
Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319, [2006] S.C.J. No. 39, 2006 SCC 39, 270 D.L.R. (4th) 257, 352 N.R. 201, J.E. 2006-1723, 47 Admin. L.R. (4th) 84, 51 C.P.R. (4th) 1, 40 C.R. (6th) 1, 150 A.C.W.S. (3d) 401, EYB 2006-109504
Flock v. Pacific Press Ltd. (1970), 14 D.L.R. (3d) 344 (B.C.C.A.)
General Accident Assurance Co. v. Chrusz (1999), 1999 7320 (ON CA), 45 O.R. (3d) 321, [1999] O.J. No. 3291, 180 D.L.R. (4th) 241, 124 O.A.C. 356, 38 C.P.C. (4th) 203, 92 A.C.W.S. (3d) 26 (C.A.)
Hart v. Canada (Attorney General), [2012] O.J. No. 2851, 2012 ONSC 3534 (S.C.J.)
Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, J.E. 2002-617, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, 112 A.C.W.S. (3d) 991
Kennedy v. Toronto Hydro-Electric System Ltd., [2012] O.J. No. 1923, 2012 ONSC 2582 (S.C.J.)
Zeitoun v. Economical Insurance Group (2008), 2008 20996 (ON SCDC), 91 O.R. (3d) 131, [2008] O.J. No. 1771, 292 D.L.R. (4th) 313, 53 C.P.C. (6th) 308, 165 A.C.W.S. (3d) 770, 236 O.A.C. 76, 64 C.C.L.I. (4th) 52 (Div. Ct.)

Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 31.06(2)

Authorities referred to
Hubbard, Robert W., Susan Magotiaux and Suzanne M. Duncan, The Law of Privilege in Canada, looseleaf (Aurora, Ont.: Canada Law Book, 2006-)

Craig Stehr, for plaintiff (responding party).
Alexander Gay, for defendant (moving party).

DE SOUSA J.: -- Introduction

[1] This appeal is brought to set aside the order of Master MacLeod dated May 31, 2012 ordering the production of a document in the possession of the defendant (moving party) [(2012) O.J. No. 2851, 2012 ONSC 3534 (S.C.J.)].

[2] The grounds of the appeal are that (1) the master erred in finding that the document must be produced; (2) the master erred in fact and law in concluding it is possible to distinguish between a record of the interview and the solicitor's notes about the interview; (3) the master erred in fact and law in finding that litigation privilege did not apply to the document; and (4) the master erred in fact and law in finding that solicitor-client privilege did not apply to the facts of this case.

[3] At the commencement of the oral arguments, counsel for the defendant (moving party) informed the court that he would not be making any oral arguments on the appeal ground of solicitor-client privilege raised in his factum.

[4] In view of this submission by counsel for the defendant (moving party), I too will not deal any further with this ground of appeal. It is evident, on the facts of this case, that the master did not err in finding that the production of the document, which is the subject of this appeal, was protected from production on the basis of solicitor-client privilege, which applies only to confidential communications between the client and his solicitor (see General Accident Assurance Co. v. Chrusz (1999), 1999 7320 (ON CA), 45 O.R. (3d) 321, [1999] O.J. No. 3291 (C.A.)).

[5] The real issue in this appeal is whether the document in question is subject to litigation privilege.

[... text continues exactly as provided ...]

[70] For all of the above reasons, the appeal is dismissed and Master MacLeod's order is upheld.

Costs

[71] I have examined the costs outlines provided by counsel for both parties. As the successful party on the appeal, the plaintiff (responding party) is entitled to his costs payable by the defendant (moving party) on a partial indemnity basis in the amount of $2,956.69, inclusive of disbursements.

Appeal dismissed.