Elgner v. The Estate of Freedman et al.

[Indexed as: Elgner v. Freedman Estate]

Ontario Reports

Ontario Superior Court of Justice,

E.M. Morgan J.

April 1, 2014

119 O.R. (3d) 370 | 2014 ONSC 1989

Case Summary

Civil procedure — Motions — Evidence — Privilege — Defendants bringing motion for particulars and tendering affidavit of counsel deposing that defendants did not have knowledge of particulars needed to plead — Tendering of affidavit not amounting to total waiver of privilege over lawyer's entire file.

The defendants brought a motion for particulars and tendered a supporting affidavit of a lawyer at the defendants' counsel's firm, who deposed that the defendants did not have knowledge of the particulars needed to plead. The plaintiff moved successfully for an order under rule 39.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for the examination of the defendants and their lawyers on the pending motion. At the examinations, the plaintiff asked extremely far-ranging questions which essentially amounted to a request that the defendants disclose all documents and information in their possession and the possession of their counsel. There were numerous refusals. On a refusals motion, the master ruled that some 16 refusals did not have to be answered. The defendants appealed.

Held, the appeal should be dismissed.

The master did not err in finding that the tendering of counsel's affidavit in support of the motion for particulars did not amount to a total waiver of privilege over counsel's entire file. The motion for particulars had an identifiable objective which did not cover the merits of the entire action or the entirety of defendants' counsel's file. The master made no error in concluding that the defendants had made a good faith effort to produce those documents necessary to allow the plaintiff to argue the particulars motion while rightfully maintaining privilege over the balance.

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, EYB 2006-109504, 150 A.C.W.S. (3d) 401; Lavallee, Rackel & Heintz v. Canada (Attorney General), [2003] 3 S.C.R. 209, [2002] S.C.J. No. 61, 2002 SCC 61, 216 D.L.R. (4th) 257, 292 N.R. 296, [2002] 11 W.W.R. 191, J.E. 2002-1713, 4 Alta. L.R. (4th) 1, 312 A.R. 201, 217 Nfld. & P.E.I.R. 183, 164 O.A.C. 280, 167 C.C.C. (3d) 1, 3 C.R. (6th) 209, 96 C.R.R. (2d) 189, [2002] 4 C.T.C. 143, 2002 D.T.C. 7267, 54 W.C.B. (2d) 401, consd

Split Vision Eyewear Inc. v. Economical Insurance Group, [2010] B.C.J. No. 524, 2010 BCSC 396, 83 C.C.L.I. (4th) 188, distd

Other cases referred to

Brand Name Marketing Inc. v. Rogers Communications Inc., [2010] O.J. No. 5430, 2010 ONSC 2892 (Master); Elgner v. Estate of Harvey Freedman, December 11, 2013 (Master Muir); Elgner v. Freedman, [2013] O.J. No. 5657, 2013 ONSC 7627 (S.C.J.); Elgner v. Freedman Estate, [2013] O.J. No. 1715, 2013 ONSC 2176, 49 C.P.C. (7th) 225, 227 A.C.W.S. (3d) 359 (S.C.J.); Guelph (City) v. Super Blue Box Recycling Corp., 2004 34954 (ON SC), [2004] O.J. No. 4468, [2004] O.T.C. 961, 2 C.P.C. (6th) 276, 134 A.C.W.S. (3d) 787 (S.C.J.); [page371] Hanna v. Hanna (1986), 1986 2828 (ON SC), 53 O.R. (2d) 251, [1986] O.J. No. 2899, 34 A.C.W.S. (2d) 270 (Master); Hill v. Church of Scientology of Toronto (1995), 1995 59 (SCC), 24 O.R. (3d) 865, [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, 126 D.L.R. (4th) 129, 184 N.R. 1, J.E. 95-1495, 84 O.A.C. 1, 25 C.C.L.T. (2d) 89, 30 C.R.R. (2d) 189, 56 A.C.W.S. (3d) 495; National Trust Co. v. Bouckhuyt (1987), 1987 4098 (ON CA), 61 O.R. (2d) 640, [1987] O.J. No. 930, 43 D.L.R. (4th) 543, 23 O.A.C. 40, 38 B.L.R. 77, 21 C.P.C. (2d) 226, 7 P.P.S.A.C. 273, 46 R.P.R. 221, 6 A.C.W.S. (3d) 406 (C.A.); Murao v. Blackcomb Skiing Enterprises Ltd. Partnership, [2003] B.C.J. No. 806, 2003 BCSC 558, 121 A.C.W.S. (3d) 1026; Ontario v. Rothmans Inc., [2011] O.J. No. 1896, 2011 ONSC 2504, 5 C.P.C. (7th) 112 (S.C.J.) [Leave to appeal denied [2011] O.J. No. 2811, 2011 ONSC 3685 (Div. Ct.)]; Pennyfeather v. Timminco Ltd. (2011), 107 O.R. (3d) 201, [2011] O.J. No. 3286, 2011 ONSC 4257 (S.C.J.); R. v. McClure, [2001] 1 S.C.R. 445, [2001] S.C.J. No. 13, 2001 SCC 14, 195 D.L.R. (4th) 513, 266 N.R. 275, J.E. 2001-564, 142 O.A.C. 201, 151 C.C.C. (3d) 321, 40 C.R. (5th) 1, 80 C.R.R. (2d) 217, REJB 2001-22807, 48 W.C.B. (2d) 514; Romspen Investment Corp. v. Woods, [2010] O.J. No. 2546, 2010 ONSC 30005, 190 A.C.W.S. (3d) 57 (Master); Sears Canada Inc. v. PI Media Ltd., [2011] O.J. No. 2545, 2011 ONSC 2625 (Master); Transportaction Lease Systems Inc. v. Virdi, [2007] B.C.J. No. 166, 2007 BCSC 132, 36 C.P.C. (6th) 341, 155 A.C.W.S. (3d) 41; Walker v. Carpenter, 144 N.C. 674, 57 S.E. 461 (1907); Zeitoun v. Economical Insurance Group (2009), 96 O.R. (3d) 639, [2009] O.J. No. 2003, 2009 ONCA 415, 73 C.P.C. (6th) 8, 307 D.L.R. (4th) 218, 73 C.C.L.I. (4th) 255, 257 O.A.C. 29

Statutes referred to

Canadian Charter of Rights and Freedoms

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 39.03, 57.01(1)(0.b)

Authorities referred to

Gilbert, Geoffrey, The Law of Evidence (Dublin, 1754)

Morden, John W., and Paul M. Perell, The Law of Civil Procedure in Ontario (Markham, Ont.: LexisNexis Canada, 2010)

APPEAL from an order on a refusals motion.

Julie Hannaford and Melvyn Solmon, for plaintiff.

Michael Kestenberg, for defendants.

[1] E.M. MORGAN J.: — The question on this appeal flows directly from the central proposition articulated by Master Muir in reaching his conclusion in the motion below: can the tendering of litigation counsel's affidavit in support of a client's motion "amount to a total waiver of privilege over a lawyer's entire file", or is privilege only cast aside "in limited measure" (Elgner v. Estate of Harvey Freedman, endorsement of December 11, 2013, [2013] O.J. No. 5657, 2013 ONSC 7627 (S.C.J.), at paras. 10, 11)?

[2] This appeal of an order made on a refusals motion arises as part of a procedurally hard-fought action that is still only at the pleadings stage. There are some 16 refusals that the master [page372] determined need not be answered. They arise from examinations of several witnesses on a pending motion, which themselves took place pursuant to a master's order permitting the examination of non-affiants under rule 39.03 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] as well as the cross-examination of an affiant who was a member of defendants' counsel's firm. All of this, in turn, was pursued in the context of a motion for particulars brought by the defendants prior to issuing their statement of defence.

[3] Despite the "wheels within wheels" quality of the proceedings, the refusals at issue all turn on an important question of law and litigation policy -- the extent to which privilege is waived by the filing of a lawyer's affidavit.

[4] To make a long story as short as possible, the defendants served a wide-ranging demand for particulars prior to issuing any pleading. When this demand was not answered to their satisfaction, they brought a motion for particulars on July 5, 2012 and a motion to set aside noting in default on July 12, 2012. Included in the motion for particulars was a supporting affidavit of Beverly Jusko, a lawyer at defendants' counsel's firm, who deposed that the defendants did not have knowledge of the particulars needed to plead. Neither of the personal defendants provided an affidavit in support of that motion.

[5] The plaintiff moved for an order under rule 39.03 permitting examination of the defendants on the pending motion. On January 16, 2013, Master Muir ordered the examination of the two defendants, to be followed by the cross-examination of Ms. Jusko on consent.

[6] At Ms. Jusko's cross-examination, the plaintiff learned that Ms. Jusko was not a knowledgeable affiant, and that all of her information came from another member of defendants' counsel's law firm, Aaron Hershtal. Mr. Hershtal's knowledge, in turn, came from his overall familiarity with the file and/or from information he had received from the defendants themselves. The plaintiff moved to examine Mr. Hershtal under rule 39.03 as a witness on the pending motion, which order was granted by Master Glustein on April 12, 2013 [ [2013] O.J. No. 1715, 2013 ONSC 2176 (S.C.J.)].

[7] At all of the examinations on the pending motion -- i.e., the rule 39.03 examinations of the two defendants, the rule 39.03 examination of Mr. Hershtal, and the cross-examination of Ms. Jusko on her affidavit -- there were numerous refusals. The plaintiff brought a further motion to compel answers to those refusals, which led to the master's endorsement at issue here. A number of the refusals were determined by Master Muir [page373] to have been properly refused and are the subject of the present appeal.

[8] Counsel for the plaintiff submit that the master erred by unduly limiting the scope of inquiry on the examinations. Specifically with respect to the examinations of Ms. Jusko and Mr. Hershtal, the plaintiff's position is that the master should not have limited the scope of the waiver of privilege to matters addressed in Ms. Jusko's affidavit, but rather should have determined that privilege has been waived for any and all matters contained in defendants' counsel's file.

[9] Plaintiff's counsel contend that by limiting the examinations and the waiver of privilege in this way, the master committed an error of law. They further submit that pursuant to Zeitoun v. Economical Insurance Group (2009), 96 O.R. (3d) 639, [2009] O.J. No. 2003, 2009 ONCA 415, the standard of review for an error of law is one of correctness.

[10] A three-part test prevails with respect to questions asked of a witness on a pending motion. The questions must be relevant to

(a) the issues on the motion; or

(b) matters raised in the affidavit (even if those issues are irrelevant to the motion); or

(c) the credibility of the deponent or the reliability of his or her evidence.

Ontario v. Rothmans Inc., [2011] O.J. No. 1896, 2011 ONSC 2504 (S.C.J.), at para. 12, leave to appeal denied [2011] O.J. No. 2811, 2011 ONSC 3685 (Div. Ct.).

[11] The test of relevance is generally a broad, but not quite all-encompassing one: "subject to privilege, if the question asked could elicit a response that the trial judge could rely on to resolve a matter in issue before him, the test has been met -- the question asked is relevant" (Romspen Investment Corp. v. Woods, [2010] O.J. No. 2546, 2010 ONSC 30005 (Master)). With this broad test in mind, Master Glustein ordered the examination of Mr. Hershtal on the pending motion and framed the scope in accordance with the overarching issue on that motion, at para. 5 of his endorsement: "[o]n a particulars motion, an issue for the court is whether the particulars are within the knowledge of the party demanding them".

[12] To put the matter in context, the refused questions at issue in this appeal are as broadly framed as could be. They include a request for defendants' counsel's statements of account, their [page374] correspondence with their clients including letters of advice as to the strength or weaknesses of the defendants' case, docket entries, notes, the initial retainer, letters to Law Pro claims counsel, etc. As Master Muir put it, at para. 9 of the endorsement under appeal [ [2013] O.J. No. 5657, 2013 ONSC 7627 (S.C.J.)], "[t]he questions asked are wide ranging and essentially amount to a request by the Plaintiff that the Defendants disclose all documents and information in the possession of the Defendants and Mr. Kestenberg's firm relating to the issues in this litigation".

[13] Counsel for the plaintiff make two general points with respect to the range of disclosure sought from the deponents, both of which are designed to support a waiver of privilege that is so expansive that it eliminates the defendants' solicitor-client privilege altogether.

[14] In the first place, they observe that the basic posture of Ms. Jusko and Mr. Hershtal is that their clients have none of the information requested in the demand for particulars. They then argue that since the purpose of cross-examination is to test the assertions of the deponents and witnesses, they do not have to take Ms. Jusko's and Mr. Hershtal's word at face value. From there, they submit that the only logical way to test whether a person really has nothing is to ask to see everything. Accordingly, they contend that defendants' counsel's entire file is relevant to the matters at hand, and that privilege must therefore be waived over all that defendants' counsel's law firm has or knows.

[15] In the second place, counsel for the plaintiff submit that they are entitled to cross-examine Ms. Jusko on the final paragraph of her affidavit, which contains the pro forma statement that her affidavit is made "for no improper purpose". Plaintiff's counsel argue that in order to test whether the deponent's purpose is improper they must determine the true purpose of the affidavit, and to do that they must again see everything that her firm has in its files.

[16] Both of these arguments, of course, play on the practical impossibility of proving this kind of negative. It has been recognized for several centuries in English law that to impose a burden of proof on a party asserting a negative proposition of this nature may be to impose an insurmountable burden. Chief Baron Geoffrey Gilbert stated the point succinctly, if today somewhat archaically, in his treatise on The Law of Evidence (Dublin, 1754), at 104-105, where he observed that if "nothing is said to be done, nothing can be said to be proved". Likewise, American courts have long noted that "[t]he first rule laid down in the [page375] books on evidence is to the effect that the issue must be proved by the party who states an affirmative, not by the party who states a negative" (Walker v. Carpenter, 57 S.E. 461, 144 N.C. 674 (1907), at p. 461 S.E.).

[17] The primary position adopted by the plaintiff -- that to prove one has nothing, one must produce everything -- is, with respect, too clever by half. If that argument were to be accepted, every party in every case could be cross-examined on everything they possess or know in the world, since all parties are required to swear an affidavit of documents that confirms that they have produced everything of relevance. Truly testing that they have no other relevant material would, if taken to the logical extreme that plaintiff's counsel embrace here, require disclosure of all of their non-relevant material.

[18] Likewise, plaintiff's argument that Ms. Jusko's statement that her affidavit is sworn "for no improper purpose" requires cross-examination is an argument that would burden all affiants with limitless cross-examination; after all, even if unspecified, the purpose of filing an affidavit in support of a motion is taken to be proper. In the ordinary course that does not, unless something untoward has been exposed, open for examination everything the affiant possesses or knows as a means of testing his or her purpose. While I agree with plaintiff's counsel that "words have meaning", the request to cross-examine on the "no improper purpose" statement strikes me as a request to test the veracity of boilerplate phrase whose significance is far more stylistic than substantive.

[19] I do agree with the plaintiff's assertion that knowledge of the law firm is deemed to be knowledge of the party/client (National Trust Co. v. Bouckhuyt (1987), 1987 4098 (ON CA), 61 O.R. (2d) 640, [1987] O.J. No. 930 (C.A.), at para. 8), and I concur with Master Glustein, who stated, at para. 19 of his endorsement [[2013] O.J. No. 1715, 2013 ONSC 2176 (S.C.J.)], that "[i]t is a just and fair requirement for the court to have the evidence necessary to consider whether the knowledge of litigation counsel can or ought to be imputed to the client on a particulars motion".

[20] Under the circumstances, plaintiff's counsel do not so much emphasize that there is a suggestion of material evidence lurking in defendants' counsel's file, but rather that Ms. Jusko and Mr. Hershtal committed themselves to a negative proposition that cannot strictly be proved by anything short of giving up their clients' entire file. In this, plaintiff's counsel have pressed the notion that the defendants did not have to provide their lawyer's affidavit, but that having done so they are [page376] caught in a trap of their own lawyers' making and their defence is thereby jeopardized.

[21] I find this approach to a refusals motion within a particulars motion, all taking place at the very outset of the action, to be unpersuasive. It has been said on more than one occasion that "[l]itigation ought not to be practiced on a 'gotcha' basis" (Brand Name Marketing Inc. v. Rogers Communications Inc., [2010] O.J. No. 5430, 2010 ONSC 2892 (Master), at para. 83).

[22] Plaintiff's counsel also take the position that a party's intentional delay tactics may be an "improper purpose" (Sears Canada Inc. v. PI Media Ltd., [2011] O.J. No. 2545, 2011 ONSC 2625 (Master), at para. 45), and that this drives the demand to cross-examine Ms. Jusko on the phrase "for no improper purpose". They point to the large number of motions that have been brought at the pleadings stage of this action and take this to suggest that the defendants may be intentionally delaying the litigation.

[23] Although the defendants have lost a number of those motions and have had to produce several witnesses on rule 39.03 examinations, I see nothing that hints at a lack of bona fides in their positions. They brought a motion for particulars, and in doing so they sought to avoid being examined at the pre-discovery stage of the action. They lost the dispute over the rule 39.03 examinations on the merits. As for the particulars motion, it has yet to be determined. All of the defendants' positions to date appear to me to reflect legitimate, if not entirely successful, considerations of litigation strategy.

[24] It may sometimes be that where there is this kind of smoke there is salmon, but that is not the case here. What the plaintiff seeks is a large-scale fishing expedition almost for its own sake. The request for defendants' counsel's entire file appears aimed not so much at finding evidence for use on the particulars motion, but at undermining the defendants' ability to conduct the litigation at all.

[25] I am especially wary of this approach when it is deployed in order to eliminate solicitor-client privilege. The defendants have certainly waived some privilege by the filing of a solicitor's affidavit and by Ms. Jusko's reliance on information and belief conveyed to her by Mr. Hershtal. But this waiver has a definable scope, and privilege is not lost in its entirety and for all purposes merely by the filing of a solicitor's affidavit with limited content and for a limited purpose.

[26] Anything specifically mentioned in the solicitor's affidavit would have to be produced (Murao v. Blackcomb Skiing Enterprises Ltd. Partnership, [2003] B.C.J. No. 806, 2003 BCSC 558, at para. 91), [page377] as would the notes of meetings or conversations referenced in the affidavit (Hanna v. Hanna (1986), 1986 2828 (ON SC), 53 O.R. (2d) 251, [1986] O.J. No. 2899 (Master)). The overriding principle with respect to waiver of privilege is that privilege is eliminated where there is an intentional waiving of specific privileges (Guelph (City) v. Super Blue Box Recycling Corp., 2004 34954 (ON SC), [2004] O.J. No. 4468, 2 C.P.C. (6th) 276 (S.C.J.), at para. 90).

[27] The British Columbia Supreme Court put the applicable test succinctly in Transportaction Lease Systems Inc. v. Virdi, [2007] B.C.J. No. 166, 2007 BCSC 132, at para. 26, where it stated that "privilege is lost over any communication that has a relevant and material connection to the issue being brought forward" (emphasis added). The requirement of materiality provides a built-in limitation on the scope of waiver. In the decision under appeal, Master Muir found a similar limitation on the scope of the waiver of privilege in the principles enunciated by the Supreme Court in Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, [2006] S.C.J. No. 39 and Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209, [2002] S.C.J. No. 61.

[28] Counsel for the plaintiff complains that the phrase "in limited measure", by which the master qualified waiver in the case at bar, does not appear in those cases. Counsel also argues that in any event Lavallee was a Canadian Charter of Rights and Freedoms case, and it applies to the protection of solicitor-client privilege in the face of a statute that purports to intrude on it and not to the determination of the scope of privilege once waived.

[29] I agree with Master Muir that the principles in Blank and Lavallee are indeed relevant to the question of the scope of waiver. It is important to analyze any controversy over the enforcement of solicitor-client privilege keeping in mind the fundamental postulates laid down in those cases. In particular, it is necessary to recall that "[s]ociety has entrusted to lawyers the task of advancing their clients' cases with the skill and expertise available only to those who are trained in the law . . . The resulting confidential relationship between solicitor and client is a necessary and essential condition of the effective administration of justice " (Blank, supra, at para. 26).

[30] It is equally important to recall that "present-day constitutional norms . . . include the status of solicitor-client privilege as a principle of fundamental justice within the meaning of s. 7 of the Charter" (Lavallee, supra, at para. 21). The current dispute arises in the context of private litigation rather than a prosecution by the state, and so the Charter is not formally [page378] applicable to these proceedings. Nevertheless, the fact that the Supreme Court of Canada has identified solicitor-client privilege as a protected aspect of fundamental justice speaks to the care which must be taken in defining its scope. As the Supreme Court instructed in Hill v. Church of Scientology of Toronto (1995), 1995 59 (SCC), 24 O.R. (3d) 865, [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, at para. 91, "the common law must be interpreted in a manner which is consistent with Charter principles".

[31] In my view, the Blank and Lavallee requirement that a legislative incursion into privilege be interpreted as limited to that which is truly necessary to meet the legislative ends is analogous, and therefore equally applicable, to the task of determining the scope of a waiver of privilege. The narrowing of a statute's ambit by interpreting it to protect privilege as much as possible, and the narrowing of a waiver's ambit by interpreting it to protect privilege as much as possible, are two sides of the same coin. Both interpretive tasks are to be pursued with a view to ensuring that "privilege must be as close to absolute as possible to ensure public confidence and retain relevance" (Lavallee, supra, at para. 36, quoting R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, [2001] S.C.J. No. 13, at para. 35).

[32] This is not a case where, as in Split Vision Eyewear Inc. v. Economical Insurance Group, [2010] B.C.J. No. 524, 2010 BCSC 396, at para. 102, a party "chose to represent to the Court the merits of their defence by a position statement of counsel", and there could be said to have been an all-encompassing waiver. Ms. Jusko's affidavit, and Mr. Hershtal's knowledge on which it was based, were tendered for a specific and limited task.

[33] Counsel for the defendants states that counsel for the plaintiff mischaracterizes Ms. Jusko's affidavit and the thrust of the motion for particulars when they submit that her statements about the need for particulars go to the overall state of her law firm's knowledge. More specifically, counsel for the defendants submits that particulars were sought here not so much because the defendants actually lack the requested information in some form, but because the claim is broad and the plaintiff must be made to clarify it and be bound to the answers.

[34] Defendants' approach to this motion is in keeping with a recognized object of serving a demand for particulars. Perell J. pointed out in Pennyfeather v. Timminco Ltd. (2011), 107 O.R. (3d) 201, [2011] O.J. No. 3286, 2011 ONSC 4257 (S.C.J.), at para. 60, quoting Morden and Perell, The Law of Civil Procedure in Ontario (Markham, Ont.: LexisNexis Canada, 2010), at p. 347, that particulars are legitimately sought by a party to [page379] "frame his or her answer, . . . to prevent surprise at trial . . . and to tie the hands of the party so that he or she cannot without leave go into any matters not included".

[35] To this end, it was correct for Masters Muir and Glustein to require the best evidence to be put forward and to order the examination of the personal defendants and the two solicitors. Anything related to pinning down the plaintiff's pleading was relevant to the motion. On the other hand, the merits of the defendants' position are not in issue in the motion for particulars or on the refusals motion under appeal. As the British Columbia Supreme Court stated in Murao v. Blackcomb Skiing Enterprises Ltd. Partnership, supra, at para. 91, "[t]herefore, only the portion of the requested documents pertaining to these communications [in issue in the motion] are producible".

[36] Master Muir held in his December 11, 2013 ruling, at para. 10, that "the tendering of the affidavit cannot amount to a total waiver of privilege over a lawyer's entire file". He followed this, at para. 12, with a finding that "[t]he Defendants have disclosed the documents that relate to the issues raised in the affidavit relevant to the demand for particulars" (emphasis added).

[37] In reasoning this way, the master formulated and applied the correct test of relevance. Any other approach would have run afoul of the principle of protecting privilege that the Supreme Court of Canada has characterized as fundamental to the justice system.

[38] The motion for particulars has an identifiable objective which does not cover the merits of the entire action or the entirety of defendants' counsel's file. The master made no error in concluding, at para. 16, that "[t]he Defendants have made a good faith effort to produce those documents necessary to allow the Plaintiff to argue the particulars motion while rightfully maintaining privilege over the balance".

[39] The plaintiff's appeal is therefore dismissed.

[40] Defendants' counsel seeks costs in the total amount of $5,865.43 for the appeal. In my view, that is a very reasonable request. I note that it is less than one-quarter of the amount that plaintiff's counsel sought in their own costs outline.

[41] Rule 57.01(1)(0.b) of the Rules of Civil Procedure includes "the amount of costs that an unsuccessful party could reasonably expect to pay" as a factor for a motions judge to take into account in exercising the discretion to fix costs. Given the significantly higher amount set out in the plaintiff's own costs outline, the defendants' cost request cannot have been beyond the plaintiff's expectation. [page380]

[42] The plaintiff shall pay $5,865.43 to the defendants in costs, inclusive of disbursements and HST.

Appeal dismissed.

End of Document