COURT FILE NO.: 10-50001

DATE: July 14^th, 2014

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Richard Pineau, by his litigation guardian, Daniel Pineau, Plaintiff

AND:

Merovitz Potechin LLP, Defendant

BEFORE: MASTER MACLEOD

COUNSEL: William Fuhgeh, for the Plaintiff

Colin Dubeau, for the Defendant

ENDORSEMENT

[1] This is a motion for production of certain documents over which privilege is claimed. The motion has been interrupted by a series of procedural wrangles which I will not detail here. The time has come however to release a ruling on the merits of the motion so that the action can move forwards.

[2] At the time of the last hearing I determined that the most appropriate way to proceed was by way of court inspection of the disputed documents. I advised the parties that I would reconvene the hearing if I was of the view that further argument was necessary on the question of waiver once the documents had been reviewed. I have now completed the review and with one exception I am directing the plaintiff to produce the documents in unredacted form.

[3] Much argument was devoted to the question of waiver of privilege and whether any waiver explicitly or implicitly made by Mr. Fuhgeh on behalf of his client should be effective now that the plaintiff is represented by a litigation guardian. In the circumstances, given the nature of the documents, it is the determination of the court that this is an argument without merit. Providing the plaintiff wishes to pursue the litigation or the litigation guardian intends to pursue it on his behalf, it would be unjust to permit documents that are central to the allegations to be suppressed.

[4] The first two documents in the package were copies of the court orders of July 18^th, 2008. One of these was the judgment and the other an order removing Mr. De Toni as lawyer of record. Neither of these documents attract privilege.

[5] The remaining documents are the documents described in Schedule B of the affidavit of documents. They are apparently copies of documents from Mr. Wise’s file containing the impugned minutes of settlement and communication between Mr. Wise’s firm and solicitor Denis Cadieux implementing the transfer of real estate and release of funds pursuant to those minutes.

[6] A critical part of the defence is the assertion that Mr. Pineau had access to alternative and independent advice when the funds were transferred and the land released. These are the very transactions that are the subject matter of the litigation.

[7] If signed minutes of settlement, directions and authorizations and correspondence between Mr. Wise and Mr. Cadieux are part of negotiating a settlement then they attract settlement privilege. This is an important privilege to be sure but it is a class privilege that attracts a case by case analysis and must yield in certain cases to the imperative of doing justice between the parties to the current litigation.[^1] In any event, and quite apart from the question of waiver, there is an exception to settlement privilege when it is necessary to prove whether or not the parties reached a binding agreement.[^2]

[8] Many of the documents in question are neither settlement negotiations nor documents prepared for the purpose of obtaining or giving legal advice. Rather they are documents prepared for the purpose of implementing the agreement such as directions to pay funds or transfers and releases. If these are privileged at all, they ceased to be so when they were released to other parties and such privilege as remains must once again yield to the need to do justice between the parties. It is very significant that Mr. Wise was involved in preparing the documents to implement the original agreement, that he negotiated favourable releases and at no time did Mr. Pineau instruct him to attempt to resile from the agreement.

[9] Most of the documents are in my view not documents that attract solicitor client privilege but to the extent that they do, the question of whether Mr. Pineau had access to legal advice from Mr. Wise or other lawyers is put in issue by his allegations against Merovitz Potechin and therefore they must be disclosed. Where fairness demands it, the nature of a pleading of solicitor’s negligence or a pleading that puts state of mind in issue when legal advice may be part of that state of mind, implies that privilege is waived.[^3]

[10] There is actually only one document contained in the disputed productions which clearly contains legal advice. That is the letter to Mr. Pineau from Mr. Wise dated July 15^th, 2008. It is an important letter because it reveals the date on which Mr. Pineau retained Mr. Wise, the purpose for which he was retained, the date on which Mr. Wise obtained Mr. De Toni’s file and Mr. Wise’s opinion concerning the services rendered by Mr. De Toni.

[11] Legal advice is at the very heart of the solicitor client privilege and is as close to sacrosanct as our law permits. Although I am of the view that privilege over virtually all of the documents has been waived, I do not think it is necessary to disclose the actual advice given by Mr. Wise. It is largely irrelevant whether Mr. Wise thought that Mr. De Toni did a good job or a bad job. What is relevant is the fact that Mr. Pineau had access to other counsel and whatever advice he obtained, it was before the court order of July 18^th, 2014 was finalized. After that date when Mr. DeToni had been removed from the record, Mr. Pineau instructed Mr. Wise to negotiate with Mr. Cadieux and to implement the settlement.

[12] The letter of July 15^th, 2008 is to be produced. If the plaintiff elects to keep the actual advice received to himself then he may redact the second paragraph of that letter. This is without prejudice to further reconsideration of this issue if circumstances arise which put the actual advice in issue.

[13] In summary, for the reasons given above, all of the Schedule B documents are to be produced to the defendant. The letter of July 15^th, 2008 may be produced in redacted form if the plaintiff chooses to continue to hold the advice contained in the final paragraph confidential. The defendant may move on proper grounds for disclosure of that advice if circumstances subsequently arise to demonstrate that the precise nature of the advice has been put in issue by the plaintiff.

[14] The parties may arrange to speak to costs.

Master MacLeod

[^1]: See Sable Offshore Energy Inc. v. Ameron International Corp. 2013 SCC 37 [^2]: See Union Carbide Canada Inc. v. Bombardier Inc. 2014 SCC 35 [^3]: See for example Leadbeater v. Ontario (2004) 70 O.R. (3d) 224 (S.C.J.)