ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
André Lamoureux
Plaintiff
– and –
Charles Lamoureux
Defendant
Sophie C. Reitano, for the Plaintiff (Responding Party)
Benoit M. Duchesne, for the Defendant (Moving Party)
HEARD: November 15, 2013 (Ottawa)
AMENDED REASONS FOR DECISION
Corrected decision: The text of the original decision was corrected on January 28, 2014 and the description of the correction is appended.
R. SMITH J.
1The defendant Charles Lamoureux (“Charles”) has brought a motion seeking an order declaring that the plaintiff, André Lamoureux (“André”), has waived his solicitor-client privilege with his previous lawyers in this action, by including evidence in his affidavit dated August 6, 2013 blaming them for the delay and more specifically with regards to:
(a) the instructions he gave to his previous lawyers regarding the advancement of this litigation;
(b) any advice he may have received from his previous lawyers regarding the advancement of the litigation;
(c) any oral or written communications between him and his previous lawyers regarding any timetables and any orders rendered by a Court in this action;
(d) any communications from him to his previous lawyers with regards to the advancement of this action against Charles; and
(e) details of the efforts and work performed by his previous lawyers to advance the action, and details of their failure to take steps to advance the action.
2Secondly, Charles seeks an order that Gerald Langlois and Christian Pilon re-attend and answer the questions they refused to answer at their previous examination as well as relevant follow up questions thereto.
Background
3André commenced an action against Charles in 2007. At a case conference held on November 2, 2010, Master MacLeod made an order setting out the following timetable to be followed:
a. That affidavit of documents be exchanged by December 31, 2010;
b. That discoveries be completed by March 31, 2010;
c. That undertakings be complied with by June 30, 2011; and
d. That the action be set down for trial before October 31, 2011.
4The action was not set down for trial by October 31, 2011 and on December 12, 2012 an order was made dismissing the action for delay pursuant to Rule 48.14 of the Rules of Civil Procedure.
5André’s present lawyer has brought a motion to set aside the Registrar’s order dismissing the action against Charles. In support his motion André signed an affidavit on August 6, 2013 in which he made the following statements:
(a) At para. 11 he stated that he always relied on his lawyers’ advice to advance his case and he instructed him to pursue the advancement of his case.
(b) At para. 28 he stated that as a busy businessman he relied on his lawyers’ recommendations and advice to ensure the protection of his rights and interests and the supervision of his legal actions.
(c) At para. 36 he stated that he was never advised or made aware or sent a copy of Master MacLeod’s November 2, 2010 order setting out a timetable for various steps to be taken in this action. In particular he was never advised that the action was to be set down for trial by October 31, 2011.
(d) At para. 42 he stated that he always intended to proceed with his action and had as a result gave clear instructions to his lawyers to do so.
(e) At para. 44 he again stated that he had no knowledge of a deadline by which the action had to be set down for trial.
(f) At para. 56 he stated that he always relied on his lawyers to take the necessary steps to advance the action and to respect the timelines set by the Court and the Rules.
Analysis
6Charles submits that André has waived solicitor-client privilege with his previous lawyers Gerald E. Langlois and Christian Pilon in the areas identified in para. 1. (a) to (e) above by giving affidavit evidence about the instructions he gave his previous lawyers, his intentions to proceed with the action and his reliance on his former lawyers to take the necessary steps.
7André denies that he has waived any solicitor-client privilege by giving an affidavit evidence blaming his former lawyers for failing to follow his instructions to advance the action and failing to advise him that there was a final date for listing the action for trial of October 31, 2011.
Relevance of Former Solicitors’ Evidence
8The two former solicitors have been given notice of this motion and are prepared to answer questions provided an order is obtained confirming that André has waived his solicitor-client privilege with regard in the above areas.
9Rule 39.03(1) permits a party to examine a witness and file a transcript of the examination as evidence at the hearing provided the evidence is relevant to the issues raised in the motion.
10This situation is very similar to that in Marton v. Wood Gundy Inc., 2013 ONSC 1246 at para. 14 where Master Dash stated as follows:
Any evidence which could demonstrate the reasons for the delay in prosecuting an action and whether the delay was intentional, whether it was excusable and whether it was caused by the plaintiffs or their lawyers would clearly be relevant to the motion to dismiss for delay. It is obvious that the lawyers who undertook the prosecution of the actions would be in a position to provide evidence of the delay and the reasons therefore. That evidence is particularly relevant given that the plaintiffs have averred that they did not deliberately delay the action, they relied on the lawyers to prosecute the action, but despite their efforts little was done by the lawyers, the lawyers failed to keep them informed and they experienced difficulties with the lawyers.
11A party moving to set aside a dismissal under Rule 48.14 must offer an explanation for the delay in advancing the action among other factors to be considered in a contextual manner and as a result I find, as in Marton v. Wood Gundy Inc., that the evidence of André’s former solicitors is relevant to the issues of explaining the delay and the failure to set the action down for trial by October 31, 2011 as specified by the order of Master MacLeod.
Waver of Solicitor-Client Privilege
12In 1225145 Ontario Inc. v. Kelly, 2006 19425 (On.SC) at para. 12 the Court held that a client may waive the privilege, in whole or in part, voluntarily or by implication and stated as follows:
A client may waive the privilege, in whole or in part, voluntarily or by implication. A party who directly raises in a proceeding the legal advice that he or she received, or the instructions the client gave to the solicitor, thereby putting that advice or those instructions in issue, may be found to have waived the privilege insofar as it relates specifically to the issue concerning the advice received or the instructions given. (Law of Evidence in Canada, John Sopinka, Sydney M. Lederman, Q.C., Alan W. Bryant, Butterworths, 1992, pages 664-667.)
13In Woodglen & Co. v. Owens (1995), 1995 7070 (ON SC), 24 O.R. (3d) 261 at para. 31 Ellen Macdonald J. also quoted from Sopinka, Lederman and Bryant at pp 666-68 as follows:
…As to what constitutes waiver by implication, Wigmore [Wigmore on Evidence (McNaughton rev., 1961), vol. 8 at para. 2327, pp. 635-36, quoted in Hunter v. Rogers, 1981 710 (BC SC), [1982] 2 W.W.R. 189 at p.191, 34 B.C.L.R. 206, sub nom. Rogers v. Hunter (S.C.)] said:
Judicial decision gives no clear answer to this question. In deciding it, regard must be had to the double elements that are predicated in every waiver, i.e., not only the element of implied intention, but also the element of fairness and consistency. A privileged person would seldom be found to waive, if his intention not to abandon could alone control the situation. There is always also the objective disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point his election must remain final.
Whether intended or not, waiver may occur when fairness requires it, for example, if a party has taken positions which would make it inconsistent to maintain the privilege…
The notion of fairness has also been invoked as a basis for waiver when the party directly raises in a pleading or proceeding the legal advice that he or she received, thereby putting that advice in issue. Similarly, if a client denies that he or she gave instructions to the lawyer to settle a debt, the other party who is seeking to enforce the settlement is free to examine the lawyer on what was said between the lawyer and the client.
The extent and nature of legal advice received by a party can be put in issue when that party alleges that he or she possessed a particular state of mind as, for example, reliance upon the defendant’s representations. If the defence is that the plaintiff had relied upon his or her own legal advice on the question, then such legal advice must be disclosed…
14The notion of fairness would apply in this situation where André has raised in his affidavit the instructions he had given to his previous lawyers and the communications they had with him regarding the requirement to set the action down for trial by a certain date. It would be unfair to Charles to refuse to allow him to question André’s former solicitors with respect to his instructions to them and their communications with André with regard to taking the necessary steps to move the action forward.
15In addition, in his affidavit, André has alleged that he possessed a certain state of mind namely that he always intended to proceed with this action and relied on his former lawyers to take the necessary steps to move the action forward.
16In Marton v. Wood Gundy Inc. at paras. 20 and 21 Master Dash stated as follows:
Solicitor-client privilege protects from disclosure communications between a lawyer and his client made for the purpose of obtaining legal advice. The protection is for communications, not for acts or statements of fact. Actions taken or not taken by the lawyers are facts and not communications. The lawyers can give evidence about what they did or did not do to move the action forward without breaching privilege. On the other hand, communications involving advice and instructions about taking such actions are communications protected by the privilege, unless the privilege is waived.
Solicitor-client privilege is deemed waived when communications between lawyer and client are "legitimately brought into issue in an action". Privilege is waived when the client puts the advice and conduct of his lawyer in issue. Typically this applies when a client sues his lawyer for negligence, but there is no reason it should not apply also in situations where a client pleads that his lawyer's negligence or inaction is the explanation for an inordinate delay in an action. The privilege has also been held to be deemed waived where a party pleads reliance on legal advice in justification of actions taken or where a party places his state of mind in issue and has received legal advice to help form that state of mind.
17As a result, I am satisfied that when André blamed his former solicitors for causing the delay and by failing to advise him of the terms of Master MacLeod’s order, he has put in issue the advice he received and instructions he gave to his former lawyers with regard to moving the action forward and has waived his solicitor-client privilege as it relates to these issues.
18The statements in para. 22 from the Marton v. Wood Gundy Inc. decision also apply to this case:
In my view, by blaming the delay on the inaction of their lawyers on whom they relied to prosecute the action and on their failure to keep them informed, the plaintiffs have legitimately brought into issue in the underlying motion to dismiss for delay the communications (and absence of communications) between them and their various lawyers. The plaintiffs have also put into issue their state of mind, namely their belief that the actions were progressing and their reliance on their lawyers that that was being done.
Disposition
19For the above reasons, I find that by blaming the delay on his former solicitors in his affidavit, André has put the advice he received and the instructions he gave to his former lawyers in issue and has also put his state of mind in issue and by so doing he has waived solicitor-client privilege in the following areas:
(a) The instructions that André gave to his former solicitors Gerald E. Langlois and Christian Pilon with regards to taking steps to advance the action;
(b) The advice and recommendation given to André by his former solicitors Gerald E. Langlois and Christian Pilon concerning the advancement of his action against Charles;
(c) The written and oral communications between André and his former solicitors Gerald E. Langlois and Christian Pilon concerning the timetable and orders given by Master MacLeod related to his action against Charles.
(d) The intentions communicated by André to his former solicitors Gerald E. Langlois and Christian Pilon concerning the advancement of his action against Charles; and
(e) The efforts and work performed by his former lawyers Gerald E. Langlois and Christian Pilon, to advance the action against Charles while they were representing André, as well as any details of any failure to take any required steps.
20As a result, I order Gerald E. Langlois and Christian Pilon to re-attend to be examined pursuant to Rule 39.03 to respond to questions related to the areas identified in para. 19 (a) to (e) above where I have found that André has waived his solicitor-client privilege.
Costs
21The parties may make brief submissions on costs within 10 days.
Mr. Justice Robert J. Smith
Released: January 21, 2014
Erratum: Correction made January 28, 2014:
In paragraph 20, the phrase “para. 19 (a) and (e)” has been replaced with “para. 19 (a) to (e)”.
COURT FILE NO.: 06-CV-035286
DATE: 20140121
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
André Lamoureux
Plaintiff (Responding Party)
– and –
Charles Lamoureux
Defendant (Moving Party)
amended REASONS FOR decision
R. Smith J.
Released: January 21, 2014