Gainer and Richey v. Vos and 1632370 Ontario Inc., 2015 ONSC 2586
CITATION: Gainer and Richey v. Vos and 1632370 Ontario Inc., 2015 ONSC 2586
BELLEVILLE COURT FILE NO.: CV-13-0219-00
DATE: 20150420
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Gregory Edward Gainer and Karen Richey, Plaintiffs
AND:
Adam Vos and 1632370 Ontario Inc., Defendants
BEFORE: Justice A. C. Trousdale
COUNSEL: Christopher Fleury, Student-At-Law for the Plaintiffs Kristen Muszynski, Counsel for the Defendants
HEARD: March 31, 2015
ENDORSEMENT ON MOTION
Nature of the Hearing/Issue
[1] This was a motion brought by the Plaintiffs for an order:
(a) that the Defendant Adam Vos, (herein “the Defendant”) re-attend at his own expense to answer refusals to Questions 174 and 200 at his examination for discovery;
(b) in the alternative, an order that the Defendant answer the refusals set out on Schedule “A” within thirty (30) days of the order;
(c) for production of the file of the Defendant’s counsel related to the Defendant’s Highway Traffic Act conviction arising from the February 14, 2012 collision;
(d) for an order for production of the Defendant’s criminal record; and
(e) for costs.
[2] The Defendant who is represented in this matter by a different counsel and firm than the counsel who represented the Defendant on the Highway Traffic Act charge arising from the February 14, 2012 collision seeks that the motion be dismissed. The Defendant’s position is that production of the file of the Defendant’s former counsel in relation to the Highway Traffic Act conviction should not be permitted as the file is protected by solicitor-client privilege. The Defendant also disputes the request for production of any criminal record he may have due to lack of relevance.
Background Facts
[3] This action arises from a collision between the vehicle driven by the Defendant and the vehicle driven by one of the Plaintiffs on February 12, 2014.
[4] The Defendant received a ticket for turn not in safety contrary to s. 142(1) of the Highway Traffic Act arising from the collision.
[5] The Defendant retained a lawyer, Mr. John Bonn (herein “Highway Traffic Act Lawyer”) to represent him with respect to the ticket.
[6] The Defendant had his Highway Traffic Act Lawyer plead guilty to the ticket on behalf of the Defendant.
[7] The Plaintiffs allege in this action that the Defendant caused the collision by an unsafe left hand turn and seek damages from the Defendants.
[8] The Defendant denies fault for the collision.
[9] At the examination for discovery held on April 15, 2014, the Defendant answered that he had his lawyer [his Highway Traffic Act Lawyer] plead guilty to the turn not in safety ticket on his behalf as his lawyer [his Highway Traffic Act Lawyer] told him to plead guilty. The Defendant also said at discovery that he did not believe that he had turned not in safety.
[10] At the examination for discovery, the Defendant refused to answer questions relating to the legal advice given to him by his Highway Traffic Act Lawyer regarding the guilty plea, or whether his Highway Traffic Act Lawyer told him he had a valid defence (Question 200). As well, the Defendant refused to produce his Highway Traffic Act Lawyer’s file relating to the aforesaid ticket.
[11] At the examination for discovery, the Defendant refused to answer questions regarding whether or not he has any criminal record convictions.
Analysis
Production of the file of the Defendant’s Highway Traffic Act Lawyer
[12] The Plaintiffs seek production of the complete file of the Defendant’s Highway Traffic Act lawyer as the Defendant stated at his discovery that he only pleaded guilty to the turn not in safety ticket because his Highway Traffic Act Lawyer told him to do so. The Defendant testified that he did not personally attend his court date and that his Highway Traffic Act Lawyer attended on his behalf. He further testified that on the day his Highway Traffic Act Lawyer pleaded guilty on his behalf, his Highway Traffic Act Lawyer called him at work that morning and told him that he had two hours to get down to court. The Defendant testified that that morning was the first time he had been told about the court date. The Defendant testified that his Highway Traffic Act Lawyer told him the fine was minimal and that he would only have two points, and that the Defendant should plead guilty. The Defendant also testified that he did not believe that he had turned not in safety, nor that he was responsible for the collision.
[13] The Defendant refused to answer the question as to whether His Highway Traffic Act Lawyer had told him anything about having a valid defence to the charge or to answer any questions about any advice that his lawyer had given him about the charge. The Defendant also refused to produce the file of his Highway Traffic Act Lawyer.
[14] The Plaintiffs argue that the Defendant waived solicitor-client privilege regarding the file and the advice given to him by his Highway Traffic Act Lawyer when he advised that he only pleaded guilty to the charge because his Highway Traffic Act Lawyer told him to do so.
[15] In that regard, the Plaintiffs rely on the case of Harich v. Stamp, 1979 CarswellOnt 503, [1979] O.J No. 4506, where the Ontario Court of Appeal found in a motor vehicle case, that the Defendant in that case who had previously pleaded guilty to dangerous driving arising from the same incident, had waived solicitor-client privilege when he gave evidence about his lawyer’s failure to discuss the defence or his lack of comprehension of it, as an explanation for his guilty plea. The Court of Appeal found that the Defendant could be cross-examined on the circumstances of the plea, and that the Plaintiffs could call the Defendant’s criminal lawyer in reply to give evidence with respect to the circumstances of the guilty plea.
[16] The Defendant argues that the file of his Highway Traffic Act Lawyer should not be produced as it is protected by solicitor-client privilege, which solicitor-client privilege was not waived by the Defendant. The Defendant distinguishes the Harich v. Stamp case on the basis that he has not claimed that his Highway Traffic Act Lawyer breached any duty to him, nor has he accused his Highway Traffic Act Lawyer of any negligence or wrong-doing.
[17] The Defendant relies on the case of R. v. McClure 2001 SCC 14, [2001] 1 S.C.R. 445 at para 35 where the Supreme Court of Canada stated:
However, solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis.
[18] The Defendant argues that to order the production of the Highway Traffic Act Lawyer’s entire file, without knowing the contents of it, would be to stray significantly from the aforesaid principles put forward by the Supreme Court of Canada in R. v. McClure.
[19] The issue before me, then is whether there has been a waiver of solicitor-client privilege by the Defendant as a result of testimony given by him at his discovery.
[20] At paragraph 21 of Harich v. Stamp, the Court of Appeal referred to McCormick on Evidence (2nd ed.), p. 194 which states:
Waiver includes, as Wigmore points out, not merely words or conduct expressing an intention to relinquish a known right but conduct, such as a partial disclosure, which would make it unfair for the client to insist on a privilege thereafter.
[21] The Supreme Court of Canada in R. v. Shirose, 1999 CarswellOnt 948, [1000] 1 S.C.R. 565, held that the RCMP had to disclose relevant legal advice received by the RCMP with respect to the legality of a sting operation, even though the information would have been protected by solicitor-client privilege because the RCMP were relying on the fact of that undisclosed legal advice as evidence of the RCMP having acted in good faith, without disclosing the nature of the legal advice. In that case, the relevant legal advice disclosed to the RCMP officer in question was ordered to be disclosed to the Appellants. However, the court went on to say at paragraph 74 that it was not an “open file” order in respect of the RCMP’s solicitor and client communications. Only certain legal advice relating to certain specified matters identified by the RCMP officer had to be disclosed.
[22] The Plaintiffs also rely on the case of Mantella v. Mantella, 2008 CanLII 727 (ON SC), 2008 CarswellOnt 117, [2008] W.D.F.L. 1743, [2008] O.J. No. 120, 55 R.F.L. (6th) 72, where the wife was ordered to produce the whole file of her prior solicitor at the time she signed the Separation Agreement, as the wife had disclosed at examination for discovery, a summary of advice provided by that solicitor and the wife’s decision to go ahead with the separation agreement. In that case, the court held that there had been voluntary disclosure and that the voluntary disclosure was not an accidental slip. The court further held that the wife could not “cherry-pick” among her privileged communications with her lawyer and produce those which are helpful to her, and not those that are otherwise.
[23] The Defendant in the case before me is relying on his Highway Traffic Act Lawyer advising him to plead guilty as the reason for the guilty plea. I find that the Defendant is choosing to reveal what may be helpful to him but refusing to disclose all of the advice received and instructions given at the time of the guilty plea. Upon considering the facts of the case before me and the cases with which I have been provided, I find that there has been a partial waiver of solicitor-client privilege by the Defendant at his examination for discovery when he disclosed that he only pleaded guilty because his Highway Traffic Act Lawyer told him to do so, and when he disclosed other circumstances of the plea. I do not, however, find that there has been a complete waiver of all solicitor-client privilege between the Defendant and his Highway Traffic Act Lawyer, such that the unknown contents of all of that file should be produced.
[24] I find that the Plaintiffs shall be entitled to receive specified disclosure from the Defendant and from his Highway Traffic Act Lawyer, Mr. John Bonn regarding the legal advice which the Defendant’s Highway Traffic Act Lawyer gave the Defendant regarding whether or not he should plead guilty at or around the court date at which the Highway Traffic Act Lawyer pleaded guilty on behalf of the Defendant, which court date on the evidence appears to be on or about August 20, 2012, and what the Defendant told his Highway Traffic Act Lawyer at or around that time. This disclosure shall include a copy of any written notes or memos or correspondence in the Highway Traffic Act Lawyer’s file made at or around the aforesaid time regarding that court date, and/or regarding any conversations between the Highway Traffic Act Lawyer and the Defendant at that time including about what plea should be made on the Defendant’s behalf on that court date, and including any information or instructions given by the Defendant to his Highway Traffic Act Lawyer about the plea to be made at that time. The Highway Traffic Act Lawyer shall also produce any correspondence or notes in his file regarding any notification to the Defendant of the date and time of the court date of August 20, 2012.
[25] In addition, after the aforesaid disclosure by the Defendant’s Highway Traffic Act Lawyer has been made, the Defendant shall be required to re-attend at examination for discovery at his own expense to answer Question 200 and questions regarding the legal advice he received from his Highway Traffic Act Lawyer at or around the date of the guilty plea, and what he told his Highway Traffic Lawyer, including any instructions he gave to his Highway Traffic Act Lawyer at or around the date of the guilty plea, as well as to answer any further relevant questions arising from the disclosure received from his Highway Traffic Act Lawyer.
Production of the Defendant’s criminal record, if any exists
[26] The Plaintiffs seek that the Defendant be required to produce his criminal record. The Plaintiffs rely on Section 22 of the Ontario Evidence Act, R.S.O. 1990, c. E.23 which states that a witness may be asked whether they have been convicted of a crime and if they deny the fact or refuse to answer, the conviction may be proved.
[27] The Plaintiffs allege that production of the Defendant’s criminal record is relevant because the Defendant has made an issue of the legal advice he received from his Highway Traffic Act Lawyer and has alleged a breach of duty by his Highway Traffic Act Lawyer to him. The Plaintiffs argue that by doing this the Defendant’s knowledge of the criminal justice system and his interactions with lawyers have become relevant. The Plaintiffs also argue that production of the criminal record is relevant for reasons of credibility which may become an issue at trial. Finally, the Plaintiffs argue that the Defendant is protected because if the Defendant’s criminal record is produced at this stage, it does not guarantee automatic admissibility at trial as issues of prejudice, credibility, weight and admissibility can all be determined at trial.
[28] The Defendant’s position is that he should not be required to produce his criminal record, if any exists, as it is not relevant.
[29] Rule 31.06 of the Rules of Civil Procedure requires a person examined for discovery to answer any proper questions relevant to any matter in issue in the action.
[30] In Rompsen Investment Corp. v. Woods, 2010 ONSC 30005, [2010] O.J. No. 2546, Master Haberman stated at paragraph 16 that the test for relevance is:
….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.
[31] The starting point for considering whether a question is relevant to a matter in issue is the pleadings. See Mohamed v. The Durham Regional Police Services Board, 2011 ONSC 1600 at para 6.
[32] If the proposed discovery questions are not supported by allegations in the pleadings and appear to be only a fishing expedition, the court ought not to order the questions be answered. See Filanovsky v. Filanovsky, [2009] O.J. No. 919 at para 18.
[33] I find that the Plaintiffs’ question 174 and request for production of the Defendant’s criminal record, if any, is not supported by the allegations in the pleadings. The Plaintiffs have not satisfied the test for relevance as set out above.
[34] I do not see that the Defendant’s criminal record, if any exists, has any relevance to the issues arising from this motor vehicle accident, except perhaps with respect to credibility and character of the Defendant.
[35] Rule 31.06(1)(b) of the Rules of Civil Procedure states that no question at examination for discovery may be objected to on the ground that the question constitutes cross-examination, unless the question is directed solely to the credibility of the witness.
[36] Accordingly, I find that the Plaintiffs are not entitled to an order at this time that the Defendant answer any question as to whether he has a criminal record, nor that he produce his criminal record, if any, as I find it is not relevant to any matter in issue, and the Defendant should not be required to answer any question directed solely to his credibility.
[37] The request for the Defendant to answer Question 174 and to produce his criminal record, if any, is dismissed.
Order
[38] Order to go accordingly.
Costs
[39] If the parties are unable to resolve the issue of costs between them, I will receive written submissions regarding costs by May 12, 2015.
Justice A.C. Trousdale
Released: April 20, 2015
CITATION: Gainer and Richey v. Vos and 1632370 Ontario Inc., 2015 ONSC 2586
BELLEVILLE COURT FILE NO.: CV-13-0219-00
DATE: 20150420
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Gregory Edward Gainer and Karen Richey
Plaintiffs
– and –
Adam Vos and 1632370 Ontario Inc.
Defendants
BEFORE: Madam Justice A. Trousdale
COUNSEL: Christopher Fleury, Student-At-Law for the Plaintiffs Kristen Muszynski, Counsel for the Defendants
ENDORSEMENT ON MOTION
Madam Justice A. Trousdale
Released: April 20, 2015