COURT FILE NO.: 12-56291
DATE: 2015/09/18
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Dylan Labelle, Plaintiff (Responding Party)
AND
Britta Brand and Wilhelmus Brand, Defendants (Moving Parties)
BEFORE: Madam Justice L. Sheard
COUNSEL: Gregory C. Gilhooly, Counsel for the Plaintiff (Responding Party)
Sean Van Helden, Counsel, for the Defendants, (Moving Parties)
HEARD: August 24, 2015
ENDORSEMENT
[1] This motion is brought by the defendants for an order compelling the plaintiff to answer questions refused and to provide productions to respond to the refusals to questions given at the plaintiff’s examination for discovery.
[2] Lists of the undertakings refused or taken under advisement were at paras. 14 and 15 of the affidavit of Mark Friedman, sworn May 21, 2015 (“the Friedman Affidavit”), Tab 2 of the motion record of the moving parties.
[3] An undertakings and refusals chart is found at Exhibit “F” of the Friedman Affidavit. The questions listed in this chart differ somewhat from the questions set out at paras. 14 and 15 of the Friedman Affidavit. As per the chart, questions 1025 and 1031 both ask for production of the Hamilton Appotive LLP file. In argument before me, counsel agreed that the central issue to be decided by me is whether or not to order production of this file.
[4] In argument, both counsel referred to the decision in Doman v. Toronto Transit Commission, [2005], 18 C.P.C. (6th) 111, 24 M.V.R. (5th) 274 (Ont. S. C.). They agreed that Doman correctly sets out the law that questions that “are directed at legal advice given or received in relation to a limitation period and when to commence an action” are not proper. In this case, questions that presumed that the cause of action arose on or before July 15, 2007 and were directed to why the plaintiff did not commence his action until after July 14, 2009, could properly be refused.
[5] For that reason, the plaintiff need not have answered questions 1032, 1034, 1041 1408 and 1410. Despite that, as set out in Exhibit B to the affidavit of Paul H. Auerbach, sworn August 10, 2015 (the “Auerbach Affidavit”), Tab 1B of the plaintiff’s responding record, those questions were answered. In fact, looking at the chart found at Exhibit “F” of the Friedman Affidavit, answers to these questions were given by letter from plaintiff’s counsel, dated May 2, 2014. Therefore, with respect to those particular questions, the defendants’ motion would appear to have been unnecessary.
[6] Again, the central issue that was argued on this motion is whether or not the Hamilton Appotive LLP file should be produced. Counsel for the defendants argued that the plaintiff waived privilege over the contents of his former lawyers’ file. They submit that he did so firstly, by issuing his claim more than two years after the accident and, secondly, when he wrote to Sabina Lukis, Royal Sun Alliance Claims Representative (“Lukis”), by letter dated July 26, 2011 (the “July 26 Letter”).
Background
[7] The facts underlying the litigation are not in dispute: The plaintiff was injured when he was struck by a car on July 15, 2009. The plaintiff initially retained the law firm of Hamilton Appotive LLP. The plaintiff met with Jane Palmer, a litigation clerk at Hamilton Appotive. She authored a letter to him, dated July 28, 2010. The plaintiff (may have) met with Crystal Schultz, a lawyer at Hamilton Appotive. She wrote a letter dated March 9 (or March 10), 2011 (the “Schultz Letter”).
[8] Both counsel on the motion referred to the Schultz Letter. A copy of the Schultz Letter has not been produced and it was not included in the materials before me. The content of the Schultz Letter is referenced in the July 26 Letter.
[9] Exhibit “A” to the Friedman Affidavit includes three letters to Lukis signed by the plaintiff. The first is dated June 3, 2011 in which the plaintiff seeks to pursue a claim for accident benefits including physiotherapy and lost wages. Apparently, Lukis responded to the plaintiff’s letter on June 22, 2011. In it, she denied his request for benefits on the basis that he failed to comply with time limits. The June 22 letter was not included in the motion materials before me. This prompted the plaintiff to send the July 26 Letter.
[10] In the July 26 Letter, the plaintiff denies any delay in submitting his application for accident benefits. He states that no one had ever told him that there were time limits to submitting a claim form. Page 3, paragraph 3 reads, in part,:
On March 10, 2011, I received a letter from Hamilton Apotive (sic) advising that they were not in a position to assist me in this matter any further and the only date mentioned in this letter was that I had until July 15, 2011 to start an action against the at-fault driver and if I failed to do so I would lose my right to sue…
[11] Although the evidence on the motion referenced letters dated March 9 and March 10, 2011 from Hamilton Appotive, I assume that the “March 10, 2011” referred to by the plaintiff is the Schultz Letter.
Did the Plaintiff Waive Privilege?
[12] The defendants rely upon the July 26 Letter in two ways. Firstly, they argue that this constitutes a waiver of privilege over all the legal advice received by the plaintiff from his previous lawyers. They argue that he cannot disclose solicitor and client privileged communications where it serves his purposes and then assert privilege so as to shield the remainder of those communications which might harm him in the litigation.
[13] On the motion, the plaintiff’s response to that argument was that the plaintiff’s letter to RSA was written for the sole purpose of pursuing his AB Benefits and that he did not intend to waive privilege when he referred to the advice he had received from Hamilton Appotive regarding the time by which he had to issue a claim.
[14] The defendants secondly argue that the July 26 Letter provides evidence that the plaintiff’s then lawyers (Hamilton Appotive LLP) knew that the plaintiff had a cause of action and that he had to issue a claim by July 15, 2011 or lose his right to sue. The defendants argue that if the plaintiff’s lawyers knew that the plaintiff had a claim, then their knowledge is imputed to the plaintiff. At para. 34 of his Factum, the plaintiff’s counsel appears to agree with that legal principle.
- The discoverability inquiry is directed at when the plaintiff knew or ought to have known that his injuries were permanent and serious. While the knowledge of the plaintiff’s lawyer may be imputed to the plaintiff, this does not change the premise that any individual’s subjective views of when a limitation period may occur are irrelevant to the analysis the Court must undertake. (Emphasis added)
[15] For the reasons set out below, I do not need to decide whether or not the July 26 Letter waived privilege. However, were I to decide that issue, I would conclude that the plaintiff did not intend to waive privilege in the July 26 Letter and that he did not in fact do so.
[16] The real question is whether, having issued the claim more than two years after the accident, the defendants are entitled to seek production of some or all of the Hamilton Appotive file.
[17] Exhibit “B” to the Auerbach Affidavit is the letter from plaintiff’s counsel dated May 2, 2014. It contains the plaintiff’s response to questions taken under advisement or refused. Question 1245 is referenced a number of times. At page two of this letter, Q. 1245 is identified as a request to identify the author of the covering letter producing the Hamilton Appotive file [to the plaintiff’s present counsel] and to provide a copy of the covering letter. I assume therefore that the plaintiff has the Hamilton Appotive file, or a copy of it.
[18] I note also that this motion was not served on the Hamilton Appotive law firm nor was it brought under Rule 30.10. For those reasons, I assume that the plaintiff is in a position to review the contents of the file and to identify any documents that might be relevant to the issue of when he knew, or ought with reasonable diligence have known or discovered, that he had a cause of action.
[19] The “discoverability principle” was enunciated by the Supreme Court of Canada in Peixeiro v. Haberman, [1997] 3 S.C.R. 540. At page 10 the Court stated:
The discoverability principle applies to avoid the injustice of precluding an action before the person is able to sue. Time under s. 206(1) does not begin to run until it is reasonably discoverable that the injury meets the threshold of s. 266(1).
Is the Hamilton Appotive File relevant to the Discoverability Issue?
[20] The plaintiff argues that the opinion or “subjective view’ of his lawyer as to whether or not the limitation period has begun to run is of no relevance to the issue of whether, in fact, the plaintiff knew or, with reasonable diligence ought to have known, he had a cause of action. The plaintiff argues that the lawyer could be wrong in his or her subjective view of when the limitation period begins to run.
[21] The plaintiff says that he did not know nor could he, or any reasonable person, have known his impairments were permanent until he received the opinion of Dr. Robert Forget. That opinion was received in an assessment on January 31, 2012. The Notice of Action was issued on December 17, 2012, less than one year after Dr. Forget’s opinion. The defendants seek to test that assertion.
The Law
[22] The parties agree on the applicable law. Both rely on the 2001 decision of Master Dash in Antongiovanni v. Phung, 2001 CarswellOnt 3947, [2001] O.J. No. 4659. In Antongiovanni, in part, the defendant was moving to remove the plaintiff’s lawyers as solicitors of record. The action had been commenced more than two years after the date of the accident and the defendant had raised a limitation defence. The defendant argued that the plaintiff’s lawyers had failed to issue their client’s claim within two years from the date of the accident and were in a conflict of interest.
[23] The defendant also asserted that the plaintiff’s lawyer would be a witness at trial on the limitation period issue. The plaintiff had been represented by the same counsel long prior to the second anniversary of the accident. He argued that the plaintiff’s lawyer would be a necessary witness to give evidence as to when the plaintiff might reasonably have discovered that her injuries met the threshold under the Insurance Act., R.S.O.1990, c.I.8.
[24] Similar to the arguments being raised by the plaintiff in this motion, in Antongiovanni the plaintiff argued that:
…solicitor client communications, advice and instructions are irrelevant, and her solicitor would have no material evidence to give at trial. She claims that the only relevant evidence is that of her doctors and the date that her doctors communicated a medical prognosis of permanent injury to her.[^1]
[25] The Master cited from Peixeiro in which the Court found that no cause of action arises until the injury meets the threshold set out in s. 266(1) of the Insurance Act.
[26] Analogous to the arguments being advanced on this motion, the plaintiff in Antongiovanni argued:
… The only evidence relevant to a determination of when it was reasonably discoverable that her injuries met the threshold’s medical advice received by her, and that evidence of legal advice, legal retainer and communications respecting commencement of an action are irrelevant and protected by solicitor–client privilege…[^2]
[27] The defendants argue that the letter sent to the plaintiff by his previous lawyer and referred to in the July 26 Letter is evidence that the plaintiff’s solicitors knew that his injuries met the threshold. The plaintiff responds that he has produced all of his medical records and information, which show that until the report of Dr. Forget, he did not know that his injuries were permanent or met the threshold.
[28] In Antongiovanni the Master agreed that the legal opinion of the plaintiff’s solicitors as to when the threshold was met was irrelevant and that the court would rely on medical opinions in determining when the plaintiff’s injuries may have met the threshold. However, the Master concluded that legal advice may be relevant to the issue of when the plaintiff reasonably ought to have obtained medical opinions in order to know when the plaintiff could reasonably have become aware that his injuries were permanent. On those issues, the court stated at paras. 52, 53, 54 and 55 that:
[52] I agree with plaintiff’s counsel that the legal opinion of plaintiff’s solicitors as to when threshold was met is irrelevant. It is only medical opinions that the court would consider to determine when the plaintiff may have met the threshold. Legal advice may only become relevant on the issue of when the plaintiff reasonably ought to have obtained those medical opinions. In order to ascertain when the plaintiff could reasonably have become aware that her injuries were permanent, the defendant is entitled to know what instructions or advice was communicated to the plaintiff by her solicitors with respect to obtaining relevant medical advice, treatment or opinions and the extent to which the plaintiff acted on such advice.
[53] As in Urquhart, supra, it is also relevant to know what steps were taken by plaintiff’s counsel in managing the file during the two year period prior to commencement of the action, in order to test the due diligence of plaintiff’s counsel. The critical date is when the plaintiff or her solicitors reasonably ought to have known by the exercise of due diligence that she has a qualifying injury.
[54] It may also be relevant, at least at the discovery stage, to ascertain the plaintiff’s understanding of the threshold as of the relevant dates, and legal opinions given to the plaintiff about the criteria for meeting the threshold, in order that she act diligently and speak knowledgeably to her doctors about the permanence of her injuries.
[55] Should questions about the solicitor’s retainer, and instructions given by the plaintiff to her solicitor or advice given by the solicitors to the plaintiff to commence or not commence action at any particular time be answered? The test is semblance of relevance. At issue is the knowledge of plaintiff and her counsel respecting the permanence of her injuries in their due diligence in obtaining medical opinions with respect to that issue so that the plaintiff could reasonably know when her cause of action had accrued. There is a semblance of relevance to these questions as it may lead to a line of questioning relevant to the due diligence issue. Communication may be particularly relevant during, but that will not be restricted to, the two year period prior to commencement of the action. The question should be answered at the discovery stage. Whether the evidence is admissible at trial, and the effect, if any that this evidence may have on the due diligence issue, will be a matter for determination by the trial judge…
(Emphasis added.)
[29] Counsel for the plaintiff argued that the permissible questions were not asked and that the request for the file is a fishing expedition. He also argued that none of the cited authorities required production of the lawyer’s file: they dealt with questions refused on a discovery.
[30] The chart found at Exhibit “B” to the Auerbach Affidavit includes the following questions and answers:
P.139, Q. 1025 Did the law firm representing Dylan discuss the limitation period to commence a lawsuit?
A: Answered under objection: my client advises that he does not recall specific discussions about any applicable limitation periods.
P.140, Q.1031 Did Dylan receive anything in writing addressing the limitation period from Hamilton Appotive?
A: Answered under objection: the letters of July 28, 2010 and March 9, 2011 reference a limitation period of July 15, 2011.
P.143, Q.1033 Whether Dylan had received correspondence from Ms. Palmer Re the limitation period of 2 years in advance of July 14, 2011.
A: Answered under objection: the letters of July 28, 2010 and March 9, 2011 reference a limitation period of July 15, 2011.
P.144, Q.1035 Whether Dylan was told by Hamilton Appotive that the lawsuit would be barred if it’s brought 2 years after.
A: Answered under objection: (ref. Qs 1025, 1031, and 1033) and I can advise there is no specific language of the lawsuit being “barred” after this date.
P.146, Q.1038 To confirm whether Dylan was advised to commence a lawsuit within 2 years of the accident.
A: Answered under objection: (ref: Qs 1025, 1031, and 1033).
P.146, Q.1040 Whether Dylan was aware of the discoverability principle in July 2011.
A: My client advises that he was not aware of the discoverability principle in July, 2011.
P.146, Q.1041 To advise why Dylan did not commence a lawsuit before July 15, 2011.
A: Answers given under objection at discovery: “Because I didn’t know I was going to be in pain for the rest of my life”, “Because I thought I was going to get better”, “And I was told my injuries were not serious enough”, and “I was told I’d get better”.
P.147, Q.1044 To advise who told him his injuries were not serious enough.
A: Answered under objection at discovery: Jane Palmer.
P.179, Q.1245 To advise if it is your position that Hamilton Appotive gave improper advice.
A: If a court determines that Mr. Labelle is not entitled to advance his claim on the basis of the discoverability principle then yes, that will be our position vis-à-vis Hamilton Appotive.
P.212, Q.1408 Advise if Dylan understood from the Mar 10 letter from Hamilton Appotive that his right to sue would be lost after July 15/11.
A: This is answered by the answers to questions 1041 and 1044 (given under objection) and the following answer under objection: my client advises he believed his condition would improve with treatment and that he was told by Hamilton Appotive that they did not believe his injuries were serious enough to commence a claim as of March 2011 and that he therefore did not have a case.
P.213, Q.1410 If/when Dylan wrote his letters of July 25, 2011, he did so on the basis that he had until July 15, 2011 to sue.
A: Same answer as Q 1408
P.214, Q.1412 Did Dylan understand from the March 10 letter that if he was going to sue someone he had until July 15, 2011?
A: Same answer as Q 1408.
P.216, Q.1415 Based on what Dylan read in the letter of March 10, 2011 that he understood that he had until July 15, 2011 to sue.
A: Same answer as Q 1408
[31] The answers to the questions set out above do put into issue whether due diligence was used in determining whether or not the plaintiff’s injuries were permanent. At para. 5 of his letter to Lukis dated June 3, 2011 the plaintiff states:
I was depressed and was hoping that the pain would go away. It became apparent after a little while that it was not going away, but actually getting worse and that is when I decided that I would have to go and see my doctor to find out how to make the pain go away. I am not sure that it will ever go away since as time goes by, it is not getting better. It also took a while to get to see my doctor, have a CT scan, nerve testing and get them to fill up the forms required. I also went to an MRI on May 27, 2011 for which I’ve yet to see my doctor for the results.
Since the accident, I am depressed, suffer from anxiety, angry, sad that I can no longer continue towards my electrician apprenticeship and do any normal activities that I used to.
[32] The letter goes on to describe the pain suffered by the plaintiff, his emergency treatments as a result of his leg giving out, causing him to fall, his weight gain and all the activities that he can no longer do as a result of the accident. His letter concludes with his report that the physiotherapy he did receive “did seem to not make much difference”. The plaintiff’s own description of his condition following the accident in his June 3, 2011 letter appears inconsistent with the advice he states he received from Hamilton Appotive that his injuries were not serious enough to justify commencing a claim.
[33] Having commenced the action more than two years after the accident, the plaintiff has put discoverability into issue. In view of the evidence given by the plaintiff on discovery and contained in the Lusik correspondence, paragraphs 52 and 53 of Antongiovanni apply to the facts in this case. In order to ascertain when the plaintiff could reasonably have become aware that his injuries were permanent, the defendants are entitled to know:
a) What instructions or advice were communicated to the plaintiff by his solicitors with respect to obtaining relevant medical advice, treatment or opinions;
b) The extent to which the plaintiff acted upon such advice;
c) What steps were taken by plaintiff’s counsel in managing the file during the 2 year period prior to commencement of the action in order to test the due diligence of plaintiff’s counsel and to know on what date the plaintiff or his lawyers reasonably ought to have known by the exercise of due diligence that he had a qualifying injury; and
d) The defendants are entitled to know whether and what steps were taken by the plaintiff’s counsel.
[34] These questions were not asked of the plaintiff on discovery. Instead, the defendants asked for production of the legal file of the plaintiff’s previous lawyers.
[35] It is not appropriate for me to direct the plaintiff to answer questions that were never asked of him. Nor do I order that the plaintiff produce the Hamilton Appotive file; there may well be documentation that is entirely irrelevant to the discoverability issue. However, I do order that the plaintiff disclose any and all information in the Hamilton Appotive file that answers the questions listed at para. 22 above. Further, I order that the plaintiff produce all or such portions of documents in the file that contain the information that is ordered to be disclosed.
[36] There has been mixed success on this motion. Should either party seek costs and agreement cannot be reached as between them, submissions not exceeding 3 pages in length, excluding a bill of costs, may be filed within 14 days of the date of this endorsement.
Madam Justice L. Sheard
Date: September 18, 2015
COURT FILE NO.: 12-56291
DATE: 2015/08/18
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Dylan Labelle, Plaintiff (Responding Party)
AND
Britta Brand and Wilhelmus Brand, Defendants (Moving Parties)
BEFORE: Madam Justice L. Sheard
COUNSEL: Gregory C. Gilhooly, Counsel for the Plaintiff (Responding Party)
Sean Van Helden, Counsel, for the Defendants, (Moving Parties)
ENDORSEMENT
Sheard J.
Released: September 18, 2015
[^1]: At paragraph 35 [^2]: At paragraph 40