CITATION: Bulloch-MacIntosh v. Browne, 2016 ONSC 1281

COURT FILE NO.: 96-CU-114450

DATE HEARD: February 5, 2016

ENDORSEMENT RELEASED: May 18, 2016

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: WENDY MARGARET BULLOCH-MACINTOSH and WENDY MARGARET BULLOCH-MACINTOSH, ESTATE TRUSTEE FOR THE ESTATE OF JAMES MACINTOSH v. GRAEME BROWNE and RICHARD EMERY

BEFORE: Master R. Dash

COUNSEL: John Legge and David Steeves, for the plaintiffs

Hershel Sahian, for the defendant Emery

Craig O’Brien, for the non-party Norton Rose

James Newland, for OHIP (re subrogated interest)

Jack Strothman, U.S. attorney for the defendant Browne (by written submissions)

REASONS FOR DECISION

[1] This is a motion by the plaintiffs to strike the statement of defence of the defendant Dr. Richard Emery for failure to comply with a production order of Justice Firestone and for “obstruction of production and discovery by his solicitors”. The defendant Dr. Graeme Browne, who was for a time represented, along with Dr. Emery, by the law firm of Norton, Rose Fulbright LLP and its predecessor and who has since cross-claimed against Dr. Emery, has filed material supporting the plaintiffs’ motion. As will be seen, this motion has been hampered by the failure of Dr. Browne to bring his own motion directly against Norton, Rose to comply with its separate production obligations as also ordered by Justice Firestone.

OVERVIEW

[2] The plaintiffs brought action in 1996 against the defendant dentists[^1], Drs. Browne and Emery for negligence in the placement and after-care of a temporomandibular joint (“TMJ”) implant that had occurred between 1977 and 1996. In 1996 Dr. Emery, through his insurer, retained the law firm of Ogilvie Renault, since merged into the law firm of Norton, Rose Fulbright LLP (“NR”)[^2], to defend the action on behalf of Emery. (I shall refer to both firms as NR whether before or after the merger.)

[3] Dr. Browne was involved in treating the plaintiff for less than two years and in or about 1978 he left Canada and retired from the practice of dentistry[^3]. By the time this action was commenced, Dr. Browne had let his insurance lapse but on March 25, 1999 NR assumed his defence on a personal retainer, thereafter representing both defendants concurrently. On June 28, 2011 NR obtained an order removing themselves as lawyers of record for Browne. On March 2, 2015, on the date scheduled for the opening of trial, Justice Firestone, heard several motions. One of those motions, brought by the plaintiffs, was to remove NR as lawyers of record for Emery. Justice Firestone granted that order on March 18, 2015.

[4] A second motion heard by Justice Firestone on March 2 was a motion by the plaintiffs to strike Emery’s statement of defence for obstruction of production and discovery by his lawyers or for failure to comply with trial management directions respecting production. On March 12, 2015, Justice Firestone made certain production orders as against Dr. Emery in favour of the plaintiffs and Dr. Browne and a much broader production order as against NR in favour of Dr. Browne, which will be set out in more detail later in this endorsement. The motion before me, brought by the plaintiffs was to strike the pleadings of Dr. Emery for failure to comply with the production order as made against Dr. Emery and for obstruction of production and discovery by his solicitors.

[5] Dr. Browne filed written submissions in support of the plaintiffs’ motion with the aim of obtaining his file from NR and resolving privilege issues; however he brought no motion seeking such relief against Emery or NR. A brief history of the production to Dr. Browne of his former lawyer’s file is set out in order to understand the order of Justice Firestone.

EVENTS LEADING UP TO THE ORDERS OF JUSTICE FIRESTONE

[6] The nub of Dr. Browne’s defence is that his treatment of the plaintiff left her better than he found her and when he left Canada in 1978, he had left appropriate after-care instructions to Dr. Emery and the other dentists (respecting removal of the device). It is his view that any liability to the plaintiffs rests with Dr. Emery and other dentists who treated the plaintiffs after his departure.[^4] When NR obtained the order in June 2011 removing them as Dr. Browne’s lawyers, they took no steps to provide Dr. Browne with a copy of his client file. As a result at Dr. Browne’s further examination for discovery in Minnesota on September 3, 2014[^5], he attended without a file. He was self-represented at his examination but assisted by U.S. counsel, Mr. Strothman. He gave a number of undertakings to the plaintiffs for which he required his file from NR. This included his undertaking to advise as to particulars of what he claimed were breaches of standard of care by Dr. Emery and the other dentists who treated the plaintiff after he left Canada. Dr. Browne then requested his file. It appears that Dr. Browne never requested his file before September 3, 2014 but he asserts that he thought he was out of the lawsuit and in any event it was NR’s obligation to provide what he required for his defence whether or not requested. A lawyer from NR, then attending the discovery on behalf of Dr. Emery, promised to provide Dr. Browne with his file from NR.

[7] On September 8, 2014 Dr. Browne wrote to NR and accused them of a conflict of interest in concurrently representing both him and Dr. Emery. He accused them of not pursuing a limitations defence available to him, but not to Dr. Emery and of not working in Dr. Browne’s best interests when NR successfully defeated a motion to add other dentists who treated the plaintiff after Dr. Browne, as Dr. Browne would have had a crossclaim against these dentists. Dr. Browne threatened to sue NR and Dr. Emery’s insurer to indemnify him for any judgment against him.

[8] Between September 10 and October 10, 2014 a series of emails were exchanged between NR and Mr. Strothman respecting productions from NR to Dr. Browne. Initially Mr. Strothman was requesting copies of Dr. Browne’s entire file, with a priority on delivering correspondence. NR indicated that Dr. Browne had been complaining that NR was sending him a “large volume of material” and he had asked that further material be sent only if it “directly impacted him” as reproduction costs of the entire file would be too high. Mr. Strothman indicated that Dr. Browne could not afford the printing costs for 20 bankers’ boxes of documents (even at 10 cents a page). Mr. Strothman asked that NR send all correspondence that involved Dr. Browne and any material related to a limitations defence (including research), any motions to have the action dismissed against Dr. Browne or Dr. Emery and any motions by the plaintiffs to add the other dentists. He also wanted records of the plaintiff’s treatment by and depositions by all dentists who treated the plaintiff and any expert reports relating to the other dentists. (He had the report of the plaintiffs’ expert, Dr. Gryfe, concluding that Dr. Emery breached his standard of care, a conclusion Dr. Browne supported.) He wanted documents related to any waiver of conflict as between NR’s two clients. It appears correspondence and invoices were sent. He suggested that NR otherwise send an index for court documents, memoranda and other material and Dr. Browne could then narrow his request. He later asked for all depositions of the plaintiffs and the firm’ notes thereon, which together with the briefs and research on limitations “presumably exists in the 20 bankers boxes”. In a later reference[^6], Mr. Strothman referred to “thousands of pages” included in a “document barrage” sent in September, but I have limited information as to what was sent at that time.

[9] On September 22, Dr. Browne wrote to the court to advise of NR’s failure to provide him with documents required for his defence and of their conflict of interest. He indicated he was considering action against NR, Dr. Emery’s insurer and the hospital and doctors who provided care to the plaintiff. He also indicated he intended to move for summary judgment.

[10] The plaintiffs of course were concerned about the failure of Dr. Browne to make proper production and answer his undertakings, which they blamed on the failure of NR to provide Dr. Browne the documents he needed. The answer by Dr. Browne to his undertakings would likely assist the plaintiffs in establishing breach of duty of care by Dr. Emery. On Oct. 1 a trial date set for October 6, 2014 was adjourned to March 2, 2015 by Wilkins J., who indicated that a motion for costs thrown away of trial preparation could be brought before the trial judge.

[11] NR then retained the law firm of Nelligan O’Brien Payne (“NOP”) to represent them in relation to production issues and on the plaintiffs’ motion for costs thrown away. On October 10, 2014 NOP wrote to Mr. Strothman. NOP agreed that there could be no confidentiality as between NR’s joint clients, Drs. Emery and Browne, and that Dr. Browne was entitled to the same right to review documents in NR’s possession as Dr. Emery. They indicated that a file index would be provided and that the materials sought by Mr. Strothman dealing with limitations and adding parties, including research and expert reports, would be highlighted. They requested an undertaking from Dr. Browne to treat documents received as privileged and not to release them to the plaintiffs without the consent of NR, as lawyer to Dr. Emery, or court order. Certain documents, such as internal research and expert reports would not be provided to Dr. Browne until an agreement was reached to protect solicitor-client privilege. NR, on behalf of Dr. Emery also claimed privilege over the index itself, as it referenced privileged documents. The question on how best to expedite production of the documents was left open to discussion. Later that day NR provided Dr. Browne with the 22 page file index, acknowledging Mr. Strothman’s undertaking to maintain privilege over the index.

[12] On October 11, 2014 Mr. Strothman responded to NOP and agreed to treat the list and the files for which NR sought protection as attorney-client privileged except as necessary to use in this or other litigation on notice to NR. He indicated that Dr. Browne had received numerous documents in September, but he could not tell from the index which documents still needed to be produced. He asked NOP to give priority to limitation documentation, including internal research as well as solicitors’ notes and memos (whether or not work product) and all reports to client from the commencement of litigation. He also requested specified items from the index.

[13] On October 14, 2014 Dr. Browne circulated an amended statement of defence that included allegations that the plaintiff’s damages were caused by the post operative care provided by others after Dr. Browne left Canada and for the first time added a crossclaim against Dr. Emery. Dr. Browne adopted the plaintiffs’ allegations against Dr. Emery. This was filed on January 13, 2015 pursuant to leave granted by Justice Myers on December 19, 2014.

[14] On February 9 and 10, 2015, Mr. Legge and Mr. Strothman sent several emails to Justice Wilkins, the trial management judge. Mr. Legge indicated that he had yet to receive answers to Dr. Browne’s undertakings or Dr. Browne’s “updated and corrected” affidavit of documents. He particularly wanted Dr. Browne to produce documents that he did not claim privilege over. He wanted Dr. Browne to state his position with respect to expert reports, previously filed in his name much earlier by NR, but with which Dr. Browne now disagrees. He told Justice Wilkins that NR had failed to give Dr. Browne the “key elements of his file,” despite the promise made at the examination for discovery. He requested a case conference since a fair trial was not possible. Mr. O’Brien of NOP responded on behalf of NR that the problem lay not with NR’s failure to make production to Dr. Browne, but Dr. Browne’s unfamiliarity with Ontario production requirements and indicated he had asked Mr. Strothman to call him and he would provide assistance to Mr. Strothman if necessary. Mr. Strothman indicated that NR had advised him that 20 bankers boxes were available, but that Dr. Browne narrowed his request to focus on documents related to limitations defences as the cost of reproducing the entire file was prohibitive to Dr. Browne.

[15] It appears that the plaintiffs were also seeking further and better affidavits of documents from both Dr. Emery and Dr. Browne and in particular detailed Schedules B and C.

[16] Justice Wilkins in his role as trial management judge stated on February 10, 2015 that “Legge is entitled to an affidavit of documents that is real”, that unobjectionable documents be delivered forthwith together with the objection foundation for others “or be prepared to convince me that the pleadings should not be struck.” It appears that Justice Wilkins’ remarks were directed at both defendants.

[17] What is particularly telling for purposes of this motion were Justice Wilkins’ additional comments directed specifically at Dr. Browne, presumably to tell him how to get the documents he needs to defend himself and answer his undertakings: “Why not have Brown come to Norton’s office and look at the file and get copies of what he wants. This is a waste of time and effort. If Legge is entitled to production then either Brown acts ASAP to get his file and gives Legge whatever he is entitled to get – failing this Brown could ask Nortons to send Legge (ASAP) what Nortons thinks Legge is entitled to have...No matter what, I want Legge to have production of documents he is entitled to receive THIS week.”

[18] To this, Mr. Strothman stated: “Dr. Browne will not be travelling to Canada to look at 20 boxes of old files in this case – nor will I.” Instead he requested that NR “give Mr. Legge what he thinks he wants from the Norton Rose 20 years of files on this matter, if you can figure that out. I would guess he already has every document known by any defendant to presently exist.” He concluded by saying that Dr. Browne should be “forthwith dismissed” from the action.” Justice Wilkins replied that Dr. Browne has had his hearing on dismissal and that issue is closed.[^7] Dr. Browne can address the issue “in open court”. Justice Wilkins stated with respect to Dr. Browne: “He and he alone must decide what he wants to do. The case will go ahead regardless.”

THE MOTIONS BEFORE JUSTICE FIRESTONE

[19] The trial however did not proceed as scheduled on March 2, 2015.[^8] Instead several motions brought by the plaintiffs were heard by the trial judge, Justice Firestone, one to remove NR as lawyers of record for Dr. Emery and the other to strike Dr. Emery’s defence for obstruction of production and discovery. Interestingly, Mr. Legge indicated he was ready to proceed with the trial at that time, but was concerned that the trial may be aborted because Dr. Browne was self-represented and did not have his complete file. NR was also prepared to proceed to trial on behalf of Dr. Emery.

[20] It was the position of NR that they had by this time sent a full index of their file to Dr. Browne or Mr. Strothman, sent all documents requested and that there were no documents they refused to provide to Dr. Browne except communications to client after June 2011 (when they stopped acting for Dr. Browne) and NR’s own work product (which was not released either to Dr. Emery or Dr. Browne). They took the position that Dr. Browne was always entitled to come to their office and review the file, but Dr. Browne refused. It was also NR’s position that records that had gone missing from the Montreal General Hospital were not in NR’s files, nor were any written communications between counsel and either Dr. Emery or Dr. Browne on liability issues. They claimed that Dr. Browne and his counsel were complaining only because the documents requested were on a CD-ROM or memory stick rather than paper copies.

[21] The hearing was adjourned for written submissions, after which Justice Firestone would determine the motions and determine if the matter was ready for trial.

[22] The trial was ultimately adjourned to a date to be set.

THE MARCH 12 PRODUCTION ORDER AGAINST DR. EMERY AND NORTON, ROSE

[23] Justice Firestone released, on March 12, 2015, his decision on the plaintiffs’ motion to strike Dr. Emery’s defence for obstruction of production and discovery and for failure to deliver a proper affidavit of documents with detailed and complete schedules B and C and have the trial proceed as an assessment of damages.[^9] In paragraph 9 Justice Firestone stated that Dr. Browne was entitled to receive his file from NR and that NR had done all it could to make that happen:

The interests of justice demand that Browne be given a copy of all documents to which he is entitled as a result of his prior solicitor-client relationship with Norton’s so that he may properly represent his interests in this matter. This is a complex matter involving many documents. I do not question that Norton’s has done all that is possible to ensure that this happens.

Justice Firestone noted that NR had sent Browne the 22 page file index outlining what documents were in their possession, and NR submitted it sent all documents Browne requested except correspondence and documents created after NR ceased to act for Browne on June 28, 2011 and solicitor’s notes that constitute lawyer’s work product that has not been released to either Browne or Emery.

[24] Nonetheless Dr. Browne was still uncertain what documents may not been have sent to him and he was unable to determine from the file index what items over which NR claimed privilege were producible or not. Justice Firestone also felt it was “possible that certain parts of Browne’s file, created during the solicitor-client relationship, may not have been returned to him.” He therefore felt it appropriate that “to ensure trial fairness”, he would intervene to “clarify what Browne is entitled to”. To do that Justice Firestone reviewed salient provisions of the Solicitor’s Act, the Rules of Professional Conduct, the Law Society’s “Guide to Retention and Destruction of Closed Client Files” as well as leading court decisions.

[25] Justice Firestone first clarified what the file to be sent to Browne should include. He listed the following two categories, with examples of the second category, in paragraph 17 of his decision:

• Documents in existence before the retainer commenced and sent to NR by Browne or third parties during the currency of the retainer.

• Documents which came into existence during the currency of the retainer for the purpose of transacting business pursuant to the retainer and in particular:

(i) Documents prepared by NR “for the benefit of Browne” and which may be said to have been paid for by Browne. These would include:

o Cases, instructions and briefs prepared by NR.

o Drafts and copies of documents in non-contentious business.

o Copies of letters received by NR, if paid for by the client.

o Copies of letters sent by NR to third parties used for the client’s business if contained in the client’s case file.

and

(ii) Documents prepared by a third party during the course of the retainer and sent to the solicitor including:

o Letters received by the solicitor from third parties.

o Vouchers for disbursements made by the solicitor on the client’s behalf.

[26] In paragraph 12 of his reasons, Justice Firestone noted a provision of the Rules of Professional Conduct that when a lawyer acts for more than one client, the lawyer shall advise each client that “no information received in connection with the matter from one client can be treated as confidential so far as any of the others are concerned.”

[27] Justice Firestone therefore made it clear in paragraph 18 that Dr. Browne was to get documents prepared for either Dr. Emery or Dr. Browne during their joint retainer:

The documents that Norton’s must produce to Browne include items prepared in contemplation of Emery’s defence during the currency of Dr. Browne’s retainer only, as the two parties were jointly retained and there is no privilege between them.

[28] In paragraph 19, Justice Firestone set out the documents that belong to NR and which NR is not required to produce:

(i) Documents sent by Browne to NR during the retainer in which it was intended that property pass to NR, such as letters and instructions given by the client to the solicitor.

(ii) Documents prepared by NR for its own benefit or protection and not considered chargeable to Browne, including copies of letters received by NR and not paid for by the client, copies of letters to third parties contained in NR’s general filing system, entries of attendance, tape recordings of conversations, inter-office memoranda among lawyers and/or staff, diary entries, office journals and books of account.

[29] In paragraph 20 Justice Firestone sets out what must be done first by NR and then by Dr. Browne to ensure Dr. Browne gets any missing documents since Dr. Browne cannot “in the interest of fairness, be expected to go to trial without having had the benefit of those productions.”

[30] First, to satisfy “Dr. Browne’s contention that the File Index may not provide sufficient information regarding the documents over which Norton’s claims privilege”, Justice Firestone stated that within the next five days:

Norton’s should clarify which documents they are unwilling to produce to Browne and why.

[31] It would then be up to Dr. Browne to:

Confirm how he wishes copies of the documents to which he is entitled are to be delivered to him if they have not already been delivered. (emphasis added)

[32] Having dealt with NR’s obligations to Dr. Browne, Justice Firestone then considered and dismissed the plaintiff’s motion to strike Dr. Emery’s defence for obstruction of production and discovery. In particular he held at paragraph 24:

There is no merit to any suggestion that Norton’s has failed to disclose or withheld documents in this case or that they have frustrated the ability of this Court to determine the truth of the matters before it. At no time did Browne bring a motion for this relief either before or after this matter was set down for trial. At no time was a motion brought to compel a further and better affidavit of documents.

[33] Justice Firestone did however order as follows in paragraph 25:

It is ordered that Emery provide to the parties a further and better affidavit of documents within 10 days. All Scheduled documents are to be described with sufficient information and detail and to enable the parties to sufficiently identify the documents over which privilege is claimed. Norton’s is to advise Browne which privileged documents it is agreeable to releasing to Browne and why. All documents over which privilege is not claimed and which have not been produced are to be produced to the plaintiffs and Browne if that has not already occurred.

[34] Mr. Legge then prepared the formal order of Justice Firestone, which order was signed by the Registrar. The operative terms of the order (in addition to terms dismissing the motion to strike Emery’s defence and costs) were as follows:

2. AND THIS COURT ORDERS that the Defendant Richard Emery is to provide the parties a further and better Affidavit of Documents within 10 days of this order.

3. AND THIS COURT ORDERS that all Scheduled documents in the Supplementary Affidavit of Documents are to be described with sufficient information and detail to enable the parties to sufficiently identify the documents over which privilege is claimed.

4. AND THIS COURT ORDERS that Norton Rose Fulbright LLP is to advise the Defendant Graeme Browne which privileged documents it is agreeable to releasing and why.

5. AND THIS COURT ORDERS that all documents over which privilege is not claimed and which have not been produced are to be produced to the Plaintiffs and the Defendant Graeme Browne if that has not already occurred.

[35] In the result, Dr. Browne was to get from NR all documents they were willing to produce and to be told what documents they were unwilling to produce described with sufficient details to identify the documents and the reasons why they would not be produced.

[36] It is clear to me that Justice Firestone was of the view that there was no merit to the suggestion that NR had been obstructing production and discovery. It is equally clear that without determining that any particular disclosure and production had not been made, he wanted to ensure that any disclosure and production that may not have been made for whatever reason would be done forthwith. To ensure that result he required that (a) Emery provide a further and better affidavit of documents to both parties with a more particularized schedule B such as to enable the parties to identify documents over which privilege was maintained, (b) NR let Browne know which of the documents over which privilege was claimed would be released to him and for those not released to him, to tell him why and (c) non-privileged documents not already produced were to be produced to the plaintiffs and Browne.

[37] From the last requirement (even though it does not explicitly state whether the obligation was that of Emery or NR) I conclude that: (1) it would be Emery’s responsibility to ensure that all documents in his affidavit of documents over which Emery did not claim privilege had been or would be produced to the plaintiffs and to Browne and (2) it would be NR’s responsibility to ensure that Browne had production of documents that remained privileged as against the plaintiffs, but which were not privileged as against Browne. These latter documents would be primarily those created during the joint retainer of NR by Emery and Browne, other than those listed by Justice Firestone as documents belonging to NR rather than the clients.

[38] Clearly Dr. Browne was entitled to receive from NR everything that Dr. Emery had from NR, save those documents created after NR ceased acting for Dr. Browne in June 2011.[^10]

[39] Although the obligations of Dr. Emery to the plaintiffs and to Dr. Browne to provide a better affidavit of documents and produce non-privileged documents not yet produced and the obligation of NR to provide Dr. Browne’s file to their former client Dr. Browne (including documents privileged as against the plaintiffs but not against Dr. Browne) were different, there would have been no practical distinction at the time of the order on March 12, 2015 as to who had to make disclosure and production to Dr. Browne. This was because NR was still representing Dr. Emery and Dr. Emery would have had access to everything in NR’s file.

THE MARCH 18 ORDER REMOVING NORTON ROSE

[40] This changed 6 days later, on March 18, 2015 when Justice Firestone released his decision on the plaintiffs’ motion to remove NR as the lawyers for Dr. Emery.[^11] Justice Firestone referenced a March 25, 1999 agreement between Dr. Browne and Ogilvy Renault when they accepted Browne’s retainer. Browne acknowledged that there could be a future conflict in the firm representing both himself and Emery and he consented in advance both to their removal as his lawyer should such conflict develop as well as their continuing representation of Emery. When NR withdrew as Browne’s lawyer in June 2011, NR assured Browne it would not act adverse to him. Perhaps as a result of that assurance, when Browne crossclaimed against Emery in January 2015 and adopted the plaintiffs’ allegations against Emery, Emery did not put in a defence to the crossclaim.

[41] Justice Firestone held that notwithstanding NR’s best intentions and good faith efforts to avoid conflict, not defending the crossclaim was not sufficient to accomplish that goal. He held that there remained a real risk that in providing a full and complete defence to Emery, particularly on liability issues, it could potentially increase Browne’s liability exposure. He concluded as follows in paragraph 31:

While it is absolutely clear that Norton has acted in good faith and with the best of intentions, the reality is that, in light of the agreement and the duty of loyalty to both Emery and Browne, Norton must be removed as solicitors of record for Emery in order to ensure a fair trial to all parties and public confidence in the administration of justice.

[42] Justice Firestone removed NR as lawyers of record for Dr. Emery and required Emery to appoint new counsel within 60 days.

COMPLIANCE WITH JUSTICE FIRESTONE’S PRODUCTION ORDER

[43] How did NR’s removal on March 18, 2015 affect the obligations of NR and Emery under Justice Firestone’s productions order of March 12, 2015? Since NR no longer represented Dr. Emery, it would no longer be appropriate to treat the separate and distinct obligations of Emery and of NR as if they were of the same obligor.

[44] Emery’s ongoing obligation was to provide a further and better affidavit of documents with a particularized Schedule B and produce to both the plaintiffs and Dr. Browne any of his documents over which no privilege was claimed and which had not already been produced.

[45] NR’s ongoing obligation was to provide to their former client Dr. Browne documents in its file including those over which privilege was claimed as against the plaintiffs, but which was not and could not be claimed as against Dr. Browne. As Justice Firestone noted, there could be no confidentiality as between Drs. Browne and Emery during their joint retainer. NR was required to identify documents in its file that it would not produce Dr. Browne and tell him why. Presumably this would include (a) documents created for Dr. Emery after Dr. Browne’s retainer ended in June 2011 and while Emery’s retainer continued until March 2015 and (b) documents which remained the property of NR as set out in Justice Firestone’s March 12 reasons (and which neither Dr. Emery or Dr. Browne would have).

[46] Have NR and Dr. Emery complied with their respective obligations under the March 12, 2015 order? Although this motion seeks relief only against Dr. Emery, and while Dr. Browne has brought no motion against NR or any motion whatsoever, I will nonetheless examine whether any of NR’s obligations appear to remain outstanding.

[47] On March 18, 2015 Craig O’Brien of the law firm NOP, as counsel to and on behalf of NR, forwarded to Mr. Strothman a letter containing a 22 page summary of documents comprising the NR file contents (with documents said to be in the same order as in the October 2014 file index). Reasons were set out why certain documents would not be released to Dr. Browne. The list of documents is broken down into four main headings, although the documents are listed separately or by grouping (such as correspondence):

(1) Documents already produced to Dr. Browne (75 documents): This includes correspondence to June 28, 2011 (when NR went off record for Dr. Browne), accounts, research on limitation periods, pleadings and orders, records and other documents for certain motions, including the motion by the plaintiffs to add defendants, examination for discovery transcripts of plaintiff and Browne and expert and damage reports.

(2) Documents NR has offered to Dr. Browne but not sent either because

(a) Dr. Browne has not requested them (279 documents). This includes various motion and appeal records, affidavits of documents, discovery transcripts of Emery and of defendants let out of the action and discovery exhibits, answers to undertakings and specified additional productions, summary of refusals, case conference, settlement conference, mediation and pre-trial briefs, offers to settle and requests to admit with referenced documents; or

(b) Dr. Browne has not confirmed that he will maintain confidentiality (20 documents). This includes reports to client (apparently including Emery’s insurer) from 1999 to June 28, 2011 grouped by years, invoices from 2003 to 2011, solicitor’s summary of Browne’s discovery, solicitor’s notes of doctors seen by plaintiff, medical brief index, experts’ working files and bills of costs.

(3) Additional documents NR will release based upon Justice Firestone’s reasons, provided Dr. Browne maintains privilege (15 documents). These are all research items on a variety of topics.

(4) Documents that NR will not produce to Dr. Browne, together with reasons for refusal to produce as required by Justice Firestone (19 items). These documents fall into one of two categories: (a) correspondence, invoices, research and summary analysis of claims against Dr. Emery created post June 28, 2011 when NR ceased representing Dr. Browne and over which Dr. Emery claims solicitor-client privilege, and (b) solicitor’s working notes, summaries and inter-office memos, notes preparing for mediation and trial and summaries of transcripts (work product) which are “lawyers’ documents” and are the property of NR as set out in paragraphs 13 and 19 of the reasons of Justice Firestone and which have not been and will not be released to either Dr. Emery or Dr. Browne

[48] Mr. O’Brien indicated to Mr. Strothman that the list “provides sufficient detail for the Defendant Dr. Browne to determine what, if any, additional documents that he is seeking in this matter.” He asked Mr. Strothman to enumerate what documents Dr. Browne is seeking and to confirm that solicitor-client privilege will be maintained wherever privilege has not been waived as set out in the list. He asked Mr. Strothman to contact him to discuss any documents Dr. Browne is seeking that NR is refusing to produce. He also asked Mr. Strothman to advise as to his preferred format for production such as CD or thumb drive. NR took the position that it had now complied with paragraph 20 of Justice Firestone’s direction “to provide clarification and reasons regarding the documents that it is unwilling to produce.”

[49] This put the matter back into Dr. Browne’s court to request such documents as he required, to name the format for production, to enquire as to documents not listed and to challenge any of the specific documents withheld from production.

[50] Instead of making arrangements with NOR to deliver any or all of the listed documents and specifying the format, Dr. Browne sent a letter on March 20, 2015 jointly to Justice Firestone and Mr. O’Brien (and copying others) complaining that the list was “overwhelming” and “of no practical use”. Instead he wanted NR, his former lawyers, to “sort out” and send him “whatever files, records and documents...that are reasonably necessary to my defending against the Plaintiff’s claims and pursuing my cross-claims” against Dr. Emery. He claimed he could not find the time himself or afford to pay anyone else to review all of the files. Clearly, Dr. Browne once again failed to avail himself of obtaining the entire NR file (excepting the lawyer’s work product and work done for Dr. Emery after the end of the joint retainer in June 2011). He also failed to name the format for receiving any documents. He did agree to continue to maintain privilege over documents NR or Dr. Emery labelled as privileged unless he obtained consent from NR or court order.

[51] Dr. Browne however stated the documents should include the research and notes of NR representing the other doctors who treated the plaintiff after Browne left Canada. NR had already sent to Dr. Browne the motion material for the plaintiffs’ motion to add the doctors and research on limitations. Dr. Browne however wanted the “rationale” for NR representing the other doctors without his knowledge and consent and particularly in keeping them out of the action but “not doing the same for me”. It appears from this request that Dr. Browne was seeking information to use against NR, to demonstrate their conflict of interest or negligence. It is consistent with demands made earlier by Dr. Browne (and repeated subsequently on May 27, 2015) that NR (and Dr. Emery) indemnify him for all costs and any damages awarded against him in this action, but in my view it was irrelevant to Justice Firestone’s production order.

[52] In my view NR had satisfied the first obligation under Justice Firestone’s order, to provide a list of documents with an explanation of privilege claims, (subject to and missing documents or wrongfully claimed privilege). The second obligation (production of documents) was subject to Dr. Browne identifying the documents he wanted produced and the format for production, seeking clarification of any specific items on the list or challenging any of the disputed documents as not being in compliance with Justice Firestone’s exceptions to production.

[53] On March 22, Mr. Strothman sent to all counsel Mr. O’Brien’s March 18 letter containing the list of documents after Mr. O’Brien stated that no privilege was asserted over the letter.

[54] What of the obligation of Dr. Emery to provide a further and better affidavit of documents within 10 days of the March 12, 2015 order? Within those 10 days, on March 18, 2015, Justice Firestone removed NR as lawyers of record for Dr. Emery. As Mr. O’Brien pointed out to all parties on March 30 in response to a demand by Mr. Legge for Dr. Emery’s further and better affidavit of documents, NR, having been removed as Dr. Emery’s lawyers was “not in a position to reply on behalf of Dr. Emery, nor is it able to assist him in the completion of a particularized affidavit of documents.”

[55] In Mr. Legge’s email of March 30 he noted that Dr. Browne does not claim privilege over the documents provided by NR, although NR does. He therefore wanted Dr. Browne’s further affidavit of documents and to inspect Dr. Browne’s new Schedule A documents which he claims had been delayed by Dr. Emery’s failure to provide a proper Schedule A, B and C. On March 31 Mr. Strothman indicated he was starting to prepare a list of documents he had received which were not privileged, but he could not produce certain documents until the privilege issues were resolved, although the privilege issues were not identified.

[56] In accordance with the March 18 order, Dr. Emery was given 60 days to appoint new counsel. On April 29, NR advised it was in the process of transferring the file to Dr. Emery’s new counsel, which included the documents that NR had “offered to provide to Dr. Browne (as his former counsel) but that Dr. Browne has never requested”. Although four days beyond the 60 day deadline, Hershel Sahian, of the law firm Hughes Amys LLP (“HA”) indicated on May 21, 2015 that he had taken over carriage from NR. It is unclear to me when HA served its notice of change of lawyers but it was filed on June 12, 2015.

[57] On June 23, 2015 Mr. Strothman told Mr. Sahian that he had “been waiting for documents ordered by Justice Firestone to be produced by Norton Rose/Dr. Emery to Dr. Browne. None have been supplied since Justice Firestone’s March 12, 2015 order.” He complained that Mr. O’Brien’s March 18 letter and list of documents was “unwieldy” and that it “failed to identify what could reasonably be anticipated to be necessary to Dr. Browne’s defence or his crossclaim and attached none of the documents therein referenced by that counsel as being able to be produced and asserted privilege over documents Dr. Browne should be provided.”

[58] In my view Mr. Strothman’s letter was not helpful in resolving any of the issues and was, to some extent, rather disingenuous. The obligation imposed by Justice Firestone on NR was firstly to advise of the documents over which privilege was claimed and why. NR did that. Dr. Browne complained about the privilege asserted but did not identify the privilege issue. Was it over the documents that NR was prepared to provide to Dr. Browne if Dr. Browne maintained the privilege asserted by Dr. Emery? This would include matters such as research by NR. Or was it over documents sent to Mr. Sahian but not Dr. Browne such those created after Browne’s retainer ended in June 2011 or before the joint retainer commenced in 1999? Or was it the work product/inter-office memoranda that NR claimed belonged to the category of documents that Justice Firestone said belonged to NR?

[59] The second obligation imposed by Justice Firestone was to provide documents to which Dr. Browne was entitled and Dr. Browne was to confirm “how” he wanted them delivered. As best as I can ascertain from the material provided, Dr. Browne has never indicated the specific documents he wanted provided nor the format in which he wished them provided. Instead he told NR to determine for him what documents he needed for his defence to the plaintiff’s claims and for his crossclaim against Dr. Emery. Justice Firestone never imposed such a requirement on NR, nor in my view should it be expected of former counsel to decide what documents Dr. Browne “needs” for his defence and crossclaim. That is particularly so when Dr. Browne has asserted claims against NR for negligence and conflict of interest. It should be up to Dr. Browne or his counsel to examine all of the documents to which he is entitled, including the documents he can obtain if he agrees to maintain privilege (e.g. research) and make his own independent determination of what he needs for his defence and crossclaim.

[60] On August 24, 2015 Mr. Strothman again complained to Mr. Sahian that he still did not have document production as required by Justice Firestone. His frustration was well placed, at least with respect to Dr. Emery’s obligations, as it had been over five months since Justice Firestone’s March 12, 2015 order that Dr. Emery serve a further and better affidavit of documents within 10 days. Notwithstanding the delay resulting from Justice Firestone’s subsequent order on March 18 removing NR as counsel to Dr. Emery, it had by that time been three months since the appointment of Mr. Sahian. On the other hand, Mr. Strothman was still asking for the files, records and documents reasonably necessary to support Dr. Browne’s defence and crossclaim. I have determined that NR were never obliged to do that. Even more so, Mr. Sahian as counsel to Dr. Emery had no obligation to sort out what Dr. Browne needed for his defence and for his crossclaim against Dr. Emery.

[61] On June 24, 2015 Justice Firestone fixed the new trial date for March 13, 2017 “peremptory on the defendants” and ordered that a case management master be appointed “to deal with the production issues in this action.” On November 4, 2015, the plaintiffs served their notice of motion to strike the statement of defence of Dr. Emery for failure to comply with Justice Firestone’s order to serve a further and better affidavit of documents within 10 days and for obstruction of production and discovery. I was appointed the case management master pursuant to Justice Firestone’s order and was asked by the plaintiffs to book a date to hear this motion.

[62] On December 16, 2015 I conducted a case conference and set a hearing date of February 5, 2016 for the hearing of the motion. As of the date of the case conference, Dr. Emery had still not complied with the order for a further and better affidavit of documents and I ordered that it be served by December 23, 2015. Mr. Sahian explained that as new counsel on the file it had taken him a long time to sort through the 25 boxes of documents sent to him.

[63] On December 23, 2015 Mr. Sahian served the further and better affidavit of documents of Dr. Emery. Schedule A contained 29 documents and was broken down by topic. 13 documents were listed as medical records, one of which was the clinical notes and records of Dr. Emery. Two documents were listed as OHIP billing. Eight documents were listed as professional qualifications of Dr. Emery. Six documents were listed as expert reports. (Dr. Emery’s original affidavit of documents from April 1999 listed 14 documents in Schedule A, all of which were repeated in and formed part of the 29 documents in the further and better affidavit of documents.) Schedule B was divided into two topics. The first was correspondence, documents, statements and memoranda passing between Dr. Emery and his lawyers, adjusters and investigators, but not particularized. The second consisted of 6 documents, one of which was a folder of names of potential experts and the other 5 were the working papers of experts whose reports were listed in Schedule A. There were no documents listed in Schedule C.

[64] The delay in providing the further and better affidavit of documents was explained by Mr. Sahian in a letter dated January 13, 2016 responding to Mr. Legge’s request for such explanation. Mr. Sahian said that the delay arose from NR’s removal as lawyers of record for Dr. Emery on March 18, 2016 and included efforts to retain new counsel, transferring and reviewing the voluminous NR file in excess of 20 bankers’ boxes. He asserted, in my view accurately, that it was an unintended consequence of the March 18 removal order that Dr. Emery would be unable to comply with the March 12 order to deliver a further and better affidavit of documents within 10 days.

[65] Between December 31, 2015 and February 4, 2016 (the day before the hearing of this motion) there was a flurry of correspondence as among Mr. Strothman, Mr. Legge and Mr. Sahian respecting the adequacy of Dr. Emery’s further and better affidavit of documents, the propriety of some of the privilege claims in Mr. O’Brien’s March 18, 2015 listing of the NR file and the failure to produce listed documents.

[66] As I have stated earlier in these reasons, Dr. Emery was obliged to provide a further and better affidavit of documents and to produce to the plaintiffs and Dr. Browne copies of its Schedule A documents not already produced. NR on the other hand, as Dr. Browne’s former counsel was required to provide Dr. Browne with the content of the NR file created during the joint retainer, including documents privileged as against the plaintiffs but not privileged or confidential as against Dr. Browne (provided Dr. Browne agreed to maintain the privilege as against the plaintiffs). This was subject to the exceptions carved out by Justice Firestone in paragraph 19 of his reasons respecting documents that belonged to NR.

[67] As will be seen, many of the complaints about Dr. Emery’s productions stem from the conflation by both Dr. Browne and the plaintiffs of the obligations respectively of Dr. Emery and of NR as set out in Justice Firestone’s order and reasons of March 12, 2015.

[68] As noted, no motion has been brought before me by Dr. Browne and no motion has sought relief as against NR. Dr. Browne has merely supported the plaintiffs’ motion, which was to strike Dr. Emery’s defence for failure to comply with Justice Firestone’s order and his production obligations.

[69] On December 31, 2015 Mr. Strothman wrote to Mr. Sahian complaining that the further and better affidavit of documents of Dr. Emery failed to identify or provide the records that NR had accumulated over the years, or the documents that Dr. Browne had requested. In particular he wanted the records of all doctors that NR jointly represented, including himself, Dr. Emery and the other doctors who treated the plaintiff after Dr. Browne and on whose behalf NR successfully resisted a motion to add as parties. They are identified as Drs. Gonshor, Head and Shapiro (hereinafter referred to as the “Other Doctors”) as well as the Montreal General Hospital. Dr. Browne was of the view that the records of those doctors may well “assist in proving the lack of culpability of Dr. Browne” and “demonstrate the culpability of others.” He added that as Justice Firestone claimed there was no privilege as between Drs. Browne and Emery during their joint representation “all items prepared in contemplation of Emery’s defence must be provided to Dr. Browne.” Mr. Strothman is correct. He is entitled to documents prepared during the joint retainer that go to Dr. Emery’s defence as well as any records from the other treating doctors.

[70] It is unclear to me from Mr. O’Brien’s March 18, 2015 list, whether Dr. Browne has been sent or offered all documents and correspondence respecting Dr. Emery. For example, item 18 on the Documents Already Produced list is “Dr. Browne – File #01006633/0001” (consisting of correspondence) but there is no corresponding file listed for Dr. Emery, although that may (or may not) be subsumed in the list of correspondence in items 1 to 17. Is there a “Dr. Emery file”? That is unclear. As for records of the Other Doctors, it does not appear that any such records are listed in the March 18 letter and there is no evidence whether they are in any NR file, although Dr. Browne had been sent the motion materials for the motion to add the Other Doctors. Are there one or more separate files for the Other Doctors as NR clients? This is also unclear.

[71] The problem with Mr. Strothman’s request is that he made it to Mr. Sahian, who represents Dr. Emery. Dr. Emery has no obligation to send to Dr. Browne Dr. Emery’s privileged documents, even if there is no confidentiality as between Drs. Emery and Browne. Rather, that is the responsibility of NR, in their role as former counsel to Dr. Browne. The same applies to the files of the Other Doctors.

[72] Mr. Strothman raised other issues. He claimed he was entitled to all correspondence with all doctors, hospitals and the insurance agents’ instructions as well as the accounts/disbursements on behalf of all parties including Dr. Emery and the Other Doctors. Again, this is a matter for NR, but I note from the O’Brien letter of March 18, 2015, Dr. Browne had been sent correspondence from 1996 until the end of the joint retainer on June 28, 2011 and had been offered (if he agreed to maintain privilege) Reports to Client from 1999 to 2011 (which I am told includes Dr. Emery and the insurer, and not just Dr. Browne) as well as invoices over the same period and disbursements. I do not know if it includes reports to the Other Doctors or their insurer.

[73] Mr. Strothman again asked for “anything reasonably necessary to Dr. Browne’s defence.” As I have held earlier, it is not up to NR (and certainly not up to Dr. Emery or Mr. Sahian) to cherry pick which documents might fall into that category. NR had an obligation to provide a list and documents to Browne, which they have done, not analyze the documents to demonstrate which are necessary for Dr. Browne’s defence. Dr. Browne also stated that having agreed to maintain privilege he should now receive the documents agreed to be sent to him. That is also true, but no relief is sought against NR, nor has Dr. Browne indicated the format for receipt of the documents.

[74] Finally, Mr. Strothman disputed that NR was entitled to withhold items 5 and 6 of the “Disputed Documents” (documents which NR said it would not send to Dr. Browne based on paragraph 19 of Justice Firestone’s reasons) because they were created during the joint retainer. NR stated that items 5 and 6 are said to be solicitors’ working notes and summaries which fall into the excepted category of inter-office memos between lawyers and which are the property of NR. They have not been released to either Dr. Browne or Dr. Emery. I cannot determine if they have been properly categorized as being within the exception outlined by Justice Firestone since the dates and particulars of the notes are not provided sufficient to identify them. Further, as will be discussed later, if they relate to interview notes with Dr. Emery or the Other Doctors they should not be excluded. In any event Dr. Browne did not bring a motion against NR to challenge the privilege designation. Certainly the plaintiffs are not entitled to those notes.

[75] Mr. Sahian in a letter dated January 13, 2016 sets out, in my view accurately and appropriately, the problems created by conflating the respective obligations of Dr. Emery and of NR and the demands being made of Mr. Sahian:

We are not Norton Rose. We are not counsel to Norton Rose. We are not counsel to Dr. Graeme Browne. We are not former counsel to Dr. Browne. The plaintiffs’ motion material interchangeably reference Dr. Emery and Norton Rose. This is inappropriate.

The March 2 (sic: March 12), 2015 reasons for decision of Justice Firestone clearly distinguish as between the order as against Norton Rose for production...and the order as against Dr. Emery for the delivery of a further and better affidavit of documents...

The plaintiffs claim relief as against Dr. Emery pursuant to, among others, paragraph 17 and 18 of Justice Firestone’s reasons for decision. His is wrong. We, again, are not counsel to Norton Rose. We, therefore, cannot discharge Justice Firestone’s order for production to Dr. Browne.

The order as against Norton Rose is due to its position as former counsel to Dr. Browne. It is not due to its position of being former counsel to Dr. Emery.

..The plaintiffs are seeking to compel Dr. Emery to...produce privileged documents to Dr. Browne and the plaintiffs...This is highly inappropriate.

Clearly, the plaintiffs’ motion ought to have been brought, if at all, as against Norton Rose...

[76] I completely agree with the sentiments expressed by Mr. Sahian except the last sentence. There would have been no merit to the plaintiffs seeking relief against NR. No order was made or obligations imposed against NR in favour of the plaintiffs. The only party with any status to seek relief against NR is its former client, Dr. Browne. Dr. Browne has not moved for such relief or indeed any relief. In any event, even if the plaintiffs had status to move directly against NR, they have failed to do so.

[77] Mr. Sahian made it clear to Mr. Strothman in additional letters sent on January 13, 2016 that Dr. Emery is no position to produce the records of NR and so he cannot produce the records necessary for Dr. Browne to defend the plaintiffs’ claims or assist with the crossclaim and in any event by making such demands of Dr. Emery he is asking Dr. Emery to waive privilege and produce documents that compromise Dr. Emery’s own defence of the main action. He repeats that the obligation is on NR to produce the documents accumulated over many years of the litigation and to advise which privileged documents NR is prepared to release to Dr. Browne and the reasons. He repeats that Dr. Emery “cannot address the production order of Justice Firestone as against Norton Rose.” He also notes that Dr. Browne had been invited to review NR’s files and asks if Dr. Browne has done so. Finally he repeats that “it is surprising that Dr. Browne has undertaken no steps whatsoever as against Norton Rose in light of the incessant allegations that the conduct of Norton Rose is egregious.” I agree with all of these observations of Mr. Sahian.

[78] I disagree with Mr. Sahian however when he states that there is no basis for Dr. Browne’s demand for reports and invoices to all clients of NR in the litigation. Clearly Justice Firestone stated that Dr. Browne was entitled to all of those reports and invoices sent to all clients during the joint retainer. That said, as noted, it appears that such reports and invoices have been offered to Dr. Browne in the O’Brien list of March 18, 2015. Production needs to be taken up with NR.

[79] Mr. Strothman sent letters on January 14, 15 and 22 to Mr. Sahian, Mr. Macdonald of NR and Mr. O’Brien (and copied to others). He stated to Mr. Sahian that a lawyer representing two co-defendants “cannot withhold from defendant Browne the evidence obtained by defendant Emery and/or his counsel prior to mid June 2011”. Mr. Strothman’s statement is correct and is consistent with the reasons of Justice Firestone; however Mr. Sahian had never at any time represented both Dr. Emery and Dr. Browne. Only NR represented both defendants on a joint retainer.

[80] Therefore when Mr. Strothman reiterated to Mr. Sahian that both “new and previous counsel” to Dr. Emery (i.e. Mr. Sahian and NR) are “jointly obligated” to provide Dr. Browne with all of the evidence obtained by Emery or his counsel in any form during the joint retainer, including communications and instructions between Dr. Emery or his insurer and counsel he is incorrect. Clearly NR had the obligation to provide Dr. Browne with all of this evidence, but not Mr. Sahian or Dr. Emery. Dr. Emery and his current lawyer can assert as against Dr. Browne all of the same privilege he asserts against the plaintiffs (including correspondence with the insurer), particularly as both are now adverse in interest to Dr. Emery. NR cannot assert the privilege with respect to those communications, but as noted, no relief is sought on this motion as against NR.

[81] Mr. Strothman then in correspondence to NR, Mr. O’Brien, and Mr. Sahian asked that “among the three of you” deliver to Dr. Browne “all evidence collected and created during the period of joint representation”. This was an obligation to which NR (but not Mr. Sahian) should have responded. NR should at that point have sent all of the documents listed in Mr. O’Brien’s March 18, 2015 letter, including those offered if Dr. Browne agreed to maintain privilege, (other than the “disputed items”), unless previously provided. It could have been sent electronically, for example in a USB drive, provided that there was proper indexing of the documents to item numbers in the March 18, 2015 letter. I note that correspondence to the insurer during the joint retainer is included in the documents NR was willing to provide Dr. Browne. It is unfortunate that Dr. Browne did not bring a motion against NR to assert those rights.

[82] Mr. Strothman also raises in his January 2, 2016 letter the interesting question of the medical records of, statements from and other evidence regarding the “role, actions and inactions” of the Other Doctors. Mr. Strothman notes that at a case conference with me, Mr. Sahian said the 25 bankers boxes he received from NR did not contain any of those records, although he believed he now had all of NR records relative to defending Dr. Emery.

[83] Further, in a summary of documents listed, not listed, produced and not produced from the March 18, 2015 letter prepared by the plaintiffs (as an exhibit to the supplementary affidavit of David Steeves sworn January 22, 2016), footnote 27 to the line item “Correspondence – Dr. Graeme Browne – File #01006633/0001” states that “correspondence created during the joint retainer appears to have been segregated and those documents involving Drs. Emery, Gonshor, Head, Shapiro, Commara, Stein and the insurer have been withheld” contrary to Justice Firestone’s order and notes the absence of privilege between jointly retained co-defendants. The plaintiffs also list as a document never listed or produced “clinical notes and records of Drs. Gonshor, Head, Shapiro, Commarra and Stein”.

[84] In Mr. Sahian’s response of February 1, 2016 he states that the document (correspondence and clinical notes and records) referencing the Other Doctors “does not exist. It is not part of the March 18, 2015 index. The plaintiffs assume that Dr. Emery possesses such a document. The plaintiffs offer no supporting evidence.”

[85] Counsel for NR at the case conference speculated that NR also may never have had any such records. Mr. Strothman found that strange, as do I, since NR represented those doctors since the plaintiff first moved to add them (since about 1999) and were successful in resisting the motion to add them in 2003. It is even more unusual given that NR has listed in the March 18 letter and have provided to Dr. Browne substantial motion material related to that motion. How can there be no evidence from those doctors, even in the form of statements, instructions or interview notes? It may be that there are separate “files” within NR related to each doctor they represented and as such were not disclosed either to Mr. Sahian or to Dr. Browne. Clearly, having represented the Other Doctors jointly with Drs. Emery and Browne, each of Dr. Browne and Dr. Emery are entitled to all of that evidence as it may assist them in their own respective defences. Again, however, it is unfortunate that Dr. Browne did not bring a motion against NR to assert those rights.

[86] The plaintiffs also question document 25 in the March 18 correspondence entitled “Original Documents: Dr. Emery re Bulloch – NOT PRODUCED”. Mr. Sahian noted that it refers to privileged communications among Dr. Emery, counsel and insurer in December 1996, predating the joint retainer that commenced in March 1999. There is substantial merit to the argument that the entire defence file that came into being prior to the end of the joint retainer in June 2011, whenever created, and relevant to the defence of Drs. Emery or Browne ought not to be confidential as between Drs. Emery and Browne. As will be set out later in these reasons, it is my view too narrow an interpretation of Justice Firestone’s reasons to exclude from Dr. Browne, documents prepared for Emery prior to the joint retainer but contemplated for continued use in Dr. Emery’s defence during the currency of the joint retainer.

[87] In my view the other issues raised by Dr. Browne respecting the level of detail in the March 18, 2015 letter, including ambiguities in the description have either been answered or are sufficiently described as to merit no further discussion, although I would not preclude Dr. Browne from raising additional ambiguities in a properly constituted motion. In any event any such ambiguities can be rectified if NR simply sends electronic copies of all such documents, properly indexed to the March 18 letter. In any event these are issues for NR, not Dr. Emery.

[88] There are other issues set out in the plaintiffs’ summary of listed, not listed, produced and not produced documents from the March 18, 2015 letter that do not appear in Dr. Emery’s further and better affidavit of documents. This includes documents clearly privileged as against the plaintiffs, although producible by NR to Dr. Browne once he agreed to maintain privilege, such as a folder of potential experts’ names, correspondence among counsel, client and insurer, research on limitations and other research, reports to client, invoices and summaries of evidence prepared by counsel. If Dr. Browne did not receive any of these documents to which he was entitled it was up to him to move against NR. It was not up to the plaintiffs to complain of deficiencies in Dr. Emery’s affidavit of documents based on a list of privileged and non-privileged documents sent by NR’s counsel to Dr. Browne. While it could be argued that correspondence and reports to client (including the insurer client) should be listed in a better particularized Schedule B to Dr. Emery’s affidavit of documents, it is unclear whether that it necessary. It is in my view certainly not necessary to list research memos in an affidavit of documents.

[89] On February 1, 2016, Mr. Sahian indicated that he had arranged to catalogue the documents said to be listed in the March 18, 2015 letter through Commonwealth Legal, a third party service provider and made them available respectively to Mr. Legge and Mr. Strothman on an electronic cloud platform called “IPro Eclipse”. Each of Mr. Legge and Mr. Strothman had separate user names and passwords and I am told that Mr. Strothman’s access would have included documents not accessible to Mr. Legge. They were also sent instructions on how to download and navigate the Eclipse software. Mr. Sahian indicated that the files were searchable.

[90] Each of Mr. Legge and Mr. Strothman responded to the productions.

[91] Mr. Legge complained that the productions were late as directed by Justice Firestone and his order that copies be provided within 10 days is not complied with by a late cloud assembly where opposite counsel were directed read Mr. Sahian’s cloud index and then do a page by page check. He indicated that there was still no reference to the “phantom” six other doctors, suggesting that despite Mr. O’Brien’s assurance, Dr. Emery had not received the complete NR file.

[92] Mr. Sahian responded to Mr. Legge that the plaintiffs appeared to be “putting themselves in the position of Dr. Browne”, that Dr. Emery’s obligation to the plaintiffs was to provide a further and better affidavit of documents and make available all non-privileged documents, which Dr. Emery has now done and that it appeared that the plaintiffs were seeking privileged documents. I do not believe that the plaintiffs were demanding that Dr. Emery provide documents to the plaintiffs over which NR did not assert privilege against Dr. Browne but which Dr. Emery continued to assert as against the plaintiffs. If that is what the plaintiffs seek (for example research and notes made available to Dr. Browne but privileged as against the plaintiffs) then the plaintiffs are clearly not entitled to them from NR or from Dr. Emery.

[93] Mr. Strothman indicated that as of February 2, neither he nor his IT department had been able to access the documents on Eclipse or determine what was or was not available, that it was not organized for the user and there was no printable index or listing with a brief description of each document. He requested that they be listed and correlated to the March 18, 2015 listing of documents.

[94] He also demanded production of documents accumulated by NR between the time of Dr. Emery’s retainer in 1996 and Dr. Browne’s retainer in 1999. He did not take issue with the claim of privilege over documents after Dr. Browne’s retainer was terminated in June 2011. He asserted that production should include all the notes, statements and billings not only to Dr. Emery but to all of the Other Doctors NR kept out of the litigation “to the detriment of Dr. Browne” and it was absurd to suggest they do not exist. He suggested that if Mr. Sahian did not have them, he should obtain them from NR. With respect to the 1996 to 1999 documents, he stated:

Nortons chose to represent Browne in 1999 knowing whatever it knew as to the actions of doctors treating the plaintiff and that it believed at that time was not a conflict. By representing both Browne and Emery it is required to produce all those notes, statements, billings etc...To suggest they are privileged is without support...These records were obtained in defense of defendant Emery and certainly are essential to the defense of Dr. Browne.

[95] In my view there is merit to Mr. Strothman’s argument for the pre 1999 documents, and for reasons set out elsewhere in my reasons, they should be produced to Dr. Browne.

[96] I also agree with Dr. Browne that the information relating to or provided by the Other Doctors, even if kept in a separate file at NR, cannot be privileged as against Dr. Browne if created for their defence during the time of joint retainer. I have discussed NR’s obligation to provide these documents elsewhere in these reasons. It is not necessary that Dr. Emery provide any such documents to Dr. Browne, particularly if, as he claims, he does not have them. Dr. Emery is not obliged to seek them from NR. This is something Dr. Browne can do directly.

ANALYSIS AND CONCLUSIONS

[97] The plaintiffs move to dismiss the defendant Emery’s statement of defence (a) for failure to comply with the production order of Justice Firestone dated March 12, 2015 by not providing a further and better affidavit of documents within 10 days and (b) for obstruction of production and discovery by Dr. Emery’s solicitors.

[98] The order of Justice Firestone established separate and distinct obligations on NR, as Dr. Browne’s former lawyer and on Dr. Emery as a defendant in this action. The plaintiffs have conflated the obligations of NR and of Dr. Emery and most of their complaints have to do with NR’s obligation. No motion was brought against NR. Although NR’s lawyer attended on the motion to provide guidance, NR is not a party to the motion.

[99] While Dr. Emery owed obligations both to the plaintiff and to the co-defendant Browne to deliver a further and better affidavit of documents and supporting productions, the obligations of NR were owed only to Browne, as his former lawyer. As Justice Firestone stated at paragraph 3 of his March 12, 2015 reasons: “The interests of justice demand that Browne be given a copy of all documents to which he is entitled as a result of his prior solicitor-client relationship with Norton’s so he may properly represent his interests in this matter.”

[100] Dr. Browne must therefore look to NR for his file, including any privileged documents. This would include documents NR offered up to Dr. Browne if he maintains privilege as well as disputed documents which NR refuses to hand over as constituting work product excluded by Justice Firestone’s order. If Dr. Browne wishes to challenge the disputed documents, only he could move against NR, as NR owes no obligations directly to the plaintiffs, either at law or pursuant to Justice Firestone’s order. Browne has not brought a motion against NR, nor has Browne brought a motion against Emery. Browne has brought no motion whatsoever. He has, by delivering responding affidavits, supported the plaintiffs’ motion brought only against Emery. Dr. Emery has no obligation to demand documents from NR on behalf of Dr. Browne.

[101] I disagree with the plaintiffs’ characterization of NR and Emery playing “hide and seek” or Dr. Browne’s characterization of them playing a “shell game” to obfuscate production obligations. The plaintiffs and Dr. Browne have simply chosen to bring a motion against the wrong party for outstanding productions, other than with respect to Dr. Emery’s late delivery of a further and better affidavit of documents.

Obligations of Norton Rose

[102] Even though no motion was brought against NR, I will consider the scope of the order of Justice Firestone as it relates to NR and whether they have complied with their obligations, but my conclusions on these issues must be considered preliminary, subject to change once a proper motion is brought and NR is given the opportunity to respond. Furthermore, I am constrained from making any order against NR because no relief was sought against them and they have not had an opportunity to properly respond.

[103] The first obligation of NR was to “advise the defendant Graeme Browne which privileged documents it is agreeable to releasing and why”. The second obligation was to produce to Dr. Browne “all documents over which privilege is not claimed and which have not been produced.”

[104] In response, Mr. O’Brien on behalf of NR sent Mr. Strothman the March 18, 2015 letter, divided into a number of document groupings. The first grouping outlines 76 documents or groups of documents already sent to Dr. Browne. If Dr. Browne has not received any of them, he should advise NR. The second grouping consists of 279 documents that NR has offered to Dr. Browne but which Dr. Browne has yet to request. In my view these documents are quite straightforward and easy to understand. Dr. Browne is quite capable of requesting them.

[105] The next grouping consists of 20 documents or bundles of documents that NR offered to Dr. Browne if he maintains privilege. Dr. Browne has agreed to maintain privilege unless a court permits him to waive the privilege over any documents necessary for his defence. As a result Dr. Browne is entitled to these documents. It appears that items 1 to 3 are reports to client, which I am told means reports to Dr. Emery and/or his insurer, during the currency of the joint retainer, 1999 to June 2011, that items 4 to 8 are invoices to the insurer and disbursements over the same period and 18 to 20 are bills of costs. The remaining documents are summaries of transcripts, medical reports and experts working files. The next grouping consists of 15 research papers that NR is now willing to produce to Dr. Browne pursuant to Justice Firestone’s reasons.

[106] In terms of producing copies of these documents to Dr. Browne, Justice Firestone stated at paragraph 20 of his reasons, that after NR clarified which documents it was willing or unwilling to produce:

Browne is then to confirm how he wishes copies of the documents to which he is entitled are to be delivered to him if they have not already been provided.

[107] Mr. O’Brien concluded in his March 18, 2015 letter: “We further request that Mr. Strothman enumerate what documents Dr. Browne is seeking, and that he confirm that Dr. Browne will maintain solicitor-client privilege over documents where privilege has not been waived...Also please advise as to the preferred format (CD, Thumb drive etc.) for delivery of additional documents.” Mr. O’Brien simply asked Dr. Browne to do what Justice Firestone told Dr. Browne to do.

[108] It does not appear that Dr. Browne has taken that step. He has been offered in the past a right to come and inspect the file and choose what he wants copied from the file. He has said he cannot afford to come to Toronto to do that. It may be that option is still available. If not, Dr. Browne is to list the documents he now wishes produced from the March 18, 2015 letter that NR is willing to produce and the format for production of the documents.

[109] As I have concluded earlier in these reasons it is not only an unreasonable request to make of former counsel to send him the documents “he needs for his defence and crossclaim”, it is inconsistent with the order of Justice Firestone. This has even greater resonance since Dr. Browne has accused NR of negligence and conflict of interest. NR was ordered to list the documents and produce requested documents, not analyze which ones are necessary for Dr. Browne’s defence. It is up to Dr. Browne, Mr. Strothman and his Ontario agent to determine how to conduct his defence and his crossclaim against Dr. Emery and what documents he requires. If Dr. Browne is uncertain whether certain documents are helpful to his defence, the safest course for Dr. Browne is to request all such documents.

[110] As noted, Dr. Browne has agreed to maintain privilege over the documents offered by NR if he agrees to maintain that privilege. As such that should not be a bar to production. Dr. Browne will seek consent or a court order if he feels he must disclose the documents for purposes of his defence.

[111] It is unclear to me whether some of the documents offered by NR to Dr. Browne but not yet produced were produced to Dr. Browne by the cloud production sent by Mr. Sahian or if Dr. Browne has been able to access them.

[112] The last grouping of documents, entitled “Disputed Documents”, contain the documents over which NR is asserting privilege. NR asserts privilege over some documents as against both Drs. Emery and Browne and asserts privilege over some documents on behalf of Dr. Emery as against Dr. Browne.

[113] As to the documents over which NR asserts privilege as against both Emery and Browne, NR is entitled to assert and has asserted what I will refer to as work product privilege. These are the matters set out in paragraph 19 of Justice Firestone’s reasons and purport to be the items set out as items 5 to 10 and 18 in the “Disputed Documents” section on pages 19-21 of the March 18, 2015 O’Brien letter. They are primarily internal memos. They could more appropriately be referred to as the solicitor’s own documents, rather than client documents, as set out in third column in paragraph 13 of Justice Firestone’s reasons. The “working notes” in items 5 and 6 have not been sufficiently particularized for Dr. Browne or the court to determine if they properly fall within the exception. Further details should be provided. Other than that I have no reason to believe at this time that NR has not properly categorized those notes as being within the exceptions outlined by Justice Firestone. Dr. Browne has never brought a motion to challenge any of those exclusions as not properly being marked as solicitors’ own documents. If he wishes to challenge the designations, he must bring a proper motion against NR.

[114] As to the documents over which NR asserts privilege on behalf of Dr. Emery as against Dr. Browne, Justice Firestone was clear that NR, representing both Emery and Browne on joint retainer was required to provide to Dr. Browne information received and documents created or delivered in contemplation of Emery’s defence during the currency of Dr. Browne’s retainer. NR cannot keep information received from or on behalf of one client during that time frame as confidential as against the other jointly represented client.

[115] In other words NR could not deny production to Browne of anything provided to or by Emery except information received or documents created or delivered after termination of the joint retainer. These purport to be the items set out in paragraphs 1 to 4, 11 to 17 and 19 of the “Disputed Documents”. If Dr. Browne wishes to challenge any of those exclusions as not being documents over which NR can claim privilege on behalf of Emery as against Browne, he must bring a proper motion against NR.

[116] NR concedes that privileged documents created or received between 1999 and June 2011 for Emery’s defence must be produced to Dr. Browne. What about documents created for or information received from Dr. Emery between 1996 and 1999 when NR represented Emery alone, prior to taking on Dr. Browne as a client?

[117] As noted earlier in these reasons, there is substantial merit to Dr. Browne’s argument that documents created before 1999 for Dr. Emery’s defence (or for the defence of the Other Doctors), including client statements and reports to client, but continuing in existence after commencement of the joint retainer should be provided to Dr. Browne. As Mr. Strothman indicated, “Nortons chose to represent Browne in 1999 knowing whatever it knew as to the actions of the doctors treating the plaintiff and that it believed at the time was not a conflict.” Justice Firestone’s reasons state that “the documents that Norton’s must produce to Browne include items prepared in contemplation of Emery’s defence during the currency of Dr. Browne’s retainer only”. In my view it is too narrow an interpretation of that statement to conclude that Justice Firestone intended to preclude Dr. Browne from accessing the information received and documents prepared for Emery’s defence simply because they were prepared or received between 1996 and 1999. In my view the phrase “during the currency of Dr. Browne’s retainer” modifies the words “Emery’s defence” and not the word “prepared”.

[118] In other words, Dr. Browne would be entitled to all documents, whether prepared before or after 1999, provided they were prepared in contemplation of Emery’s defence, which defence continued through the period of joint retainer from 1999 to 2001. The pre-1999 records, statements and reports were certainly obtained by NR in contemplation of Emery’s defence which did not end in 1999, but continued through the period of joint retainer.

[119] This conclusion is also consistent with Justice Firestone’s statement that “no information received in connection with the matter from one client can be treated as confidential as far as any of the others were concerned.” The Rules of Professional Conduct required that NR convey this information to Dr. Emery before they took on Dr. Browne as a client on joint retainer. Dr. Emery could not have expected that information he had already provided to NR prior to the joint retainer would not be shared with Dr. Browne.

[120] There are no documents or reports to client listed in the March 18, 2015 letter that cover the period 1996 to 1999 other than Document 25 said to have been communications among counsel, Dr. Emery and his insurer in December 1996. It is inconceivable that there would not be other documents, statements or instructions provided by or on behalf of Dr. Emery or his insurer or reports to Dr. Emery or his insurer between 1996 and 1999. They must be added to the list and in my view should be produced to Dr. Browne, including Document 25.

[121] As noted however, this is a preliminary opinion made without the benefit of a motion by Browne against NR and without an opportunity for response from NR. If NR disagrees with my conclusion that the pre-1999 documents must be produced to Dr. Browne, they can be listed in the Disputed Documents section until the court finally determines the issue.

[122] Has anything been omitted from the O’Brien list? The contentious issues appear to involve (a) the pre-1999 documents which I have dealt with in the preceding paragraphs and (b) the records of, communications with, summaries of evidence of and notes of interviews with Dr. Emery and all of the doctors who were involved in the plaintiff’s care after Dr. Browne’s departure including the Other Doctors.

[123] Non-privileged documents would of course include the clinical notes and records of Dr. Emery and the Other Doctors. I see no specific reference to them in the O’Brien list, unless they form part of one of the more general categories in the list such as “Exhibits- Dr. Emery” or 2 volumes of discovery exhibits or medical records brief. The “clinical notes and records of Dr. Emery October 1991 to December 1996” clearly exist because they are listed in Schedule A to Dr. Emery’s further and better affidavit of documents. It would have been helpful if they had been clearly marked in the O’Brien letter. I am told that these records had been in the possession of the Montreal General Hospital, not Dr. Emery, but that is not entirely clear. I understand that the Hospital has been unable to locate and/or destroyed its records prior to October 1991 and as such the earlier records of Dr. Emery have never been produced.

[124] I see no reference to the clinical notes and records of the Other Doctors in either the O’Brien list or in Dr. Emery’s further and better affidavit of documents. Mr. Sahian has indicated that he has never seen them. NR should clearly state whether they have ever located them and if they are or ever were in their possession, possibly under a different client file name. If so, they must be produced. If they are all part of the missing Hospital records that should be made clear.

[125] As to documents over which Dr. Emery may claim privilege, Justice Firestone has made it clear that NR cannot withhold from Dr. Browne documents prepared in contemplation of Emery’s defence during the time that NR was retained jointly by Emery and Browne. This would include reports and invoices to Emery and his insurer until NR went off the record for Browne on June 28, 2011. I am told the reports between 1999 and 2011 are the items listed as numbers 1 to 8 on page 16 of the O’Brien letter as offered to Dr. Browne if he agrees to maintain privilege. Having given that undertaking, NR should immediately send those documents to Browne if they have not already done so. What is missing from the O’Brien list are, as explained earlier, reports to Dr. Emery and his insurer between 1996 and 1999. My preliminary view was that they should also be produced to Dr. Browne, but even if that is contentious, they should at least be listed as part of the file content, in the same manner as the post 2011 documents.

[126] What about any correspondence or instructions Emery or his insurer may have sent to NR or that Emery may have sent to his insurer and forwarded to NR or any summaries of his evidence written out by or on behalf of Dr. Emery or any witness statement or will-say statement of Dr. Emery prepared before June 2011? Clearly these would be documents prepared for Emery’s defence, including his defence during the joint retainer and copies would have to be provided to Dr. Browne. I appreciate that Emery had retained NR several years before Dr. Browne and if the documents were created or sent to NR prior to the joint retainer I have concluded that based on my interpretation of Justice Firestone’s reasons, NR is obliged to provide copies to Dr. Browne. There is however no reference to any such documents, whether prepared before or after 1999 in the O’Brien letter even in the “Disputed Documents” section. NR should make clear whether such documents exist and if so, if they are being withheld, so that Dr. Browne can move to challenge any privilege claimed.

[127] Notes taken by NR lawyers of communications or interviews with Dr. Emery are documents prepared for Emery’s defence. I do not agree with NR that they form part of the work product or “working notes and summaries” as described in paragraph 13 of the reasons of Justice Firestone or one of the exceptions as set out in paragraph 19 of his reasons that are the property of NR and not the client. My preliminary view, and subject to change if and when Dr. Browne brings an appropriate motion and NR has an opportunity to respond, is that NR has an obligation to provide copies of interview notes with Dr. Emery to Dr. Browne; however there is no motion before me by Dr. Browne against NR to challenge the disputed documents and so no final determination can be made in this endorsement.

[128] It appears that any interview notes with Dr. Emery may be part of the documents listed in paragraphs 5 and 6 of the “Disputed Documents” characterized as “Solicitor’s Notes – T. Hill” and “Solicitor’s Notes and Memos” said not to have been released to either Dr. Browne or Dr. Emery. For the sake of completeness, NR should specify whether any such notes and summaries were of conversations or interviews with Dr. Emery or the Other Doctors or witnesses and when they were taken so that they can be properly challenged by Dr. Browne if so instructed. Document 7 identifies solicitor’s notes taken in 2014, after the joint retainer ended, but not released to either doctor.

[129] Of course, if NR provided Mr. Sahian with notes and summaries of communications or interviews with Dr. Emery, they must, if prepared between 1996 and June 2011, also be provided to Dr. Browne.

[130] The lack of clarity is compounded because disputed document 10 specifically references notes of a telephone conversation between a NR lawyer and Dr. Browne on August 22, 1999, yet there is no such breakdown by date or by parties to the communication in documents 5 and 6. There must be further specificity of documents 5 and 6, so that if Dr. Browne wishes to challenge the claims for privilege it will be an informed challenge.

[131] What about any report, correspondence or instructions the Other Doctors or their insurer may have sent to NR or that the Other Doctors may have sent to their insurer and forwarded to NR or any summaries of their evidence written out by or on behalf of the Other Doctors or any witness statements signed by the Other Doctors or will-say statements or notes of interviews with the Other Doctors? There is not a single reference to the Other Doctors in the O’Brien summary. I agree with Dr. Browne that given NR’s representation of the Other Doctors during the currency of the motion to add them as parties between 1999 and 2003, which NR successfully opposed on their behalf, including the preparation of responding motion records, it is inconceivable that there would not have been a single reference to any instructions by the Other Doctors or their insurer, witness or will-say statements of, notes of interviews with or summaries of evidence of the Other Doctors or reports to the Other Doctors or their insurer. It may be that that separate “files” were set up for the Other Doctors, distinct from the files for Dr. Emery and for Dr. Browne.

[132] Again, my view is that any of these documents should be listed and provided to Dr. Browne. It appears that at least between 1999 and 2003, NR jointly represented not only Dr. Emery and Dr. Browne, but also the Other Doctors. NR cannot claim privilege on behalf of the Other Doctors as against Dr. Browne nor withhold production from Dr. Browne (or from Dr. Emery if he seeks such production) as there is no confidentiality as among persons jointly retained.

[133] Dr. Browne has a right to seek those documents from NR, but as there is no motion before me against NR, I make no final determination of the issue and no order to that effect. Nonetheless, NR should make clear what, if any, documents they have respecting the Other Doctors and be prepared to defend any request to produce them. They are certainly documents critical to Dr. Browne’s defence that the plaintiff’s damages were caused not by him but by Dr. Emery and the Other Doctors.

[134] If there are other ambiguities in the description of documents in the March 18, 2015 letter that have not been addressed in these reasons, any such ambiguities can be rectified if, upon request from Dr. Browne, NR simply sends electronic copies of all documents for which Browne claims the description is ambiguous, properly indexed to the March 18 letter.

[135] As noted, I make no disclosure or production order against NR. They were not parties to this motion. Dr. Browne chose to ride the coat-tails of the plaintiffs’ motion against Dr. Emery and he brought no motion of his own against NR. The plaintiffs also sought no relief against NR, nor could they have as NR owed no duties to the plaintiffs. Nonetheless, I urge NR to address the issues raised in these conclusions and hopefully avoid a motion by Dr. Browne.

Obligations of Dr. Emery and Motion to Strike Defence

[136] I must now deal with the motion before me, to strike the pleadings of Dr. Emery for failure to comply with the March 12, 2015 production order of Justice Firestone by not providing a further and better affidavit of documents within 10 days as ordered and “for obstruction of production and discovery by his solicitors” since September 2014.

[137] Clearly Dr. Emery failed to serve a further and better affidavit of documents within 10 days of March 12, 2015. He did not serve his further and better affidavit of documents until December 23, 2015, and even then only after I ordered his to do so by that date at a case conference on December 16, 2016 convened to set a timetable for this motion. My order was not intended to vary or extend the deadline in Justice Firestone’s March 12, 2015 order[^12], nor relieve Dr. Emery of any consequences arising from its breach. It was a case management order made in compliance with Justice Firestone’s June 24, 2015 order that a case management master be appointed to “deal with the production issues in this action”.

[138] As noted earlier in these reasons, Mr. Sahian explained the delay as an unintended consequence of Justice Firestone’s order of March 18, 2016 removing NR as Dr. Emery’s lawyer, four days before the deadline for the further and better affidavit of documents. NR was at that point unable to represent Dr. Emery in preparing and serving the affidavit. It took Dr. Emery until May 2015 to retain Mr. Sahian’s firm. While two months to retain new counsel may seem excessive, it is in my view not unreasonable given the complexity and lengthy history of the file. Mr. Sahian’s firm received 25 banker’s boxes of materials as well as a USB drive containing email correspondence in May. I appreciate that it took Mr. Sahian some time to review all of these documents and get “up to speed”; however there is no acceptable explanation as to why it should have taken him seven months since his retainer to see what documents were missing from the original affidavit of documents and serve a further and better affidavit of documents.

[139] Nonetheless he has now, very belatedly, complied (subject to arguments as to sufficiency).

[140] Although the court “clearly has a discretion to strike a defence in appropriate cases for repeated procedural breaches, particularly when the breaches are in violation of court orders” striking of a defence “is an extreme remedy and a last resort”, ordered only “when the defence of an action is no longer viable and appropriate because the defendant has by its failure or refusal to be bound by the rules and orders of the court effectively abandoned its right to participate in the court process or when the breaches have become contumelious such as to demonstrate an utter disregard by the defaulting party for the court’s orders or when the moving party can demonstrate prejudice.”[^13]

[141] The delay by Dr. Emery in delivering his further and better affidavit of documents since the March 22, 2015 deadline did not cause the adjournment of the March 2, 2015 trial date. That date was lost as a result of the motions by the plaintiff on the trial date to remove NR as lawyer for Dr. Emery and to strike Emery’s defence for obstruction of production and discovery (i.e. production delay prior to the March 2 motion date). Dr. Browne could not proceed to trial without his documents and the plaintiffs wanted Dr. Browne’s evidence supporting his crossclaim against Dr. Emery in order to bolster their own claim against Dr. Emery. Dr. Browne did not have his documents as a result of the failure of NR to give him his file when they went off the record and as a result of their failure to honour their undertaking given at Dr. Browne’s discovery on September 3, 2014 in a timely manner.

[142] Part of the delay after September 3, 2014 arose from Dr. Browne’s obstinate refusal (or as he says, financial inability) to examine the NR file in Toronto or to request delivery of further specific documents from the original 22 page October 2014 file index or simply to request the entire file and advise how he wanted it sent. Although certain specific documents had been requested and were sent, Dr. Browne continued to insist that NR send him what he “needed for his defence and crossclaim”, rather than inspecting and/or requesting further specific documents. I have earlier concluded it was not NR’s responsibility as his former lawyer to determine what Dr. Browne “needed” for his defence and risk giving him inappropriate or incomplete information, particularly in the face of Dr. Browne’s allegations of negligence and conflict of interest. Dr. Browne had assistance from learned U.S. counsel to help him determine what was needed. While admittedly there were deficiencies in the list, largely corrected and added to in the March 18, 2015 O’Brien letter following Justice Firestone’s order, Dr. Browne has continued to insist that NR and Dr. Emery should send him what he needs for his defence.

[143] Although there have been lengthy delays over the course of this litigation and several missed trial dates (and I do not attribute those delays to any one party), Justice Firestone dealt with the delays up to the March 2, 2015 trial date and he determined not to strike Dr. Emery’s defence for obstruction of production and discovery. He determined (in paragraph 24 of his reasons) that there was “no merit to any suggestion that Norton’s has failed to disclose or withheld documents in this case or that they have frustrated the ability of this court to determine the truth of the matters before it.” (It must be remembered that at that time NR were still the lawyers for Dr. Emery.) Justice Firestone concluded: “At no time did Browne bring a motion for this relief either before or after this matter was set down for trial.”[^14]

[144] Nonetheless, Justice Firestone determined that the case was not ready for trial given the outstanding production issues raised.

[145] On June 24, 2015 Justice Firestone set a new trial date for March 13, 2017 and ordered that a case management master be appointed to “deal with the production issues in this action”. There is no reason to believe that a further adjournment of the trial will be necessary because of the production issues raised on this motion or because of Dr. Emery’s late delivery of his further and better affidavit of documents. If it is, the court will look at the steps taken by Dr. Browne and by NR after release of these reasons including, if appropriate, a timely and properly directed motion by Dr. Browne against NR.

[146] I am not satisfied on the evidence before me that the plaintiffs have suffered any non-compensable prejudice as a result of the breach in the deadline for Emery to serve his further and better affidavit of documents. There are no circumstances that amount to serious prejudice and that have arisen since Justice Firestone dismissed a similar motion on March 12, 2015. I am not convinced that a fair trial has been jeopardized as a result of any production delays by Dr. Emery. If the plaintiffs are prejudiced by Dr. Browne not complying with his undertakings, they should be more critical of Dr. Browne for waiting three years from delivery of his notice of intention to act in person before seeking his file from NR (although NR should have taken steps to give it to him when they got off the record) and for failing to bring a motion against NR on the return date before me.

[147] If the plaintiffs or Dr. Browne have suffered prejudice, it resulted from NR failing to comply with its obligations as Browne’s former solicitor, not from Dr. Emery’s late delivery of a further and better affidavit of documents. The failures of NR cannot be visited upon Dr. Emery. Dr. Emery did not owe these production obligations to Dr. Browne. Dr. Emery should not be penalized for NR’s alleged transgressions. As I have said a number of times in these reasons the obligations of NR to Dr. Browne as former counsel are very different from the obligations of Dr. Emery as litigant.

[148] Even if the failures of NR could be said to be the failures of Dr. Emery, since Dr. Emery was for many years a client of NR, continuing after NR went off record for Dr. Browne, it would be wrong in this case to mete out the severest of penalties to Dr. Emery due to the failings of his lawyers. In any event, as I have concluded, the obligations of NR as former counsel to Dr. Browne are very different from the obligations of Dr. Emery as litigant.

[149] Are there deficiencies in the further and better affidavit of documents of Dr. Emery? Most of the complaints, particularly by Dr. Browne, concern the failure to list and deliver, at least to Dr. Browne, the documents over which Dr. Emery has claimed privilege, many of which have been listed in the March 2015 O’Brien letter.

[150] The plaintiffs and Dr. Browne have conflated the obligations of NR and of Dr. Emery to deliver file contents and in particular privileged documents to Dr. Browne.

[151] Emery has every right to assert privilege as against all parties adverse in interest to him in this lawsuit – both the plaintiffs and the defendant Browne who has asserted a crossclaim against him – of all solicitor-client privileged communications among himself, his lawyers and his insurer (including invoices) and all documents created for the dominant purpose of this litigation and over which litigation privilege may be claimed. Dr. Emery does not owe the same obligations to Dr. Browne as NR owes. It matters not that NR, as former solicitor for Browne, has an obligation to produce to Browne documents created for use during the joint retainer that would otherwise be solicitor-client or litigation privileged. That obligation does not transfer to Dr. Emery.

[152] While it may seem somewhat incongruous to say that NR must produce to Browne some of the very documents that Emery need not produce to Browne on the basis of privilege, that is the result in accordance with the order of Justice Firestone and in accordance with the different obligations that a lawyer owes to a former client and that a litigant owes to an adverse party. It is another way of saying that Browne must seek his remedy against NR, not Emery, if any documents to which he is entitled have not been produced.

[153] Mr. Sahian and his firm, who took over representation of Dr. Emery in May 2015, have no obligation to Dr. Browne, or at least no greater obligation than his client Dr. Emery has to Dr. Browne. Mr. Sahian never represented Dr. Browne, either alone or on a joint retainer. He has not inherited the obligations of NR who were the only law firm to have jointly represented Drs. Emery and Browne. It is not a shell game as suggested by Dr. Browne or a game of “hide and seek” as suggested by the plaintiffs. Quite simply the plaintiffs, and to the extent he is “supporting” the plaintiff’s motion, Dr. Browne, are chasing the wrong party for any outstanding productions.

[154] It is unclear to me what if anything is missing from Dr. Emery’s Schedule B. In my view it is unnecessary for Dr. Emery to list each and every privileged letter to and from counsel over the course of this litigation or research memos as set out in O’Brien letter to Dr. Browne. I am in any event told that the plaintiffs, in their affidavits of documents, also failed to list similar individual documents.

[155] It has not been argued by the plaintiffs that there are any deficiencies in the current Schedule A. They do argue that lost documents should be listed in Schedule C, such as the lost hospital records prior to 1991. I am not satisfied on the evidence that Dr. Emery ever had in his “possession” his own clinical notes and records let alone those of the Other Doctors, as they appeared to have been the property of and in the possession of the Montreal General Hospital before the pre 1991 documents were lost, misplaced or destroyed. I am told that the post 1991 records of Dr. Emery were initially produced in this litigation by the Hospital and not Dr. Emery.

[156] The only remaining issue is whether Dr. Emery has complied with the second part of Justice Firestone’s order to produce to the parties, copies of documents over which privilege is not claimed. There is no suggestion that Dr. Emery did not send paper copies of the 14 documents listed in Schedule A of his his original affidavit of documents. The further and better affidavit of documents has 29 documents, including all or most of the original 14 as well as expert reports and documents supporting Dr. Emery’s professional qualifications. It has not been made clear to me whether during this litigation Dr. Emery had sent paper copies of any or all of these additional documents. I have no reason to believe they have not been sent.

The Cloud Production

[157] In any event, as noted, on February 1, 2016, for reasons that are unclear to me, Mr. Sahian took on the task of cataloguing the documents said to be listed in the March 18, 2015 O’Brien letter through a third party service provider (Commonwealth Legal) and made them available respectively to Mr. Legge and Mr. Strothman on an electronic cloud platform called “IPro Eclipse”. Each of Mr. Legge and Mr. Strothman had separate user names and passwords and I am told that Mr. Strothman’s access would have included documents not accessible to Mr. Legge.

[158] At my request on the return of the motion I was also sent, a few days after the motion was heard, a username and password so that I could verify what was made available to the other parties. Unfortunately I was unable to access the documents using Eclipse as it could not be downloaded on my government-controlled computer, even with the assistance of government IT personnel who were in contact with Commonwealth. I was then sent a USB drive said to contain the information. I was told both the cloud documents and the documents on the USB drive were searchable.

[159] With some difficulty I was able to download the documents from the USB drive, however many files consisted of only one page of a document. There appeared to be over 40,000 pages or file numbers, but with no index. I was unable to correlate the documents to the March 14, 2015 listing of documents. I am unable to say whether the problem is my inability to properly search and download the contents or whether the USB drive did not duplicate what was available on Eclipse through the cloud platform or did not have the same search functionality or whether there were simply defects in the creation of the platform.

[160] Through random checks of documents at different locations in the USB drive I have found, for example, numerous medical records as well as indexes, expert reports, transcripts, pleadings, motion materials and settlement conference memos. I did not locate any of the privileged documents, but my failure to locate may not mean they were not there.

[161] Because of my own inability to access the cloud platform and my difficulties downloading the documents off the USB key, it is not clear to me whether all of the documents from Dr. Emery’s affidavit of documents and from Mr. O’Brien’s March 18, 2015 letter can be accessed through Eclipse and if so, by whom. I do not know whether Mr. Sahian took it upon himself to include in Dr. Browne’s access, the documents over which Dr. Emery claimed privilege, but which NR was obliged, as former counsel, to send to Dr. Browne and agreed to send him if he agreed to maintain the privilege. In any event, that was that was an obligation of NR, not Dr. Emery.

[162] It is also not clear whether Mr. Sahian was taking on the task of NR to provide the documents to Dr. Browne in compliance with the order of Justice Firestone as it appears he has purported to do by stating in his February 1 letter that he was cataloguing and making available the documents listed in the March 18, 2015 index. The only obligation on Dr. Emery (and his lawyer Mr. Sahian) pursuant to the order of Justice Firestone was to produce to the parties the relevant documents listed in the affidavit of documents.

Conclusion

[163] In conclusion, and mindful of the different obligations of NR and of Dr. Emery pursuant to Justice Firestone’s March 12, 2015 order, it is my view that Dr. Emery has not shown disdain for or a refusal to be bound by the court’s orders notwithstanding the delay in providing a further and better affidavit of documents long after the deadline set by Justice Firestone. The delay was partly attributable to Justice Firestone’s order six days later removing NR as Dr. Emery’s lawyer. Striking Dr. Emery’s defence is a drastic step to be taken only as a last resort, where the litigant has by his behaviour indicated an inability or unwillingness to comply with the rules of court and court orders. This is not such a case. Dr. Emery cannot be held accountable for the failings of NR to make full and timely production to Dr. Browne. In all the circumstances it would not be appropriate to deprive Dr. Emery of his right to defend this action. I have earlier concluded that the plaintiffs have not been prejudiced by Dr. Emery’s actions, and particularly his late delivery of a further and better affidavit of documents. In my view a fair trial can still be conducted on March 13, 2017.

Going Forward

[164] If Mr. Legge and Mr. Strothman have found success in opening the documents on the cloud platform, and if they are organized in the order of the O’Brien letter and searchable, they should be able to determine whether they have all of the documents to which they are said to be entitled. In the plaintiffs’ case, that would be all the documents in Schedule A of Dr. Emery’s further and better affidavit of documents. In Dr. Browne’s case that would be all the documents in the O’Brien March 18, 2015 letter, other than those that NR declined to produce based on the exceptions in Justice Firestone’s reasons. If any documents are missing that were listed in the further and better affidavit of documents, Mr. Legge and Dr. Browne should contact Mr. Sahian. If any documents to which Dr. Browne is entitled from the March 18, 2015 list, including the privileged documents that NR was obliged to provide to Dr. Browne, Dr. Browne should contact Mr. O’Brien and request copies.

[165] If the documents can be opened using the cloud platform but they are not cross-referenced to the O’Brien list and either the plaintiffs or Dr. Browne are having difficulty in determining which documents are attributable to line items in the O’Brien letter, then clearly the document delivery has been frustrated and it should be improved either by NR, or by Mr. Sahian if he has taken on this task.

[166] If Mr. Legge and Mr. Strothman have been unable to open the documents on the cloud platform, they should first seek assistance from Mr. Sahian’s office and Commonwealth Legal. If it can still not be accessed, and if it involves the Schedule A documents, Mr. Legge and Dr. Browne should advise what documents from Schedule A they do not have and Mr. Sahian should send paper copies, unless the requesting party suggests an alternate platform.

[167] If it involves the documents in the March 18, 2015 letter, Dr. Browne should arrange with Mr. O’Brien to deliver the documents to which he is entitled from the list in a different platform. If they cannot agree on a platform I will resolve the issue at a case conference. Dr. Browne is to either ask for all documents he has yet to receive or list the requested documents. He cannot simply ask for documents “necessary for his defence”.

[168] If there is any dispute as to Dr. Browne’s entitlement to specific documents withheld from him in accordance with the March 18, 2015 list or if NR does not clarify if they have any other correspondence with, reports to or statements from Dr. Emery, the Other Doctors, or their respective insurers, including those created between 1996 and 1999, and produce to Dr. Browne those created or received prior to June 2011, then I will attempt to resolve the issue at a case conference or set a motion date if the parties, acting reasonably, cannot do so. Since there is no motion against NR before me at this time, I make no order against them, although I have made suggestions. If a dispute remains as to documents either not disclosed or not produced by NR, it may be necessary for Dr. Browne to bring his own motion against NR.

A SHORT SUMMARY OF CONCLUSIONS

[169] At the risk of over-simplification, I summarize the conclusions in these reasons as follows:

1. Dr. Emery has, belatedly, served his further and better affidavit of documents and complied with his production obligations pursuant to the March 12, 2015 order of Justice Firestone and he has explained the reasons for delay.

2. Although the explanation for the length of the delay is not completely satisfactory, no non-compensable prejudice arises therefrom and his behaviour was not contumelious. His defence will not be struck for breach of Justice Firestone’s order or for obstruction of production and discovery by his solicitors.

3. Dr. Emery and his current lawyers are not responsible for the separate production obligations of NR which arise out of NR’s position as Dr. Browne’s former lawyer. It is the obligation of NR, not Dr. Emery, to provide Dr. Browne with his file contents, including documents prepared in contemplation of Dr. Emery’s defence. Both the plaintiffs and Dr. Browne have improperly conflated the obligations of Dr. Emery and of NR.

4. Dr. Emery can assert privilege over documents as against Dr. Browne although NR cannot assert that same privilege against Dr. Browne with respect to otherwise privileged documents prepared between 1996 and July 2011 in contemplation of Dr. Emery’s defence for use during the currency of the joint retainer.

5. Dr. Browne, the only party with a right to move directly against NR to comply with its production obligations to him, has failed to bring a motion against NR. This has never been explained. As a result, any suggestions I have made in this endorsement for steps to be taken by NR and any conclusions I have made about NR’s production obligations are tentative and subject to change since NR has had no opportunity to respond to any motion challenging the sufficiency of their productions. As a result no order has been made against NR. If NR disagrees with my conclusions or my interpretation of Justice Firestone’s order, it will be up to Dr. Browne to bring an appropriate motion against NR to determine those obligations.

6. Even if Dr. Browne believed (in my view incorrectly) that Dr. Emery owed production obligations to Dr. Browne that were greater than Dr. Emery’s production obligations to the plaintiffs, Dr. Browne has not brought his own motion against Dr. Emery for the obligations owing to him. He has only “supported” the plaintiffs’ motion.

7. Going forward it is the responsibility of Dr. Browne (a) to ask NR to produce, by document number, specific documents from the March 18, 2015 list that he requests but does not have and the method of production, (b) to ask NR to clarify the meaning of or provide further details of any specific documents or group of documents listed in the March 18, 2015 list, whether disputed or undisputed documents and (c) to challenge the refusal to produce any of the “Disputed Documents” or other documents not listed in the March 18 letter.

8. NR should forthwith respond to any such specific enquiries. NR has no obligation to respond to any request by Dr. Browne to provide him with documents he “requires for his defence and crossclaim”.

9. I have assumed that the reports and invoices by NR to Dr. Emery or his insurer sent between 1999 and 2011 were those listed as items 1 to 7 on page 16 of the March 18 letter and have been produced, and if not, they should be listed and produced to Dr. Browne. Reports between 1996 and 1999 must clearly also be listed, and in my view produced to Dr. Browne, including Document 25 identified as communications among counsel, Dr. Emery and insurer in December 1996.

10. The specific notes and memos referred to as items 5 and 6 of the Disputed Documents should be sufficiently identified so that claims for privilege can be adjudicated if necessary.

11. NR should clearly advise if they have or ever had a summary of Dr. Emery’s evidence, whether in correspondence by or on behalf of Dr. Emery including instructions from his insurer, or in witness or will-say statements or notes of interviews with Dr. Emery and if so copies should be provided to Dr. Browne if prepared or received prior to June 28, 2011 (including the period 1996 to 1999). Notes of interviews with Dr. Emery in my view, do not fall within the work product exception for “entries of attendance” or “inter-office memoranda”.

12. NR should clearly advise if they have or ever had a summary of the evidence of the Other Doctors, whether in correspondence by or on behalf of the Other Doctors including instructions from their insurer, or in witness or will-say statements or notes of interviews with any of the Other Doctors and if so copies should be provided to Dr. Browne. Copies of reports to the Other Lawyers or their insurer must also be produced by NR to Dr. Browne. If NR had opened one or more separate files for the Other Doctors the contents should be listed and produced or reasons given for withholding production.

13. In my view, any evidence, documents or summaries of evidence of Dr. Emery or the Other Doctors prepared in contemplation of the defence of Dr. Emery and the Other Doctors that may have been obtained or received prior to, but still in existence at the commencement of the joint retainer in 1999 and contemplated for continued use after 1999 in the defence of Dr. Emery and the Other Doctors, together with reports to client prior to the joint retainer should be provided to Dr. Browne.

14. If there are problems accessing the Cloud productions through Ipro Eclipse or if the documents downloaded from the Cloud cannot be easily identified as specific items listed in the March 18, 2015 letter, it will be the responsibility of NR, or Mr. Sahian if he has taken on the responsibility, to ensure that production of the documents from that list to which the plaintiffs and Dr. Browne are separately entitled, are delivered electronically or in hard copy as may be requested. All documents should be properly numbered to correspond to document numbers in the March 18 list. Even if Mr. Sahian has taken on the production task, he has no obligation to produce privileged documents to Dr. Browne (or the plaintiffs).

15. If, despite all parties working reasonably and co-operatively in accordance with these reasons, the plaintiffs or Dr. Browne have not received all documents to which they are entitled, or if disputes remain over Disputed Documents or documents not yet listed, I will attempt to resolve the issues, document by document, at a case conference convened for that purpose at the request of any party or at a motion brought by Dr. Browne if that is more appropriate.

16. Only Dr. Browne can bring a motion for relief against NR. Any motion for production of items in the March 18, 2015 list, whether or not privilege is claimed, must be made against NR.

COSTS

[170] I received costs outlines from the parties at the conclusion of the hearing. Although Dr. Emery was successful in defeating the motion to strike his defence, in my view he should not get his costs given that it was his delay in complying with Justice Firestone’s order that in part necessitated the bringing of the motion. Given that both the plaintiffs and Dr. Browne have continued to conflate the obligations of Dr. Emery and NR thereby increasing the complexity and costs of this motion and that a significant portion of the materials for and time spent at the hearing of this motion was concerned with the obligations of NR, against whom no motion was brought, neither the plaintiffs nor Dr. Browne should get their costs. NR was not a party to the motion and no costs should be awarded in favour of or against NR.

ORDER

[171] I hereby order as follows:

(1) The motion to strike the defence of Dr. Emery for failure to comply with the order of Justice Firestone dated March 12, 2015 to provide a further and better affidavit of documents within 10 days and for obstruction of production and discovery by Dr. Emery’s solicitors is dismissed.

(2) If the parties acting reasonably and in accordance with these reasons are unable to resolve any specific production issue, any party may contact me to convene a case conference to discuss the specific productions in issue and if necessary to book a motion for rulings on the disclosure or production of specific documents.

(3) There shall be no costs of this motion to any party.

Master R. Dash

DATE: May 18, 2016

[^1]: Although I refer to Drs. Emery and Browne as dentists, they were actually dental surgeons accredited as specialists in oral surgery. I refer to them interchangeably as “doctors” or “dentists” in this endorsement.

[^2]: At the time of initial retainer, the law firm retained was Ogilvie Renault, but in 2011 Ogilvie Renault merged with and became part of Norton, Rose Fulbright LLP. All of the events in issue related to this motion occurred during and after the lawyers of record became Norton, Rose Fulbright LLP.

[^3]: Dr. Browne became a medical doctor in Minnesota and is hence still referred to as Dr. Browne.

[^4]: Dr. Emery on the other hand does not plead or otherwise suggest that Dr. Browne is responsible for the plaintiff’s problems. He merely asserts that he (Dr. Emery) did not breach his own standard of care.

[^5]: This was a third day of examination. He had been previously examined for two days in 1999.

[^6]: Mr. Strothman’s email to Craig O’Brien of NOP of October 11, 2014.

[^7]: I have not been told about the results of the summary judgment motion by Dr. Browne, but a review of the case history indicates that a summary judgment motion in writing was dismissed on January 8, 2015.

[^8]: This was not the first trial date lost. I do not have details as to why the trial dates set for April 2012 and October 2014 were lost although it appears the latter adjournment may have arisen from Dr. Browne’s amending his defence to include a crossclaim as well as the production issues.

[^9]: Reported as Bulloch-MacIntosh v. Browne, 2015 ONSC 1587

[^10]: I discuss later in these reasons whether Justice Firestone’s reference to documents prepared in contemplation of Emery’s defence “during the currency of Dr. Browne’s retainer” included or precluded documents created while NR represented Emery prior to the commencement of the joint retainer in 1999.

[^11]: Reported as Bulloch-MacIntosh v. Browne, 2015 ONSC 1622

[^12]: Rule 37.02(2)(b) prohibits me, as a master, from varying the order of a judge.

[^13]: Eloro Resources Ltd. v. Sovereign Capital Group (Ont) Ltd., 2004 CanLII 14047 (ON SC), 2004 O.J. No. 387 (SCJ – Master) at para. 6

[^14]: I note the similarity with my own conclusion that Browne has still not brought a proper motion for the production relief he is seeking, which motion must be brought directly against NR.