Belanger et al. v. Algoma Condominium Corporation No.1

[Indexed as: Belanger v. Algoma Condominium Corp. No. 1]

Ontario Reports

Ontario Superior Court of Justice,

Rasaiah J.

June 16, 2016

132 O.R. (3d) 394 | 2016 ONSC 3845

Case Summary

Civil procedure — Production of documents — Privilege — Plaintiff seeking to amend statement of claim to withdraw admission that he resigned from his employment with defendant — Plaintiff claiming that he told his counsel that he was terminated and that counsel made drafting error in pleading — Plaintiff waiving solicitor-client privilege by putting his communications with counsel on how his employment ended in issue — Defendant entitled to production of notes, records and information pertaining to what plaintiff told counsel about that subject.

The plaintiff brought a motion for leave to amend his statement of claim to withdraw an admission that he resigned from his employment with the defendant. The plaintiff claimed that he told his counsel that he was terminated and that counsel made a drafting error in the pleading. The defendant brought a motion for an order for production of all notes, records and information provided for or on behalf of the plaintiff to his counsel which formed the basis for the preparation of the statement of claim.

Held, the motion should be granted in part.

The plaintiff's motion to amend his pleading, and the statements he made in his affidavit in support of that motion, had put into issue the information and instructions that he gave his counsel that led to the admission in the statement of claim that he resigned. The plaintiff had therefore waived solicitor-client privilege in relation to what had been put into issue. However, the request made by the defendant was overreaching in that it extended beyond direct communication between the plaintiff and his counsel and included information from others. The defendant was entitled to production of all notes, records, information and facts pertaining to what the plaintiff told his counsel and/or her staff about how his employment ended.

Cases referred to

Iozzo v. Weir, [2004] A.J. No. 395, 2004 ABQB 259, 31 Alta. L.R. (4th) 184, 356 A.R. 115, 25 C.P.C. (6th) 226, 130 A.C.W.S. (3d) 264, 2004 CarswellAlta 614; Land v. Kaufman, [1991] O.J. No. 1658, 1 C.P.C. (3d) 234, 29 A.C.W.S. (3d) 270 (Gen. Div.); Souter v. 375561 B.C. Ltd., 1995 CanLII 843 (BC CA), [1995] B.C.J. No. 2265, 130 D.L.R. (4th) 81, [1996] 3 W.W.R. 598, 66 B.C.A.C. 19, 15 B.C.L.R. (3d) 213, 59 A.C.W.S. (3d) 397 (C.A.) [page395]

MOTION for an order for production of documents.

Mick Hassell, agent for Catherine Boivin-Girard, counsel for plaintiffs.

Hugh N. MacDonald, for defendant.

RASAIAH J.: —

Overview

[1] The defendant brought a motion returnable June 9, 2016 ("defendant's motion") for an order for production of all notes, records and information provided by or on behalf of the plaintiff Louis Belanger (herein referred to as the "plaintiff") to his legal counsel and her staff providing the information upon which the statement of claim in these proceedings was prepared.

[2] This motion arose as a result of a motion brought by the plaintiff which was returnable May 12, 2016 ("plaintiff's motion"), by which the plaintiff is moving for leave to amend his statement of claim to withdraw what the defendant submits is a key admission, namely, that the plaintiff resigned from his employment with the defendant. The plaintiff claims that the plaintiff told his counsel that he was terminated and that a drafting error in the pleading had been made by his counsel.

[3] The defendant takes the position that the admission, namely, that the plaintiff resigned, is a crucial admission.

[4] The defendant does not accept that the plaintiff told his counsel that he was terminated and/or there was a drafting error made by his counsel and, as such, will be opposing the plaintiff's request to amend his statement of claim. In addition, on the basis that the key witness, James Myers, former president and board member of the defendant who was involved in the alleged resignation discussions with the plaintiff died June 25, 2014, the defendant will be arguing at the hearing of the plaintiff's motion that the defendant will suffer prejudice if this admission is permitted to be withdrawn.

[5] Prior to bringing the within motion, the defendant asked for the above-noted productions to be made and the request was refused by plaintiff's counsel.

Law

[6] The defendant referred me to Land v. Kaufman, [1991] O.J. No. 1658, 1 C.P.C. (3d) 234 (Gen. Div.). The facts of the Land case included the plaintiff seeking to amend her statement of claim to withdraw certain admissions made therein. In support of the motion, the plaintiff's solicitor filed an affidavit [page396] stating that she misunderstood the client's instructions. During a cross-examination, refusals were made, namely, answering questions regarding the instructions received from the plaintiff. Justice Salhany, at para. 18, wrote:

The real issue, as I see it in this case, is whether the privilege has been waived by the filing of her affidavit in support of the motion. I think it has. By averting to communications made by the plaintiff to her, the solicitor has waived the privilege.

[7] In para. 19 of the Land case, Justice Salhany wrote:

In my view, it would cause injustice and unfairness to allow the solicitor for one side to plead that he or she misunderstood the client's instructions and then be permitted to hide behind solicitor/client privilege when the other side seeks to explore whether there is any merit to that claim of misunderstanding.

[8] The defendant referred to Iozzo v. Weir, [2004] A.J. No. 395, 2004 ABQB 259. In this case, the defendants alleged that they had made an admission in error and the error was made by their counsel. Justice Slatter wrote, in para. 21:

. . . privilege is lost over any communication that has a relevant and material connection to the issue being brought forward.

[9] In Iozzo, Justice Slatter expressed his view that the same principle applies when the alleged error is in a pleading. Further, at para. 23, he wrote:

Where a party indicates that an admission was made in error, and the error was the doing of counsel, then in my view privilege is lost over all communications relevant to any of the parts of this test. Therefore, communications as to "how the mistake was made" are relevant, as they go to whether the mistake was advertent or inadvertent. Communications over "who is a shareholder" are relevant as they go to show whether there was a mistake and whether there is a triable issue.

[10] In Iozzo, Justice Slatter referred to Souter v. 375561 B.C. Ltd., 1995 CanLII 843 (BC CA), [1995] B.C.J. No. 2265, 130 D.L.R. (4th) 81 (C.A.), in which the B.C. Court of Appeal wrote, at para. 22:

It does not require extended discussion to conclude that when a party identifies his solicitor as responsible for a material mistake in an affidavit sworn by that party and claims solicitor-client privilege in respect to his knowledge and that of the solicitor, he is using the confidentiality protected by the privilege as a sword rather than as a shield.

Issues

[11] There is no dispute that solicitor-client privilege deserves strong protection but is not absolute. It can be waived or lost.

[12] There is no issue that what the defendant seeks to obtain is protected by solicitor-client privilege. [page397]

[13] The issues on the defendant's motion are

(a) whether or not the Plaintiff waived/lost solicitor-client privilege, and

(b) if so, over what . . . namely, should the Plaintiff's solicitor be required to produce all notes, records and information provided by or on behalf of the Plaintiff Louis Belanger to his legal counsel and her staff providing the information upon which the Statement of Claim in these proceedings was prepared?

Analysis

[14] I am of the view that the information and instructions that the plaintiff gave to his counsel that led to the admissions that he resigned in his statement of claim have been put into issue by the plaintiff's motion to amend his pleading.

[15] The statement of claim was issued March 19, 2014.

[16] Paragraph 34 of the grounds in the plaintiff's' motion record sets out that over a year later, after discoveries, on August 24, 2015, the plaintiff's solicitor noticed that she inadvertently pled, at para. 76, that the plaintiff had resigned.

[17] Paragraph 41(g) of the grounds in plaintiff's motion record submits that the amendments to the plaintiff's pleadings ought to be granted for reason that there was a drafting error made by the plaintiff's solicitor.

[18] The plaintiff, in paras. 9 and 10 of his affidavit, found, at tab C1 of the plaintiff's motion record, in support of the allegation of error, directly puts before the court his conversation with his counsel, namely, his intake interview, at which time he says he advised her that his employment had been terminated. He further directly puts before the court the drafting of the statement of claim, that his counsel drafted his statement of claim and that in error his counsel wrote that he had resigned. In para. 19 of his said affidavit, he reiterates a drafting error was made by his counsel.

[19] The plaintiff's counsel acknowledged a limited waiver of solicitor-client privilege. Page 36, of the defendant's motion record is a letter from plaintiff's counsel wherein she sets out her view on the request for her intake notes and additional documents involving communication between her and the plaintiff, namely, that the motion materials served on defendant's counsel are complete and that the plaintiff has only waived lawyer-client privilege to the extent expressed in the materials that have already been provided to defendant's counsel.

[20] However, the affidavit of Christopher Jones, an employee of Hassell Trial Counsel sworn June 2, 2016, para. 16, states that he is advised by Mick Hassell and verily believes that the plaintiffs do not waive lawyer-client privilege. [page398]

[21] Notwithstanding Mr. Jones' affidavit and plaintiff's counsel's said letter, I am of the view that the plaintiff has waived/lost solicitor-client privilege as a result of what he has put in issue in his motion to amend his pleading and as a result of the statements he made in his affidavit filed in support of his motion.

[22] While I am in no way determining the plaintiff's motion, the defendant's positions on the plaintiff's motion regarding the errors claimed, and prejudice, are positions that may be put forward for the court's consideration on the hearing of the plaintiff's motion.

[23] Whether or not there has been an obvious error in the statement of claim made by plaintiff's counsel is not for me to decide.

[24] It is open for the defendant to argue on this production motion that setting out erroneously that the plaintiff resigned may constitute a material mistake by counsel, looking at the pleadings filed. What is clear from the statement of claim as it is currently drafted, that is relevant to this motion, is that both constructive dismissal and wrongful dismissal are claims being made by the plaintiff. The statement of claim has many references to resignation in the context of the plaintiff and constructive dismissal. There is more than one statement regarding resignation. In addition to para. 76, para. 42 refers to an intolerable work environment that prompted the plaintiffs to resign out of sheer protection. Both plaintiffs' names are used individually in para. 42.

[25] Employment Insurance ("EI") records were filed on this motion. While I do not by this decision purport to decide what the EI records establish, which will be a matter for the trial judge, I acknowledge it is arguable that the plaintiff may have initially indicated that he submitted his notice to his employer (the defendant) . . . namely, that he resigned. The EI records at this stage demonstrate inconsistency with the explanation of drafting error and therefore open the issue for testing the explanation advanced by the plaintiff and merit to claim of error.

[26] For purposes of this motion, I find it is not incorrect to say that the EI records show inconsistency in the plaintiff's position as to how his employment ended and that his position seemed to have changed when he wanted to change from a sick benefits claim to a regular claim. For purposes of this motion, it is not unfair to say that the plaintiff's alleged statements to EI are recorded as evolving from stating that the plaintiff gave his notice, to the plaintiff stating that he told the employer he may [page399] have to resign, to the plaintiff stating that he refused to resign and, if not for his injury, he would still be working.

[27] The plaintiff raises the issue of legal advice in respect of the EI records. I do not know whether or not the plaintiff understood his legal rights when he spoke to the EI personnel which the plaintiff asks the court to consider. Such evidence is not before the court and, as such, I do not consider this in this context.

[28] I further do not agree that the defendant's request for productions as set out by the motion is tantamount to cross-examination as suggested by the plaintiff. It is a production issue in my view. The productions being requested are documents relevant to a matter in issue to be decided by the justice who will hear the plaintiff's motion, namely, whether or not the court should permit the amendment the plaintiff is seeking; whether or not a reasonable explanation has been furnished; whether or not the plaintiff was, as submitted by the defendant, "blowing hot and cold"; and whether or not the plaintiff should be permitted to do so in this particular case. The request for productions further goes to "how the mistake was made" and whether the mistake was inadvertent. As such, in my view, it would be unfair for the defendant not to have some production on this issue.

[29] I do not agree that the denial of para. 76 of the statement of claim in para. 2 of the statement of defence undermines the defendant's motion as suggested by the plaintiff. I accept, on reviewing the statement of defence, para. 11, that the issue of resignation was pleaded and clarified by the defendant; and that the denial was related to the accuracy of the resignation particulars as set out in para. 76 of the statement of claim, namely, that the date of resignation according to the defendant was not March 2, 2013, but March 31, 2013.

[30] I do not agree that the fact that the plaintiff's aforementioned affidavit was commissioned by the plaintiff's counsel should end the inquiry and preclude the defendant from having further information on the plaintiff's explanation of error made by his counsel, based on all of the above, including the EI records.

Order

[31] Any order made for production is for the relevant material subject matter of the waiver on the issue being brought forward.

[32] The request made by the defendant, in my view, is overreaching, in that the request extends beyond direct communication between the plaintiff and his counsel. It extends to [page400] information from others, which in this case may include the other plaintiff who has not waived her solicitor-client privilege in any way. Mr. Belanger's waiver does not amount to a waiver for the other plaintiff.

[33] On the material provided, I am not able to determine what, if anything, the other plaintiff provided by way of information or instruction on behalf of Mr. Belanger. It may also be that such information may also apply to this other plaintiff.

[34] In the context of the facts of this case, the issue being brought forward, and the communicated position of the defendant on the plaintiff's motion, in my view, it is the direct communications that are relevant and material to the waiver.

[35] Based on all of the above, and the issue raised by the plaintiff's motion to amend and the plaintiff's statements in his said affidavit, I am of the view that privilege is lost in respect of the information and facts that the plaintiff Louis Belanger directly provided to and were recorded by his counsel and/or staff in his intake interview regarding how his employment ended, and any instructions or communications he had with his counsel and/or staff in relation to the preparation of the statement of claim regarding how his employment ended.

[36] Accordingly, I order that

(a) all notes, records, information and facts pertaining to what the plaintiff Louis Belanger communicated to or provided to his legal counsel and/or her staff in his intake interview regarding how his employment ended; and

(b) all notes, records and information regarding any instructions or communications the plaintiff Louis Belanger had with or gave to his counsel and/or her staff regarding the preparation of the statement of claim in relation to how his employment was ended

shall be produced to the defendant.

Motion granted in part.

End of Document