OSHAWA COURT FILE NO.: FC-13-1970-00
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Deborah Spicer, Applicant
and
Dwain Spicer, Respondent
BEFORE: The Honourable Madam Justice S. J. Woodley
COUNSEL: George R. Vella for Applicant
Joshua J. Gleiberman for Respondent
HEARD: January 28, 2016
ENDORSEMENT
I - OVERVIEW
1This family law matter was scheduled to be heard at the November 2015 trial sittings and was adjourned on consent to the May 2016 trial sittings.
2The Respondent father has brought a motion for an order quashing two Summons to Witness issued by the Applicant mother with respect to the following witnesses:
a. Dr. Charles T. Rosen, summons dated October 23, 2015; and
b. David Barrison, summons dated October 28, 2015.
3The Respondent father claims that the evidence of each witness is protected by privilege: doctor/patient confidentiality (in the case of Dr. Rosen) and solicitor/client privilege (in the case of Mr. Barrison).
4The Applicant mother claims that the Respondent has “ostensibly waived solicitor/client privilege” through sworn statements introduced by the Respondent that summarize alleged legal advice provided by Mr. Barrison regarding the Respondent’s admitted sale of Oxycodone.
5As for the evidence of Dr. Rosen, the Applicant mother claims that the primary purpose of providing a summons to Dr. Rosen is to obtain the remainder of the Respondent’s prescription drug records that have not already been provided. The Applicant submits that the secondary purpose of providing a summons to Dr. Rosen is to determine the basis upon which the Respondent’s Oxycontin prescriptions were increased over time, whether it was by empirical investigation or statements made to Dr. Rosen by the Respondent. Thirdly, the Applicant wishes to confirm that changing the prescription format from Oxycontin to Oxyneo will not prevent the abuse of the drug or eliminate the ability of the Respondent to continue to sell the drug.
6At the close of argument, the Respondent advised that he consented to the release of his prescription records issued by Dr. Rosen for the periods not already provided (namely, November 1, 2008 to February 9, 2011 and August 26, 2015 to date) and as requested by the Applicant. In view of this concession, the Applicant’s arguments regarding the necessity of continuing the summons issued to Dr. Rosen are limited to the secondary and third purposes noted above.
II - ISSUES
7Pursuant to r. 24(9) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, is the Respondent entitled to an order quashing the Summons to Witness issued by the Applicant with respect to the following witnesses:
a. Dr. Rosen, summons dated October 23, 2015; and
b. Mr. Barrison, summons dated October 28, 2015.
III – DETERMINATION OF ISSUES
8For the reasons provided below, I find as follows:
a. An Order will issue directing the release of the Respondent’s prescription records issued by Dr. Rosen for the periods November 1, 2008 to February 9, 2011 and August 26, 2015 to date. An Order will issue quashing the Summons to Witness issued by the Applicant with respect to Dr. Rosen, dated October 23, 2015; and
b. The Summons to Witness issued by the Applicant with respect to Mr. Barrison, dated October 28, 2015, shall stand and the request to quash the Summons is dismissed.
IV – ANALYSIS
A – Summons to Witness for Mr. Barrison
9With respect to solicitor client privilege, it is a fundamental principle of law that the privilege belongs to the client, not to counsel, and that only the holder of the privilege can waive it. A voluntary waiver of privilege is one that is deliberate and knowing. However, waiver can also be implied where fairness demands it. An implied waiver always requires some intent to waive the privilege, if only to a limited extent. Where privilege has been waived even to a limited extent, the law requires that in fairness and consistency, it is entirely waived.
10The reasoning behind waiver by implication and rejection of partial disclosure is that a party cannot be allowed to disclose only that portion of communication that could advance their position but mislead the other party. As such, full disclosure will be ordered in circumstances where fairness requires it.
11Before a judge can find that a witness has implicitly waived privilege, the opposing party must show that the witness intended to waive the privilege, at least to a limited extent. Where partial disclosure would be misleading, fairness and consistency require that the witness be deemed to have waived privilege over the entire document.
12The common rationale is best summarized by Brown J. in R. v. Fast, 2009 BCSC 1671, 202 C.R.R. (2d) 356, at para. 55, as follows:
[A]n accused cannot put privileged communications in issue and then attempt to prevent their disclosure by claiming that the communications are privileged. By relying on the privileged communications in some way, the accused has demonstrated an intention to waive that privilege to some extent. Trial fairness and disposition of the matter on its merits then entitle the opposing party to see the privileged document tor communications the witness has put in issue in or to assess the validity of the witness’s reliance on it through cross-examination.
13A witness can implicitly waive privilege through their conduct by putting the legal advice they received in issue, by relying on a privileged report in advancing their defense or by testifying about privileged communications during direct examination. The guiding principles in an inquiry about whether privilege has been waived must be fairness and consistency. See S. & K. Processors Ltd. v. Campbell Ave. Herring Producers Ltd., 1983 CanLII 407 (BC SC), [1983] 4 W.W.R. 762 at para. 10; R. v. Fast, at paras. 39-43, 54-55; R. v. Chan, 2002 ABQB 753, 325 A.R. 208, at para. 102.
14The Respondent argues that mere disclosure of the receipt and reliance upon legal advice is not sufficient to give rise to a waiver of privilege. The issue is whether the Respondent has opened an inquiry into whether the legal advice effected his state of mind, thereby waiving his privilege in that legal advice.
15The jurisprudence is clear; in the majority of cases, placing state of mind at issue will not amount to waiver. However, where a party has placed its state of mind at issue and given evidence that it received legal advice which, in part, formed the basis of that state of mind, the distinction between state of mind and the legal advice giving rise to it cannot be maintained. See Leggat v. Jennings, 2015 ONSC 237, 65 C.P.C. (7th) 410, aff’d 2015 ONSC 6363, 2015 CarswellOnt 15710 (Div. Ct.), at paras. 33-34, 41 and 44.
16As Perell J. held in Creative Career Systems Inc. v. Ontario, 2012 ONSC 649, 27 C.P.C. (7th) 172, at para. 30:
[A] deemed waiver and an obligation to disclose a privileged communication requires two elements; namely: (1) the presence or absence of legal advice is relevant to the existence or non-existence of a claim or defence; which is to say that the presence or absence of legal advice is material to the lawsuit; and (2) the party who received the legal advice must make the receipt of it an issue in the claim or defence.
17With respect to Mr. Barrison I find that the evidence filed by the Respondent makes it clear that the circumstances of disclosure are more than sufficient to support a conclusion of express and/or implied waiver.
18The Respondent father provided several sworn statements in the course of the proceeding that put privileged communications with Mr. Barrison in issue. The nature of the legal advice provided was raised by the Respondent as a defense to explain his failure to seek access to his child. Access is a material issue in the proceedings.
19The Respondent cannot now attempt to prevent disclosure by claiming that the communications are privileged. Trial fairness and disposition of the matter on its merits entitle the Applicant to explore the communication with Mr. Barrison put in issue by the Respondent.
20For the purposes of this motion, the Summons to Witness issued to Mr. Barrison shall stand and the Applicant shall be entitled to explore the communications between the Respondent and Mr. Barrison summarized in the Respondent’s sworn statements filed in this proceeding. The issue as to whether waiver of privilege applies to any other communications between the Respondent and Mr. Barrison shall be determined (if necessary) by the trial judge.
B – Summons to Witness for Dr. Rosen
21Where privilege has been established, the party seeking to set it aside bears the onus of demonstrating why it would be appropriate to do so in the circumstances. See Smith v. Jones, 1999 CanLII 674 (SCC), [1999] 1 S.C.R. 455, at para. 46; Nova Chemicals v. CEDA-Reactor Ltd., 2014 ONSC 3995, 2014 CarswellOnt 9401, at para. 42.
22Further, in family matters, the test for maintaining a summons to witness is the likelihood that the witness would have material evidence. As Kukurin J. wrote in Children’s Aid Society of Algoma v. H.(L.) 1996 CanLII 7942 (ON CJ), at para. 26, “given that “the issuance of such a summons is an administrative act, and a compulsory one at that, [the “likelihood of material evidence” onus] would come into play when a challenge was made to the summons.”
23In the circumstances I see no reason to find that there has been a waiver of privilege with respect to the summons issued for Dr. Rosen. The prescription records obtained in the proceeding were pursuant to a court order and the Respondent has now consented to production of the remaining prescription records sought by the Applicant. The secondary and third purposes for the issuance of the summons do not necessitate the attendance of Dr. Rosen, as the information is self-evident and otherwise obtainable from other physicians.
V - ORDER
24In the circumstances therefore I hereby Order as follows:
a. The Respondent is hereby ordered to direct Dr. Rosen to release to the Applicant a complete listing of the Respondent’s prescription records issued by Dr. Rosen for the periods November 1, 2008 to February 9, 2011 and August 26, 2015 to date;
b. The Summons to Witness directed to Dr. Rosen issued by the Applicant on October 23, 2015 is hereby quashed;
c. The Summons to Witness directed to David Barrison issued by the Applicant on October 28, 2015 shall stand and the Respondent’s request to quash the summons is dismissed;
d. The extent to which the Respondent has waived privileged communications with Mr. Barrison, beyond that contained in the Respondent’s affidavits filed in the course of this proceeding, shall be determined by the trial judge; and
e. If the parties are unable to agree on costs they may file submissions of not more than two pages in length with Bills of Costs attached within 30 days of the date herein, failing which there shall be no order as to costs.
Justice S. J. Woodley