Court File and Parties

COURT FILE NO.: CV-13-5612-00 DATE: 2016 11 28 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MAQSOOD DIN and FAIZA DIN, Plaintiffs AND: DAVID R. RICHMON and FUTERMAN PARTNERS LLP (Formerly known as Futerman & Futerman), Defendants

BEFORE: EMERY J.

COUNSEL: Hilik Y. Elmaliah and Jeremy Syrtash, for the Plaintiffs Jennifer L. Hunter, for the Defendants

HEARD: August 29, 2016

Endorsement

[1] The plaintiffs in this action are the parents of a young girl, Niza, who suffered brain damage when certain doctors and a hospital allegedly failed to properly diagnose and treat her for Staphylococcal pneumonia in 2001.

[2] The plaintiffs commenced an action on March 12, 2002 (the “underlying action”) against the doctors and hospital seeking damages of $10,000,000 for Niza, and damages for themselves and their two other children under the Family Law Act. Jack Futerman, and later David Richmon of the law firm Futerman and Futerman represented the plaintiffs in that action until October 2007.

[3] In 2006, the plaintiffs released their claims under the Family Law Act derived from their daughter’s claim for medical malpractice against the hospital where Niza had been diagnosed and treated on the advice of those lawyers.

[4] In addition to releasing their own claims against the hospital, the mother Faiza Din also agreed to dismiss the claim she had commenced for Niza against the hospital as her litigation guardian, without costs. However, because Niza was a minor, court approval was required to give effect to the dismissal of Niza’s claim as a settlement. That court approval was never sought or obtained.

[5] Shortly after the plaintiffs were advised in 2007 by the lawyers who had commenced the underlying action that the plaintiffs should settle that action by releasing the doctors as well, the plaintiffs retained Sommers & Roth as their new lawyers. Sommers & Roth represented the plaintiffs, their daughter Niza and the two others children from that time forward to continue the malpractice action.

[6] Three weeks into the trial in 2011, Sommers & Roth settled Niza's claim against the hospital for approximately $8.5 million, with a dismissal against the doctors. However, because the plaintiffs had released their Family Law Act claims against the hospital in 2006, they were foreclosed from any claim they had made as plaintiffs in their own right.

[7] The plaintiffs commenced this action in 2013 to seek damages for negligence against their former lawyers for the claims they had given up against the hospital in the underlying action. In addition taking the malpractice action to trial as their counsel, Sommers & Roth represent them in this action against the defendant solicitors.

The Motions

[8] There are two motions before this court in the solicitor negligence action. The defending solicitors have brought the first motion for an order that the plaintiffs serve a further and better affidavit of documents to include the file developed by Sommers & Roth over the course of representing Niza and the plaintiffs from the time they were retained until the settlement of the underlying action.

[9] The second motion is brought by the plaintiffs to strike certain paragraphs in the statement of defence that plead the negligence action is statute barred. I have addressed this motion first as no evidence shall be considered on a motion of this nature. However, as is often the case, the result on the first motion often informs the result of the motion that follows.

Motion #1: To strike paragraphs 37, 38 and 39 of the statement of defence

[10] The plaintiffs move for an order under rule 21.01 (1) (a) to strike paragraphs 37, 38 and 39 from the statement of defence. These paragraphs raise that defence under the Limitations Act, 2002 that this action was commenced out of time.

[11] No evidence is admissible on the motion under rule 21.01(1)(a), without leave of a judge or on consent. The word “admissible” makes this rule evidentiary in nature. As the rule is evidentiary, the court may disregard evidence that is given for any other purposes if that evidence is inadmissible on the basis for which it is submitted.

[12] This is one of those motions where evidence has already been given by the parties with respect to other relief. To be true to the policy reasons behind the no evidence rule, I intend to refer only to the relevant pleadings to determine this motion.

[13] The principles most frequently cited on motions brought under Rule 21.01(1)(a) emanate from Hunt v. T & N, [1990] 2 S.C.R. 959. In particular, the question must be decided on the premise that all allegations of material fact be treated as proven for the purpose of the motion, and that the pleading shall not be struck unless it is “plain and obvious” that the pleading or an inherent part of that pleading discloses no cause of action or defence.

[14] On this motion, no request was made for the court to grant leave to consider evidence, and no consent was given for the parties to refer to evidence on this motion. Therefore, I refer only to the statement of defence.

[15] The paragraphs that the plaintiffs asked the court to strike from the statement of defence read as follows:

37. The Defendants state that, sometime between October 2007 and July 2009, the Plaintiffs received legal advice from their lawyers at Sommer + Roth that the legal advice provided by Mr. Richmon with respect to the dismissal of the Action against William Osler fell below the standard of care expected of a reasonable lawyer and that they should not have agreed to abandon those claims. The Defendants state that as of the date that advice was provided to the Plaintiffs they knew or ought to have known they had a potential cause of action against the Defendants for solicitor’s negligence arising out of their representation of the Plaintiffs.
38. The Defendants state that, in light of the above, the limitation period applicable to the Plaintiffs’ claims in this action arose in October 2007 or no later than December 2009. As such, the limitation period expired prior to the commencement of this action and it is therefore statute barred. The Defendants plead and rely upon the provisions of the Limitations Act, 2002, S.O. 2004, C. 24.
39. The Defendants therefore submit that this action be dismissed with costs payable to them on a substantial indemnity basis.

[16] As this court must make a ruling on the pleading of the defendants without reference to any evidence, it is difficult to determine if there is a reasonable basis for the plaintiffs to argue that they could not have reasonably discovered the claim when the new lawyers were retained in 2007.

[17] It is equally difficult for the defendants to defend themselves on that basis without the disclosure of the plaintiffs’ file requested on the defendant’s motion. On a motion under rule 21.01, it would be improper to make a determination as though it were a motion for summary judgment on evidence: see Leadbetter v. Ontario (2001), 16 C.P.C. (5th) 119 (Gen. Div.). I can only determine if the defence is almost certain to fail, and that it is plain and obvious that it should be struck.

[18] The statement of defence contains the following allegations of material fact relevant to this motion:

1. The underlying action against the physicians and the hospital where the plaintiff’s child was treated were named as defendants in the statement of claim in that action. That statement of claim contained particulars of negligence with respect to the care provided to Niza by the physicians, who are independent contractors, and the nurses employed by the hospital.
2. Examinations for discovery were completed during March 2003 and November 2004. The statement of defence alleges that during those examinations, the plaintiffs gave evidence that there was no loss of income claim on behalf of Faiza Din and that the loss of income claim on behalf of Maqsood Din was limited to the time when Niza was in the hospital for approximately 10 weeks.
3. Mr. Futerman retained two additional medical experts who reviewed Niza’s medical records and prepared written reports. While these written reports were critical of the medical care provided by the physicians, those reports did not mention any concern regarding the nursing care provided to Niza or any institutional failure by the hospital to provide her with care.
4. In March 2006, Mr. Richmon assumed carriage of the file as Mr. Futerman planned to retire from the practice of law. Upon assuming carriage, Mr. Richmon reviewed the file, including the reports authored by the medical experts that Mr. Futerman had engaged. Mr. Richmon also retained a new expert, Dr. Michael Weinstein and a nursing expert, Margaret Wood, each of whom reviewed the file and discussed their opinion with Mr. Richmon.
5. Paragraph 13 of the statement of defence reads as follows:

13. Dr. Wood is a well-known expert frequently retained by counsel to provide standard of care opinions regarding nursing care in medical legal actions. Prior to 2006, she had been qualified by the Court on several occasions to give expert evidence. Following her review, Dr. Wood advised Mr. Richmon that it was her opinion that the nurses’ assessments, documentation, interventions and communications with the physicians met the standards expected in situations of this type.

6. Paragraph 14 of the statement of defence then reads:

14. Dr. Weinstein is a paediatrician who, as of 2006, was practicing at the Hospital for Sick Children in Toronto. Following his review, Dr. Weinstein advised Mr. Richmon that, in his expert opinion, the care provided by the physicians at William Osler met the standard of a reasonably prudent physician. Furthermore, Dr. Weinstein was of the opinion that Niza had suffered a rapidly progressive infection that is uncommon and has a high mortality even with appropriate initial management. He advised Mr. Richmon that whether earlier treatment might have led to a different outcome could not be definitively answered. He stated that medical literature and personal experience would say it is entirely possible, if not likely, that antibiotics given 6 hours earlier would not have led to any difference in outcome.

7. Mr. Richmond met with the plaintiffs in September 2006 to discuss the opinions he had received from Dr. Wood and Dr. Weinstein. At that time he advised them of the risk of continuing the action as against the hospital in the absence from an expert that the treatment provided by the hospital staff fell below the required standard of care. The defendants alleged that upon being advised of the risks and receiving Mr. Richmon’s advice, the plaintiffs made an informed decision and instructed Mr. Richmon to consent to a dismissal of their action against the hospital on a without costs basis.
8. Mr. Richmon subsequently communicated his instructions to counsel for the hospital. On December 13, 2006, the plaintiffs executed a full and final release in favour of the hospital after Mr. Richmon had explained the meaning of the release and the consequences of signing it to them.

[19] On August 8, 2007, the plaintiffs and the physicians participated in a mediation of the action. Shortly after, on September 18, 2007 the parties attended a pre-trial conference. Neither the mediation nor the pre-trial conference was successful in resolving the claims.

[20] In October 2007, Mr. Richmon received a letter from Mr. Elmaliah at the law firm of Sommers & Roth to advise that he had been retained by the plaintiffs to take over the file.

[21] Mr. Elmaliah wrote to Mr. Richmon within 10 days of receiving the file from Futerman Partners LLP to request a copy of the report written by Dr. Wood. Mr. Richmond complied with that request.

[22] In July 2009, Sommers & Roth brought a motion on behalf of the plaintiffs seeking to add the individual nurses employed by the hospital as defendants to the underlying action. The motion was unsuccessful and the appeal of the dismissal of that motion was also unsuccessful.

[23] In December, 2009, Sommers & Roth wrote a letter to Mr. Richmon to advise him that they had completed a review and investigation and had come to the conclusion that numerous nurses and two respiratory therapists ought to be named as defendants to the action. The letter also advised Mr. Richmon that the motion and appeal to add parties had been lost and that costs had been awarded against the plaintiffs. The Sommers & Roth letter gave notice to Mr. Richmon that a potential claim existed against him with respect to his carriage of the file relating to the potential claims against the nurses that had not be added as defendants.

[24] In 2010, Sommers & Roth issued a new action on behalf of Niza and her family, including the plaintiffs in this action, against ten individuals employed at the hospital. The allegations in this new action were identical to the allegations against the hospital in the underlying action. The second action was ultimately dismissed on motion as an abuse of process.

[25] The question of whether the statement of defence discloses a factual basis for a defence that relies upon a limitation period was argued on the following positions:

a) whether the defendants are entitled to assert that the plaintiffs knew or ought to have known they had a cause of action against the former lawyers at the time the file was first transferred in 2007; or b) if the cause of action was discovered only when the underlying action was settled at trial in 2011, as the plaintiffs assert.

[26] The limitation period at issue is set out in section 4 of the Limitations Act, 2002, which states:

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. 2002, c. 24, Sched. B, s. 4.

[27] The plaintiffs argue that the issue on the motion to strike the three paragraphs from the statement of defence that raise the limitation defence turns on the discoverability of the plaintiff’s claims against the defendant solicitors. In that regard, section 5 of the Limitations Act, 2002 must be considered;

5. (1) A claim is discovered on the earlier of, (a) the day on which the person with the claim first knew, (i) that the injury, loss or damage had occurred, (ii) that the injury, loss or damage was caused by or contributed to by an act or omission, (iii) that the act or omission was that of the person against whom the claim is made, and (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). 2002, c. 24, Sched. B, s. 5(1) (2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. 2002, c. 24, Sched. B, s. 5(2)

[28] The plaintiffs rely upon case law that examines what a plaintiff knows or ought to know about the extent of the loss or the damages he or she has incurred before the limitation period begins to run. This factual component generally arises in a personal injury case resulting from a motor vehicle accident. A case of this nature often involves a consideration of the serious and permanent nature of injuries suffered by a plaintiff that are revealed over time. These cases require an examination of the facts to determine when a plaintiff had knowledge that his or her injuries were sufficient to meet the threshold imposed by section 267.5 of the Insurance Act to enable recovery in tort. The decision of this court in Huang v. Mai, 2014 ONSC 1156 is a case in point, and provides a comprehensive overview of the cases and principles in support of this view.

[29] In contrast, the defendants rely upon authorities to distinguish the term “damage” as it is used in section 5(1)(a)(iv), from the term “damages” in other contexts. In these cases, what has been found as important for the purpose of bringing an action within time is knowledge that some damage or loss has occurred, and of the underlying facts where commencing a proceeding would be appropriate to seek a remedy, not the extent of the damage or quantification of the loss.

[30] The defendants rely upon the appeal decision in Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156, for the proposition that for the purposes of discoverability, some damage suffered by and known to a plaintiff is sufficient for the cause of action to accrue, and to start a limitation period running. The court in Hamilton (City) v. Metcalfe & Mansfield Capital Corporation makes reference to a quote from Peixeiro v. Haberman, [1997] 3 S.C.R. 549 at paragraph 18, where the Supreme Court of Canada stated that:

18 It was conceded that at common law ignorance of or mistake as to the extent of damages does not delay time under a limitation period. The authorities are clear that the exact extent of the loss of the plaintiff need not be known for the cause of action to accrue. Once the plaintiff knows that some damage has occurred and has identified the tortfeasor (see Cartledge v. E. Jopling & Sons Ltd., [1963] A.C. 758 (H.L.), at p. 772 per Lord Reid, and July v. Neal (1986), 57 O.R. (2d) 129 (C.A.)), the cause of action has accrued. Neither the extent of damage nor the type of damage need be known. To hold otherwise would inject too much uncertainty into cases where the full scope of the damages may not be ascertained for an extended time beyond the general limitation period.

[31] The defendants submit that the concepts of “damage”, as that term is used in Section 5 of the Limitations Act, 2002, and “damages” as a remedy is a distinction with a difference. They argue it is the distinction that applies to determine when a claim is discovered for the purposes of Section 4 of the Limitations Act, 2002. The defendants state that neither the nature nor extent of the loss or damage had to be known for the plaintiffs to appreciate they had a cause of action.

[32] On the motion before me, the plaintiffs retained counsel in 2007 to represent their daughter and themselves against several doctors and the hospital where their daughter was treated. They had already released the hospital from the claims they had made for themselves under the Family Law Act. However, once they were advised after retaining Sommers & Roth as their new counsel that Niza had a reasonable prospect of success on her claim against the doctors and the hospital, they knew or ought to know that their derivative claims under the Family Law Act also had a reasonable prospect of success.

[33] On the application of Hamilton v. Metcalfe to these facts, it was not necessary to know the quantum of what damages the plaintiffs would ultimately prove or receive on settlement to make it appropriate to bring an action. The fact that they knew upon being advised by Sommers & Roth at some point between 2007 and 2009 that they had suffered damage by giving the release to the hospital may have been enough to trigger the limitation period. They would then have known that they had suffered damage or loss and that a proceeding would be an appropriate means to seek a remedy to bring them with the ambit of section 5 (1).

[34] I find that, based on the allegations of material fact pleaded in the statement of defence, the defence based on the expiry of a limitation period raised by paragraphs 37, 38 and 39 is not almost certain to fail. Consequently, the success of the claim or the defence on the limitation period pleaded may depend on information that may be contained by the Sommers & Roth file, and the evidence given at trial. It is not plain and obvious that those paragraphs should be struck from the statement of defence for failing to disclose a reasonable defence.

[35] The motion to strike paragraph 37, 38 and 39 from the statement of defence is therefore dismissed.

Motion #2: Must the plaintiffs disclose the litigation file at Sommers & Roth?

[36] The litigation file must be disclosed because it is relevant to how the claims were handled after 2007, and properly the scope of disclosure under 30.01. Rule 30.03 incorporates disclosure expected of a party to an action under rule 30.01, and requires each party to disclose all documents that are relevant to an issue raised in the pleadings. The scope of this relevance is defined by the allegations of material fact contained in both the statement of claim and the statement of defense in this case.

[37] The defendants move under rule 30.06 for a further and better affidavit of documents. They seek disclosure of documents that should have been made through the plaintiff’s affidavit of documents, complete with the enumerated schedule’s listing documents under rule 30.03.

[38] There is no dispute that the documents the defendants seek, and the plaintiffs oppose disclosing are contained in the Sommers & Roth file. The existence of those documents is not the basis for the plaintiff’s resistance to an order; they argue primarily relevance.

[39] In Bow Helicopters v. Textron Canada Ltd., Master Sandler made the following observations at paragraph 5 of what must be shown on a motion to produce a further and better affidavit of documents:

5. I observe that in modern litigation, one of the most important tools in the pre-trial process is documentary discovery, initiated by the demand for an affidavit on production, and in no case is the proper use of this tool by the plaintiff more important than in a products liability case where the plaintiff must establish negligence in design or manufacture, or both, on the part of the defendant. In such a case, the defendant knows everything and usually has a large volume of documentary records, whereas the plaintiff has little or no information, except the product itself, and often, even that has been destroyed in the mishap. In this type of case, the plaintiff must try to penetrate the defendant’s operation to see if it can discover records to indicate negligence in design or manufacture, and one tool to gain entry is the affidavit on production. The plaintiff’s difficulty is substantially increased where the product is technologically complex, such as a helicopter.

[40] There are three documents attached to the affidavit of Barbara Tatler sworn on June 29, 2015 in support of the defendant’s motion for production of the Sommers & Roth file. In my view, these documents define the relevance necessary to determine the scope of disclosure required.

[41] The first is a letter from Andreas Siebert of Sommers & Roth to Mr. Richmon dated December 17, 2009. In this letter, Ms. Siebert advises Mr. Richmon that a motion to add various nurses as defendants to the underlying action had been dismissed by Master Birnbaum, and that her order had been appealed and likewise dismissed by the Divisional Court, each with costs to the defendant hospital. Ms. Siebert gave notice in that letter that in light of the circumstances, it would seem appropriate for Mr. Richmon to contact LawPro.

[42] The minutes of settlement dated November 5, 2013 between the plaintiffs and the defendants in the underlying action (the “contingent minutes”) is the second, and perhaps most important, of the documents I consider as a measurement tool for the relevance of documents contained in the Sommers & Roth file. The contingent minutes provide for a multidirectional disposition of the action dependent on the finding of liability at trial against the following defendants:

1. in the event that the defendant hospital was found entirely liable, then the hospital would pay damages to Niza and her two siblings who remained as plaintiffs in the underlying action, as well as payment to the ministry of health and long-term care for it separated interest, plus costs;
2. in the event that the defendant doctors or any one or more of them are found liable, then the defendant would pay damages to Niza, each of her parents and siblings, the ministry of health and long-term care for it separated interest and costs;
3. in the event that the hospital, and, any one or more of the defendant doctors were found liable, then those defendants would pay damages to Niza, her two siblings, the ministry of health and long-term care for it separated interest. The hospital would pay its portion of $1 million corresponding to the proportion of liability found against it to, portion which would be applied towards the purchase of structured annuity. The defendant doctors would pay their portion of $1 million corresponding to the proportion of liability found to be on the defendant doctors to each of the parent plaintiffs, to be apportioned. And the defendants would pay Sommer + Roth such costs as the trial judge might award, plus HST; and
4. trial would proceed for a determination on all liability issues. Damages would only become payable upon a final finding of liability against the defendants, or any one or more of them.

[43] The third document that defines the scope for the disclosure of documents that are considered relevant are the final minutes of settlement executed by or on behalf of all parties on December 2, 2013. These minutes of settlement contain the terms of agreement between the plaintiffs, the defendant doctors and the hospital. Those minutes provide as follows:

1. the hospital would fund a structured payment plan capitalized by approximately $6 million to provide periodic payments for Niza’s benefit, and that shall be irrevocably directed to Niza’s guardian(s) of property, in trust for Niza for her care and maintenance;
2. in the event of Niza’s death, during the period during which the structured payments are guaranteed, the remaining guaranteed payments shall be made directly and irrevocably to Niza’s estate;
3. the hospital shall pay the litigation guardian for Niza with respect to her claim, the sum of $2,165,000;
4. the hospital would pay Niza’s brother, Umar Din, the sum of $25,000;
5. the hospital would pay Niza’s sister, Zareen Din, the sum of $25,000;
6. the hospital shall pay $240,000 to the Ministry of Health and Long-Term Rare for its subrogated interest)
7. the hospital shall pay Sommers & Roth the sum of $1,500,000 plus HST in the amount of $195,000, plus disbursements in the sum of $600,000 inclusive of HST/GST for partial indemnity costs;
8. provisions for making the necessary assignments for the purpose of establishing the structured part of the settlement; and
9. the cross-claims as between the hospital and the defendant doctors would be dismissed, without costs.

[44] Justice Firestone approved that settlement on December 2, 2013, and granted judgment on the basis of the final minutes of settlement.

[45] It is evident from the notice letter that Ms. Tatler wrote to the Futerman firm in December 2009 that Sommers & Roth had detected the deficiencies in how the action had been framed, the causes of action advanced and the parties named as defendants. The defendant lawyers in the current action are entitled to disclosure both before and after this notice letter to compare the evidence available to Sommers & Roth in the underlying action at various points in time with the information that was available to them when they acted for the plaintiffs.

[46] Mr. Futerman and later Mr. Richmon provided information to the medical experts the Futerman firm retained for the plaintiffs, including Dr. Wood and Dr. Weinstein to obtain their opinions as experts. I take it from the statement of defence that Mr. Richmon provided advice to the parent plaintiffs in 2006 about the standard of care expected of the hospital and its employees, and the risk of continuing the action based on those opinions. The defendants are entitled to disclosure of what information the Sommers & Roth file contains relevant to the information provided to the experts they retained on behalf of all plaintiffs to the underlying action. This disclosure is relevant to what resources Sommers & Roth marshalled to produce a successful outcome for Niza and her siblings, but not for the parent plaintiffs.

[47] This disclosure is not only relevant to the claims made by the plaintiffs in this action, it is also relevant to the limitations defence raised in paragraphs 37, 38 and 39 of the statement of defense.

[48] The contingent minutes signed in November 2013 clearly show that the parent plaintiffs would have participated in a settlement if a finding of liability were made against the defendant doctors or, to a lesser extent, if there was a finding of liability against the hospital and one or more of the defendant doctors. Each part of the contingent minutes evidence a different theory that Sommers & Roth had developed for Niza’s case. At least one of those theories would have permitted the parent plaintiffs to recover some or all of their damages under the Family Law Act. The defendants in this action are entitled to disclosure on the evidence available to Sommers & Roth up to and including trial relating in any way to each part of those contingent minutes and the respective theories that contemplated an alternative source of recovery.

[49] I am further of the view that the final minutes of settlement provide a basis for the current defendants to obtain disclosure of all documents in the Sommers & Roth file leading up to and including the ultimate settlement approved by the court. The defendants are entitled to know the documents accumulated by Sommers & Roth as evidence given or otherwise available that served as the basis for a settlement with the hospital that excluded the parent plaintiffs.

[50] The contents of the Sommers & Roth file that relate to the plaintiffs claim for additional and unnecessary legal expense because of the defendant’s negligence must also be produced. The plaintiffs bear the burden of proof for the damages they seek. The defendants are entitled to know the case they have to meet.

[51] I therefore conclude that the contents of the plaintiffs file at Sommers & Roth from the time that firm was initially retained in 2007 until Justice Firestone approved the settlement on December 2, 2013 are documents that are relevant to the matters at issue between the parties in this action. I now turn briefly to the issues of privilege, and of waiver of that privilege.

[52] The courts have long held that solicitor/client privilege is sacrosanct, but not absolute. The principle of solicitor and client privilege is important to ensure the effective operation of the legal system. However, the courts have also recognized that solicitor/client privilege can be waived by the act of issuing a statement of claim. The principle of waiver by action recognizes that the legal system for the delivery of civil justice must be fair to all, including those parties named as defendants. See R. v. McLure, 2001 SCC 14.

[53] Justice Ground considered the competing interests of a plaintiff’s right to assert solicitor/client privilege and the defendants right to full disclosure for the purpose of ensuring a fair trial in Bank Leu v. Gaming Lottery Corporation, [1999] O.J. No. 3949. He explained how fairness in the litigation process is the tipping point between these competing interests in the following terms:

5 Privilege may be waived expressly or impliedly. In the case at bar it is not disputed that there was no express waiver of privilege by GLC. When determining whether privilege should be deemed to have been waived, the court must balance the interests of full disclosure for purposes of a fair trial against the preservation of solicitor client and litigation privilege. Fairness to a party facing a trial has become a guiding principle in Canadian law. Privilege will be deemed to have been waived where the interests of fairness and consistency so dictate or when a communication between a solicitor and client is legitimately brought into issue in an action. When a party places its state of mind in issue and has received legal advice to help form that state of mind, privilege will be deemed to be waived with respect to such legal advice.

[54] In Froates v. Spears, [1999] O.J. No. 77, Justice Fleury ordered the production of the litigation file from lawyers for the plaintiff who handled certain litigation subsequent to the negligence alleged against the initial lawyers. Even though Sommers & Roth are acting for the plaintiffs in this action and the same firm acted for all of the plaintiffs in the underlying action, I consider Justice Fleury’s statement of the law to apply with respect to the plaintiffs’ file with Sommers & Roth:

10 I am satisfied that it would be totally unfair to expect the defendants in this case to defend the action commenced against them without providing them with access to all of the materials contained in the two exhibit books compiled for my benefit. It may seem somewhat unusual to order the production of notes prepared by a solicitor for purposes of litigation involving the plaintiff. However, since the privilege is that of the client and not that of the solicitor, any issue of embarrassment to the solicitor must be resolved in favour of the moving party. Because the plaintiffs have claimed that the cause for their financial loss was the missing paragraph as well as the advice given to them generally by the defendants, it becomes eminently reasonable for them to be obliged to disclose what they considered to be the causes of their financial difficulties before another tribunal. The fact that the matter was settled without any court hearing does not matter. If the matter had proceeded to an actual hearing the defendants would have been at liberty to potentially argue the concept of "res judicata" with respect to some of the findings of the learned trial judge.

[55] I recognize that the plaintiff parents in the underlying action are the only plaintiffs who have brought this action against Mr. Richmon and the Futerman firm. Niza and her brother and sister are not plaintiffs, and as they are not parties to the action they have not waived any solicitor/client privilege between themselves and Sommers & Roth. Therefore, to the extent that documents in the Sommers & Roth file relating to Niza’s diagnosis, treatment and care are not inextricably intertwined with the claims the plaintiff parents made or could have made to obtain judgment as plaintiffs against the hospital or any doctor, those documents are protected by solicitor/ client privilege. Such documents need not be disclosed in order to protect Niza’s privacy and that of her brother and sister.

[56] The motion of the defendants Richmon and Futerman Partners LLP is therefore granted. Subject to the provisions set out above, the plaintiffs are ordered to serve a further and better affidavit of documents disclosing the complete file from Sommers & Roth related to the underlying action, as well as any action they authorized Sommers & Roth to commence for the repair of any deficiencies or errors, including but not limited to those actions commenced in court file numbers 02-CV-226454 CM and CV-10-394942 in Toronto.

[57] Any documents for which litigation privilege or solicitor/client privilege is claimed must be listed under schedule B of that further and better affidavit of documents. Any documents for which privilege is claimed but which is otherwise relevant must be disclosed but the confidential parts of any copy of a document that is otherwise relevant may be redacted. In order to patrol against any unnecessary redaction’s, a document for which privilege is claimed in whole or in part may be reviewed by the court in unredacted form upon a motion brought on notice.

Costs

[58] If either party seeks costs on these motions, they may file written submissions consisting of no more than three pages by December 9, 2016. The other party shall then have until December 16, 2016 to file responding materials limited to the same extent. No submissions are permitted without leave. All written materials may be sent by fax to my judicial assistant, Ms. Priscilla Gutierrez, at 905-456-4834 in Brampton.

[59] If no written submissions are received by December 16, 2016, the parties shall be deemed to have resolved the issue of costs between them.

EMERY J. Date: November 28, 2016