Verge Insurance Brokers Ltd et al. v. Richard Sherk et al 2017 ONSC 7308
CITATION: Verge Insurance Brokers Ltd et al. v. Richard Sherk et al 2017 ONSC 7308
COURT FILE NO.: 16-59186
DATE: December 6, 2017
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Verge Insurance Brokers Limited, 172968 Ontario Inc., Marick Bros. Investments Inc. and Mark Sherk
A N D:
Richard Sherk, Daniel Sherk, Martin, Merry & Reid Limited and Cal Schulz Insurance Brokers Ltd., Andree Senn, Brenda French and Ruth Pluska
BEFORE: Arrell, J. (in writing on consent)
COUNSEL: Stephen Gleave and Richelle Pollard, for the Plaintiffs
John Wigle, for the defendant Richard Sherk
The Honourable Mr. Justice H.S. Arrell
E N D O R S E M E N T
INTRODUCTION:
[1] The plaintiffs Verge/Mark Sherk bring this motion for an order seeking the production of a chain of emails dated May 10, 2012 from counsel for Mark Sherk to counsel for Richard Sherk, and the subsequent three emails flowing from the initial one. The defendant is opposed on the grounds that the chain is subject to solicitor/client privilege.
FACTS:
[2] The defendant, Richard Sherk, was a 50% shareholder in the responding corporation, Verge. The plaintiff Mark Sherk is the brother of Richard Sherk and was the other 50% shareholder in Verge.
[3] Daniel Sherk is the son of Richard and was employed at Verge as a broker. Richard retired from Verge on April 3, 2012.
[4] The evidence would indicate that shortly after Richard retired, issues arose between he and his brother which have resulted in this extremely lengthy and costly litigation. There are two aspects of that litigation. The first aspect of the litigation was seeking a determination of the value of Richard’s shares. That has now been settled subsequent to Turnbull, J.’s decision of November 30, 2015. The second aspect of the litigation, which is of relevance to this motion, is that of any damages suffered by Mark as a result of alleged actions by Richard and Daniel, after Richard’s retirement. Daniel was dismissed by Mark shortly after the issues arose between the two brothers.
[5] Mark alleges Richard and Daniel conspired in an attempt to set up a competing brokerage firm and taking clients from Verge in the process. Those allegations are denied.
[6] Shortly after Daniel left Verge, there was some discussions about him buying his book of business from Verge. It is in this context that the email in question is understandable.
[7] The chain of emails in question have been produced to me for my confidential review as suggested in the plaintiff’s submissions to me on September 29, 2017. It is a very short chain of emails. It is dated May 10, 2012 and starts from Mr. D’Amico, corporate counsel for Verge, at 11:41 am and is addressed to James Brown, the lawyer for Richard, with copies to Hicks Morley, litigation counsel for Verge and also copied to Mark Sherk. It indicates Dan, as per his employment contract, was entitled to purchase his book of business for two times gross commission. The email ends that it wished Mr. Brown’s clients consent to complete such a sale transaction.
[8] Richard Sherk was represented by the law firm of Simpson Wigle at the time of this email, as he still is. Mr. Brown, a corporate partner at Simpson Wigle was handling Richard’s file at that time. He then a few minutes later forwarded D’Amico’s email to the firm’s client, Richard. Richard responded immediately. A few hours later on the same day Brown emailed two of his partners copying their client Richard. His email to his partners posed a legal question and he sought their advice.
ANALYSIS:
[9] The plaintiff argues that this chain of emails should be produced because it is relevant to the damages issue; it goes to the allegation of bad faith alleged against Mark in Daniel’s lawsuit; it may contain an unknown email address that has not yet been produced which may go to the issue of spoliation of evidence; it has not met the test of solicitor/client privilege.
[10] The defendant sets out the email addresses used by Richard at para. 20 of his submissions which the plaintiffs have. As stated in para 21 of the defendant’s submissions, and I can confirm, there is no new email address used in this chain regarding Richard.
[11] On my review of this chain of emails I fail to see how they could possibly be relevant to any of the issues that I am aware of in this lawsuit.
[12] There is nothing in these emails that go to the issue of bad faith by anyone involved in this lawsuit, as far as I know the issues, which is fairly well.
[13] In my view the chain of emails is very clearly covered by solicitor/client privilege. Mr. Brown was contacted by counsel for Mark, and he was asked to get instructions on an issue. Mr. Brown then forwarded D’Amico’s email to the firm’s client Richard. Richard responded immediately and Mr. Brown responded to him. A few hours later, on the same day, Brown emailed two of his partners, copying their client Richard. His email to his partners posed a legal question and he sought their legal advice on the request from Mr. D’Amico.
[14] I have no hesitation in concluding that this communication was between a solicitor, his law firm and their client. The communication involved instructions and legal advice, and clearly the parties intended that the communication was to be confidential. This chain of emails is clearly within the requirements of solicitor/client privilege as set out in Canada v. Solosky 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821 as relied on by the plaintiffs.
[15] Having found that solicitor/client privilege applies, I need not make a determination as to whether common interest privilege also applies.
[16] The motion of the plaintiffs’ for production of the May 10, 2012 chain of emails is dismissed.
[17] If the parties are unable to agree on costs, they may file written submissions of no more than 3 double spaced pages, along with draft bills of costs and any relevant offers. If submissions are not received by Jan 2, 2018 I will consider the issue of costs resolved.
Arrell, J.
Released: December 6, 2017
CITATION: Verge Insurance Brokers Ltd et al. v. Richard Sherk et al 2017 ONSC 7308
COURT FILE NO.: 16-59186
DATE: December 6, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Verge Insurance Brokers Limited, 172968 Ontario Inc., Marick Bros. Investments Inc. and Mark Sherk
- and –
Richard Sherk, Daniel Sherk, Martin, Merry & Reid Limited and Cal Schulz Insurance Brokers Ltd., Andree Senn, Brenda French and Ruth Pluska
ENDORSEMENT
HSA