International Creative Talent Agency, LLC v. McClean

COURT FILE NO.: CV-18-594225

DATE: 20190501

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: INTERNATIONAL CREATIVE TALENT AGENCY, LLC, Plaintiff/Responding Party

AND:

DION RADCLIFFE MCCLEAN, Defendant/Moving Party

BEFORE: Kimmel J.

COUNSEL: Marc Kestenberg, for the Defendant/Moving Party

Graeme Oddy, for the Plaintiff/Responding Party

HEARD: April 17, 2019

ENDORSEMENT

[1] This is a motion to compel production of certain documents referred to directly, or by implication, in the affidavit of Glen Perinot, a solicitor from the law firm of record for the plaintiff in this action, sworn January 24, 2018 (the “Perinot Affidavit”). It requires a determination of whether or not privilege has been waived as a result of what is contained in that solicitor’s affidavit. For the reasons that follow, I find that there has been an implied (but not yet irrevocable) waiver of privilege that can be avoided through the withdrawal of the impugned affidavit, on terms that I have allowed for.

Procedural History

[2] This motion originally came before Master Robinson in March 18, 2019. In reasons released March 29, 2019, Master Robinson concluded that this motion did not fall within the master’s jurisdiction under Rule 37.02(2)(g): see International Creative Talent Agency LLC v. McClean, 2019 ONSC 1996. This motion is in service of a motion to quash an appeal of the order of Master Sugunasiri dated October 5, 2018 (the “Sugunasiri Order”), which appeal (and motion to quash) are returnable on June 4, 2019 before a judge of the Ontario Superior Court of Justice. After concluding that he did not have jurisdiction to hear this motion, Master Robinson quite properly adjourned it to be heard by a judge, and that is how it came before me.

[3] In his reasons, Master Robinson went into some detail about the short but dense procedural history of this action. I will not repeat what he has summarized. I agree with his conclusion that this action has had a tortured start. The plaintiff is a former client of the defendant. The plaintiff has taken an aggressive procedural stance, first noting Mr. McClean in default four business days after his statement of defence was due, then refusing to agree to set the noting in default aside, unsuccessfully opposing the defendant’s motion to set it aside, and then appealing the Sugunasiri Order that set it aside.

[4] The defendant has now brought a motion to quash the appeal because the plaintiff’s notice of appeal dated November 6, 2018 was delivered late (by either 7 or 21 days depending on when the time is determined to run from, but admittedly late by some number of days in either event). The defendant served a notice of motion to quash the appeal on or about November 14, 2018 and a factum on January 21, 2019, in both of which it was made clear that the grounds for the motion included that the plaintiff had not provided a sufficient explanation for the late delivery of its notice of appeal and that there was no evidence that the plaintiff had formed a bona fide intention to appeal before the expiry of the appeal period.

Privilege Waiver Issue to be Decided

[5] As noted by Master Robinson in his reasons (at para. 6), the issue on this motion is whether or not the content of the Perinot Affidavit gives rise to a waiver of privilege over communications, notes and records of plaintiff’s counsel regarding the plaintiff’s decision to appeal the Sugunasiri Order, and if so, the extent of such waiver, and the scope of any production to be ordered of documents referred to or relied upon by Mr. Perinot in support of the statements made by him.

The Impugned Perinot Affidavit

[6] In response to the defendant’s motion to quash and, according to counsel for the plaintiff, “in the interests of expediency”, the Perinot Affidavit was delivered on January 24, 2019. The Perinot Affidavit makes direct and indirect reference to written and oral communications between the plaintiff and its lawyers[^1]. The defendant seeks production of all documentary records pertaining to the following communications referred to in the Perinot Affidavit:

a. [para 5] shortly after receiving a copy of the decision of Master Sugunasiri released on October 19, 2018 (the “Decision”), counsel for the plaintiff sent a copy of it to Yelcin (the instructing principal of the plaintiff);

b. [para 6] On October 29, 2018, Yelcin responded to counsel for the plaintiff and instructed them to bring a motion to challenge the Decision. The email has not been included as an exhibit for reasons of confidentiality, but counsel has reviewed it and verily believes that Yelcin had the intent to appeal the Decision at this time;

c. [para 7] because English is not his first language, it is likely that Yelcin needed counsel to go over the contents of the Decision with him so that he could fully understand the significance of the Decision;

d. [para 8] I am also aware that at the time the parties were exchanging these communications on October 29, 2018, Yelcin was in Europe, while counsel was in Tokyo Japan. As a result they were not able to speak until November 1, 2018;

e. [para 9] counsel thought it was important to have a call and speak directly with Yelcin regarding the Decision to ensure that Yelcin received proper legal advice before proceeding with the appeal and that counsel had clear instructions from the plaintiff as to how it wished to proceed.

The above extracts from the Perinot Affidavit have been paraphrased and the italics have been added to illustrate the direct and indirect references to the communications at issue.

[7] In a short 3 page/15 paragraph affidavit, the plaintiff’s solicitors have triggered 3 different possible arguments for a waiver of privilege:

a. by reference to specific privileged communications between the solicitor and client,

i. [in paras. 5, 6 and 13] said to “evidence” that the plaintiff had formed a bona fide intention to appeal before the appeal deadline (evidence of the plaintiff’s state of mind);

ii. [in paras. 7, 8 and 9] said to “evidence” attempts to arrange a time for the plaintiff to discuss the appeal and instruct counsel after having received legal advice;

b. by reference [in para. 12] to the fact that legal advice was sought and provided in respect of the appeal as part of the explanation for the delay; and

c. by reference [in para. 14] to counsel’s view (opinion) that the appeal has merit.

[8] There can be no doubt that the plaintiff seeks to rely on the Perinot Affidavit in order to satisfy the court that the appeal should not be quashed. This is evident from the timing and content of the Perinot Affidavit, and from the reliance placed on it by the plaintiff in its factum in response to the motion to quash the appeal.

The Positions of the Parties and the Applicable Legal Principles

Moving Party’s/Defendant’s Position

[9] It is the defendant’s position that counsel for the plaintiff entered the fray and has provided evidence on matters of substance relevant to the motion to quash the appeal such that privilege has been waived in respect of the entirety of the solicitor’s file and communications relating to that motion (to quash).[^2]

[10] The defendant acknowledges that solicitor-client privilege is sacrosanct and should only be set aside where fairness and consistency demand it. This is, according to the defendant, one of those rare cases where the court should find a waiver by implication. I was taken to the passage from J.H. Wigmore, Evidence in Trials at Common Law, Vol. 8 (Boston/Toronto: Little, Brown and Company, 1961), at pp. 635-636, in which Professor Wigmore states that:

Judicial decision gives no clear answer to this question [what constitutes a waiver by implication?] In deciding it, regard must be had to the double elements that are predicated in every waiver, i.e., not only the element of implied intention, but also the element of fairness and consistency. A privileged person would seldom be found to waive, if his intention not to abandon could alone control the situation. There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or disclose, but after a certain point his election must remain final.

[11] The defendant points to some analogous examples of a final election and findings of privilege waiver in some of the cases described at p. 638 of Professor Wigmore’s text:

a. a client’s offer of his or his own attorney’s testimony as to a specific communication to the attorney is a waiver as to all communications to the attorney on the same matter. This is so because the privilege or secret consultation is intended only as an incidental means of defence, and not as an independent means of attack, and to use it in the latter character is to abandon it on the former;

b. a client’s offer of his own or the attorney’s testimony as to a part of any communication to the attorney is a waiver as to the whole of that communication, on the analogy of the principle of completeness.

[12] The defendant also observes that this approach to waiver is consistent with Rule 30.04(2) which assumes, in the context of a request to inspect a document referred to in an affidavit, that it is either not privileged or that privilege has been waived: see Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2018 ONSC 5897 (Master), at para. 22.

[13] In Canadian Appliance Source Inc. v. Utradecanada.com Inc., 2018 ONSC 2960, 24 C.P.C. (8th) 149, at paras. 8-10, Morgan J. (in his reasons upholding the decision of the Master on appeal) reinforces the importance of solicitor-client privilege and that not every affidavit by a solicitor amounts to a waiver of privilege. He goes on to provide a convenient summary of the limited circumstances in which courts have set aside privilege due to a deemed waiver, such as:

a. where a solicitor’s affidavit effectively “entered the fray” of the litigation, and attempts to swear as to the existence of a genuine issue for trial [on a summary judgment motion] or other issue that is a matter of legal argument rather than fact;

b. where extensive reliance is placed on evidence given by a party’s solicitor, such that the solicitor’s work may become an integral part of the plaintiff’s case. When that occurs, there is a deemed waiver of privilege, which comes about not as a matter of compulsion but as a result of the party’s own choice; and

c. where counsel supports the case by means of an affidavit of his or her own that addresses matters of substance in the proceeding for which it is tendered. This includes incidents where a lawyer’s affidavit is submitted to establish the facts necessary to support the client’s case.

[14] The defendant argues that the Perinot Affidavit is not a simple case of filling in non-contentious procedural facts that provide context or background to the motion to quash; rather, it comprises all of the evidence going to the substance of the plaintiff’s position on the motion to quash. The defendant also maintains that this a matter of fundamental importance as the motion to quash is being heard at the same time as the appeal by which the plaintiff seeks judgment against the defendant for significant sums and at significant risk to his professional reputation without allowing him an opportunity to defend himself against the plaintiff’s claims on the merits. The defendant seeks to avail himself of all possible avenues to afford him the opportunity to defend on the merits, and that includes properly testing the evidence presented by the plaintiff in opposition to the motion to quash through the use of the requested production (on the basis of the privilege having been waived).

[15] The defendant does not accept the plaintiff’s proposal to withdraw the Perinot Affidavit and to replace it with an affidavit from the plaintiff himself. Since the plaintiff has not provided a draft of that new affidavit, the defendant considers that offer to be “un-acceptable” because the plaintiff could still say things about communications with counsel that implicate the same waiver of privilege. It was suggested (both at the hearing and in “with prejudice” emails exchanged between counsel before the hearing) that allowing now for a new affidavit could just lead to a new motion given that, in order to explain the delay in bringing the appeal, the plaintiff will have to deal with the same matters that are addressed in the Perinot Affidavit, namely when and how the plaintiff formed the intention to appeal in relation to the timing of the instructions given to counsel to commence the appeal and similar waiver concerns could arise from the plaintiff’s direct evidence about this. Given where we are at, the defendant contends that the waiver issue should be addressed squarely now, with regard to the Perinot Affidavit.

[16] The defendant also submits that it is not an option for the court to allow the Perinot Affidavit to be withdrawn and/or replaced in the absence of a motion to strike. As will become apparent later in this endorsement, I do not agree with this submission.

[17] Related to this last point, the defendant is concerned about prejudice and further delay because his counsel is expecting to be on a leave upon the birth of a child, which very likely will hinder the defendant’s ability to respond to, or cross examine on, a new affidavit, whereas it is expected that, if the requested documents are ordered produced, no further evidentiary steps will be necessary in order to brief the motion to quash and the appeal for hearing on June 4, 2019.

Respondent’s/Plaintiff’s Position

[18] The plaintiff maintains that the Perinot Affidavit was tendered in the interests of expediency (the client being out of town) and without an intention to waive privilege over any specific communications, but rather to explain the timing (delay) of the delivery of the notice of appeal and the fact of the plaintiff’s state of mind and intention to appeal within the appeal period.

[19] Counsel for the plaintiff began his submissions with reference to a “with prejudice” April 8, 2019 offer that was made to replace the Perinot Affidavit with one from the plaintiff. Emphasis was placed on this as a way of addressing any concern that the solicitor’s affidavit was being tendered to shield the plaintiff from cross-examination (one of the concerns that the cases have identified). While plaintiff’s counsel maintains that the court can assume that they would not “make the same mistake” again and imply any waiver of privilege in what the plaintiff attests to, no draft has been presented for this to be tested.

[20] Counsel for the plaintiff also argues that the court should not order production of the requested documents based on an implied waiver by virtue of the Perinot Affidavit because:

a. Privileged communications are by definition relevant and material but they are also intended to be protected and the starting point is that they should not be disclosed. Even the implication of waiver must be consistent with “the near absolute protection of solicitor-client privilege mandated by the Supreme Court”: see H.M.B. Holdings Ltd. v. Replay Resorts Inc., 2018 BCCA 263, 11 B.C.L.R. (6th) 365, at paras. 31 and 47, leave to appeal to S.C.C. refused, 2019 CarswellBC 561. The plaintiff contends that even if the court could find an implied waiver in this case, it would not be a proper exercise of judicial authority to order it in the circumstances (having regard to the residual judicial discretion and the principles of fairness and consistency which are also discussed in the H.M.B. Holdings case at para. 47).

b. Even though the plaintiff seeks to rely on the Perinot Affidavit to establish one of the essential matters in issue on the motion to quash, namely that the plaintiff had a bona fide intent to appeal before the appeal deadline, the factors that Professor Wigmore identifies that give rise to a deemed waiver are not absolute or inflexible and should be less stringently applied in the context of a procedural motion to quash an appeal, which can be contrasted with situations where the solicitor’s affidavit goes to the heart of the merits of the dispute between the parties (such as in the context of a motion for summary judgment): see Canadian Appliance Source v. Utradecanada.com Inc., 2017 ONSC 4959, 10 C.P.C. (8th) 389 (Master), at para. 29.

c. While acknowledging that it is relevant to consider whether fairness requires that certain communications be disclosed in order to allow the opposing party to test issues brought up in an affidavit, and that if there has been partial disclosure there should be full disclosure (the Wigmore examples relied on by the defendant), if the court is going to engage in a balancing of what is fair/unfair, the court should have regard to the procedural context. In the context of a motion to quash such as this, upholding the privilege and depriving the defendant of disclosure of communications that may inform the question of if and when the plaintiff formed a bona fide intention to appeal does not result in any substantive prejudice to the defendant. In contrast, it would be clearly unfair to the plaintiff to have its case strategy disclosed through an order for production of all communications between the plaintiff and its counsel regarding the intention to appeal.

d. The Perinot Affidavit does not “enter the fray”, and can be fairly characterized as innocuous in describing the timing and purpose of communications between the plaintiff and its counsel, and not the substance of them. Merely referring to a state of affairs about which a party might have received legal advice does not warrant setting aside solicitor-client privilege: see Mordo v. HSBC Bank Canada, 2016 BCSC 282, at paras. 27 and 28.

e. The legal advice itself has not been disclosed or put in issue by the affidavit, just the fact that it was needed before instructions were finalized. Further, the fact that the plaintiff’s state of mind (intention to appeal) is in issue and its state of mind may have been influenced by legal advice is not enough to constitute a waiver, unless the plaintiff’s understanding of its legal position is itself a material consideration. In this case, the substance of the advice is not relevant, but only the timing of when it was received, which forms part of the explanation for the delay: see Creative Career Systems Inc. v. Ontario, 2012 ONSC 649, 27 C.P.C. (7th) 172, at paras. 27-29.

f. The merits of appeal, while referred to in the Perinot Affidavit, may not be a matter of evidence in any event, but rather a matter of argument on the appeal itself, and that could be struck and left to be argued by counsel.

[21] Ultimately, the result that the plaintiff seeks on this motion is either an order for no production (on the basis that there has been no waiver of privilege) or an order striking out all or part of the Perinot Affidavit with leave to file a new affidavit from the plaintiff’s representative. I was advised that redacting the Perinot Affidavit is not an option because addressing all of the points raised by the defendant would require the redaction of virtually everything. In the event leave is granted to file a new one from the plaintiff, counsel for the plaintiff has provided assurances that the new affidavit will be delivered in short order and the new affiant will make himself available for cross-examination. The plaintiff also recognizes the possibility that the scheduling difficulties of defence counsel in the event of a new affidavit may necessitate the postponement of the appeal (and motion to quash it) and has indicated that this postponement will not be objected to.

Analysis and Conclusions on Waiver

[22] While the parties each emphasize different legal principles, the legal principles they rely upon are not inconsistent. Rather, their application depends very much on how the various components of the Perinot Affidavit are characterized.

[23] The parties agree that privileged communications are referred to in the Perinot Affidavit. These have been outlined in paragraph 7 of this endorsement and I will not reproduce them here. They underpin the plaintiff’s state of mind and formation of intention to appeal and the plaintiff’s explanation for the delay in initiating the appeal.

(a) The Plaintiff’s State of Mind – Formation of Intent to Appeal

[24] The important consideration for the waiver analysis concerning the timing of the plaintiff’s formation of an intention to appeal is whether the Perinot Affidavit is addressing itself to matters that go to the heart of what the court has to decide on the motion to quash. In this respect, it clearly and undeniably does in that it addresses the plaintiff’s state of mind (about when the intention to appeal was formed), which is directly in issue on the motion to quash. I need look no farther than the bookends of the Perinot Affidavit at paragraphs 5, 6 and 13, in which it is stated that the “plaintiff formed the intent to appeal” as at October 29, 2018, within the relevant time period. The defendant is entitled to challenge that factual assertion if the plaintiff wishes to rely on it.

[25] I agree with counsel for the defendant that this is a different situation from the Mordo case that the plaintiff relies on, which was concerned with a solicitor’s affidavit attesting to innocuous and discrete missing facts. I also do not accept the plaintiff’s attempt to minimize the significance of the matters that the Perinot Affidavit addresses simply because it has been filed on a procedural motion to quash an appeal (as opposed to on a summary judgment motion dealing with the merits).

[26] The Perinot Affidavit has entered the fray and it does so based on communications directly or implicitly referred to in it. As the British Columbia Court of Appeal said in the H.M.B. Holdings Ltd. case (at para. 54, citing from Mayer v. Mayer, 2012 BCCA 77, 29 B.C.L.R. (5th) 232), “entering the fray” involves providing evidence “that goes to a matter of substance in the client’s litigation” and what is a matter of substance “is defined by the material facts set out in the pleadings and by the law that governs the party’s claim”. On a motion to quash, the law dictates that one of the material facts to be determined is whether, and if so when, the intention to appeal was formed.

[27] Mr. Perinot is only able to attest to this critical factual point because of his review of otherwise privileged communications that took place between the plaintiff and another lawyer at his firm. Those communications are the foundation and source of his evidence. This is apparent on the face of his affidavit. He is providing second-hand testimony on a key point and the defendant should be permitted to test this.

[28] I cannot ignore the direct and indirect references to communications between solicitor and client in the Perinot Affidavit and cannot condone this selective or partial disclosure of them. As Professor Wigmore stated:

There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or disclose, but after a certain point his election must remain final.

[29] However, what distinguishes this case from others where the solicitor has been found to “enter the fray” is that the Perinot Affidavit is attesting to the plaintiff’s state of mind (formation of intention to appeal) and it is not at all clear that there is a nexus between any of the privileged communications referred to and the formation of the plaintiff’s intention (rather, the suggestion in the Perinot Affidavit is that the intention was formed before the plaintiff had the opportunity to seek and receive legal advice). The content of the legal advice was not presented in the Perinot Affidavit as an essential ingredient to the formation of the plaintiff’s intention to appeal; rather, the need to confer with and instruct counsel was presented as relevant to the explanation for the delay (discussed below). The plaintiff is not utilizing the presence or absence of legal advice as a material element of its response to the motion to quash: see Creative Career Systems Inc., at para. 29.

[30] Nonetheless, specific communications are referenced and relied upon. These communications are presented as evidence or contemporaneous recordings of the plaintiff’s intention/state of mind and they have been drawn into the affidavit only because of the affiant’s lack of direct knowledge of this. The references to these privileged communications in this case are a function of the “choice” of the solicitor as affiant, rather than a clear election to partially disclose privileged communications and waive privilege.

[31] Therefore, while the persistence in this choice of solicitor as affiant and the resulting need to rely on partial disclosure of otherwise privileged communications would constitute a waiver of privilege, because there appears to be an alternative here that could avoid the necessity of any reference to privileged communications through the direct evidence of the plaintiff, I am prepared to allow the plaintiff the opportunity to withdraw the Perinot Affidavit (on the terms indicated in my disposition below).

[32] If it turns out, when the plaintiff puts in its own affidavit should it elect to do so, that the substance (rather than just the fact) of the legal advice received from counsel is material to the plaintiff’s formation of intent to appeal and the timing of that, then there may be no way to avoid a waiver of privilege in order for the plaintiff to respond to the motion to quash. If that is the case and becomes apparent from the new affidavit, the parties may bring a motion back on before me to deal with any further concerns about privilege waivers as a result of any new affidavit that is delivered. I strongly discourage this and hope that the plaintiff is able to present a new affidavit that does not give rise to privilege waiver concerns, but I will remain seized to deal with them if they arise.

(b) The Fact of Legal Advice Having Been Sought and Received as an Explanation for Delay

[33] The references in the Perinot Affidavit (at paras. 7, 8, 9 and 12) to the fact that legal advice was sought and that its receipt was delayed due to logistics (thereby delaying the plaintiff’s instructions to appeal) is subject to a different analysis. The plaintiff is not utilizing the presence or absence of legal advice as a material element of its response to the motion to quash: see Creative Career Systems Inc., at para. 29.

[34] While I do not find the references to these communications to be a waiver if the purpose can be limited in this manner, the only way to test that limitation is through cross-examination of the plaintiff. Thus, the references to the purpose and timing of these communications between solicitor and client cannot be divorced from the other evidence about the timing of the formation of the plaintiff’s intention and must be addressed in the plaintiff’s new affidavit directly so that it can be tested.

Disposition

[35] I am prepared to allow the plaintiff the opportunity to withdraw the Perinot Affidavit and deliver a new affidavit from a representative of the plaintiff on the motion to quash so that the plaintiff’s own evidence can be provided and tested about whether, and if so when, the intention to appeal was formed and the delay in instructing counsel to file the appeal can be explained. In the circumstances of this case, the plaintiff came close but has not yet passed the point of the election of partial disclosure (and waiver) of otherwise privileged communications becoming final.[^3]

[36] I caution the plaintiff to have regard to the principles that have now been extensively reviewed in the context of this motion, in its consideration of what to include in any new affidavit.

[37] While I am provisionally dismissing this motion (for the reasons indicated above, specifically on the assumption that the plaintiff will withdraw the Perinot Affidavit and deliver a new affidavit from the plaintiff’s representative), I am doing so on the following terms, pursuant to Rule 37.13(1) and having regard to Rule 1.04:

a. if the plaintiff wishes to avoid the implied waiver of privilege, it shall withdraw the Perinot Affidavit by notice in writing to be delivered to counsel for the defendant by no later than May 6, 2019;

b. if the Perinot Affidavit is withdrawn as provided for above, then there shall be no implied waiver and no order for production of privileged communications;

c. if the Perinot Affidavit is withdrawn as provided for above, the plaintiff may deliver a replacement affidavit in response to the motion to quash the appeal, if so advised, by no later than May 13, 2019. The affiant shall be made available for cross-examination (by video if necessary), at the plaintiff’s expense by no later than May 22, 2019; and

d. the appeal and motion to quash are expected to proceed on June 4, 2019 as scheduled (barring some other unforeseen circumstance), unless counsel for the defendant determines that the above timelines are not feasible from his perspective due to his commitments and that he would prefer that the schedule be elongated to allow him more time, in which event the appeal and motion to quash are to be adjourned at his request. The only constraint I impose on him in this regard is to make that decision and notify plaintiff’s counsel of such by no later than May 17, 2019. In that event, the parties are directed to find a new date, having regard to counsel’s and the court’s availability, and both the appeal and motion to quash shall be adjourned to that new date once determined (and the court is to be notified of such adjournment by no later than May 28, 2019);

e. if the Perinot Affidavit is not withdrawn by notice in writing from counsel for the plaintiff to counsel for the defendant by May 6, 2019, then the requested production shall be made by the plaintiff on or before May 13, 2019, on the basis of a waiver of privilege having occurred and the election for disclosure having become final as of May 7, 2019, and the appeal and motion to quash are expected to proceed on June 4, 2019 as scheduled (barring some other unforeseen circumstance).

[38] This timetable has been set without any specific input from the parties as to the dates indicated, with a view to maintaining the June 4, 2019 hearing date and having regard to the scheduling concerns of counsel for the defendant. The parties may mutually agree to alter the deadlines provided for without the necessity of any further court order, or they may attend in Civil Practice Court or request a case conference with me to deal with any scheduling issues that arise from my directions in this endorsement that they are not able to agree upon.

Costs

[39] The Perinot Affidavit was ill-advised. The plaintiff has narrowly escaped an order for the production of privileged communications. The motion would have been easier to deal with if the plaintiff had delivered its proposed replacement affidavit. It chose not to. In my view, the plaintiff’s conduct is the cause of all of the costs of this motion and the fact that it was “successful” because I have chosen to give it one last chance to avoid the consequences of what could have been a significant implied waiver of privilege is not a factor in the plaintiff’s favour for costs, in the circumstances of this motion.

[40] The plaintiff’s partial indemnity costs outline is a starting point for the minimum amount the plaintiff must have reasonably expected to pay in costs if the motion was lost. Those costs total $3,174.93. The defendant’s costs outline indicates significantly higher partial indemnity costs of $8,884.34 and substantial indemnity costs of $11,837.03 (and these amounts did not include the time for the preparation and re-attendance before me).

[41] In my view, the defendant was entirely justified in taking the position it did based on the Perinot Affidavit as filed and in the absence of any alternative affidavit having been presented for consideration. It is very troubling that the defendant has been put to so much time, effort and expense in the context of his continuing efforts to be permitted to deliver a defence on the merits. Accordingly, and in the exercise of my discretion under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and having regard to the factors in Rule 57.01, I am awarding the defendant his costs of this motion in the amount of $9,000 inclusive of all fees, disbursements and taxes, payable by the plaintiff forthwith.

Kimmel J.

Date: May 1, 2019

[^1]: Both parties argued this motion on the basis that the privilege associated with the communications at issue is solicitor-client privilege. These communications appear to fall within this category of privilege. While these communications may also be subject to litigation privilege, that was not part of the parties’ submissions and I have not addressed litigation privilege in these reasons. I do not think that the consideration of any litigation privilege that might overlay the solicitor client privilege would change the waiver analysis in the circumstances of this case.

[^2]: Defendant’s counsel advised that they are not seeking production of anything in the plaintiff’s solicitors’ files relating to the merits of the underlying action or to the merits of the appeal itself, which the defendant maintains are not at issue on the motion to quash in any event. Albeit unnecessarily in my view (and perhaps inappropriately), the Perinot Affidavit, at para. 14, offers an opinion that the appeal itself is meritorious. It is either irrelevant, or if relevant, improper, to tender as “evidence” an opinion of a party’s counsel regarding the merits of the appeal. If I was not permitting the withdrawal of the Perinot Affidavit (as detailed later in these reasons), I would, in any event, have ordered that paragraph 14 of the Perinot Affidavit be struck.

[^3]: I am aware of cases (not cited by counsel, for example Ebrahim v. Continental Precious Minerals, 2012 ONSC 1123) where the court has not permitted a party to withdraw an affidavit (or statement in it) in order to avoid the implied waiver of privilege and has held the party to that waiver and any resulting disclosure of privileged communications. However, that was a case where the substance of the legal advice had been disclosed in the affidavit and was being directly relied upon, so the cat was already out of the bag.