A. Introduction

[1] This is a refusals motion in a lawyer-professional negligence class action under the Class Proceedings Act, 1992.[^1] The motion raises the important question about the extent to which a Defendant law firm can claim privilege for the legal advice it gives - to itself - before, during, and after the acts alleged to be negligent or in breach of its professional responsibilities.

[2] Amongst other questions that the motion raises, I must answer: (a) whether following an allegation that in providing legal services, a law firm may have breached the standard of a care, can it assert a “quality assurance” privilege for its own investigations and deliberations about the matter; and, (b) can a law firm assert an “in-house” counsel privilege for the deliberations of its own general counsel or the deliberations of its conflicts, ethics, or risk management committee.

B. Factual Background

1. The Parties

[3] Jeffrey Lipson is a wealthy retired businessman living in Toronto, Ontario.

[4] Cassels Brock & Blackwell LLP is a full-service law firm carrying on business in Toronto as a limited liability partnership. In 2000, Lorne Saltman, a tax lawyer, was a partner of the firm. In 2013, Mr. Saltman left Cassels Brock and joined Gardiner Roberts LLP.

[5] Cassels Brock has an Ethics and Standards Committee that provides the members of the law firm with advice to resolve client conflict of interest issues, confidentiality screens, ethical issues, standards of practice and matters of professionalism. In 2008, the Ethics and Standards Committee was renamed the Risk Management Committee, and, subsequently, it was renamed the Audit & Risk Management Committee.

[6] The members of the Ethics and Standards Committee are involved in the law firm’s management and provide internal legal and strategic advice with respect to issues within the professionalism mandate of the Ethics and Standards Committee.

2. The Timeshare Donation Program and Cassels Brock’s Opinion

[7] Around 2000, Stephen Elliott and Steven Mintz approached the accounting firm, Mintz & Partners with the idea of a Timeshare Program that would provide tax benefits to participants. Steven Mintz’s brother was a partner of the accounting firm.

[8] In 2000, Messrs. Elliot and Mintz retained Cassels Brock to provide Canadian Athletic Advisors with a legal opinion about the tax consequences under the Income Tax Act of participating in a Timeshare Donation Program.

[9] Mr. Saltman prepared the opinion for Canadian Athletic Advisors, and in the following years, Cassels Brock prepared more legal opinions for Canadian Athletic Advisors about the Timeshare Program. There are six opinions. The opinions are substantially the same.

[10] Thus, on October 6, 2000, May 18, 2001, September 7, 2001, May 13, 2002, November 8, 2002 and April 8, 2003, Cassels Brock provided Canadian Athletic Advisors with a legal opinion letter with respect to the Timeshare Program. The Cassels Brock opinion was that it was unlikely that the Canada Customs and Revenue Agency (“Canada Revenue”) could successfully deny the tax credits.

[11] In the marketing of the Timeshare Program, the tax opinions prepared by Cassels Brock were included in the promotional material.

[12] Between 2000 to 2003, the Representative Plaintiff, Jeffrey Lipson, and about 900 other Canadian taxpayers participated in the Timeshare Program in which they donated both cash and also resort timeshares to Canadian athletic associations. Mr. Lipson and the donors anticipated receiving tax credits for their charitable donations.

[13] Mr. Lipson did not read the Cassels Brock opinion, but he participated in the Timeshare Programs. For 2000, he claimed tax credits of $634,352. For 2001, he claimed credits of $1,261,988. For 2002, he claimed credits of $2,085,835. For 2003, he claimed credits of $1,148,879.60.

[14] Mr. Lipson says that he and the other participants would not have participated in the program but for the opinion of a reputable law firm that the charitable tax credits under the Income Tax Act would be available.

[15] In 2004, Canada Revenue disallowed the anticipated tax credits in their entirety.

[16] In 2004 and 2005, Mr. Lipson and other participants sought advice from Thornsteinssons LLP, a law firm that specializes in tax litigation, and in 2006, some of the participants commenced litigation against Canada Revenue as test cases to determine the availability of the tax credits for the donations.

[17] In March 2008, Mr. Mintz spoke to Mr. Saltman about the litigation in the Tax Court. Mr. Mintz said that he and other participants in the Timeshare Program had received advice from Thorsteinssons LLP. He sent Mr. Saltman Thorsteinssons LLP’s letter dated November 20, 2007 which, among other things, detailed Thorsteinssons LLP’s legal opinion about the Timeshare Program.

[18] In 2008, the test case litigation settled, and Canada Revenue allowed the participants to receive a tax credit for the cash portion of the donation. Mr. Lipson and the other participants in the Timeshare Program, however, were denied the greater part of their anticipated tax credit based on the value of the donated timeshares.

3. The Class Action

[19] In 2009, to recover his alleged losses, Mr. Lipson commenced this class action against Cassels Brock for damages for negligence and negligent misrepresentation. Mr. Lipson alleges that Cassels Brock breached the standard of care of reasonably competent tax lawyers by endorsing the Program in 2000 to 2003. The Amended Statement of Claim pleads that there was an undisclosed joint retainer and conflict issues that affected Cassel Brock’s duty of care. In Mr. Lipson’s action, a core allegation against Cassels Brock is that it failed to consider whether Canada Revenue would consider the conveyance of timeshares a gift in accordance with the Income Tax Act jurisprudence.

[20] It is worth keeping in mind that Mr. Lipson’s action is not a run-of-the-mill professional negligence action because the Class Members were not clients of the law firm and rather had or could have had other professional tax advisers.

[21] Cassels Brock brought third party claims against Mintz & Partners LLP, Deloitte & Touche LLP, Glenn F. Ploughman, Shelley Shifman, Prenick Langer LLP, TMK Financial Group Ltd., Gardiner Roberts LLP, the Estate of Ronald J. Farano, deceased, John Doe 1-100, John Doe Inc. 1-100, John Doe Partnership 1-100, John Doe LLP 1-100. These third parties were involved in the promotion and marketing of the Timeshare Program.

[22] Mr. Lipson moved to certify his action as a class proceeding under the Class Proceedings Act, 1992 , and in November 2011, I ruled that the action was certifiable but that it was statute-barred by the two-year limitation period set out in the Limitations Act, 2002.[^2]

[23] On March 19, 2013, the Court of Appeal for Ontario reversed my decision about whether the action was statute-barred leaving that issue to be determined in the cause.[^3] The Court of Appeal agreed with my decision that the action was certifiable and added additional common issues and allowed the class action to continue.

[24] In the class action, the certified common issues are:[^4]

Negligence

(1) Did the defendant owe the class a duty of care (in among other things, negligence or negligent misrepresentation) in the preparation of the legal opinions?

(2) If the answer to common issue 1 is yes, what is the content of the standard(s) of care?

(3) Did the defendant breach the foregoing standard(s) of care? If so, how?

(4) If the answer to common issue 3 is yes, did the defendant's breach of the foregoing standard(s) of care cause or materially contribute to the damages of the class members?

Damages & Other Relief

(5) If after an individual issues trial, the defendant were found liable to a Class Member for negligent misrepresentation or negligence, what types or heads of damages, if any, would the Class Members be entitled to?

(6) If after an individual issues trial, the defendant were found liable to a Class Member for negligent misrepresentation or negligence what remedy or remedies, if any, would the Class Members be entitled to?

[25] Cassels Brock and Third Parties have defended the action on numerous bases. Among other things, Cassels Brock has pleaded that: (a) it did not owe a duty of care to Mr. Lipson or other Class Members; (b) Mr. Lipson did not read or rely upon the legal opinions of Cassels Brock; (c) Mr. Lipson and other Class Members obtained independent legal and accounting advice from others before participating in the Timeshare Program; (d) the legal opinions and conduct of Cassels Brock met the standard of care; (e) neither Mr. Lipson nor other Class Members suffered any damages; (e) to the extent that Mr. Lipson suffered any damages, he failed to mitigate those damages; and (f) the action is statute-barred pursuant to the Limitations Act, 2002 as Lipson knew or ought to have known of all claims asserted against Cassels Brock more than two years before the issuance of the Statement of Claim.

[26] The action proceeded to the discovery phase.

Schedule B to Cassel Brock’s affidavit of documents lists the following three documents over which it claims “quality assurance privilege”:

Docid

Docdate

Doctype

Doctitle

Author

Recipient

Privilege Claimed

CBB0000387

1/17/2001

Memorandum

Re: [No Subject]

Mercer, Cathy L. [Cassels Brock & Blackwell LLP

Ethics Committee: Guthrie, D. McKeown, J. Dickson, G.

Common Law Quality Assurance Privilege

CBB0000386

2/26/2001

Memorandum

The Athletic Trust of Canada Marketing Material

Saltman, Lorne [Cassels Brock & Blackwell LLP

Ethics Committee: Guthrie, D. McKeown, J. Dickson, G.

Common Law Quality Assurance Privilege

CBB0005146

2/26/2001

Memorandum

Re: The Athletic Trust of Canada Marketing Material

Saltman, L [Cassels Brock]

Ethics Committee (D. Guthrie, J. McKeown and G. Dickson)

Common Law Quality Assurance Privilege

[27] The three documents over which Cassels Brock asserts quality assurance privilege consist of internal communications between members of Cassels Brock’s Ethics and Standards Committee, its Managing Partner (Mark I. Young) and Mr. Saltman.

a. CBB0000387 is a memorandum dated January 17, 2001 that was authored by Cathy L. Mercer and addressed to other members of Cassels Brock’s Ethics and Standards Committee. The memorandum refers to a meeting involving members of the Ethics and Standards Committee the previous day and attaches external documentation provided to the Ethics and Standards Committee by the Managing Partner at Cassels Brock, Mark I. Young.

b. The external documentation referenced in the memorandum (CBB0000388 and CBB0000389) was produced by Cassels Brock in February 2014 and are listed in Schedule A of its initial affidavit of documents, which was sworn February 18, 2014.

c. CBB0000386 and CBB0005146 are copies of the same memorandum dated February 26, 2001 that Mr. Saltman authored and sent confidentially to Cassels Brock’s Ethics and Standards Committee as well as Mr. Young. The memorandum attaches Ms. Mercer’s earlier memorandum dated January 17, 2001 as well as other documentation (CBB0000393, CBB0005120, CBB0000396 and CBB0000395). Cassels Brock produced CBB0000393, CBB0005120, CBB0000396 and CBB0000395 in October 2015 and listed these documents in Schedule A of its supplementary affidavit of documents sworn October 19, 2015.

[28] Mr. Saltman deposed that he did not expect that the three documents over which Cassels Brock has asserted common law quality assurance privilege would ever be disclosed to a third party.

[29] Mr. Saltman was examined for discovery over six days; namely, August 18, 2015, October 27, 2015; October 28, 2015; October 29, 2015; November 5, 2015; and October 14, 2016.

[30] Cassels Brock delivered its answers to undertakings and to questions taken under advisement on January 29, 2018.

[31] For the purposes of the refusals motion, Cassels Brock delivered affidavits providing additional information about its assertion of privilege.

[32] The refusals from Mr. Saltman’s examination for discovery have been grouped into four discrete groups; namely: (1) the quality assurance memorandum refusals; (2) Cassel Brock’s view of the law refusals; (3) Mr. Saltman’s departure from Cassel’s Brock’s refusals; and (4) information from other individuals’ refusals.

[33] The groups of refusals are set out below:

Group #1: Quality Assurance Memorandum Refusals:

Page

Question

Description

170

559/60

Refusal to advise what the specific issue was that the Ethics Committee considered as it relates to the memorandum dated January 17, 2001, item 1 in the Defendant’s Schedule B, what the committee’s view was and what the recommendation was.

171

561

Refusal to advise if the subject matter of a memorandum dated January 17, 2001, item 1 in the defendant’s Schedule B, related to a conflict of interest.

171

562

Refusal to advise of the memorandum of January 17, 2001, item 1 in the Defendant’s Schedule B, related to some other ethical or professional issue.

171

563

Refusal to advise what the outcome was of the review by the Ethics Committee.

171/2

564

Refusal to advise what the subject matter or the outcome was of the three memoranda referred to as CBB 386, 5146 and 5198 in the Defendant’s Schedule B.

173

572

Refusal to advise what the circumstances were under which an issue was brought to the attention of the Ethics Committee as it relates to the January 17, 2001 memorandum, item 1 in the Defendant’s Schedule B

174

573

Refusal to advise what facts are referred to in the memorandum of January 17, 2001 memorandum, item 1 in the Defendant’s Schedule B

174

574

Refusal to advise what facts are referred to in the four memoranda listed in the Defendant’s Schedule B.

176

582

Refusal to advise what the defendant understood the nature of the quality assurance issues were that the Ethics Committee was tackling.

177

589

Refusal to advise what the Defendant’s recollections are of what arose in relation to the three memoranda that are listed in Schedule B as of the first two months of 2001.

179

598

Refusal to advise what the circumstances were under which Ms. Mercer came to pen a memorandum to the Ethics Committee.

180

603

Refusal to advise why a member of the securities group would have been writing a memorandum to the Ethics Committee.

180

605

Refusal to advise if the memorandum from Schedule B dated February 26, 2001 is in response to the memorandum dated January 17, 2001

181

606

Refusal to advise if the third memorandum from Schedule B also dated 26 February 2001 is in response to the memorandum dated January 17, 2001.

181

608/9

Refusal to produce any other documents that relate to the process undertaking by the Ethics Committee as of 2001, or its process of review and evaluation.

Group #2 Refusals: Cassels Brock’s View of the Law:

Page

Question

Description

834 (Nov 5, ’15)

3137

Refusal to advise whether Cassels Brock, Mr. Saltman, advised other clients about the likelihood of success of CCRA challenges in respect of other similar tax arrangements.

834/5 (Nov 5, ’15)

3138

Refusal to advise if there is documentation internal to Cassels Brock analyzing the question of whether this type of tax arrangement could be successfully challenged by CRA after 2003.

835 (Nov 5, ’15)

3139

Refusal to produce documentation internal to Cassels Brock analyzing the question of whether this type of tax arrangement could be successfully challenged by CRA after 2003, redacted for client privilege issues.

Group #3 Refusals: Mr. Saltman’s Departure from Cassels Brock:

Page

Question

Description

Refusal to advise whether Mr. Saltman’s departure from Cassels Brock was in any way related to the services he rendered in respect of this program and was there any complaint or issue raised with him at Cassels Brock in respect of this program.

Refusal to advise if any client has complained to Mr. Saltman about the advice he gave in respect of this program.

Group #4 Refusals: Information from Other Individuals:

Page

Question

Description

841 (Nov 5, ’15)

3162

Under advisement to the extent that the defendant gets information from other individuals that is relevant to this proceeding, to provide a summary of that information as well as the name, address and contact information of those individuals.

C. Discussion and Analysis

1. Refusal Group #1: Quality Assurance Memorandum

[34] Cassels Brock asserts that the memoranda of its Ethics and Standards Committee are privileged from disclosure and production either because: (a) they are subject to solicitor-client privilege; or (b) they are subject to what is known as the quality assurance privilege.

[35] To qualify for solicitor-client privilege, a communication must be: (1) between a client and his or her lawyer who must be acting in a professional capacity as a lawyer; (2) given in the context of obtaining legal advice; and (3) intended to be confidential.[^5]

[36] For the communication to be privileged, the person making the communication must be a lawyer. For the solicitor-client privilege to attach, the lawyer must be acting in his or her role of a lawyer. No solicitor-client privilege attaches to advice on purely business matters even where it is provided by a lawyer.[^6] Communications with a lawyer who is employed as in-house counsel may qualify for solicitor-client privilege, but communications with an in-house counsel will not be privileged if the in-house counsel is acting in a non-lawyer capacity.

[37] In Toronto-Dominion Bank v. Leigh Instruments,[^7] a document about the role of comfort letters for bank loans was circulated by a senior vice-president, a lawyer who was secretary and general counsel for the bank. The document was held not to be privileged because the court was not satisfied that the vice-president was acting as a lawyer as opposed to a business executive.

[38] In the immediate case, the Ethics and Standards Committee is comprised of lawyers and it provided both legal and business advice to Cassels Brock, which obviously is also comprised of lawyers. The Ethics and Standards Committee was in effect playing the same role as played by in-house counsel for a business entity like a corporation. The law firm, in effect, was the client of the Ethics and Standards Committee.

[39] In my opinion, insofar as the Ethics and Standards Committee or a law firm’s in-house general counsel provides legal advice, it is entitled to invoke lawyer and client privilege. In my opinion, a law firm should be able to give itself legal advice about its own affairs including advice about avoiding being sued or about how to respond if it is in fact sued.

[40] That said, because it is difficult to differentiate legal advice, which is protected by lawyer-client privilege, from business advice, which is not protected, in professional negligence litigation, it is appropriate for the Plaintiff to challenge the law firm’s claim for privilege. If there is a challenge to the claim for privilege, then the court should utilize rule 30.06, which provides in relevant part as follows:

30.06 Where the court is satisfied by any evidence that a relevant document in a party’s possession, control or power may have been omitted from the party’s affidavit of documents, or that a claim of privilege may have been improperly made, the court may…

(c) order the disclosure or production for inspection of the document, or a part of the document, if it is not privileged; and

(d) inspect the document for the purpose of determining its relevance or the validity of a claim of privilege.

[41] In the immediate case, I inspected the three memoranda for which privilege was claimed by Cassels Brock for the purposes of determining their relevance and whether there was merit to the law firm’s claim for privilege.

[42] Having done so, I can report that the documents are privileged as lawyer-client privilege, but the documents are irrelevant. Having reviewed the memoranda, it appears to me that Cassels Brock acted appropriately by disclosing the memoranda with a claim of privilege for review by the court, but it turns out that there has been much ado about nothing because the documents have no probative value. This is particularly true once it is recalled that Cassels Brock disclosed the attachments that accompanied the memoranda. Having reviewed the memoranda, I can add that their legal advice content in response to those attachments is miniscule.

[43] Having reached this conclusion about relevancy, technically speaking, for the purpose of this refusals motion, it is not necessary for me to consider whether or not the memoranda of the Ethics and Standards Committee are subject to quality assurance privilege.

[44] However, the claim of quality assurance privilege was fully argued, and the answer to this question is an important matter for the legal profession that may frequently arise in other professional negligence cases. Therefore, I shall proceed to determine whether this claim applies in the circumstances of the immediate case. I observe that in future cases where a claim is made that the legal advice that a law firm gives to itself is privileged as quality assurance communications, the court should, always inspect the allegedly privileged document.

[45] The quality assurance privilege, which in the past has been used by the medical profession for hospitals,[^8] is recognized as a type of case-by-case privilege in accordance with the Wigmore criteria. The case-by-case privilege itself was recognized by the Supreme Court of Canada in Slavutych v. Baker.[^9]

[46] The more precise issue to be determined in the immediate case is whether lawyers may have a case-by-case privilege based on the circumstances of their examining or inquiring about the quality of their own legal work in order to avoid mistakes in the provision of legal services.

[47] It should be emphasized that an affirmative answer to this precise question just means that on a case-by-case basis law, firms can assert a quality assurance privilege if the firm can satisfy the Wigmore criteria. Mr. Lipson’s argument, however, was that a law firm can never asset a quality assurance privilege because in no circumstances could it ever satisfy the Wigmore criteria. While I might agree that a quality assurance privilege may on a case-by-case basis be difficult to prove, I disagree with Mr. Lipson’s arguments that the quality assurance privilege can never be available to a law firm. The availability of the case-by-case privilege for lawyers is a case-by-case matter.

[48] The onus of proving that documents are privileged is on the party claiming the privilege.[^10] The Wigmore criteria are: (a) the communications must originate in a confidence that they will not be disclosed; (2) confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; (3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and (4) the injury that would arise by the disclosure of the communications must be greater than the benefit gained for the correct disposal of litigation.

[49] In the context of legal services, in my opinion, for the quality assurance privilege to be available, the court must be satisfied from its own review of the documents that the communications were genuinely made as a quality assurance measure with a view to improving the quality of legal services and to ensure that the firm’s clients are safeguarded from mistakes in the firm’s provision of legal services.

[50] Turning to the Wigmore criteria in the circumstances of the immediate case, I am satisfied that Mr. Saltman’s communication with the Ethics and Standards Committee originated in a confidence that the communication would not be disclosed.

[51] I am also satisfied that the confidentiality between Mr. Saltman and the Ethics and Standards Committee was essential to the full and satisfactory maintenance of the relationship between a law firm and its partners and employees, which relationship entails that the law firm and its members be committed to providing competent legal services and that the law firm does so in accordance with its ethical and professional obligations.

[52] The attachments to the memorandum and Mr. Saltman’s evidence reveals that he was communicating about whether the law firm may have legal and professional obligations in the circumstances where its opinion is being made available as part of the promotional material for a client’s investment product. Mr. Saltman’s communication was about a matter of the use that could be made of the firm’s legal work product. From his perspective, the communication was being made as a quality assurance measure with a view to improving the quality of legal services the firm provided and to ensure that the firm’s clients were safeguarded from mistakes, reservations, or qualifications to the firm’s provision of legal services.

[53] In the circumstances of the immediate case, I am satisfied that the relationship between Mr. Saltman and the Ethics and Standards Committee was a relationship that ought to be sedulously fostered.

[54] Thus, on a case-by-case basis, I am satisfied that the first three of the four Wigmore criteria are satisfied in the case at bar. Turning to the fourth criterion, in a somewhat odd way, it too is satisfied. I say in an odd way because given the memoranda’s irrelevancy, there would be no significant injury by the disclosure of the memoranda; however, given their irrelevance, the memorandum would not contribute to the probity of the disposal of the litigation.

[55] As it turns out, once again, in the circumstances of the immediate case, the controversy about the quality assurance privilege is much ado about nothing important to the immediate case.

[56] Generally speaking, the quality assurance privilege is available on a case-by-case basis to law firms, and it was available to Cassels Brock in the immediate case and so the firm’s refusal to answer was justified.

2. Refusal Group #2: Cassel Brock’s View of the Law

[57] Cassels Brock provided its opinions between 2000 and 2003. Its opinions were based on the law as it existed during this period of time. In response to certain questions that were initially taken under advisement Mr. Saltman provided some evidence about how the case law changed after 2003.

[58] In response to Q. 3136, which was taken under advisement, Mr. Saltman testified that based on the state of law at the time that the opinions were given, he did not change his view regarding the likelihood of a successful challenge by the Canada Revenue Agency to Timeshare Program itself. In response to Q. 3134, which asked when Mr. Saltman or anyone at Cassels Brock arrived at a view that there might be a successfully challenge to the Timeshare Program, Mr. Saltman answered:

A. Amendments were made to subsection 248(35) and following of the Income Tax Act announced December 21, 2002 and enacted June 2003, as well as the amendments proposed in the 2003 federal budget to subsection 237.1 (1) (the “Amendments”). As tax professionals began to absorb the guidance from the Amendments and various cases, including Klotz v. The Queen, 2004 TCC 651 (TCC); Tolley v. The Queen, 2004 TCC 650 (TCC); Quinn v. The Queen 2004 TCC 649 (TCC), Mr. Saltman advises that his view began to change with respect to the potential success of a challenge by CRA to future programs like the Athletic Trust Program. Mr. Saltman did not express any opinion on the Athletic Trust program itself after December 15, 2003 and Thorsteinssons LLP took over the analysis in respect of the CRA challenge.

[59] The Group #2 Refusals concern how Mr. Saltman’s understanding of the case law may have changed in the years following the tax assessments made by Revenue Canada. I agree with Cassels Brock that this line of inquiry is irrelevant. It was justified in refusing to answer the questions.

3. Refusal Group #3: Mr. Saltman’s Departure from Cassels Brock

[60] The investments that are the subject matter of this class action occurred between 2000 and 2003. The class action was commenced in 2009. Mr. Saltman resigned from Cassels Brock in 2013. Group #3 questions inquired whether Mr. Saltman’s departure was connected to the subject matter of the litigation. Cassels Brock refused to answer these questions on the grounds of relevancy.

[61] I agree with Cassels Brock that this line of inquiry is irrelevant. It was justified in refusing to answer the questions.

4. Refusals Group #4:Information from Other Individuals

[62] Cassels Brock took under advisement question number 3162, which asked the law firm to produce a summary of relevant information it receives/received from others (witnesses or potential witnesses) as well as their names and contact information. Subsequently, the firm advised that Mr. Lipson request was too imprecise, but nevertheless, the firm would comply with its obligations under the Rules of Civil Procedure.

[63] In my opinion, this answer was satisfactory.

D. Conclusion

[64] For the above reasons, I dismiss Mr. Lipson’s refusals motion.

[65] If the parties cannot agree about costs, they may make submissions in writing beginning with Cassels Brock’s submissions within twenty days of the release of these Reasons for Decision, followed by Mr. Lipson’s submissions within a further twenty days.

Perell, J.

Released: September 24, 2019

COURT FILE NO.: CV-09-376511CP

DATE: 20190924

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JEFFERY LIPSON

Plaintiff

and -

CASSELS BROCK & BLACKWELL LLP

Defendant

REASONS FOR DECISION

PERELL J.

Released: September 24, 2019

[^1]: S.O. 1992, c. C.6.

[^2]: Lipson v. Cassels Brock & Blackwell LLP, 2011 ONSC 6724 var’d 2013 ONCA 165.

[^3]: Lipson v. Cassels Brock & Blackwell LLP, 2013 ONCA 165.

[^4]: Lipson v. Cassels Brock & Blackwell LLP, 2011 ONSC 6724 var’d 2013 ONCA 165.

[^5]: R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565; Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860; Gower v. Tolko Manitoba Inc. (2001), 2001 MBCA 11, 196 D.L.R. (4th) 716 (Man. C.A.); Wigmore on Evidence, Vol. 8 (McNaughten rev., 1961), para. 2292.

[^6]: R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565 at para. 50.

[^7]: (1997), 1997 CanLII 12113 (ON SC), 32 O.R. (3d) 575 (Gen. Div.). See also Mutual Life Assurance Co. of Canada v. Canada (Deputy Attorney General), [1988] O.J. No. 1090 (H.C.J.).

[^8]: Steep v. Scott, 2002 CanLII 53248 (ON SC), [2002] O.J. No. 4546 (Master); Redman v. Hospital for Sick Children, 2010 ONSC 3769 (Master). In the medical field, the quality assurance privilege is statutorily enshrined; see Quality of Care Information Protection Act, 2016, S.O. 2016, c. 6.

[^9]: 1975 CanLII 5 (SCC), [1976] 1 S.C.R. 254.

[^10]: Davies v. American Home Assurance Co. (2002), 2002 CanLII 62442 (ON SCDC), 60 O.R. (3d) 512 (Div. Ct.); Toronto-Dominion Bank v. Leigh Instruments (1997), 1997 CanLII 12113 (ON SC), 32 O.R. (3d) 575 (Gen. Div.).

Lipson v. Cassels Brock & Blackwell, LLP, 2019 ONSC 5483

Case Summary

A. Introduction

B. Factual Background

1. The Parties

2. The Timeshare Donation Program and Cassels Brock’s Opinion

3. The Class Action

C. Discussion and Analysis

1. Refusal Group #1: Quality Assurance Memorandum

2. Refusal Group #2: Cassel Brock’s View of the Law

3. Refusal Group #3: Mr. Saltman’s Departure from Cassels Brock

4. Refusals Group #4:Information from Other Individuals

D. Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 1

Legislation 2