Superior Court of Justice - Ontario

Re: Joshi v. Chada Citation: 2020 ONSC 1367 Court File No.: CV-16-565629

Before: Master R. A. Muir

Counsel: Dorothy Charach and Natalie Kolos for the defendants/moving parties Michael Hershkop for the plaintiffs, responding parties

Motion Heard: 2020 02 07

Endorsement

[1] This is a motion brought by the defendants seeking the production of a broad range of documents from the files kept by the plaintiffs’ lawyers.

[2] This is a medical malpractice case. The plaintiff Sejal Joshi (“Ms. Joshi”) became pregnant in 2003. She consulted her family physician Dr. Chada who referred her to an obstetrician, Dr. Padmore. The plaintiff Isha Joshi was born on December 16, 2003. Soon after, Isha Joshi was diagnosed with spina bifida.

[3] This action was started on December 8, 2016. The adult plaintiffs are advancing a claim for wrongful birth. The defendants have brought a summary judgment motion to dismiss the adult plaintiffs’ claim on the basis that it is statute barred. The defendants submit that the adult plaintiffs should have discovered their claim by December 2003 at the latest and are therefore out of time.

[4] In response to the summary judgment motion, the plaintiffs delivered responding evidence from Ms. Joshi stating that she did not discover her claim against the defendants until she received legal advice from her current lawyers in 2016.

[5] The defendants take the position that Ms. Joshi has put her state of mind in issue and therefore waived any privilege over the advice received from her lawyers and the contents of her lawyers’ files. They also argue that an affidavit delivered by Ms. Joshi’s lawyer in response to this motion makes selective disclosure of privileged information and also amounts to a waiver of privilege.

[6] I am not prepared to make the order requested by the defendants.

[7] First, I do not view the affidavit filed by the plaintiff’s lawyer in responding to this motion as amounting to a waiver of privilege over the contents of the lawyer’s file for the purposes of the summary judgment motion. The affidavit from Mr. Elmaleh was clearly delivered in response to this motion seeking production of his file. The affidavit was necessary in order for Mr. Elmaleh to respond to the defendants’ request and to provide some limited information about the timing and subject matter of his retainer. This information is required in order to allow the court to determine the issues on this motion and not the summary judgment motion.

[8] Second, I certainly agree with the defendants that in circumstances such as these where a plaintiff has given evidence that puts her state of mind in issue and has received legal advice to help form that state of mind, such evidence may give rise to a waiver of lawyer/client privilege. See Lawless v. Anderson, [2009] OJ No. 4374 (SCJ-Master) at paragraphs 6 to 11 and Jack v. Canada (Attorney General), [2004] OJ No. 3294 (SCJ) at paragraphs 114 and 115. This proposition is based on simple fairness. At some point, lawyer/client privilege must give way to full disclosure in the interest of trial fairness. See Jack at paragraph 115.

[9] However, it is necessary to emphasize the importance of lawyer/client privilege and confidentiality in our system of justice. It constitutes a fundamental and substantive element of our legal system. It is a necessary and essential condition for the effective administration of justice. It should not be cast aside except when absolutely necessary and only in limited measure. It must be as close to absolute as possible. See Elgner v. Freedman, 2014 ONSC 1989 at paragraphs 25 to 31.

[10] I agree with the defendants that it may be unfair to allow the plaintiffs to put forward portions of otherwise privileged documents or information for their benefit while withholding other related portions as privileged. However, in my view, that is not what the plaintiffs have done here.

[11] I accept the argument that this is a case where Ms. Joshi has put her state of mind in issue and received legal advice to help form that state of mind. However, this simple fact does not necessarily result in a wholesale waiver of lawyer/client privilege. In my view, Ms. Joshi’s state of mind after she first consulted her current lawyers in 2016 is simply not relevant to the issue of discoverability. Even if the court were to conclude that Ms. Joshi first discovered her claim at the time of her very first contact with her current lawyers, the statement of claim was still issued well within the applicable two-year limitation period set out in the Limitations Act, 2002, SO 2002, c 24, Sch B (the “Limitations Act”).

[12] This is not a situation where a plaintiff consulted counsel and may have been given advice by her lawyers that she did in fact have a claim against the defendants and then failed to issue a claim within the presumptive limitation period. That, however, was the situation that prevailed in Lawless. The facts on this motion are much different. The plaintiff in Lawless consulted a lawyer in December 2003 but did not commence her action until June 2005. The advice the plaintiff in Lawless received in December 2003 was therefore relevant because the statement of claim was issued more than one year after receiving that initial legal advice, which was after the expiry of what was then a one-year presumptive limitation period established by the Regulated Health Professions Act, 1991, SO 1991, c. 18. However, if the plaintiff in Lawless had discovered her claim after December 31, 2003, the two-year period under the newly proclaimed Limitations Act would have applied, and the claim would not be statute barred. With those facts, it is understandable that Master Hawkins ordered disclosure of the lawyer’s file. The plaintiff’s state of mind in the month of December 2003 was the key issue in Lawless and legal advice had helped form that state of mind. The facts of Lawless are fully set out in the decision of the Court of Appeal in Lawless v. Anderson, 2011 ONCA 102 at paragraphs 8 to 13.

[13] I am not suggesting that all of the discussions Ms. Joshi had with her lawyer and all of the documents that may be found in her lawyer’s file are out of bounds. To the extent that those discussions and documents touch on Ms. Joshi’s state of mind prior to her retaining her current lawyers, they may very well be proper and relevant. However, what the defendants are seeking on this motion, as set out in the draft order at schedule A to the notice of motion, amounts to a complete waiver of privilege and more or less full production of the plaintiffs’ lawyers’ files. Such an order in the circumstances of this case would be inconsistent with the fundamental principle of lawyer/client privilege.

[14] In my view, the proper approach in the circumstances of this action is for the defendants to cross-examine Ms. Joshi on her affidavit by asking specific questions about her discussions with her lawyer and documents her lawyer may have in his possession. To the extent they may be relevant, and privilege has been waived, they should be answered, and documents produced. To the extent that the parties cannot agree, the specific refusals can be determined on a subsequent motion. In my view, this process will promote the objective of ensuring fairness at the hearing of the summary judgment motion while intruding on lawyer/client privilege only to the extent required to ensure a fair hearing.

[15] The defendants’ motion is therefore dismissed. If the parties are unable to agree on the issue of the costs of this motion, they shall provide the court with brief submissions in writing by no later than April 16, 2020. These submissions may be sent directly to me by email.

Master R. A. Muir Date: 2020 03 03