COURT FILE NO.: 17-72491 & related MOTION HEARD: December 16, 2019
SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: 17-72491 RE: HASSAN KELKAS Plaintiff -and- YILMAZ KILICASLAN Defendant
COURT FILE NO.: 17-79361 RE: HASSAN KELKAS Plaintiff -and- DANIEL BADRE and BADRE LAW Defendants
COURT FILE NO.: 18-78200 RE: HASSAN KELKAS Plaintiff -and- ALLSTATE INSURANCE COMPANY Defendant
BEFORE: MASTER FORTIER
COUNSEL: Alan J. Clausi for the plaintiff, Hassan Kelkas in Court File Nos.17-72491 and 18-78200 (responding party). Bryan Rumble for the plaintiff, Hassan Kelkas in Court File No. 19-79361 (responding party). Stephen Cavanagh, for the defendants, Daniel Badre and Badre Law, moving parties in Court File No. 19-79361. Sarah S. Bedard for the defendant, Yilmaz Kilicaslan in Court File No. 17-72491 (moving party). Lisa Langevin for the defendant, Allstate Insurance Company in Court File No. 18-78200.
REASONS FOR DECISION
INTRODUCTION
[1] The plaintiff Hassan Kelkas (“the plaintiff”) commenced three actions, connected with a motor vehicle accident that occurred on December 5, 2015.
[2] The first action was brought by the plaintiff against the defendant Yilmaz Kilicaslan for damages incurred in the December 2015 motor vehicle accident. The plaintiff’s vehicle was struck by the vehicle owned and operated by the defendant Kilicaslan (Kelkas v. Kilicaslan, court file no. 17-72491, hereinafter referred to as the “tort action”). The defendant in the tort action has admitted liability. The plaintiff is represented by solicitor Alan Clausi in this proceeding.
[3] The second action was commenced by the plaintiff against Allstate Insurance Company (“Allstate”) pursuant to an underinsured motorist endorsement, OPCF-44R. The plaintiff claims that the driver of the defendant vehicle in the first action (Mr. Kilicaslan) was underinsured and that Allstate is liable to compensate the plaintiff (Kelkas v. Allstate Insurance, court file no. 18-78200, hereinafter referred to as the “OPCF action”). Mr. Clausi also represents the plaintiff in this proceeding.
[4] The third action is a solicitor’s negligence claim. The Defendant, Daniel Badre is a lawyer who initially acted for the plaintiff and commenced the first action. In this proceeding, it is alleged that Mr. Badre was negligent in having recommended settlement of the plaintiff’s accident benefits claim without having undertaken an adequate investigation of whether the plaintiff had suffered catastrophic impairment in the December 2015 motor vehicle accident (Kelkas v. Badre, court file no. 19-79361, hereinafter referred to as the “solicitor’s negligence” action). The plaintiff is represented by solicitors Bryan Rumble and Joseph Falconeri in this proceeding.
[5] The three actions were assigned to me for case management at the direction of the Regional Senior Judge pursuant to r. 77.05(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. As indicated in my endorsement at a case conference held on June 4, 2019, in my view, it was appropriate to have the three actions case managed together having regard to the criteria outlined in r. 77.05(4).
[6] The OPCF and solicitor’s negligence actions remain at the pleadings stage. Although examinations for discovery and mediation have been held in the tort action, the plaintiff amended his claim in November 2018 to increase his claim for damages. It is not clear whether additional discoveries will be required as a result of the amendment.
RELIEF SOUGHT
[7] The defendants in all three proceedings seek an order that the proceedings be consolidated or heard together. In particular: a) The defendants in the solicitor’s negligence action seek an order that the actions be tried together or one immediately after the other and an order that the deemed undertaking rule be dispensed with among all three proceedings; b) The defendant in the OPCF action seeks an order consolidating the three actions or in the alternative an order that the actions be tried together, with common production and discovery and a single, common mediation. This defendant also seeks an order that the deemed undertaking rule be dispensed with among all three proceedings; c) The defendant in the tort action seeks similar orders as the defendants in the solicitor’s negligence and OPCF actions as well as an order compelling answers to undertakings and refusals given at the plaintiff’s examination for discovery.
[8] The plaintiff’s position with respect to relief sought in all three motions is as follows: a) Only the tort and OPCF actions ought to be tried together or one after the other. The solicitor’s negligence action ought to be tried separately; b) The plaintiff opposes the request of the defendants in the tort and OPCF actions for the production of the solicitor’s file in the solicitor’s negligence action as well as their request to attend and participate in the discoveries in the solicitor’s negligence action; c) The plaintiff opposes a waiver of the deemed undertaking for any information discovered in the solicitor’s negligence action for use in the tort action and the OPCF action, including the use of solicitor-client privileged communications and related documents discovered in the solicitor’s negligence action; d) The plaintiff does not oppose a waiver of the deemed undertaking as it applies to the use in the solicitor’s negligence action of information obtained in the tort or OPCF actions; e) The plaintiff does not oppose a common mediation as long as the process is structured to prevent any transmission of privileged information or breach of the implied undertaking rule.
[9] As a preliminary matter, I declined to hear the tort defendant’s refusals motion. The present motions were scheduled to address the issue of consolidation and not answers to undertakings. The tort defendant’s refusals motion was adjourned to April 2, 2020 and subsequently adjourned until further notice as a result of the suspension of the Court’s regular operations due to COVID-19.
ISSUES:
A- Should the three proceedings be consolidated, heard at the same time or one immediately after the other? B- Should the plaintiff be deemed to have waived his solicitor-client privilege with regard to the tort and OPCF proceedings as a result of his pursuit of his solicitor’s negligence action? C- Should the deemed undertaking rule be dispensed with among any of the three proceedings?
DISPOSITION
[10] For the reasons that follow the court orders that: A- The three actions be tried together, or one after the other, in the discretion of the trial judge; B- The deemed undertaking rule applies with respect to the evidence and information obtained in the solicitor’s negligence action so as to preclude the use of such information in the tort and OPCF actions; C- The deemed undertaking rule is dispensed with as it applies to the use, in the solicitor’s negligence action, of information obtained in the tort and OPCF actions and as between the tort and OPCF actions.
LAW AND ANALYSIS
A- Should the three proceedings be consolidated, heard at the same time or one immediately after the other?
[11] Rule 6.01 sets out the statutory basis upon which two or more actions may be consolidated, heard at the same time or one immediately after the other. Rule 6.01 reads as follows:
6.01 (1) Where two or more proceedings are pending in the court and it appears to the court that, (a) they have a question of law or fact in common; (b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or (c) for any other reason an order ought to be made under this rule, the court may order that, (d) the proceedings be consolidated, or heard at the same time or one immediately after the other; or (e) any of the proceedings be, (i) stayed until after the determination of any other of them, or (ii) asserted by way of counterclaim in any other of them. (2) In the order, the court may give such directions as are just to avoid unnecessary costs or delay and, for that purpose, the court may dispense with service of a notice of listing for trial and abridge the time for placing an action on the trial list.
[12] In 1014864 Ontario Limited v. 1721789 Ontario Inc., 2010 ONSC 3306 [1], Master Dash indicated that the proper approach on a motion under r. 6 is to first ascertain whether the moving party has satisfied one or more of the three “gateway” criteria set out in r. 6.01(1) before making an order consolidating the proceedings or having the proceedings tried together or one after the other. Those criteria are: a. The proceedings have a question of law or fact in common; b. The relief claimed in the proceedings arises out of the same transaction or occurrence or series of transactions or occurrences; or c. For any other reason an order ought to be made under this rule. [2]
[13] If the moving party has satisfied one or more of the “gateway” criteria, Master Dash provided a non-exhaustive list of possible factors that a court may consider in deciding whether to grant a motion under r. 6.01, including: a. the extent to which the issues in each action are interwoven; b. whether there is expected to be a significant overlap of evidence or of witnesses among the various actions; c. whether the parties are the same; d. whether the lawyers are the same; e. whether there is a risk of inconsistent findings or judgment if the actions are not joined; f. whether a decision in one action, if kept separate and tried first would likely put an end to the other actions or significantly narrow the issues for the other actions or significantly increase the likelihood of settlement; g. the litigation status of each action; h. whether there is a jury notice in one or more but not all of the actions; i. the timing of the motion and the possibility of delay; j. whether any of the parties will save costs or alternatively have their costs increased if the actions are tried together; and, k. any advantage or prejudice the parties are likely to experience if the actions are kept separate or if they are to be tried together. [3]
[14] Rule 6 is interpreted and applied having regard to s. 138 of the Courts of Justice Act, R.S.O. 1990, c. C.43, which emphasizes that, “As far as possible, multiplicity of legal proceedings shall be avoided”. Essentially, the court must balance the competing interests of expediency along with convenience and possible prejudice to the parties. [4]
[15] In my view, one of the gateway criteria identified in r. 6.01 has been satisfied. In particular, the gateway criteria defined in rule 6.01 (1)(b) has been satisfied as it appears that the relief claimed in all three proceedings arises out of or is closely tied to the plaintiff’s injuries sustained in the December 2015 motor vehicle accident.
[16] The parties in both the tort and OPCF actions have conceded that their actions ought to be heard together and I agree. The question then becomes whether the solicitor’s negligence action ought to be heard together with the tort and OPCF actions.
[17] In my view, the answer to that question is yes, with certain limitations. In coming to that conclusion, I have considered the factors that would favour an order pursuant to r. 6.01 along with the factors that would mitigate against such an order. They are as follows: a) The factors that weigh in favour of granting the order: i- The evidence in relation to the plaintiff’s injuries will likely overlap. A significant issue in all three actions is the quantum of damages to which the plaintiff may be entitled, particularly with respect to whether or not he has met the criteria for catastrophic impairment under the accident benefits regime. In order to be successful in the solicitor’s negligence action, the plaintiff will have to lead evidence regarding the nature and extent of his injuries in order to determine the reasonableness of his accident benefits settlement; ii- The plaintiff is the same in all three actions, although he is represented by different counsel in the solicitor’s negligence proceeding; iii- There is a risk of inconsistent findings particularly with respect to whether the plaintiff’s injuries qualify as a catastrophic impairment. b) Factors that mitigate against an order under r. 6.01 are as follows: i- There is a jury notice in the both the tort and OPCF actions but not in the solicitor’s negligence action; ii- There may be prejudice to the plaintiff if the actions are to be tried together.
[18] In my view, an order that the solicitor’s negligence action be heard at the same time or immediately after the other two actions may prejudice the plaintiff if; a) the plaintiff is deemed to have waived solicitor-client privilege with respect to the tort and OPCF actions as a result the commencement of the solicitor’s negligence action, and; b) the deemed undertaking rule is dispensed with among the three proceedings.
[19] For the reasons that follow, I find that the plaintiff has waived solicitor-client privilege only within the confines of the solicitor’s negligence action and not in the other two actions. Furthermore, in my opinion, the deemed undertaking rule should not be dispensed with, other than between the tort and OPCF actions.
[20] In balancing the competing interests of the parties, in my view, an appropriate resolution is to order that the actions be tried together or one after the other, leaving it to the trial judge to work out the procedural rules to protect legitimate concerns of the parties and, at the same time, assure consistent results on all issues presented. The judge presiding at the trial has the discretion to decide how the matters are to proceed and this, of course, includes how to deal with two proceedings with jury notices and one without a jury notice. Indeed, r. 6.02 provides that the presiding judge has the discretion to order a separate trial. Rule 6.02 states:
6.02 Where the court has made an order that proceedings be heard either at the same time or one immediately after the other, the judge presiding at the hearing nevertheless has discretion to order otherwise.
[21] Although I am granting the order that the actions be tried together or one after the other in the discretion of the trial judge, certain restrictions ought to be placed on the procedural steps leading up to trial to ensure that the plaintiff is not prejudiced. These restrictions apply to both oral and documentary discovery as well as mediation.
B- Should the plaintiff be deemed to have waived his solicitor-client privilege with regard to the tort and OPCF proceedings as a result of his pursuit of his solicitor’s negligence action?
[22] At issue is the request by the defendants in the tort and OPCF actions for the documents and evidence contained in the solicitor’s file of the defendant Daniel Badre up until the time that the accident benefits settlement was entered into, which would include any correspondence or communication between the defendant Badre and the plaintiff and documents which may be subject to both solicitor-client and litigation privilege.
[23] The courts have found that when a party chooses to sue his solicitor for advice given, privilege is deemed waived when the communications between solicitor and client is “legitimately brought into issue in an action”. [5]
[24] The waiver of privilege in a solicitor’s negligence action is for the limited purpose of allowing the solicitor to defend the solicitor’s negligence claim and is not waived for all purposes. In Gowling Lafleur Henderson LLP v Meredith, 2011 ONSC 2686, an action in which a party sued its prior lawyer while other related actions were proceeding, following a failed real estate transaction, Master Dash held:
… “The waiver is for the limited purpose of defending the negligence claim and is waived only in the proceeding where the negligence is alleged. The privilege is not waived for all purposes. It does not open the door for disclosure of privileged communications in other proceedings where the solicitor’s negligence is not an issue. The privilege is that of the client, not the lawyer, and it can be waived in other actions only by the client. Any conflict as to the interference with solicitor client privilege should be resolved in favour of protecting the confidentiality.” [6]
[25] Sendagire v. Co-operators General Insurance Company, 2009 SKQB 265 [7] (Sask Q.B.), was a case very similar to the present matter. In Sendagire, the plaintiff was injured in a motor vehicle accident. He retained previous solicitors to represent him in respect to a claim for benefits payable under the Saskatchewan Automobile Accident Insurance Act as well as a tort claim against the owner and operator of the automobile involved in the accident. The plaintiff subsequently changed counsel. The tort action was settled for the limits of the defendant’s insurance policy, which was substantially less than the assessment of the plaintiff’s damages.
[26] The plaintiff subsequently commenced an action pursuant to the underinsured coverage. The defendant’s statement of defence in the underinsured coverage action alleged that it was not provided with notice of the claim as required and or the plaintiff’s action was not commenced within the time required. Accordingly, the plaintiff commenced an action against his previous solicitors in which he claimed that his previous solicitors were liable for failing to give the required notices under the underinsured coverage. Examinations for discovery were held in both the solicitor’s negligence claim, and the underinsured coverage claim. The defendants in the underinsured coverage claim brought a motion for production of documents from the plaintiff solicitor’s files in respect to the tort action and a copy of the transcripts of the examinations for discovery conducted in the plaintiff’s action against his previous solicitors as well as copies of materials in that action.
[27] As in the present case, in Sandagire, the defendants sought access to the file of the plaintiff’s solicitors with respect to the tort action. The defendants argued that such files were relevant to determining the extent of the injuries caused by the accident as well as the date in which the plaintiff or his legal representatives knew, or ought to have known, that the insurance coverage available to the tort defendants would not be sufficient such as to give rise to the a claim under the defendants’ underinsured coverage. The plaintiff, while acknowledging that such information may be relevant to those issues, took the position that the information requested was protected by solicitor-client privilege and did not need to be disclosed. The defendants argued that the solicitor-client privilege ended when the tort action was settled or in the alternative, it was waived when he commenced the action against his previous solicitors.
[28] In finding that privilege is waived in the action against the solicitor only and not as against the defendants in the other actions [8], Justice Gabrielson in Sendagire provided a helpful review of the law on privilege that can be summarized as follows: a. The files of a solicitor for a party in an action are privileged. b. Privilege claimed may include the following two types of privilege: iii- Legal advice privilege (solicitor-client privilege) iv- Litigation privilege c. The extent and possible duration of each type of privilege is different. d. Subject to the following exceptions, litigation privilege ends when the litigation ends: i- Subsequent litigation will remain subject to a claim of privilege if it involves the same or related parties and the same or related source; ii- Access will be controlled as many of the documents in the solicitor’s file will remain exempt from disclosure by virtue of the legal advice privilege. iii- Anything in a litigation file that falls within the solicitor-client privilege will remain privileged. e. Solicitor-client privilege does not end when the litigation ends or when the relationship between the client and the lawyer ends. f. Solicitor-client privilege is fundamentally important to our judicial system and where there is a conflict over whether a certain communication is subject to solicitor-client privilege, it should be resolved in favor of protecting the privilege g. The privilege is that of the client, not the lawyer. h. The onus rests upon the party seeking to set aside the privilege to establish that the privilege has ended or has been waived. i. Solicitor-client privilege can be waived voluntarily by the possessor of the privilege or in the absence of an intention to waive, where required by fairness and consistency. j. Where a party sues his or her solicitor, solicitor-client privilege is waived over all matters that put in issue what caused the losses claimed and whether they were attributable to the solicitor. k. Where a party sues his or her solicitor, privilege is waived only for the solicitor’s negligence action and not as a result of the commencement of a separate action by the client against third parties. [9]
[29] In the present case, I find that the files in the solicitor’s negligence action are protected by both solicitor-client privilege and litigation privilege (as the litigation is ongoing). Neither privilege has been waived by the plaintiff. In my view, the moving parties have not discharged their onus of establishing that the solicitor-client privilege has been waived or, so far as the litigation privilege is concerned, that the litigation has ended. I respectfully agree with and adopt the reasoning in Gowlings and Sendagire which hold that the deemed waiver of privilege applies only to the solicitor’s negligence proceeding and is not waived in other proceedings – in this case, the tort and OPCF actions.
[30] In my view, this is a situation whereby the court must control its processes and prevent an unwarranted intrusion into solicitor-client privilege; to do otherwise, would be unfair to the plaintiff in the tort and OPCF actions.
[31] For these reasons, the tort and OPCF defendants request for the production of the solicitor’s file in the solicitor’s negligence action is denied.
C- Should the deemed undertaking rule be dispensed with among any of the three proceedings?
[32] The deemed undertaking rule is set out in r. 30.1.01. Pursuant to the rule, the parties and their lawyers are deemed to undertake not to use evidence or information obtained from documentary discovery, examinations for discovery, inspection of property, medical examination, examination for discovery by written questions for any purposes other than those of the proceeding in which the evidence was obtained. [10]
[33] Exceptions to the deemed undertaking rule are outlined in r. 30.1.01(4), (5) (6) and (7). They are as follows: a) There the other party consents to the use of the evidence; b) The evidence is filed with the court; c) The evidence is given or referred to during a hearing; d) The information obtained from the evidence mentioned above; e) The use of evidence obtained in one proceeding to impeach the testimony of a witness in another proceeding. f) The use of evidence or information in a subsequent action in accordance with rule 31.11 (8). [11]
[34] Rule 31.1.01(8) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [12] allows the Court to relieve against obligations imposed by the rule where the Court is satisfied that the interests of justice outweigh any prejudice that would result to a party who disclosed evidence, or the information obtained from that evidence. In doing so, the Court “may impose such terms and give such directions as are just”.
[35] As a preliminary matter, the parties in the tort and OPCF actions consent to the use of the evidence obtained in their actions in the solicitor’s negligence actions.
[36] The issue is therefore whether the court ought to relieve against the obligations imposed by the deemed undertaking rule with respect to the evidence and information obtained in the solicitor’s negligence action for use in the tort and OPCF actions.
[37] As the exceptions to the deemed undertaking listed in r. 30.1.01(4), (5) (6) and (7) do not apply in the matter before me, I must be satisfied that the interests of justice outweigh any prejudice that would result to a party who disclosed evidence, or the information obtained from that evidence in order to grant the relief requested. The onus is on the moving party to demonstrate a superior public interest in disclosure and the deemed undertaking will only be waived or varied by the court in exceptional circumstances. The order sought is a discretionary one.
[38] The factors that a Court should consider when asked to relieve a party of the obligations imposed by the deemed undertaking rule were outlined in Brome Financial Corporation Inc. v. Bank of Montreal, 2013 ONSC 6834 [13], as follows: a. Whether the parties in the proceeding are the same or similar, and whether the issues and factual background are the same; b. Whether the material is inherently confidential; c. How the party intends to use the information in litigation; and d. The availability of alternative means to obtain the information.
[39] The moving parties argue that the deemed undertaking rule ought not to apply to the evidence or information obtained in all three proceedings because: a) They seek to use the evidence and information only as part of the three actions and not for any other purpose. Granting such an order will not affect third parties. b) The three actions all arise out of the December 2015 motor vehicle accident. c) Mr. Kelkas is the plaintiff in all three proceedings. d) The plaintiff is represented by the same lawyer in two of the three proceedings. e) There will likely be overlap in oral and documentary discovery and the measure of damages and the evidence required to prove damages will be the same in all three proceedings. f) In circumstances where productions in one action are sought to be used in another action with the same or similar parties and issues, any prejudice to the examinee “is virtually non-existent and leave will generally be granted”. [14] g) The plaintiff’s position on this motion amounts to a collateral attack on the findings made at the June 4, 2019 case conference.
[40] The plaintiff vigorously opposes the relief sought by the moving parties. The plaintiff argues that much of the evidence in the solicitor negligence discoveries would be privileged, including any legal advice given, the rationale for giving that advice and whether that advice was appropriate in the context of the information that was available at the time that the settlement of the accident benefits occurred.
[41] Counsel for the plaintiff in the solicitor’s negligence action submits that absent the waiver of privilege by the plaintiff, the production of the defendant’s file in the solicitor negligence action to the parties in the tort and OPFC actions would breach solicitor client privilege. Any relevant non-privileged productions of the defendant in the solicitor’s negligence action would be properly included as part of the plaintiff’s affidavit of documents in the tort and OPCF actions.
[42] The moving parties argue that the measure of damages and the evidence required to prove damages will be the same in all three proceedings and the evidence regarding damages will overlap in the proceedings. While this is likely accurate, the moving parties have available to them alternative means to obtain information on the plaintiff’s damages. I agree with the submissions of the plaintiff that any relevant non-privileged productions of the defendant in the solicitor’s negligence action would be properly included as part of the plaintiff’s affidavit of documents in the tort and OPCF actions.
[43] With respect to my endorsement at the June 2019 case conference, I must emphasize that the case conference dealt with the issue of case management and not consolidation. The relevant circumstances outlined in r. 77.05(4) were considered in determining whether the actions ought to be case managed together (emphasis added). As stated in my endorsement:
Mr. Clausi appears to be of the view that the request was to consolidate the actions rather than to have the matters case managed together and suggested that a motion is the appropriate way to obtain the relief sought. To be clear, the request at this time is to have the matters case managed together and not consolidated. [15]
[44] More importantly however, is the fact that much of the evidence and information that would be discovered in the solicitor’s negligence action is inherently confidential and subject to solicitor-client privilege and litigation privilege. Many appellate decisions have emphasized the importance of solicitor client privilege in the effective workings of the administration of justice.
[45] In Sendagire, the defendant in the underinsured coverage claim sought copies of the transcripts of the examination for discovery in the solicitor’s negligence action. The court held that the implied undertaking rule prevented the disclosure of information that would be covered by solicitor client privilege and refused to order the production of the transcripts. As stated by Gabrielson J, an observation with which I respectfully agree:
In this case, there are no special circumstances which would require that the implied undertaking rule should be lifted in respect of the transcripts of the examination for discovery in the previous solicitors action. Any such relief could have the effect of allowing disclosure of information that would otherwise be subject to solicitor-client privilege. As indicated previously, solicitor-client privilege has been recognized by the Court to be virtually absolute and is to be protected. I am not satisfied that the defendants have met the onus of establishing that a greater injustice would occur if the application for relief were denied than upholding the implied undertaking. [16]
[46] For these reasons, I am not satisfied that the moving parties have met the onus to demonstrate a superior public interest in disclosure. On the contrary, in my view, the disclosure of the plaintiff’s privacy interest inherent in his solicitor-client privilege outweighs the interest sought to be served by disclosure.
[47] In light of my findings that the files in the solicitor’s negligence action are protected by both solicitor-client privilege and litigation privilege and that the deemed undertaking rule applies in relation to the solicitor’s negligence action, in my view, the discoveries in the solicitor’s negligence action ought to remain separate from the discoveries in the tort and OPCF actions.
[48] There is no automatic right to joint discovery of parties where actions are ordered to be tried together or one after the other; the court has the discretion to order joint discoveries after trial together has been ordered depending on the circumstances of each case. [17]
CONCLUSION
[49] For the above reasons, an order shall go pursuant to r. 6.01(1)(d), directing that trial of the tort action (Kelkas v. Kilicaslan, court file no. 17-72491), the trial of the OPCF action (Kelkas v. Allstate Insurance, court file no. 18-78200,) and the trial of the solicitor’s negligence action (Kelkas v. Badre, court file no. 19-79361) shall be heard at the same time, or one immediately after the other, subject to the discretion of the presiding judge to order otherwise pursuant to r. 6.02.
[50] Pursuant to r. 6.01(2), I also make the following further directions: a. The examinations for discoveries in the solicitor’s negligence action shall be separate from the examinations for discoveries in the tort and OPCF actions. The defendants in the tort and OPCF actions are not entitled to copies of the transcripts from the examinations for discoveries, the affidavits of documents in the solicitor’s negligence action or copies of any documents disclosed as part of the affidavit of documents of the parties in that action as they are covered by the deemed undertaking rule; b. Any further examinations for discovery in the OPCF and tort actions shall be held jointly; c. The parties in the OPCF and tort actions shall exchange copies of their respective affidavit of documents and document briefs; d. The parties to the solicitor’s negligence action may seek copies of any or all documentary and oral discovery disclosure in the OCPF and tort actions. Such disclosure shall be provided to the parties in the solicitor’s negligence action within 30 days, at the requesting party’s expense. e. There shall be a common mediation for all three proceedings. The process shall be structured to prevent any transmission of privileged information or breach of the implied undertaking rule.
[51] If the parties cannot agree on costs, they may file written submissions not exceeding three pages, exclusive of their respective bills of costs. The plaintiff shall file his costs submissions within 20 days of the release of this decision. The cost submissions of the defendants shall be filed within 10 days thereafter.
Master Marie Fortier DATE: May 29, 2020
[1] [1014864 Ontario Limited v. 1721789 Ontario Inc., 2010 ONSC 3306] [2] Ibid., at para. 17. [3] Ibid., at para. 18. [4] [Brown v. Matawa Project Management Group Inc., 2005 CarswellOnt 2283 (S.C.), at para. 23] [5] [Gowling Lafleur Henderson LLP v Meredith, 2011 ONSC 2686, 32 C.P.C. (7th) 209, at para. 10]; [Froates v. Spears, [1999] O.J. No. 77 (Ont. Gen. Div.), at para. 13] [6] Gowlings, at para. 10 [7] [Sendagire v. Co-operators General Insurance Company, 2009 SKQB 265, 339 Sask. R. 70] [8] Ibid., at para. 25. [9] Ibid., at paras. 12-25. [10] [Rules of Civil Procedure, R.R.O 1990, Reg. 194, r. 30.1.01(1) and (3)] [11] Ibid., r. 30.1.01(4), (5) (6) and (7) [12] [Rules of Civil Procedure, R.R.O 1990, Reg. 194, r. 31.1.01(8)] [13] [Brome Financial Corporation Inc. v. Bank of Montreal, 2013 ONSC 6834, at para. 56] citing [Sanofi-Aventis Canada Inc. v. Apotex Inc., 2008 FC 320, 66 C.P.R. (4th) 391] [14] Ibid., at para. 55. [15] Endorsement, case conference before Master Fortier, dated June 4, 2019 at para. 5 [16] Sendagire, at para. 46. [17] [Tusa v. Walsh, [1994] O.J. No. 48 (Ont. Gen. Div.), at para. 10]
