Court File and Parties

COURT FILE NO.: CV-09-384639 DATE: 20200817 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Doug Wood by his Litigation Guardian the Public Guardian and Trustee et al., plaintiffs/respondents - and- Dr. David Mitchell et al., defendants/appellants

BEFORE: F.L. Myers J.

COUNSEL: Paul-Erik Veel and Nilou Nezhat for the appellants Drs. Mitchell, Huebel, Farrington, Shainhouse, Vasilou, Jyu, and Javanmard. B. McFarlane and Katelynn Drake for the respondents Thomas McQueen in his own capacity and as Estate Trustee of Doug Wood.

HEARD: August 11, 2020

Endorsement

Overview

[1] The defendant doctors appeal from the decision of Master Sugunasiri dated January 29, 2020 in which she dismissed their motion to compel the plaintiffs:

a. to answer questions during examination for discovery concerning their communications with their initial lawyers in this case; and

b. to produce their initial lawyers’ entire file.

[2] For the reasons that follow, the appeal is allowed in part.

Factual Background

[3] The facts are not in dispute.

[4] In 2007 Mr. Wood suffered a debilitating stroke. On August 7, 2009 he sued a number of defendants for negligence in relation to the care he received that he claims caused or contributed to his stroke. Although the initial statement of claim made reference to one of the appellant doctors, the plaintiffs did not sue the appellant doctors at that time.

[5] In 2011, the plaintiffs’ initial lawyers were removed from the record. In 2012, the Public Guardian and Trustee was appointed as Mr. Wood’s litigation guardian. Later in 2012, more than three years after the initial commencement of the action, the plaintiffs moved to add the appellant doctors as defendants in the action. The appellant doctors consented to the order adding them as defendants without prejudice to their right to raise in their defence the issue of whether the limitation period had expired prior to the commencement of the claims against them.

[6] Section 4 of the Limitations Act, 2002 prevents an action from being commenced more than two years after the plaintiff discovers the claim. Section 7 of the Limitations Act, 2002, S.O. 2002, c.24, prevents the two-year limitation period from running while a party lacks capacity to commence a claim and is not represented by a litigation guardian.

[7] The plaintiffs claim that when their initial lawyers commenced the action in 2009, Mr. Wood lacked capacity to commence the proceeding and he had no litigation guardian. Therefore, the plaintiffs claim that s. 7 of the Limitations Act, 2002 prevented the limitation period from running until the PG&T was appointed as his litigation guardian in 2012. As the PG&T moved to add the appellant doctors just a few months later, if the plaintiffs are correct, then they commenced the claims against the appellant doctors within the two-year limitation period although the lawsuit itself was more than three years old by that time.

[8] Subsections 7 (1) and (2) of the Limitations Act, 2002 provide:

Incapable persons

7 (1) The limitation period established by section 4 does not run during any time in which the person with the claim,

(a) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and

(b) is not represented by a litigation guardian in relation to the claim. 2002, c. 24, Sched. B, s. 7 (1).

Presumption

(2) A person shall be presumed to have been capable of commencing a proceeding in respect of a claim at all times unless the contrary is proved.

[9] The parties agree that, under s. 7(2) of the statute, to prevent the limitation period from amounting to a defence, the burden is on the plaintiffs to establish that despite the fact that their initial lawyers commenced a claim in Mr. Wood’s name, he was incapacitated until a date that was two years before the bringing of the motion to add the appellant doctors as defendants.

[10] The question that is the obvious elephant in the room is “what were the plaintiffs’ initial lawyers thinking?”. Did the plaintiffs’ initial lawyers believe that Mr. Wood had capacity to instruct them to sue at the time they commenced the claim in his name, or did they negligently forget to appoint a litigation guardian? And if the plaintiffs’ initial lawyers formed the belief that Mr. Wood had capacity to sue, what evidence did they have on which they based that belief?

[11] The appellant doctors then raise another argument. They say that even if Mr. Wood was indeed incapacitated at the time that the litigation was commenced, Mr. McQueen was acting as Mr. Wood’s de facto litigation guardian. That is, while Mr. McQueen was never formally appointed as the litigation guardian for Mr. Wood, as a factual matter he acted as if he were the litigation guardian and this should be sufficient to recommence the running of the limitation period under s. 7 (1)(b) of the statute.

[12] There are therefore two issues joined between the parties in the litigation concerning the running of the limitation period:

a. Was Mr. Wood “incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition” under s. 7 (1)(a) of the statute; and

b. Was Mr. McQueen a de facto litigation guardian sufficient to satisfy the condition in s. 7 (1)(b) at that time.

[13] The first issue is one of fact. The second issue has both legal and factual elements. First, as a matter of law, is there such a thing as a de facto litigation guardian? In other words, what are the attributes necessary to satisfy s. 7 (1)(b)? Second, as a factual matter, did Mr. McQueen possess those attributes?

[14] On the examination for discovery of the plaintiffs, the appellant doctors sought to explore the limitation period issues. They asked questions about the relationship among Mr. Wood, Mr. McQueen, and the plaintiffs’ initial lawyers. They also sought production of the initial lawyers’ file. The plaintiffs refused to answer or to provide the file based both on relevancy and privilege. The appellants moved before the Master to compel the plaintiffs to answer the questions asked and to provide the initial lawyers’ file.

The Master’s Decision

[15] The two issue before the Master were:

a. whether the questions refused were relevant to the issues in the lawsuit; and,

b. if so, did they seek to elicit evidence to which lawyer client privilege applies.

[16] All parties agree that if the evidence sought was relevant to the issues in the lawsuit and was not privileged, then it was producible and ought to have been disclosed.

[17] The Master dealt with the issues of Mr. Wood’s capacity and whether Mr. McQueen was a de facto litigation guardian separately. On the issue of capacity, she referred to case law that provides that the question of capacity is determined largely by medical evidence obtained at or near the relevant time. At para. 7 of her endorsement, she held:

What counsel at [the plaintiffs’ initial lawyers] thought was Mr. Wood’s capacity can be a factor in the calculus (Huang v. The Manufacturers Life Insurance Company, 2014 ONSC 4008 at para. 20). It does not warrant disclosure of [their] entire file. Even if the Defendant Doctors persuaded me that Mr. McQueen has waived privilege over the entire file by revealing some of his communications with counsel and as a result of the solicitor’s negligence suit against [the plaintiffs’ initial lawyers], it is still incumbent on the court to jealously protect solicitor-client privilege unless it is unfair to do so (Roynat Capital Inc. v. Repeatseat Ltd., 2015 ONSC 1108 at paras. 64 & 84 (DC)). Given the existing medical evidence and the reality of the Plaintiffs’ burden to prove incapacity, it is not unfair to protect Mr. McQueen’s privilege over [the plaintiffs’ initial lawyers’] file. At best Mr. McQueen can search the [the plaintiffs’ initial lawyers’] file and advise if there were any capacity assessments of Mr. Wood prior to issuing the Claim. If there were, he should produce it.

[18] On the issue of whether Mr. McQueen was Mr. Wood’s de facto litigation guardian, the Master referred to the Court of Appeal’s decision in Azzeh (Litigation Guardian of) v. Legendre, 2017 ONCA 385. She found that the Court of Appeal had established that:

It is only when a person represents himself as a litigation [guardian] to the defendants or others that he can be considered a litigation guardian despite not filing an affidavit as required by r. 7.02(2) (para. 34).

[19] The Master found that the legal test or the attributes of a litigation guardian for the purposes of s. 7 (1)(b) of the statute require communication by the putative litigation guardian of his status as litigation guardian to the appellant doctors. She wrote, “[t]he relevant consideration is whether Mr. McQueen represented himself to the any of the defendants as Mr. Wood’s litigation guardian.” Therefore, she held that communications among Messrs. Wood and McQueen, and their initial counsel were not relevant to the question of whether Mr. McQueen was Mr. Wood’s litigation guardian under s. 7 (1)(b) of the statute.

[20] Mr. Veel argued the appeal on the basis that the Master found all of the evidence that he sought to be irrelevant and therefore she did not deal with privilege issues. That is not quite correct. She certainly found that the lawyers’ file was irrelevant to the issue of whether Mr. McQueen was a de facto litigation guardian. On the issue of capacity however, she found that even if some evidence was relevant, fairness did not require a finding that the plaintiffs had waived privilege over the lawyers’ entire file.

The Standard of Review

[21] Decisions of Masters are subject to deference. The court will only interfere with a decision where the Master made an error in law, exercised her discretion on the wrong principles, or made a palpable and overriding error of fact or mixed fact and law. See: Zeitoun v. Economical Insurance Group, 2009 ONCA 415.

[22] The issue of whether a question asked or a document sought on discovery is relevant is a question of law. So too is the assessment of whether evidence sought to be elicited is privileged. See: Mediamix v. Ontario, 2018 ONSC 3920 and Republic National Bank of New York (Canada) v. Normart Management Ltd.. In my view, the question of whether privilege was waived is a question of fact. However, the question of whether the law ought to imply a waiver of privilege is one of law or mixed fact and law.

Analysis

Documents Relevant to the Issue of Mr. Wood’s Capacity

[23] Several months after the Master wrote her endorsement, the Court of Appeal released its decision in Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447. In that case, Jamal JA dealt comprehensively with the issue of proof of incapacity under s. 7 of the Limitations Act, 2002. At para. 105, he wrote:

(vii) Evidence

[104] A potential litigant will usually require persuasive medical or psychological evidence to prove that they lacked the capacity to commence the proceeding in respect of the claim: see e.g., Deck International Inc. v. The Manufacturers Life Assurance Company, 2012 ONCA 309, at para. 6; Winter v. Sherman Estate, 2018 ONCA 379, at para. 14, leave to appeal refused, [2019] S.C.C.A. No. 438; Reid v. Crest Support Services (Meadowcrest) Inc., 2013 ONSC 6264, at para. 17; Klimek v. Klos, [2013] O.J. No. 3740 (S.C.), at para. 25; Hussaini v. Freedman, 2013 ONSC 779, at para. 51; and Landrie, at para. 35.

[105] Other evidence may also be relevant, such as:

• Evidence from persons who know the plaintiff well, the appearance and demeanour of the plaintiff, testimony of the plaintiff, or the opinion of the plaintiff’s own counsel: see e.g., Costantino v. Costantino, 2016 ONSC 7279, at para. 58; Huang v. The Manufacturers Life Insurance Company, 2014 ONSC 4008, at para. 20; and Children’s Aid Society of Toronto v. R.W., 2016 ONSC 7279, at para. 34;

• The plaintiff’s ability to commence other civil proceedings (see e.g., Asagwara v. Money Mart, 2014 ONSC 6974, at para. 72; Kim v. The Manufacturers Life Insurance Company, 2014 ONSC 1205, at para. 55) or to defend criminal proceedings (see e.g., Winmill v. Woodstock Police Services Board et al., 2017 ONSC 2528, at para. 32, rev’d on other grounds, 2017 ONCA 962, 138 O.R. (3d) 641; Cooper v. Comer, 2017 ONSC 4142, at para. 57); and

• Other indicators of capacity, such as the potential litigant’s ability to travel, instruct counsel, swear affidavits, and make decisions affecting legal rights, if they bear on the capacity to commence a proceeding in respect of the claim: see e.g., Reid, at para. 17; Klimek, at paras. 24-25.

[106] Finally, just because a person can function on a day-to-day basis and make the decisions required in daily life does not necessarily mean they have the capacity to start an action in respect of a claim: see Bisoukis v. Bisoukis, at para. 48. On the other hand, just because a person has a mental illness does not necessarily mean that they are incapable of instructing a lawyer or commencing a proceeding: see Mew, at p. 205, at §6.17, citing Panciera v. Rokotetsky et al., 2009 MBQB 129, 252 Man.R. (2d) 115, at para. 20; Evans v. Evans, 2017 ONSC 4345, 96 R.F.L. (7th) 300, at paras. 51-53; and Kim v. The Manufacturers Life Insurance Company, 2014 ONSC 1205, 31 C.C.L.I. (5th) 252, at paras. 54-60, aff’d 2014 ONCA 658, 40 C.C.L.I. (5th) 12.

[Bolded emphasis added.]

[24] Jamal JA expressly held that counsel’s opinion of a client’s capacity is evidence bearing on the issue of capacity for the purposes of s. 7 (1)(a) of the statute. He also held that evidence of the client’s ability to instruct counsel and make decisions affecting his rights will be relevant if they bear on (or are probative of) his capacity to commence a claim. To be sure, contemporaneous medical evidence is the principal means of proof of capacity or incapacity. But, as Jamal JA notes in para. 106, proof of mental illness alone is not necessarily sufficient to prove incapacity.

[25] The Master recognized that Mr. Wood’s lawyers’ observations and views about Mr. Wood’s capacity were properly factors in the calculus. She rightly notes that this would not make the lawyers’ entire file producible per se. But, rather than delimiting the relevant portions of the file, she went straight to privilege and then held that the only producible document in the lawyers’ file would be medical evidence in the form of a formal capacity assessment, if any.

[26] In my respectful view, the Master erred by failing to continue her analysis of relevancy. She found that the lawyers’ view was a relevant factor and then simply dismissed the request for the entire file. Mr. Veel argues that there may be many things in the file that might be relevant and not privileged. For example, if the lawyer wrote to third parties and discussed Mr. Wood’s capacity, the letter would be relevant and could not be privileged. Moreover, if the lawyer took a note of his observations of Mr. Wood’s physical, cognitive, or emotional state those could be facts relevant to capacity without being privileged communications.

[27] Ms. McFarlane argues that the appellants are conducting a fishing expedition. It is not enough to require production of a file to postulate that it “might” contain evidence that is relevant. She is correct. However, that does not end the appellants’ quest for relevant documents.

[28] Under Rule 30.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the plaintiffs were required to list all relevant documents in their affidavits of documents. The way our system avoids fishing expeditions is by requiring the parties themselves, guided by explicit and mandatory advice from counsel, to diligently search for and list all relevant documents that are or were in their possession, power or control and then to produce those documents unless they are no longer in the party’s possession, power, or control, or a claim of privilege is made.

[29] Ms. McFarlane notes that her clients’ affidavit of documents contains a standard blurb claiming privilege over all documents in lawyers’ files. That is fine in the first instance before privilege became an issue. But what about documents in the former lawyers’ file that could not possibly be privileged, like letters to third parties, for example? Moreover, once the contents of the file become relevant and issues of privilege arise, a party cannot continue to rely on a standard blurb. Documents over which privilege is claimed are required to be listed in Schedule “B” to a party’s affidavit of documents with specificity. Each document and the grounds relied upon for any privilege claimed must be identified with particularity.

[30] Having found some relevancy to the questions and documents sought and that this was not a basis to make the former lawyers’ whole file producible, the next step was to determine which documents in the file are relevant. Some are producible because they are relevant and not privileged. One could try to guide that process by listing categories of documents that might fall on one side of the line or the other. But that is a hypothetical course with no factual underpinning in evidence. In my view, the preferable approach, consonant with the Rules, is to require the plaintiffs to produce a revised, sworn affidavit of documents specifically identifying those documents that are relevant to which disclosure is not objected and those documents that are relevant to which disclosure is objected as required by Rule 30.03.

[31] For those who might be skeptical of a party’s likelihood to agree that his own documents are relevant, the Rules of Civil Procedure trust the professionalism of counsel to make appropriate calls based on whether each document is probative of a fact in issue assessed from the viewpoint of both parties and guided by a principle of “when in doubt, produce”. No counsel wants to be the subject of a motion claiming that he hid relevant documents. I hasten to add that no such allegation is made in this case. Rather, counsel had a debate over relevancy that the Court of Appeal has now resolved. I have complete faith that Ms. McFarlane and Ms. Drake will make the appropriate calls in their clients’ revised affidavit of documents.

Documents Relevant to the Issue of Whether Mr. McQueen was Mr. Wood’s Litigation Guardian.

[32] As discussed above, the Master found that the Court of Appeal had resolved the attributes of a litigation guardian under s. 7 (1)(b) of the Limitations Act, 2002 in the Azzeh case. She held that the only relevant fact is whether a putative litigation guardian had communicated his status to the defendant. She therefore held that the contents of the lawyers’ file were irrelevant.

[33] Mr. Veel argues that his clients were not defendants at the relevant time. When the action was commenced in 2009, the plaintiffs sued other defendants. Even on the Master’s holding therefore, communications of Mr. McQueen’s status to the other defendants in or around the commencement of the claim in 2009 would be relevant and producible. Ms. McFarlane’s response was that the appellant doctors should ask the other defendants for any such communication. However, a party is not relieved of the obligation to disclose relevant documents in her possession, power, or control simply because someone else also has a copy. That would cause a chicken and egg problem in every case whereby parties defer production waiting for others to disclose copies of correspondence received or sent– after you Alphonse.

[34] Therefore, on the test found by the Master, some relevant documents may well exist that are not privileged. The appellant doctors are entitled to a properly sworn affidavit of documents to be told if this is so.

[35] Mr. Veel raises another issue with the Master’s decision. He submits that the Master erred in law by generalizing the Azzeh decision. He argues that the Court of Appeal dealt with a specific circumstance in that case and made a specific holding on the facts before them. The Master took the decision as setting an exclusive standard for finding a litigation guardian under s. 7 (1)(b) of the Limitations Act, 2002 in all cases. But this case is different. Mr. Veel argues that there is no case directly on point determining the definition or attributes of a litigation guardian where litigation is commenced by a party who later claims to have been incapacitated at the time.

[36] Mr. Veel argues there may well be factors in addition to the communication made by Mr. McQueen to the defendants that bear on whether he was a litigation guardian for the purposes of s. 7 (1)(b) at the commencement of the litigation. He submits that if others can commence a claim in the name of an incapacitated party without the appointment of a litigation guardian as required by the Rules of Civil Procedure the limitation period will effectively be extended indefinitely. The plaintiff could keep adding new parties at will. Moreover, all parties and the administration of justice will be denied the important benefits and protections of a litigation guardian. Mr. Veel submits that there must be more to the definition of a litigation guardian in this circumstance or else the mischief wrought by a claim by an incapacitated plaintiff without a litigation guardian can occur merely by ensuring that no one writes to the defendant to claim they are acting as litigation guardian.

[37] Mr. Veel submits that Azzeh does not cover this situation. Rather, the precise test or attributes for a de facto litigation guardian or a litigation guardian for the purposes of s. 7(1)(b) of the statute in this case is an unresolved question of law that is seriously in issue. Moreover, Mr. Veel submits that unresolved questions of law that go to the merits of a claim or defence that are not frivolous should not be resolved on a production motion. Rather, they are questions for trial on a full evidentiary record. See: Jodi L. Feldman Professional Corporation v. Foulidis, at para. 21.

[38] The facts in the Azzeh case are as follows. Mr. Azzeh was injured in a car accident in 2007. He was incapacitated. In 2014 his mother commenced a claim for him as his litigation guardian but she did not file the affidavit required to formally appoint herself as litigation guardian.

[39] In 2015, the mother sought to add the City of Sudbury as a party defendant. The city defended the motion on the basis that the two-year limitation period had run. The plaintiffs argued that the limitation period was suspended by s. 7 of the Limitations Act, 2002 because Mr. Azzeh lacked capacity and his mother had never properly become his litigation guardian.

[40] The city argued that the mother became her son’s de facto litigation guardian for the purposes of s. 7 (1)(b) of the Limitations Act, 2002, as soon as she signed a retainer agreement with counsel on her son’s behalf or when she applied for statutory accident benefits for him. Both of those events occurred more than two years prior to the time when she moved to add the City as a defendant to the lawsuit.

[41] The Court of Appeal looked to the statute and the stated that the question under s. 7 (1)(b) is whether the incapacitated plaintiff “is … represented by a litigation guardian in relation to the claim”. The Court held that when the mother retained the lawyer, she did so for herself as a future litigation guardian. But, at that moment, before the claim commenced, the son was not yet “represented by a litigation guardian in relation to the claim”. Similarly, the mother’s application for statutory accident benefits also did not make her a litigation guardian in the absence of existing civil litigation.

[42] However, the Court of Appeal also rejected the plaintiff’s argument that he was not represented by a litigation guardian at the time that the statement of claim was issued and the lawsuit commenced even though his mother was properly appointed as his litigation guardian de jure. The court held that the mother plainly held herself out as litigation guardian when she commenced the claim. The fact that she did not file the necessary affidavit was a formality. She had the power to take that step or not. Significantly, at para. 34 of the decision, the court held:

[The mother] clearly held herself out or represented herself as [her son’s] litigation guardian to the Legendre defendants, who were the driver of the car and the owner of the car with whom she was involved in the accident. The fact that [the mother] did not file the affidavit a litigation guardian is required to file under r. 7.02(2) makes the proceeding an irregularity and not a nullity: Gauthier v. Gauthier, (1947) O.W.N. 1053; [1947] O.J. No. 342 (Ont. H.C.); see also Salisbury v. Sun Life Assurance Co. of Canada, 2013 ONCA 182, [2013] O.J. No. 1310. It would not make sense for the limitation period to be tolled simply because the person holding herself out as the litigation guardian had not filed the required affidavit under the Rules. It is within the litigation guardian’s power to file the affidavit or not. To allow the limitation period to toll on that basis would effectively make the limitation period unlimited because the litigation guardian could indefinitely delay filing the affidavit.

[43] As the Master found, the Court of Appeal certainly held that the fact that the mother held herself out as litigation guardian by commencing the claim in that capacity was enough to satisfy s. 7 (1)(b) of the Limitations Act, 2002. It would not allow a unilateral, technical breach of the Rules by the litigation guardian in the manner of commencing the claim to prevent the running of the limitation period. That begs the question of whether someone made a similar decision in this case. The appellant doctors argue that Mr. McQueen may have failed to name himself litigation guardian thereby making the action irregular by a unilateral act that has the potential to extend the limitation period for an unlimited period of time.

[44] The discussion of “holding out” in Azzeh related to the reasons why the irregularity in the manner of appointment of the litigation guardian was nevertheless sufficient under s. 7 (1)(b). But did the Court of Appeal mean to say that holding out is always necessary to satisfy s. 7 (1)(b)? Maybe. Or perhaps there may be other factors at play in a case where litigation is actually commenced with no litigation guardian by a plaintiff who later claims he was incapacitated at the time. That is a different question and a difficult one at that.

[45] Ms. McFarlane argues that under s. 9 of the Limitations Act, 2002, defendants have the opportunity to move to appoint a litigation guardian for a reluctant plaintiff so there is no risk of an unlimited extension of the limitation period. That may be correct. But it appears to also have been the case in Azzeh had it been argued. That may be one of many open questions to be resolved.

[46] In my respectful view, the Master erred in law in finding that all that is relevant to the question of whether a plaintiff “is … represented by a litigation guardian in relation to the claim” under s. 7 (1)(b) of the Limitations Act, 2002, is whether...“Mr. McQueen represented himself to the any of the defendants as Mr. Wood’s litigation guardian.” That is one factor that made an imperfect commencement of a claim sufficient in Azzeh. But no case has decided that it is the only relevant factor or a necessary factor in every case. If it is, it may provide a significant loophole to de facto litigation guardians who keep quiet. In my view, it is an open question. The relevant question of law is in issue in a bona fide and not frivolous way. Such questions are for the trial judge on a full evidentiary record. They are not for resolution on a production motion. See: Jodi L. Feldman Professional Corporation v. Foulidis, at para. 21.

[47] Subject to the issue of privilege, it seems to me that everything probative of how the litigation came to be commenced among Mr. Wood, Mr. McQueen, and the plaintiffs’ initial counsel is relevant to the issue for trial and is therefore producible. This includes whether Mr. Wood might have had capacity or been believed to have had capacity, as dealt with above, or whether someone was instructing counsel on his behalf so that some time before or at the time that the claim was commenced, Mr. Wood “was represented by a litigation guardian in relation to the claim”. See: Azzeh at paras. 31 and 32.

Waiver of Privilege

[48] There is no doubt that the questions and documents sought by the appellant doctors elicit some evidence that is subject to lawyer client privilege at first blush. The issue is whether privilege has been waived by the plaintiffs.

[49] I agree with the respondents’ submission in their factum concerning the vital role of lawyer client privilege in our legal system:

61. Solicitor-client privilege is a fundamental civil and legal right belonging to the client. Any attempt to interfere with this special privilege should be limited to the extent absolutely necessary in order to achieve the ends sought by the interference. This is a foundational principal of law that has been repeatedly endorsed by the Supreme Court of Canada. Canada v. Solosky, [1980] 1 S.C.R. 821 at para 34, BOA, Tab 11; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860 at para 27.

[50] Lawyer client privilege is based upon the sanctity of the confidential relationship between a client and her lawyer. The law accords few relationships the deference and protection provided to the relationship between a client and counsel. The need for complete confidentiality is necessary for the rule of law to function. Lawyers’ ethical obligations place the highest degree of emphasis on the fundamental importance of confidentiality as between client and lawyer.

[51] A corollary of the rule however, is that a client can decide to release information that would otherwise be protected from disclosure by the law of privilege. A client is entitled to choose to tell someone something that would otherwise be privileged. However, if she does so, then the information will no longer be privileged because the client has chosen to repeat it outside of the cone of silence hovering over the lawyer client relationship.

[52] In releasing privileged information, clients do not usually announce, “I am releasing this information from lawyer client privilege”. Often, they release some information and then the question becomes whether in doing so, they have implicitly or impliedly waived their privilege. I agree with the respondents that in order to properly protect the importance of privilege it is necessary that cases where a release of information will be found to impliedly waive privilege must be “limited to circumstances where fairness and consistency require disclosure to allow a party to adequately defend”. See: Roynat Capital Inc. v. Repeatseat Ltd., 2015 ONSC 1108 at para. 84.

[53] The appellants argue that the plaintiffs have waived privilege in two distinct ways. First, the plaintiffs raised s. 7 of the Limitations Act, 2002. In doing so, they gave evidence about the issue of Mr. Wood’s capacity to commence proceedings while represented by a lawyer and about legal advice provided to Mr. McQueen. Second, in 2015, the plaintiffs sued their initial lawyers for negligence in failing to protect the plaintiffs’ rights against the appellant doctors on a timely basis and doing so necessarily entails releasing privilege so the lawyers can defend themselves.

Waiver of Privilege by Adducing Privileged Evidence on the issues under s. 7 of the Limitations Act, 2002.

[54] The appellant doctors have pleaded that the action was commenced after the limitation period expired. In response, the plaintiffs raised s. 7 of the Limitations Act, 2002 and took on the burden to prove that Mr. Wood lacked capacity when the action was commenced in his name in 2009. In addition, in the motion to add the PG&T as litigation guardian, Mr. McQueen testified about Mr. Wood’s cognitive and physical abilities when the family met the plaintiffs’ initial lawyers. He also testified that he was not given advice about the attributes of being a litigation guardian. He swore that he was never asked by counsel about who should be the defendants in the lawsuit and he never saw a draft of the statement of claim.

[55] In my view, the plaintiffs have put into issue Mr. Wood’s capacity from the time counsel was first consulted until the appointment of the PG&T as his litigation guardian. They raised s. 7 (1)(a) of the Limitations Act, 2002 and have voluntarily and unilaterally adduced evidence about Mr. Wood’s cognitive and physical condition during otherwise privileged meetings. This is not to say that every time s. 7 of the Limitations Act, 2002 is pled a waiver of lawyer client privilege necessarily follows. Au contraire. See: Sylvester v. Britton, 2018 ONSC 6620 at para. 73 for example. This case is unique in that the lawyers are important witnesses to Mr. Wood’s condition because they took an overt, objectively observable step of commencing litigation in his name that required them to have believed that Mr. Wood had capacity to instruct them to do so. The natural implication is that he had capacity to make the claim. However, the plaintiffs have also adduced evidence to the contrary testifying expressly about Mr. Wood’s condition during meetings and interactions with counsel. Moreover, counsel agreed before me that there is no contemporaneous evidence of a capacity assessment in the record. The family doctor’s note equating Mr. Wood’s condition with his condition shortly after the accident is a minimal piece of medical evidence. It is far from a probative contemporaneous capacity assessment. The Master required production of any capacity assessments in counsel’s file. But it is the absence of a contemporaneous capacity assessment that makes the lawyers’ evidence so important to explain their actions. It is significant that the Master did not have the benefit of the Carmichael decision in which the Court of Appeal makes clear the relevancy of counsel’s opinion and reiterates that medical evidence is not necessarily enough.

[56] As I noted at the outset, this case has an elephant in the room. Experienced counsel commenced a claim in Mr. Wood’s name with no litigation guardian. It may be that doing so was simply an error. But that will not be presumed. The Master made a blanket ruling on the whole file premised on the existence of overwhelmingly powerful medical evidence. The probative value of the evidence of counsel seemingly paled in comparison. In my view she made an error of law in diminishing the relevancy and importance of counsel’s evidence in this case given that they started a claim in Mr. Wood’s name. Alternatively, she made a palpable and overriding error in finding that important medical evidence existed that denuded the evidence of counsel of probative value in this unique case with its elephantine issue. In other words, she overemphasized the factor of medical evidence in weighing her assessment of the fairness of an implied waiver. The plaintiff has adduced evidence on both sides of the same issue. Mr. Wood commenced the action with no litigation guardian while represented by counsel. In the absence of contemporaneous capacity evidence they understand that they have the burden to explain how that happened if they are going to show that Mr. Wood did not have capacity at that time. They have introduced privileged information to try to meet that burden. For the appellant doctors to test that evidence and respond, fairness and consistency both require that the plaintiffs produce everything relevant to Mr. Wood’s capacity in the lawyers’ file and otherwise in their possession, power, or control that might otherwise be privileged.

[57] The Master did not deal with the issue of privilege in relation to the question of a de facto litigation guardian because she ruled that the evidence was irrelevant. As I have already disagreed with that decision, it falls to me to consider the question of privilege.

[58] The plaintiffs have adduced cherry-picked snippets of evidence about what Mr. McQueen was or was not told by counsel about being a litigation guardian and the commencement of the proceeding. It would neither be consistent nor fair to refuse to disclose other evidence in the plaintiffs’ possession, power, or control concerning the question of Mr. McQueen’s dealing with the lawyers – whether he was directing the litigation and what he was or was not told. The lawyers’ file could have a note recording expressly that they told Mr. McQueen the rights and duties of a litigation guardian. Perhaps he forgot, for example. Normally that would be privileged. But Mr. McQueen testified expressly that he was not advised of things that the plaintiffs will argue preclude a finding that he was a litigation guardian under s. 7 (1)(b). They have opened the issue and cannot say that it is unfair or consistent to deny the appellant doctors the ability to see the underlying documents that bear on the issue. In fact, they have no way to adequately respond except through such disclosure as the relevant facts are known only to the plaintiffs’ side. Again, to avoid fishing, the plaintiffs have already been required to amend their affidavit of documents. However, that does not leave this issue open. The plaintiffs’ lawyers understand the scope of the waiver of privilege set out in the foregoing paragraphs.

[59] I am not going to deal in depth with the argument that the plaintiffs have waived privilege by suing their initial lawyers. That lawsuit was filed to protect the limitation period against their initial lawyers in case the plaintiffs are found to have been too late to sue the appellant doctors in this action. Mr. Veel argues that suing a lawyer waives privilege over the lawyer’s entire file. I am not aware of any case that is binding upon this court that goes nearly so far. A lawyer’s entitlement to defend herself is limited. She is entitled to defend herself using confidential information, “but shall not disclose more information than is required.” See: Law Society of Ontario, Rules of Professional Conduct, Rule 3.3-4. The scope of privilege is not determined by the Law Society. However, in the pleadings in the other case, the initial lawyers have made allegations concerning the merits of the plaintiffs’ claims. Their pleading does not touch the issues on this motion – evidence concerning capacity and whether Mr. McQueen was a de facto litigation guardian. Absent a blanket finding that suing releases all privilege, the lawsuit does not assist the appellant doctors. Such a blanket ruling would be inconsistent with the law’s solicitude for the protection of privilege and the need to narrow incursions into the privileged sphere. I leave for a different motion once the plaintiffs particularize their affidavit of document the issue of whether there is a different analysis of privilege claims made concerning the merits of the lawsuit, if any.

Outcome

[60] The appeal is allowed. The decision of the Master is set aside. The plaintiffs shall, within thirty days, produce a further and better sworn affidavit of documents listing all relevant documents in their possession, power, or control with particularity including those over which privilege is still claimed.

[61] The plaintiffs have waived privilege and shall produce all documents relevant to Mr. Wood’s capacity as contained in the initial lawyers’ file and all documents relevant to Mr. McQueen’s dealings with the lawyers. In both cases the production shall span the full period of the lawyers’ involvement from first contact about this matter until their removal from the record in 2011. The plaintiffs shall then reattend examinations for discovery at their own expense and answer questions concerning those matters.

Costs

[62] The appellants may deliver no more than three pages of costs submissions by August 24, 2020. The respondents may deliver no more than three pages of costs submissions by August 31, 2020. Both sides shall deliver a Costs Outline if they choose to deliver submissions. Materials shall be delivered by searchable PDF attachments to an email to my Assistant. No case law or statutory material shall be delivered. Rather any reference to case law or statutory material shall be made by hyperlinks to or another publicly available website embedded in the parties’ submissions.

F.L. Myers J.

Date: August 17, 2020