Court File and Parties

Court File: CV-18-00605349 Motion Heard: 20201109 Reasons Released: 20210309

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

PHILROY GREEN Plaintiff

• and -

OREST J. OSMAK and OSMAKLAW Defendants (Moving Parties)

BEFORE: MASTER D. E. SHORT

COUNSEL:

• Neal Altman naltman@millerthomson.com
  • for plaintiff
• Jonathan Schachter jschachter@sotos.ca
  • for moving defendants

RELEASED: March 9, 2021

Reasons on Motion for Further and Better Production

I. Overview

[1] This action relates to a claim by a former client of solicitor’s negligence. The Plaintiff, Philroy Green retained the defendant Orest Osmak, by way of a Legal Aid Certificate, to represent him at a criminal trial in 2013, on charges of robbery.

[2] In March 2013, Justice Andre found the plaintiff and his co-accused, guilty of attempted robbery. Rather than appeal the finding of guilt, and prior to the sentencing, the plaintiff retained a new lawyer, Owen Wigderson, who commenced a multi-year application before Justice Andre for a mistrial.

[3] That relief was granted in 2018 by the original trial judge, who was convinced that there had been a mistrial, such that he would not be sentencing Mr. Green at that point in time.

[4] On September 18, 2018 the plaintiff commenced this solicitor’s negligence claim against the individual defendant, which alleges, inter alia, that as a result of the defendant’s acts or omissions, the plaintiff was found guilty which then led to the successful bringing of a motion for a finding that there had been a mistrial in this case. At paragraph 12 of the Statement of Claim, the plaintiff pleads that:

“Had the Defendant done his job, the Plaintiff would not have been convicted..."; and as a result of the defendant's acts or omissions in the criminal proceeding, the plaintiff was required to “go through the process of starting an application for mistrial and paying for a new lawyer.”

[5] As well his claim asserts that the plaintiff seeks “damages in the amount of $500,000.00 for negligence and breach of contract.”

II. Defendants’ Requests

[6] On October 16, 2018 the Defendants served their Statement of Defence.

[7] In April, 2019 and again in July 2019, the defendants’ counsel wrote to the plaintiff’s lawyer to propose a Discovery Plan. On October 9, 2019, after having received no response from the plaintiff’s lawyer, the defendant delivered a sworn affidavit of documents, requested the plaintiff’s affidavit of documents, and requested the plaintiff’s availability for discovery in November or December 2019;

[8] On October 17, 2019 and again on October 24, 2019, the plaintiff’s lawyer advised that the plaintiff’s affidavit of documents would follow shortly.

[9] More than a year after the commencement of this action, on November 6, 2019, the plaintiff’s lawyer sent a copy of the plaintiff’s unsworn affidavit of documents and Schedule “A" productions. Mirabale dictu, given the nature of the plaintiff’s action, his Affidavit of Documents listed a total of two items in Schedule "A".

[10] The first component listed were Statements of Account from the plaintiff’s lawyer on the mistrial application, in which every single docket entry is redacted (the first 145 pages (sic) of the plaintiff's Schedule "A'' productions). The only other document was the 14 page, publicly reported decision on the mistrial application.

[11] The plaintiff's Schedule “B” described categories of privilege but did not particularize any of the documents over which privilege is claimed. The plaintiff listed no documents in his Schedule "C''.

[12] Between January and April of 2020, counsel for the defendants requested unredacted copies of the appellate lawyer’s statements of account, and all other relevant documents in the plaintiff’s possession, control or power. As well, the defendant sought a particularized Schedule “B’‘listing all documents over which privilege had been claimed and the basis for claiming such privilege.

[13] On May 20th, 2020, counsel for the plaintiff delivered unredacted copies of his statements of account. However, as at the date of this motion the plaintiff had not delivered any further productions, and had not provided a particularized Schedule ''B".

III. Defendant’s Motion

[14] In light of the foregoing situation, counsel for the defendants moves for:

(a) an Order compelling the plaintiff to serve a sworn further and better affidavit of documents with Schedule ''A" productions within twenty (20) days of this Order;

(b) an Order that Schedule ''B" of the plaintiff’s further and better affidavit of documents shall list and describe each document over which the plaintiff claims privilege and the basis upon which privilege is claimed over that document;

[15] Counsel for the defendants asserts that it is likely that the plaintiff has additional documents in his possession, control or power that are relevant to the issues in this proceeding. In any event, the defendants are entitled to a particularized Schedule "B" that describes the documents over which the plaintiff claims privilege and the basis for such privilege claims.

IV. Conduct of the Present Action

[16] On September 18, 2018, the plaintiff issued the Statement of Claim in this action.

[17] On October 16, 2018, the defendant served his statement of defence. On April 30, 2019, Jonathan Schachter, counsel for the defendant, proposed a discovery plan to Kevin Sherkin, counsel for the plaintiff. The draft discovery plan contemplated the completion of examinations for discovery by November 2019.8

[18] On the same date, Mr. Sherkin advised that he intended to bring a motion for summary judgment. By reply email, Mr. Schachter asked Mr. Sherkin to advise when the plaintiff intended to deliver his client's motion materials and what timeframe he expected for the motion's return. Mr. Sherkin did not reply.

[19] I note at this point, the content of the preamble to Schedule “B’in the template contemplated in the “Forms” section of the Rules of Civil Procedure:

SCHEDULE "B"

Documents that are or were in my possession, control or power that I object to producing on the grounds of privilege.

(Number each document consecutively. Set out the nature and date of the document and other particulars sufficient to identify it. State the grounds for claiming privilege for each document)

Lawyer-Client Privilege: Documents containing confidential professional communications passing between the deponent, or the deponent's agent and the deponent's legal advisers directly related to the seeking or receiving of legal advice or legal assistance.

Litigation Privilege: Documents comprised of notes, memoranda, reports, confidential correspondence, and copies thereof, prepared for the purposes of obtaining or providing advice concerning this litigation, of obtaining or providing information and evidence to be used in this litigation and preparing for and prosecuting this litigation.

Without Prejudice Communication Privilege: Documents containing or reflecting communications of a without prejudice nature concerning the matters in issue in this litigation.

V. Civil Practice Court attendance and subsequent discussions

[20] On January 21, 2020, Mr. Altman and Mr. Schachter attended Civil Practice Court. Justice Firestone refused Mr. Altman's request to schedule the plaintiff's summary judgment motion on the basis that discoveries had not yet been conducted, and there was a dispute as to the completeness of the plaintiff’s productions.

[21] On February 7, 2020, Mr. Altman replied to advise that the plaintiff would produce unredacted copies of Mr. Wigderson's invoices. He advised further that “we are not willing to produce any of the other information you request, and we will vigorously defend any motion for further productions on the basis of solicitor-client privilege.”

[22] On March 19, 2020, Mr. Altman again advised that the plaintiff would produce Mr. Wigderson's unredacted invoices. On April 3, 2020, Mr. Schachter wrote to Mr. Altman again about the delivery of Mr. Wigderson's unredacted invoices. Mr. Schachter repeated his request for a particularized Schedule "B", and also requested a response to the other questions posed in the February 7 email, including whether the plaintiff had further relevant documents (aside from Mr. Wigderson's invoices and the decision of Justice Andre).

[23] Apparently on May 20, 2020, Mr. Altman delivered unredacted copies of Mr. Wigderson 's invoices, but did not otherwise respond to the defendants’ requests.

VI. Statement of Issues, Law & Authorities

[24] Put simply there are two basic issues relating to the degree of production required of the plaintiff who is seeking to question the manner in which he was defended with respect to the criminal charges brought against this accused.

• does Schedule "B" to the plaintiff’s affidavit of documents comply with the Rules; and
• is the defendant entitled to a sworn revised (or further and better) affidavit of documents?.

[25] Rule 30.03 provides, in part, as follows:

30 .03 (1) A party to an action shall serve on every other party an affidavit of documents (Form 30A or 30B) disclosing to the full extent of the party’s knowledge, information and belief all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power.

Contents

(2) The affidavit shall list and describe, in separate schedules, all documents relevant to any matter in issue in the action,

(a) that are in the party’s possession, control or power and that the party does not object to producing;

(b) that are or were in the party’s possession, control or power and for which the party claims privilege, and the grounds for the claim; and

(c) that were formerly in the party’s possession, control or power, but are no longer in the party’s possession, control or power, whether or not privilege is claimed for them, together with a statement of when and how the party lost possession or control of or power over them and their present location.

(3) The affidavit shall also contain a statement that the party has never had in the party’s possession, control or power any document relevant to any matter in issue in the action other than those listed in the affidavit. [my emphasis]

[26] The Rule continues with respect to the requirement for a Lawyer's Certificate:

(4) Where the party is represented by a lawyer, the lawyer shall certify on the affidavit that he or she has explained to the deponent,

(a) the necessity of making full disclosure of all documents relevant to any matter in issue in the action; and

(b) what kinds of documents are likely to be relevant to the allegations made in the pleadings.

[27] The obligation to "list and describe" documents is not limited to the producable documents listed in Schedule "A". Parties are required to "list and date all documents separately, and ... describe the function, role and status of the receiver and sender of each document. The requirement has not changed over the past twenty years." [see my decision in Apotex Inc. v Richter Gedeon Vegyeszeti Gyar RT, 2010 ONSC 4070 at para 106, citing Waxman v Waxman (1990) 42 CPC (2d) 296.]

[28] The plaintiff’s boilerplate completion of Schedule "B" may be common practice, but it does not comply with the Rules. As Justice Matheson has explained in Bailey v State Farm Mutual Automobile Insurance Company, 2014 ONSC 5225, this approach is permissible only where the parties agree to it in advance:

The defendant provided only an unsworn affidavit of documents, with only a generic Schedule B. I understand that this is not unusual in practice, and is sometimes the subject of an agreement between the parties. But, absent an agreement, it is not in compliance with Rule 30.03 ... The above practice is unacceptable except where there is an agreement between the parties. The provision of a sworn and complete affidavit of documents is a positive obligation under the Rules, not something that a plaintiff must request.

[29] Similarly, in Ferro v Chicoine, 2017 ONSC 3013, Justice Labrosse explained the requirement further:

It is not sufficient to simply list the boilerplate “all communications between the client and counsel” or “all documents prepared for litigation purposes”. There must be sufficient detail to allow the opposing party to understand the nature of the document and the reason for which privilege is claimed.

[30] In order to assess the plaintiff’s privilege claims in the present case, and as a matter of fairness to the defendants, the defendants are entitled to particulars of the documents over which the plaintiff asserts privilege and the reason for which privilege is claimed.

VII. Position of the Parties

[31] Upon reflection, it seems to me that the problem in this case is that parties have different views about privilege which are guided by the perspective from which they are viewing the matter. There’s no doubt in my mind that the information that the defendants seek would be entirely protected by privilege if sought by the prosecutor in the criminal matter.

[32] However this is a civil matter. The test is not “beyond a reasonable doubt” but rather about the “balance of probabilities”.

[33] The plaintiff has not been acquitted. Rather a new trial was a real possibility following the trial judge’s decision as to the effectiveness of the counsel who is the individual defendant in this action.

[34] In criminal matters a variety decisions need to be made by a defendant’s counsel. For example, should the accused testify in his own defense? The presumption of innocence requires a weighing of the risks and potential rewards. Often, in hindsight, it can be argued that a different approach should have been taken.

[35] In the civil matter, the onus is on the plaintiff to prove, on the balance of probabilities, that the result in this case would have been different, if counsel had been more effective or had chosen a different approach to the defense the criminal matter.

[36] In this situation, it seems to me that the plaintiff has an obligation to make all relevant information that would in any way impact upon evaluating the potential results at the criminal trial, were the Crown Attorney’s office to proceed with a second trial.

[37] As between the client and his original counsel, in this civil matter, in my opinion, fulsome disclosure is the only fair and appropriate approach particularly where the plaintiff is seeking a half million dollars in damages.

[38] The plaintiff has produced just two documents: (i) Mr. Wigderson 's statements of accounts, and (ii) Justice Andre's mistrial decision. It beggars belief that the plaintiff has (or had) no further relevant documents in his possession, control or power.

[39] At a minimum, one may expect the plaintiff to have power over the following documents: with respect to his breach of contract claim and damages allegedly flowing therefrom:

• all documents relevant to the defendant's retainer, including communications and advice;
• with respect to his allegation that, but for the defendant's acts or omissions, the plaintiff would not have been found guilty: all documents relevant to events that led to the robbery charges and trial, including documents relevant to the Crown's case against the plaintiff, and documents tending to prove the plaintiff’s factual innocence; and
• with respect to the costs of hiring a new lawyer, and the plaintiff’s mitigation of these costs: all documents relevant to the retainer of the new lawyer, the steps taken by this lawyer, and the advice given by this lawyer concerning the decision to proceed by way of application for a mistrial rather than an appeal of the conviction.

[40] I accept the moving parties’ position that there is further good reason to suspect that disclosure is incomplete based on the plaintiff’s productions thus far:

Firstly, with the exception of Justice Andre's mistrial decision, the plaintiff has not disclosed or produced a single document relevant to the defendant's retainer or conduct in the underlying criminal proceeding.

Secondly, it is well-established that, in a solicitor's negligence claim against a criminal lawyer, the plaintiff must prove (a) that the defendant breached the duty of care, and (b) that but for the defendant's alleged failings, the plaintiff would have been acquitted in the underlying criminal proceeding. Essentially, in solicitor's negligence claims, in order to prove both causation and damages, there must be a trial within a trial.

[41] I am inclined to accept the observations of the moving parties in their factum that:

“Even if the plaintiff establishes that the defendant fell below the standard of care, he still must prove that, but for the defendant's errors and/or omissions, the plaintiff would have been acquitted at trial. It is not a foregone conclusion that the plaintiff can prove this.

The plaintiff was accused of attempted robbery. His co-accused, Mr. Ramta, was convicted. In the sentencing decision in R. v Ramta, 2015 ONSC 2716, Justice Andre found that the plaintiff was present with Mr. Ramta at the crime scene, proceeded into the house, confronted its resident, banged on the bedroom door in an unsuccessful attempt to gain entry, and fled the scene in a getaway car.”[R. v Ramta, 2015 ONSC 2716, conviction upheld on appeal: 2017 ONCA 580.]

“The Crown brief, which was not disclosed by the plaintiff (but which is within both parties ' possession, power or control) is plainly relevant.”

“Beyond the Crown brief, any documents tending to prove the plaintiff’s innocence or guilt are relevant. The existence of any such documents is within the plaintiff’s knowledge and not the defendant's.”

[42] Litigation privilege attaches to “communications and documents whose dominant purpose is preparation for litigation.” It is “temporary and lapses when the litigation ends...” [see Lizotte v Aviva Insurance Company of Canada, 2016 SCC 52]

[43] I agree with the moving parties’ position that the defendant is entitled to see any non-privileged documents that demonstrate legal costs for which the plaintiff essentially seeks indemnification, or that are relevant to the defendant's retainer or the plaintiff’s factual guilt. There is no reason for such documents not to have been produced.

[44] On the cross-motion, the plaintiff seeks to remove two paragraphs and to add one paragraph to his claim as follows:

The proposed amended claim removes the following paragraphs:

• Had the Defendant done his job, the Plaintiff would not have been convicted and would not have needed to go through the process of starting an application for mistrial and paying for a new lawyer.
• The Plaintiff states that the Defendants are responsible for the to Mr. Osmak's negligence and failure to fulfill his obligation within the prevailing standard of competence by counsel.
• The Plaintiff is entitled to damages as a result of the said conduct.

[45] The proposed amended claim seeks to add the following new paragraph:

15. The Plaintiff states that the Defendants' negligence violated the Plaintiff's right to a fair trial prescribed by the Charter of Rights and Freedoms, ss. 7 and 11 (d), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. Had the Defendants provided effective assistance of counsel, the Plaintiff would not have needed to go through the process of starting an application for mistrial and retaining new counsel. The Plaintiff is therefore entitled to damages as a result of said negligence.

[46] On September 10, 2020, counsel for the plaintiff advised of his rationale for these amendments:

“In the process of preparing our materials for your clients' motion for a further and better Affidavit of Documents, [we] have come to the realization that our client 's Statement of Claim needs to be amended. More specifically, we intend to amend paragraphs 12 and 13 of the Statement of Claim to remove references to the Plaintiff's conviction. Our position is that your clients' negligence violated our client's right to a fair trial under ss. 7 and 11(d) of the Charter of Rights and Freedoms, and that Mr. Green was therefore required to retain Mr. Wigderson to bring the mistrial application so that he would be able to have a fair trial, incurring significant costs as a result. The issue of Mr. Green 's conviction is not relevant to the within proceeding, and should not have been included in the Statement of Claim.

The issue of the amendment of our Statement of Claim will need to be dealt with prior to your motion regarding our Affidavit of Documents, as you can appreciate that the scope of discovery in an action is guided by the contents of the pleadings.

[47] To the defendants, the sole issue on the cross-motion is whether the plaintiff should be granted leave to amend to plead that the defendant's conduct violated the plaintiff’s Charter rights.

[48] In the defendant's submission, this part of the amendment is improper and hopeless, and leave should not be granted for this portion of the amendment. The defendant takes no position on the balance of the amendments.

[49] Although the language of Rule 26.01 is mandatory and "amendments are presumptively approved, there is no absolute right to amend pleadings. The court has a residual right to deny amendments where appropriate ..."

[50] Amendments must be tenable. This means that the “amendment must be shown to be an issue worthy of trial and prima facie meritorious", and must be sufficiently particularized. An amendment should not be allowed "which, if originally pleaded, would have been struck." The Court is not required under the rule to grant amendments that disclose no reasonable cause of action.

[51] The Court's analysis of tenability resembles its analysis on a motion to strike under Rule 21.01 (1)(b).

[52] The defendant opposes the first sentence of the proposed new paragraph, which does not disclose a cause of action. If an accused in a criminal proceeding does not receive a fair trial, the remedy is a new trial. I agree, based upon the evidence before me, that there is no basis in law for a Charter-based claim against the individual defendant.

[53] That defendant is not a state actor who is subject to the Charter. To the contrary, “[t]he independence of the Bar from the state in all its pervasive manifestations is one of the hall marks of a free society." This being the case, it is axiomatic that the plaintiff cannot advance a claim against the defendant on the basis that the defendant's conduct breached his Charter rights.

[54] In the defendant 's submission, if the first sentence of this new paragraph were originally pleaded, it could not have survived a motion to strike. Accordingly, leave should not be granted to allow this untenable amendment.

[55] With respect to the balance of documents -communications for the purpose of giving or receiving legal advice - the defendant agrees that these documents are privileged; however, the plaintiff has impliedly waived this privilege.

[56] In Martin v GiesbrechtGriffin, on similar facts, Justice Braid explained the principles underlying her decision that the plaintiff had waived privilege:

The principles of fairness and consistency temper and guide when waiver of privilege is deemed to occur. Whether fairness and consistency require implied waiver of privilege is case specific and factually dependent.

Deemed waiver and disclosure will be limited to circumstances where the relevance of the evidence in question is high and the principles of fairness and consistency require disclosure to allow a party to adequately defend: see Rayna Capital Inc. v. Repeatsear Ltd., 2015 ONSC 1108.

[57] When determining whether privilege should be deemed to have been waived, the court must balance the interests of full disclosure for purposes of a fair trial against the preservation of solicitor-client privilege. Fairness to a party facing a trial has become a guiding principle in Canadian law. Privilege will be deemed to have been waived when the interests of fairness and consistency; or when a communication between solicitor and client is legitimately brought into issue in an action. When a party places its state of mind at issue and has received legal advice to help form that state of mind, privilege will be waived with respect to such legal advice: see Norhal Quarries & Holdings Ltd. v. Ross & McBride, [2000] O.J. No. 1082 (Ont. S.C.J.).

[58] In Martin v GiesbrechtGriffin, 2018 ONSC 7794, Justice Braid concluded that the plaintiff "waived solicitor-client privilege by pleading that the [defendant] law firm was the cause of the plaintiff ‘s losses. More specifically, many of the damages claimed arise from the costs of proceeding to trial and appeal in the divorce litigation." In seeking damages for these legal fees, Justice Braid held, the plaintiff put his litigation strategy in issue, and in particular, put in issue whether the litigation strategy was appropriate and whether he mitigated his losses. Further, “[a]ny advice that he received from his lawyer in the divorce proceedings will be relevant to the reasonableness of his conduct that followed.”

[59] Master Graham considered the same issue, on similar facts in Veneris v Parker, 2020 ONSC 5651. The plaintiff alleged that the defendants compromised his position in matrimonial litigation. causing him “·to incur [significant] extra legal costs”. The defendants moved to compel the plaintiff to produce his matrimonial lawyer's file. As in the instant case. the plaintiff resisted production on the basis that the file was privileged.

[60] Balancing the importance of privilege with fairness to the defendants, Master Graham concluded that privilege was impliedly waived by the pleadings:

It would be completely incongruous for the plaintiff on one hand to plead (as he has) that. owing to the conduct of the defendant Parker, he paid his matrimonial lawyer '·a substantial proportion" of approximately $900,000.00 in legal fees, but on the other to suggest that he never relied on or at least considered that lawyer's advice when giving instructions to do the work for which those fees were charged. The court can therefore reasonably infer that the plaintiff’s matrimonial lawyer gave him advice as to what steps to take, thus informing his state of mind when he was instructing the lawyer how to proceed in response to the defendants' actions. Even though Veneris has not pleaded reliance on legal advice, the fact that based on his pleading he must have both received and relied on legal advice in responding to the impugned conduct of the defendants, implicitly puts that legal advice in issue in this action.

[61] It will be impossible for the trial court to assess the damages arising from the additional steps that he was required to take as a result of the defendants' alleged misconduct without examining the legal advice he received from his matrimonial lawyer with respect to those steps. Further, to substantiate his damages, the plaintiff must rely on that lawyer's evidence with respect to the fees charged for those additional steps. Trial fairness dictates that the defendants have access to the lawyer's file so that they can test this evidence. ...

[62] I agree with the submissions of the defendants’ counsel that whether one looks at the original claim as it was filed (“Had the Defendant done his job, the Plaintiff would not have been convicted and would not have needed to go through the process of starting an application for mistrial and paying for a new lawyer.”) or the proposed amendment (“Had the Defendants provided effective assistance of counsel, the Plaintiff would not have needed to go through the process of starting an application for mistrial and retaining new counsel.”), Mr. Wigderson 's legal advice is in issue.

[63] The advice is relevant to the reasonableness of the plaintiff’s litigation approach in the criminal matter and to his mitigation of damages. I also see some merit in the Defendants’ submissions:

To take one example, Mr. Wigderson, before the trial judge, raised ten “areas of alleged incompetence”. Justice Andre rejected the majority of these. The defendant is entitled to examine why Mr. Wigderson raised the unsuccessful arguments, and at what cost to the plaintiff.

The defendant is equally entitled to examine why the plaintiff chose to challenge his conviction by way of an application for mistrial, rather than an appeal.

Trial fairness dictates that Mr. Wigderson 's client file be produced on the basis that it is relevant and the privilege has been impliedly waived.

Documents tending to prove the plaintiff 's factual innocence or guilt remain relevant

[64] The defendant has consistently demanded the production of all documents relevant to the plaintiff’s factual innocence or guilt in the underlying matter. These are relevant to causation and damages.

[65] The plaintiff’s lawyer explained that the purpose of his proposed amendments is to make the plaintiff’s conviction irrelevant: “[the plaintiff intends] to amend paragraphs 12 and 13 of the Statement of Claim to remove references to the Plaintiff's conviction. . .. The issue of Mr. Green’s conviction is not relevant to the within proceeding and should not have been included in the Statement of Claim.”

[66] The proposed removal of any mention of the plaintiff’s conviction would seem to be attempted to avoid disclosure. I accept that Defendants’ submission that “In reality, however, it does nothing to render the plaintiff’s factual guilt irrelevant.”

[67] Assuming for this motion that the defendant fell below the standard of care, the court must assess damages by considering the plaintiff’s position against the position he would have been in, had the defendant met the standard of care. It is material to this assessment whether the plaintiff was likely to have been acquitted or convicted.

[68] In fact, with other counsel, the plaintiff may have been acquitted or he may have been convicted. If convicted, he may have appealed, successfully or unsuccessfully. Trial fairness requires that the defendant be able to test the evidence on this issue.

[69] Although a lawyer who is found to have provided ineffective assistance, he may not be liable in negligence. The two are not the same: in finding ineffective assistance, “the court is not making a finding of negligence against the solicitor ...’ [Kyriakopoulos v Lafontaine, 2019 ONSC 4416 at 69.]

[70] The court may, for example, find ineffective assistance resulting from a solicitor's errors of judgment. It is well established that errors of judgment do not, on their own, establish negligence. [Folland v Reardon]

[71] Ultimately I accept the defendants’ submission that “Justice Andre granted the plaintiff's mistrial application based on His Honour's opinion that the defendant failed to fully cross-examine three witnesses” However, negative observations of defence counsel from the bench are not proof that counsel fell below the standard of care.

[72] The plaintiff is entitled to raise issue estoppel at trial, but he cannot raise it to escape the production of relevant documents and to preclude the defendant from defending himself.

VIII. Disposition

[73] In the result, the Defendants’ request an Order for better production is granted:

• compelling the plaintiff to serve a sworn revised (or further and better) affidavit of documents with Schedule "A" productions within twenty (20) days of this Order;
• requiring that Schedule "B" to the plaintiff’s affidavit of documents list and describe each document over which the plaintiff claims privilege and the basis upon which privilege is claimed over that document.

[74] In addition to the relief sought on the productions motion, I accept and adopt the defendants’ request for an Order refusing leave to include the first sentence of proposed paragraph 15 in the plaintiff's amended claim (i.e. “The Plaintiff states that the Defendants' negligence violated the Plaintiff's right to a fair trial prescribed by the Charter of Rights and Freedoms, ss. 7 and 11 (d), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11");

[75] The balance of the plaintiff’s proposed amendments are permitted, in keeping with these reasons.

[76] In the circumstances costs of these motions awarded to the Defendants on a partial indemnity basis.

R. 351/DS Master D.E. Short