Motion Heard: December 2, 2021
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Keith J. Marshall, et al., Plaintiffs
- AND -
Jackson, et al., Defendants
BEFORE: Associate Justice J. Josefo
COUNSEL: L. Rakowski, for the defendants, (moving parties)
D. Green, for the plaintiffs, (responding parties)
ENDORSEMENT
Brief Overview of the Action:
1In 2013, Melinda Marshall (“Melinda”) made a new will. She retained the individual defendant, a lawyer named Jackson, for that purpose. In 1994, Jackson had prepared a prior will for Melinda.
2Following Melinda’s death in 2017, her son Keith Marshall (“Keith”) challenged the 2013 will, asserting that it was invalid. Keith’s sister, Karen Deans (“Karen”), opposed the will challenge. Ultimately, the will challenge application, and a dependant support application brought by Melinda’s third child, “Kevin”, settled amongst the various beneficiaries to Melinda’s estate, including Keith and Karen.
3Then, Keith and Karen, previously at odds over the validity of the 2013 will, joined forces, personally and as estate trustees of Melinda’s estate, to sue Jackson for negligence in the preparation and execution of the 2013 will. The claim of $500,000 is for, essentially, the costs incurred by the estate to settle the will challenge application. The claim:
includes the fees paid to counsel who acted for Keith and Karen in the will challenge application,
seeks to recover the costs incurred for the independent legal advice given to the other beneficiaries (inter alia, the Grandchildren) as pertaining to the settlement, and,
seeks to recover the fees related to Kevin’s dependent support application.
The Within Motion – for an Undertaking:
4This solicitor’s negligence action has had several twists and turns, with this motion being not the first skirmish amongst the parties. In this motion, defendants move for answers to one remaining undertaking outstanding from the October 1, 2020 examination for discovery of Karen. The specific undertaking reads as follows:
Undertaking #2: To produce the underlying files of any counsel involved in the underlying application(s), and specifically with respect to the accounts that are enclosed in the productions of the plaintiffs, and with respect to the claim for damages set out in paragraph 15 of the statement of claim (subject to relevance and privilege issues, and to identify any documents that they decline to produce with some particularity).
5For clear context of what, specifically, was undertaken, the examination transcript reads as follows:
- MR. TIGHE: And in addition to that, there were...I have requested of you this morning, and I'll put it on the record, I want all of the underlying files of any counsel involved in the underlying application, and specifically with respect to the accounts that are enclosed in the productions of the plaintiffs, and specifically with respect to the claim for damages set out in paragraph 15 of the Statement of Claim.
MR. LINDEN: So you'll, of course, know that I wrote you this morning, saying that we don't have them, but we'll get them. We'll have a look and we're happy to produce whatever is producible, subject to any claims of privilege that survive or relevant. I told you I didn't anticipate an issue, but I just need to run my eyes over them.
- MR. TIGHE: Fine, I understand.
MR. LINDEN: I'll get back to you, and if there is something we decline to produce, we'll identify it with some particularity so that you know what we're talking about and can seek a remedy if you disagree.
- MR. TIGHE: Thank you [underlining added].
6Mr. Green submitted, and I do not doubt, that plaintiffs asked for the underlying files of the other counsel involved, as his firm only acts for Keith and Karen. Yet counsel for the grandchildren, and counsel for Kevin, have so far refused to produce their files to counsel for these plaintiffs. Mr. Green asserts that he cannot produce what he does not have. He submitted that counsel for defendants should avail themselves of Rule 30.10 and bring a motion for production from non-parties.
7Mr. Green also asserted that there is no evidentiary basis established for why defendants need more than, for example, the dockets produced, or the other documents produced, inter alia, on behalf of Keith and Karen, save for some solicitor-client correspondence. It is his submission that what has been produced ought to be sufficient to allow defendants to proceed to trial, and that the request of defendants is over-broad.
8Moving counsel for defendants disagree that what has been produced will allow the defendants to properly defend the action, let alone assess the validity of the various claims asserted. Moreover, Ms. Rakowski emphasized that this was a motion pertaining to the fulfilment of an undertaking, stressing that undertakings require compliance.
Discussion and Conclusions:
9In my view, a key issue in this motion does indeed revolve around the important point of an undertaking given. The parties did not address the specific nature of “undertakings” in their submissions; likely because this is well understood and not in dispute. Yet it is still useful to reiterate the consequences and obligations flowing from an undertaking. Chapters five and seven of the Law Society of Ontario’s Rules of Professional Conduct address undertakings as follows:
5.1-6: A lawyer must strictly and scrupulously fulfill any undertakings given by him or her and honour any trust conditions accepted in the course of litigation.
Commentary: [0.1] Unless clearly qualified, the lawyer's undertaking is a personal promise and responsibility. [1] A lawyer should also be guided by the provisions of rule 7.2-11 (Undertakings and Trust Conditions).
7.2-11: A lawyer shall not give an undertaking that cannot be fulfilled and shall fulfill every undertaking given and honour every trust condition once accepted.
10As the transcript confirms, the caveat expressed by Mr. Linden when he gave his undertaking was, “subject to any claims of privilege that survive or [is] relevant”. Thus, if there survives a claim of privilege, his undertaking remains qualified. Yet if there is no longer a claim of privilege which survives or is relevant, then his undertaking is no longer qualified. It is then seemingly for counsel for plaintiffs to meet the commitment that he willingly gave when his client was discovered, so to fulfill his undertaking. In other words, if privilege no longer applies, given the plaintiffs claim damages which includes those costs purportedly incurred by the grandchildren and Kevin in their claim against the defendants, if plaintiffs cannot obtain those files any other way, then it is for the plaintiffs, and not for the defendants, to bring the appropriate Rule 30.10 motion, and/or to take any other necessary steps to be able to respond to and fulfill the undertaking given by their counsel.
11Yet the issue of privilege is obviously a very important consideration in this matter. In Brewer v. Royal College of Dental Surgeons of Ontario, et al., 2021 ONSC 5697, I discuss both solicitor-client and litigation privilege in some detail. Clearly, impeding on privilege is only to be done with much caution, and only where doing so is necessary in the interests of justice. Thus, I consider whether such is necessary to be done in this matter.
12As to the remainder of the arguments made by Mr. Green: that the request is over-broad, or that the information provided to date ought to suffice, these well made submissions are considered and addressed in conjunction with and context of the undertaking given and if there remains a claim of privilege.
Privilege Remaining?
13To situate this issue, again, the heirs of Melinda sued the lawyer who made her 2013 will after they settled the will challenge. The action is to recover the legal costs incurred by the estate in that challenge. I agree with Mr. Green that the privilege in such a case is not automatically waived. As stated by Justice Braid in Martin v. Giesbrecht Griffin, 2018, ONSC 7794, a case also involving a claim of solicitor’s negligence where it is alleged by plaintiff that his former lawyers caused his loss:
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. The court provides an important gatekeeping function to avoid inappropriate requests for disclosure, balancing fairness with the importance of the solicitor- client privilege.
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 Roynat Capital Inc. v. Repeatseat Ltd., 2015 ONSC 1108 (DC).
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 30 such legal advice: see Norhal Quarries & Holdings Ltd. v. Ross & McBride, [2000] O.J. No. 1082 (SCJ) [emphasis added].
14In the Martin matter, Justice Braid found that the privilege was waived by the plaintiff when he asserted that:
the law firm was the cause of his losses, and,
the damages arose from the plaintiff’s costs of proceeding to trial to litigate on the domestic contract prepared by his former lawyers.
15Similarly, in this within matter, plaintiffs assert that the lawyer Jackson caused their damages by his negligent preparation of the 2013 will. They seek their litigation costs incurred to pursue and settle the will challenge application. Defendants deny that any act or omission of his caused those damages and, at paragraph 33 of the Statement of Defence, plead that the within action is “a tactical attempt…of the plaintiffs to foist upon him the legal fees which they caused Melinda’s estate to incur…”. In my view, considering the similar allegations as were made in Martin, applying that decision leads to a conclusion that plaintiffs in this matter waived privilege with their claims against the defendant.
16Moreover, when I drill down into this matter to consider if the defendants genuinely need what they seek, I observe unanswered issues which require information for the defendants. Without the work product, or solicitor files, how can the defendants assess and verify that the amount claimed as damages encompasses legal work pertaining to the will challenge, or if such pertains to other, unrelated legal activity? Supplying the generic dockets is not sufficient, in my view. Having reviewed these dockets, I find them to be, in the main, non-descriptive time entries. Such would not provide the necessary information for defendants to be able to analyze the claim (and for plaintiffs to properly prove their case). The claim for damages, after all, relates to those legal costs incurred by Keith and Karen, as well as by the grandchildren and Kevin. Yet without having the solicitor files, it is impossible in my view for defendant to assess the bona fides of the damages claim, and the appropriateness of its quantum.
17As an example, I refer to the December 1, 2020 statement of account from the Kronis firm rendered to the estate. The April 23, 2020 docket only refers to emails with Keith and Karen, correspondence with Mr. Linden, and a telephone call with Mr. Green. Yet that would not give anyone any idea of the nature or substance of the work performed, or if it was reasonable in the circumstances so to justify this damage claim. Moreover, the remainder of that invoice pertains, other than two additional (equally generic) dockets, to what seemingly is estate administration work, with nothing at all to do with the will challenge. Given that, I understand why the defendants need to assess the damages claim in context of the actual work product produced by the lawyers acting for plaintiffs and the other beneficiaries. I do not find the request over-broad, or that the information is not required. To the contrary, the information is, in my view, required in the interest of fairness.
18Asking the defendant to proceed without these files, to try to mount a defence absent this information, would be in my view the antithesis of trial fairness. It would be akin to asking the defendant to respond with one arm tied behind his back. Yet even some years ago, courts stated that, in circumstances similar to this matter, this would be unfair. See in that regard, Froates v. Spears, 1999 CarswellOnt 60 [1999], where Justice Fleury stated categorically as follows:
I am satisfied that, where one party chooses to sue his solicitor for advice given to the party, that very action constitutes a waiver of the solicitor-client privilege for all matters going to the issue of what caused the loss suffered by the client and to what extent the loss may be attributable to the solicitor in question.
I am satisfied further that where a party seeks to recover the costs incurred by it in pursuing a claim or defending a claim made against it, that this inclusion of the claim for costs constitutes a waiver by the client of any solicitor-client privilege that might have existed with respect to the file itself. How could the defendant satisfy itself of the reasonableness of the costs incurred by the party if he were not to be able to review the entire file? [emphasis added].
19The answer to that rhetorical question posed by Justice Fleury is that, other than by seeing the files, it would be practically impossible for the within defendants to satisfy themselves of the reasonableness of the costs incurred. See also the decision of Justice Ground in Bank Leu AG v. Gaming Lottery Corp., 1999 CarswellOnt 3365 which further reviewed the law in this area.
20In my view, all these decisions, especially the strong statement of Justice Fleury, are determinative of the issue before me when juxtaposed with the facts as discussed herein. Yet counsel for plaintiff attempted to rely on a more recent decision, 8657181 Canada Inc. v. Mehdi Au LLP, 2019 ONSC 6380. In that case, defendants sought to remove the plaintiff’s lawyer and sought production of that lawyers’ litigation files as these were asserted to be relevant to the within solicitor negligence litigation. Associate Justice Robinson found it was then “premature to determine if there has been any deemed waiver of solicitor-client privilege over the entirety of those files”. In a comprehensive and nuanced decision, which also includes a helpful review of the application of Rule 30, which I adopt, my colleague stated as follows:
[45] In my view, on the facts of this case, I need not address the issue of whether or not waiver of solicitor-client privilege has arisen over the contents of the entire litigation files. Even if not protected by privilege, I am not satisfied on the evidence filed that the entirety of Mr. Starkman's litigation files in relation to the costs submissions and the appeal will be relevant and producible, or that an order for production of the entire files is necessary or proportional.
[46] The Rules require production of documents relevant to any matter in issue in an action that is in the possession, control or power of a party. Rule 30.02 governs what documents must be disclosed and produced for inspection, and Rules 30.03 to 30.10 govern the means by which that is done. Rule 30.03 requires that each party to an action produce an affidavit of documents. None of the parties to this action have done so yet. Rule 30.04 governs inspection of documents referenced in an affidavit of documents, pleadings or affidavits. Rule 30.04(5) grants the court authority to, at any time, order production for inspection of documents that are not privileged and that are in the possession, control or power of a party and, where privilege over a document is claimed, Rule 30.05(6) permits the court to inspect the document to determine the validity of the claim. Rule 30.06 provides the court with authority to make various orders where evidence satisfies the court that a relevant document has not been disclosed or a claim for privilege is improper.
[47] I agree that aspects of Mr. Starkman's files may be relevant and producible. In Kitchen v. McMaster, supra, Master Graham held that there was a deemed waiver regarding the advice received by the plaintiff in respect of a related proceeding and that, accordingly, the documents from the lawyer's file relevant to such advice should be produced. Master Graham also held that the lawyer's accounts were producible since they were claimed as damages. However, there is no clear evidence before me that 865 Canada's decision to forgo pursuit of the first ground of appeal was based on legal advice that exists in any written form. Questions put to Ms. Pearce on cross-examination about the strategy in not pursuing that ground were refused on the basis of relevance to the motion (not privilege) and the Au Defendants did not move on those refusals. I am also not satisfied that full production of the litigation file is necessary to test the reasonableness of the claim for legal fees. The legal accounts themselves will certainly need to be produced. However, 865 Canada has not yet served its affidavit of documents and has not taken a position that it will not produce the accounts. It has opposed the broader full production order sought by the Au Defendants.
[48] The Au Defendants do not argue for production of any specific class or narrower group of documents within Mr. Starkman's files as an alternative to full production. Since the record does not support that the entirety of Mr. Starkman's files for the costs submissions and the appeal are relevant or that an order for their production is proportional, I dismiss that portion of the Au Defendants motion without prejudice to it being brought again following at least completion of exchange of affidavits of documents and productions [emphasis added].
21As can be seen, the facts of the matter before me are quite different than those in the above decision. The parties in this within matter some time ago exchanged affidavits of documents and they also have had examinations for discovery. Unlike in the matter before Associate Justice Robinson, the herein parties are not at the beginning of the litigation. Importantly also, in this matter before me, the issue arises out of an undertaking. It is also relevant that my colleague, while dismissing the application, allowed it to later be brought anew, subsequent to documentary production. Accordingly, the above decision is distinguishable based on very different facts.
22For all these reasons, in this within matter I find that the privilege of the plaintiffs was, in the interests of fairness, deemed to have been waived when they asserted their claim against the lawyer, seeking to recoup their legal fees and costs to settle the will challenge. Thus, the undertaking of Mr. Linden is no longer a qualified one. It accordingly must be fulfilled, as the information is in my view genuinely required for trial fairness.
23The thorough and helpful submissions of both counsel in this matter is much appreciated.
Costs and an Order:
24We did not address costs at the conclusion of submissions. It is well known that “costs follow the event”. I am hopeful that the parties will be able to resolve costs amongst themselves. Yet if not, the parties may contact ATC Mr. Marco Magnante to schedule a brief tele-conference with me. If counsel wishes to tender costs submissions, in addition to their costs’ outlines, they may do so, up to three pages using normal type size/font and spacing.
25Assuming counsel agrees on the form of Order, this may be sent to ATC Mr. Magnante for my review and signature.
ASSOCIATE JUSTICE JOSEFO
DATE: December 8, 2021