COURT FILE NO.: CV-18-78521
DATE: 2022/06/10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Capital Sports Management Inc.
Plaintiff
– and –
Trinity Development Group Inc., 801 Albert Street Inc., TIP Albert GP Inc., TIP Albert Limited Partnership, Trinity Albert LP, G. Bird Holdings Inc. c.o.b. GBA Development and Project Management, John Ruddy and Graham Bird
Defendants
AND B E T W E E N:
Trinity Development Group Inc.
Plaintiff by Counterclaim
– and –
Capital Sports Management Inc. and Eugene Melnyk
Defendants by Counterclaim
Robert Brush, Clarke Tedesco, and Alexandra Grishanova, for the Plaintiff and Defendant to the Counterclaim Capital Sports Management Inc. and for the Defendant to the Counterclaim Eugene Melnyk
Milton A. Davis, Ronald D. Davis, Samantha M. Green, and Hailey Abramsky, for the Defendant and Plaintiff by Counterclaim Trinity Development Group Inc. and for the Defendants Trinity Albert LP and John Ruddy
Christopher D. Bredt and Laura Wagner, for the Defendants 801 Albert Street Inc. and TIP Albert Limited Partnership
No one appearing for the Defendants G. Bird Holdings Inc. c.o.b. GBA Development and Project Management and Graham Bird
HEARD: June 3, 2022
Addendum TO REASONS FOR decision on motion to compel production
RYAN BELL j.
[1] CSMI has requested clarification regarding the scope of my orders set out at paragraph 100 of my Reasons for Decision.[^1] At paragraph 100, I made the following orders:
(i) CSMI shall produce all correspondence, memos, accounts, emails, data, and other documents in its possession, control or power relating to the work of Gowlings for RLG and the LeBreton Project from July 23, 2015 to November 23, 2018; and
(ii) if not already produced, where a document listed in Schedule “A” to Trinity’s notice of motion has been redacted on the basis of solicitor-client privilege and the redaction relates to Gowlings’ work for RLG and the LeBreton Project for the period July 23, 2015 to November 23, 2018, CSMI shall produce the document in unredacted form.
[2] Based on the totality of the evidence, I found that there was a joint retainer of Gowlings by CSMI and Trinity in relation to RLG and the LeBreton Project for the period July 23, 2015 to November 23, 2018. I concluded that a reasonable person in the position of a party with knowledge of the objective facts would reasonably form the belief that Gowlings was acting for both CSMI and Trinity in relation to RLB and the LeBreton Project during this period of time: Reasons, at para. 93.
[3] I reiterate the following principles from my Reasons:
(i) As between joint venture parties, communications between one party and the lawyer will not be privileged if (i) there was a joint retainer of the lawyer; and (ii) the communications are in relation to the subject matter of the joint venture: Reasons, at para. 32.
(ii) “Generally speaking, there can be no secrets between joint venture parties on matters that may affect the joint venture”: Reasons, at para. 30, citing Sarvarian v. Sok.[^2]
(iii) There is no privilege regarding communications between parties to a joint retainer and in such circumstances, the clients to the retainer are treated as one. The lawyer is ethically bound to ensure that no material information is treated as confidential between clients to a joint retainer: Reasons, at para. 29.
[4] As between CSMI and Trinity, communications between CSMI and Gowlings in relation to RLG and the LeBreton Project – the subject matter of the joint retainer – are not privileged. This applies to all such communications. There is no exception or “carve-out” for communications between CSMI and Gowlings in relation to the subject matter of the joint retainer in which CSMI’s interests were adverse to Trinity. Further, if CSMI sought advice from Gowlings about withdrawing from RLG or changing CSMI’s participation in the LeBreton Project, these communications would be in relation to the subject matter of the joint venture and they would not be privileged as between CSMI and Trinity. If such communications exist, they must be produced as they would fall within the scope of my order.
Madam Justice Robyn M. Ryan Bell
Released: June 10, 2022
COURT FILE NO.: CV-18-78521
DATE: 2022/06/10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Capital Sports Management Inc.
Plaintiff
– and –
Trinity Development Group Inc., 801 Albert Street Inc., TIP Albert GP Inc., TIP Albert Limited Partnership, Trinity Albert LP, G. Bird Holdings Inc. c.o.b. GBA Development and Project Management, John Ruddy and Graham Bird
Defendants
AND B E T W E E N:
Trinity Development Group Inc.
Plaintiff by Counterclaim
– and –
Capital Sports Management Inc. and Eugene Melnyk
Defendants by Counterclaim
addendum to REASONS FOR decision on motion to compel production
Ryan Bell J.
Released: June 10, 2022
[^1]: Capital Sports Management Inc. v. Trinity Development Group Inc., 2022 ONSC 2657.
[^2]: 2011 BCSC 585, at para. 73.