COURT FILE NO.: CV-15-542788
DATE: 2022-09-24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ASWR FRANCHISING CORP. et al. v. MORRISON BROWN SOSNOVITCH LLP et al.
BEFORE: ASSOCIATE JUSTICE D. MICHAEL BROWN
COUNSEL: J. Hoffman, for the Defendant/Moving Party, Morrison Brown Sosnovitch LLP
Christopher Horkins, for the Plaintiffs/Responding Parties
E N D O R S E M E N T
Background
[1] The defendant, Morrison Brown Sosnovitch LLP ("MBS"), brings this motion under Rules 30.03 and 30.04 for an order requiring the plaintiffs to produce unredacted versions of certain documents included in the plaintiffs' affidavit of documents that have been redacted for privilege.
[2] This is a solicitor's negligence action. The plaintiffs allege that as result of the negligence of the two defendant law firms, they were required to defend a franchise rescission action (the "Raibex Action") and incurred significant legal costs in doing so. While the plaintiffs were ultimately successful in the Raibex Action on appeal, they are claiming $681,438.38 in this action in respect of the alleged unrecovered costs of the Raibex Action.
[3] The plaintiffs were represented in the Raibex Action by Cassels Brock & Blackwell LLP ("Cassels"). Cassels is also representing the plaintiffs in this action and was advising the plaintiffs on their solicitor's negligence claim during the course of the Raibex Action. The issues on this motion arise, in part, as a result of Cassels billing the plaintiffs on both matters together under a single file number for a period of time.
[4] As the plaintiffs are claiming their legal costs from the Raibex Action in this action, they agreed to produce Cassels' invoices and docket entries demonstrating the fees and disbursements incurred in the Raibex Action on discovery, subject to redactions for privilege in respect of docket entries relating to advice given on this action. They also agreed to waive any privilege in relation to those invoices and docket entries relating to the Raibex Action, but again, not for those relating to this action.
[5] According to the evidence filed, there were extensive discussions between the parties on the issue of waiver and the redaction of the docket entries. During these discussions, plaintiffs' counsel explained both the nature of, and the reason for, the redactions to the dockets in an email to defence counsel:
"As discussed, the file number which is inclusive of all of the time subject to our claim also includes certain time docketed in respect of our clients' claims against your client. Since we are maintaining privilege over this matter, we will need to redact those dockets from the pro forma which I trust is not an issue since those dockets do not form part of our claim other than with respect to costs."
[6] The parties' agreement on the production of the invoices and docket entries was reflected in the Discovery Plan signed by both parties, as follows:
- Scope of Documentary Discovery
By the Plaintiffs:
• Detailed invoices from the plaintiffs' legal counsel demonstrating the costs incurred in defence of the Raibex Action, the Counterclaim, and in connection with the appeal to the Court of Appeal for Ontario (the "Appeal") showing timekeeper, time increment, and narrative entries for all dockets reflecting time billed to the plaintiffs;
• A pro forma statement generated by Cassels' accounting system showing timekeeper, time increment, and narrative entries for all time docketed to the file from inception (subject to redactions for privilege in respect of docket entries related to the plaintiffs' claims as against the defendants);
The parties recognize that privilege has been expressly, or by implication, waived in relation to documents passing between lawyer (RSPC and MBS) and client(s) and that privilege as between the plaintiffs and Cassels Brock and Blackwell LLP has been expressly, or by implication, waived only in relation to the matters in issue in this Action, including the cost of the services performed by the Cassels Brock and Blackwell LLP in the Raibex Action and the appeal from the Raibex action (but not in connection with this action).
[7] Ultimately, the plaintiffs' affidavit of documents included 36 invoices, 24 of which were redacted for privilege. Docket entries for 26 of the invoices were also redacted. According to the affidavit of a Cassels partner, Geoffrey Shaw, filed on this motion, all of the redactions made to the invoices and dockets are in respect of docket entries related to time spent by Cassels in relation to the plaintiffs' claims against the defendants. Shaw further states: "The plaintiffs do not claim damages in this action in respect of the amounts billed to them in respect of these docket entries."
This Motion
[8] MBS now seeks production of unredacted copies of the invoices and docket entries. MBS argues that the plaintiffs have waived privilege over the redacted dockets and that they are relevant to the issues in this action. In the alternative, they argue that the redacted dockets and invoices are not privileged, and they ask for this court's assistance in assessing the privilege. For this purpose, copies of the unredacted dockets were provided to me by the plaintiffs on a confidential basis through my registrar.
[9] The plaintiffs oppose the motion on the basis that: 1) privilege has not been waived, 2) the redacted dockets are presumptively privileged and 3) that the redacted documents are not relevant. For the reasons that follow, I agree with the plaintiffs on all three points.
[10] As a starting point, I find that the redacted dockets are not relevant to the matters at issue in this action. The plaintiffs are not claiming any damages in respect of fees or disbursements reflected in the redacted dockets entries. Further, the redacted docket entries relate to communications between Cassels and the plaintiffs in respect of this action, not the Raibex action.
[11] A party's communications with its litigation counsel in an action are not relevant to the issues in that action even if they involve the giving of advice in relation to those issues. While disclosure of such communications would of no doubt be of interest to the opposing party for the insights it might give into their opponent's litigation strategy, those communications have no probative value in the litigation and are not relevant for discovery purposes. I note that were it otherwise, all parties would need to list all communications with their litigation counsel, including invoices and supporting docket entries, in schedule "A" or "B" of their affidavits of documents. I assume that MBS has not listed its counsel's invoices and docket entries in its affidavit of documents.
[12] The wording of the Discovery Plan agreed to by the parties is clear and unambiguous. The document specifically provided for the redaction of docket entries relating to this litigation. The waiver given by the plaintiffs was expressly narrowed to apply only in relation to matters at issue in this action and expressly excluded documents relating to the costs of services performed in this action. As the redacted portions of the invoices and dockets are not relevant to the matters at issue in this action, the waiver granted does not extend to the redacted material. The Discovery Plan waiver covers all waivers, express or implied. To the extent there might otherwise be an implied waiver that is broader than that described in the discovery plan, the parties have agreed such broader waiver does not apply.
[13] Finally, I find that the redacted portions of the invoices and dockets are privileged. This court has held that the contents of a lawyer's account to the client, including invoices and docket entries, are presumed to be prima facie privileged. That presumption may be rebutted by demonstrating that disclosure of the information sought would not violate the confidentiality of the relationship.[^1]
[14] The Supreme Court of Canada explained the rationale for the presumption as follows:
Because of the difficulties inherent in determining the extent to which the information contained in lawyers' bills of account is neutral information, and the importance of the constitutional values that disclosing it would endanger, recognizing a presumption that such information falls prima facie within the privileged category will better ensure that the objectives of this time‑honoured privilege are achieved.[^2]
[15] In this case, the redacted docket entries are presumptively subject to solicitor-client privilege. MBS has provided no evidence to rebut this presumption. In my view, the redacted dockets in this case are also subject to litigation privilege as they all relate to communications with counsel in preparation for, or contemplation of, this litigation. Disclosure of this information would clearly violate the confidentiality of the relationship between Cassels and the plaintiffs. It would give MBS unprecedented and unfair access and insight into an opponent's lawyer-client communications regarding the litigation.
[16] Given my finding that the redacted portions of the invoices and dockets are presumptively privileged, I need not review the unredacted copies of the documents to assess the validity of the privilege claimed by the plaintiffs. Indeed, it is the impracticality of such a review that gives rise to the presumption as described by the Supreme Court of Canada. Even if I am wrong and the redacted information is not presumptively privileged, I would still not grant MBS's request for the court's inspection of the unredacted documents, as I have already found the redacted information is not relevant to the issues. To review irrelevant documents for privilege would be a pointless waste of this court's time.
[17] For all of these reasons, the motion is dismissed.
Costs
[18] As the plaintiffs were entirely successful, they should have their costs. The plaintiffs' costs outline calculates their partial indemnity costs at just over $5,000. MBS's costs outline claims partial indemnity costs of just under $5,000. The plaintiffs shall have their costs of this motion fixed at $5,000, inclusive of HST.
[19] ORDER TO GO AS FOLLOWS:
This motion by the defendant, Morrison Brown Sosnovitch LLP, for an order to disclose unredacted documents is hereby dismissed.
Morrison Brown Sosnovitch LLP shall pay to the plaintiffs their costs of this motion, fixed at $5,000, inclusive of HST, payable within 30 days of the release of this endorsement.
This order is effective immediately, without further formality
D. Michael Brown, Associate Judge
DATE: September 26, 2022
[^1]: R v Serfaty, 2004 9060 (ON SC), Maranda v. Richer,[2003] S.C.C. 67; at paras 33-34.
[^2]: Maranda at para 33