Court File and Parties
COURT FILE NO.: CV-21-87726
DATE: 2023/08/15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Melynda Layton, Plaintiff
AND
Canadian Dental Hygienists Association and the Corporation of the City of Ottawa, Defendants
BEFORE: The Honourable Justice C.T. Hackland
COUNSEL: Melynda Layton, self represented
Craig O’Brien, for the Defendant Canadian Dental Hygienists Association
Pierre Champagne, for the Corporation of the City of Ottawa
HEARD: May 9, 2023 Ottawa (by Zoom videoconference)
ENDORSEMENT (Ruling on Document Privilege issue)
[1] This is a motion by the defendant the Canadian Dental Hygienists Association (“CDHA”) for an order requiring the plaintiff to “destroy all copies of the erroneously produced privileged documents”. The plaintiff’s responding position is that in the circumstances of this case, lawyer client privilege has been waived over these two e-mails. The defendant CDHA did not pursue its refusals/undertakings cross-motion at this time.
[2] The documents in question are two emails authored by lawyers from the Law office of the Nelligan Law firm, solicitors for the defendant CDHA. These letters provided legal advice to the CDHA and were written at the time of and in connection with the CDHA’s purchase of its current property at 1122 Wellington St. West, Ottawa, in January 2014. The letters provide advice about the usage which could be made of the laneway on the property, given the neighbor’s (Ms. Layton’s) registered right of way over a portion of the laneway.
[3] Unfortunately, a dispute over the plaintiff’s use of the laneway developed between the plaintiff Ms. Layton and the CDHA which led to the plaintiff commencing this proceeding in October of 2021. The plaintiff Ms. Layton is the owner of the neighboring property, 1110-1116 Wellington St. West, which she acquired in 2007. She is a lawyer and currently has her law office in these premises and she has several commercial tenants. Ms. Layton seeks to use the laneway for access to the rear of her property, primarily for parking.
[4] The parties originally negotiated an agreement whereby the plaintiff used the laneway to access the rear of her premises, but this agreement ended in acrimonious circumstances. The CDHA’s current position is that the plaintiff is not permitted to use the laneway and asserts the right to allow its employees to park on or otherwise use the laneway as they choose. In this action the plaintiff seeks an order providing an easement or right of way over the defendant’s laneway. The merits of this dispute will be addressed at trial, in the absence of a consensual resolution.
[5] On August 18, 2021 the defendant CDHA’s lawyers served their client’s affidavit of documents on the plaintiff and on the defendant City of Ottawa. This was done through an electronic link and included the documents themselves. Among their productions was documentation surrounding CDHA’s acquisition of 1122 Wellington in 2014, which was handled by the Nelligan firm and the 2 e-mails referring to the laneway/right of way issue were among the productions.
[6] The position taken by CDHA on this motion is that the 2 e-mails were inadvertently or erroneously produced to opposite counsel. I see no evidence to support that. An affidavit from a law clerk in the Nelligan firm deposed that he was copied on an email from his principal Mr. O’Brien, which he interpreted as authorizing and instructing him to serve their client’s affidavit of documents, which he then did by sending out an electronic link to the plaintiff and to counsel for the City of Ottawa. The law clerk further deposed that it was his belief that Mr. O’Brien would have reviewed the affidavit of documents. I will make the assumption that the law clerk’s impression was correct. Mr. O’Brien did not file an affidavit addressing the point and indeed he appeared as counsel for CDHA on this motion and relied on the clerk’s affidavit. There is also an e-mail before the court in which Mr. O’Brien is attempting to get the plaintiff to provide her affidavit of documents and he writes (July 5, 2022) “my client’s affidavit of documents has been complete since March, waiting to exchange with yours.” There is no evidence that CDHA’s solicitors rushed their client’s affidavit of documents out the door or released it inadvertently or in error.
[7] Examinations for Discovery in this action took place on October 27 2022. The two emails remained part of CDHA’s productions throughout the discovery and formed the basis of some of the questioning conducted by the plaintiff and by counsel for the co-defendant City of Ottawa. Importantly, before and during the discoveries and indeed following this discovery, CDHA did not suggest these were privileged communications released in error or that they should be returned or not relied on or questioned upon. All parties made use of these productions as they saw fit, as they were entitled to do.
[8] Going forward in time, the parties engaged in an unsuccessful mediation, which took place on December 6, 2022. The day after the mediation, the plaintiff, Ms. Layton, wrote to Mr. O’Brien requesting copies of attachments referred to in the Nelligan emails. At that point, Mr. O’Brien first asserted a claim of privilege over these emails. This was some 4 months after CDHA’s counsel had served their client’s affidavit of documents containing the relevant allegedly privileged emails.
[9] The record also discloses that counsel for CDHA submitted copies of the e-mails in question to the City of Ottawa in support of CDHA’s position as it related to possible by-law enforcement issues pertaining to the laneway, which the plaintiff was endeavoring to raise with the City.
[10] In summary, prior to CDHA making a claim for lawyer client privilege in respect of the 2 e-mails, the opposite parties considered and relied on the e-mails in preparation for and conducting examinations for discovery and preparing for and conducting a mediation, all over a 4 month period. Of equal importance, CDHA’s position was that it was relying on their solicitor’s legal advice on the laneway usage dispute and CDHA counsel furnished these two e-mails and other productions to the City in support of that proposition.
[11] The factual inference or conclusion the court draws from the evidence filed on this motion is that at or after the mediation, CDHA or their counsel came to the realization that the two e-mails they had produced in their affidavit of documents some four months earlier, had the potential to be detrimental to their case. Prior to that point, CDHA or its counsel were content to rely on these documents themselves and to allow opposite counsel to examine on and potentially rely on them. I specifically do not accept the proposition that the 2 e-mails were produced in error or by oversight or that CDSA or counsel were unaware the e-mails could have initially been the subject of a claim of privilege and identified as such in its affidavit of documents.
[12] However, even if the release of the two e-mails was initially inadvertent due to counsel’s failure to review their clients productions themselves or with their clients, to then make use of the documents and permit questioning at discovery without raising any objection, obviously waives any residual right to assert privilege based on an initially erroneous disclosure. Among other problems which would arise from the withdrawal of these two e-mails, the examinations for discovery would have to be repeated at least in part, which is untenable. This genie can not be put back in the bottle.
[13] The case law requires that in circumstances where privileged documents are released inadvertently or accidentally, the party who does so must move urgently to correct the situation, with the court’s assistance, if necessary. To test the waters to see whether the documents are helpful to one’s case or not, or a fortiori, to rely on or utilize the documents as a basis for justifying one’s course of action, constitutes a clear waiver of privilege.
[14] In accepting the plaintiff’s position that privilege has been waived in the circumstances of this case, I would emphasize that this ruling does not purport to determine issues under the purview of the trial judge, such as the admissibility of these e-mails at trial, their proper interpretation or their ultimate relevance, if any. I have decided merely that lawyer client privilege has been waived in the circumstances, as outlined above.
Disposition
[15] Accordingly, the defendant’s motion is dismissed. If costs are sought, the plaintiff is to provide a concise written submission within two weeks of the release of this endorsement and the responding parties may reply within two weeks of receiving the plaintiff’s submission. The City of Ottawa appropriately adopted a neutral position on this motion and I expect would not be seeking costs. However, if the City wishes to claim costs it should provide a written submission within the same timeframe and opposite counsel may respond.
Justice Charles T. Hackland
Date: August 15, 2023
COURT FILE NO.: CV-21-87726
DATE: 2023/08/15
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Melynda Layton, Plaintiff
AND
Canadian Dental Hygienists Association and the Corporation of the City of Ottawa, Defendants
COUNSEL: Melynda Layton, self represented
Craig O’Brien, for the Defendant Canadian Dental Hygienists Association
Pierre Champagne, for the Corporation of the City of Ottawa
ENDORSEMENT
(Ruling on Document Privilege issue)
Justice Charles T. Hackland
Released: August 15, 2023