COURT FILE NO.: CV-18-26644

DATE: 20231016

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Erik Lindsay Belanger and Lori Ann Belanger, Plaintiffs

AND:

Avalon & Tahoe Mfg. Inc., Yamaha Motor Corporation, U.S.A., Yamaha Motor Canada Ltd., Yamaha Motor Co., Ltd., PW Brands LLC, Tilbury Auto Sales and RV Inc., John Doe Corporations, Lindsay Belanger, and Adam Esipu, Defendants

BEFORE: Howard J.

COUNSEL: Alysia M. Christiaen, for the Plaintiffs

David L. Campbell and Sunny Rehsi, for the Defendants Yamaha Motor Corporation, U.S.A., Yamaha Motor Canada Ltd., and Yamaha Motor Co., Ltd.

HEARD: March 2, 2023

ENDORSEMENT

Overview

[1] The motion before the court, brought by the plaintiffs, seeks, inter alia, to have a representative of the defendants Yamaha Motor Co. Ltd. (“Yamaha Japan”), Yamaha Motor Corporation U.S.A. (“Yamaha USA”), and Yamaha Motor Canada Ltd. (“Yamaha Canada”) (collectively, “Yamaha”) re-attend at their own expense to answer questions that, the plaintiffs say, were improperly refused on their examinations for discovery.

[2] The motion is brought in the context of a personal injury action arising out of a boating accident that occurred on July 18, 2016 (the “Accident”). The plaintiffs allege that the principal plaintiff, Erik Belanger (“Erik”), born August 20, 1992, who was 23 years of age at the time of the Accident, sustained permanent injuries as a result of the Accident, including a below-knee amputation of his left leg.

[3] The plaintiff Lori Ann Belanger (“Ms. Belanger”) is Erik’s mother and claims damages pursuant to the Family Law Act.[^1]

[4] Erik’s father, Mr. Lindsay Belanger (“Mr. Belanger”), who is not a plaintiff to the instant proceeding, owns a Yamaha dealership, being the defendant Tilbury Auto Sales and RV Inc. (“Tilbury Auto”). Erik was employed at Tilbury Auto. Mr. Belanger is also a personal defendant in the action. I am advised that Ms. Belanger and Mr. Belanger are separated and estranged from each other.

[5] For oral reasons delivered during the hearing of the instant motion, I exercised the court’s discretion to permit the affidavit of Mr. Timothy Chelli sworn January 26, 2023, to be admitted on the hearing of the motion.[^2] At the time of the Accident, Mr. Chelli was employed by Yamaha Canada as its National Manager of Regulatory Affairs.

[6] In its description of the Accident, Yamaha alleges Erik sustained his serious leg injury following an afternoon of alcohol consumption and horseplay on a high-powered Avalon brand pontoon boat owned by Tilbury Auto. Yahama alleges that Erik, leaving the engines running, and without engaging the safety tether, left the helm of the boat and walked to the back of the boat to urinate, where he was pushed into the water by a friend. While Erik was still swimming behind the boat, one of the boat’s passengers attempted to store a wakeboard (which figured in the afternoon’s recreational activities) on a rack adjacent to the captain’s chair and throttle controls. During this process, at least one of the boat’s throttle control levers was impacted, throwing the boat into reverse, and causing, unfortunately, the outboard engines’ propellers to strike Erik.

[7] The plaintiffs allege that Yamaha designed, manufactured, subcontracted the manufacture, distributed, and/or supplied the throttle control on the boat. The plaintiffs allege that the adequacy of the design and manufacture of the throttle is a significant issue in the action.

[8] The statement of claim was issued on July 18, 2018. Examinations for discovery were commenced July 21, 2020, continued over various dates, and concluded on May 5, 2021.

[9] More specifically, the corporate representative of Yamaha Japan was examined on February 18, 2021. The corporate representative of Yamaha Canada, Mr. Timothy Chelli, was examined on February 22, 2021. The corporate representative of Yamaha USA was examined on May 5, 2021.

[10] To the great credit of counsel for both the plaintiffs and Yamaha, counsel have been able to significantly reduce the scope of the outstanding issues before the court through, inter alia, voluntary responses to questions that were initially refused and a rigorous “meet-and-confer” process that resulted in both a narrowed scope for several requests and discovery supplementation by Yamaha.

[11] As such, I am advised that Yamaha has, collectively, provided substantive responses to more than 182 undertakings.

[12] Moreover, I am advised that the only six remaining questions between the parties that require judicial determination by this court, involve the following:

a. Item no. 3 of Schedule “A” to the plaintiffs’ factum dated November 7, 2022, being Q. 573, at p. 229, of the transcript of the examination for discovery of the corporate representative of Yamaha Japan (refusal);

b. Item no. 10 of Schedule “A” of the said factum, being Q. 617, at p. 181, of the transcript of the examination for discovery of the corporate representative of Yamaha USA (taken under advisement, deemed refusal);

c. Item no. 13 of Schedule “A” of the said factum, being Q. 620, at p. 182, of the transcript of the examination for discovery of the corporate representative of Yamaha USA (taken under advisement, deemed refusal);

d. Item no. 15 of Schedule “A” of the said factum, being Q. 399, at pp. 152-153, of the transcript of the examination for discovery of the corporate representative of Yamaha Canada (refusal);

e. Item no. 16 of Schedule “A” of the said factum, being Q. 475, at pp. 178-179, of the transcript of the examination for discovery of the corporate representative of Yamaha Canada (refusal); and

f. Item no. 17 of Schedule “A” of the said factum, being QQ. 402-403, at pp. 154-155, of the transcript of the examination for discovery of the corporate representative of Yamaha Canada (taken under advisement, deemed refusal).

[13] In sum, the information sought by the plaintiffs, and refused by Yamaha, was directed to the steps that Yamaha took to investigate the Accident and included, in particular, requests for:

a. Production of the retention letter from Yamaha Canada to its external legal counsel, Bowman and Brooke LLP (the law firm of record for Yamaha on the motion before me), who were retained to conduct an investigation of the Accident;

b. Information concerning the specific instructions provided to Yamaha Canada’s external counsel as to their conduct of the investigation of the Accident;

c. Production of the full investigation file maintained by external counsel;

d. Production of the full investigation file maintained by Mr. Chelli of Yamaha Canada; and

e. Information concerning certain communications between Yamaha Canada and Yamaha USA, including details of how Yamaha USA was notified of the Accident.

[14] In the end, these few remaining issues arise out of Yamaha’s assertion of litigation privilege and solicitor-client privilege and, in particular, require a determination of the date upon which Yamaha had reason to believe that the plaintiffs would pursue litigation.

[15] The plaintiffs allege that Yamaha is trying to shield the production of relevant documents and information from disclosure by relying on unfounded claims of privilege.

[16] Accordingly, for the reasons explained below, I dismiss the plaintiffs’ motion with costs.

Governing Legal Principles

[17] It appears that counsel for the parties are essentially agreed upon the applicable legal principles that should govern the instant motion.

[18] That is, I perceive no real disagreement between counsel as to the well-known scope and legal elements of a claim of solicitor-client privilege,[^3] as set out in paras. 23-27 of the factum of the plaintiffs and paras. 19-21, and 27 of the factum of Yamaha, nor the scope and elements of a claim of litigation privilege, as set out in paras. 28-33 of the factum of the plaintiffs and para. 22 of Yamaha’s factum.[^4] There is no need to expressly recite all of those principles here.

[19] That said, I would highlight the following. Solicitor-client privilege applies to all communications between solicitor and client that entail the seeking or giving of legal advice and that are intended to be confidential by the parties.[^5] The privilege attaches not only to the advice itself, but to all communications passing between client and solicitor relating to the provision of legal advice.[^6] The privilege includes documents, information, and communications shared or created in a “continuum of communications” for the purpose of obtaining legal advice, and documents that are a “necessary step” in the process of receiving legal advice, that are “incidental” to the obtaining and giving advice, and those that, if produced, would tend to reveal that advice.[^7]

[20] Solicitor-client privilege also protects a lawyer’s work product and prohibits the disclosure of the contents of their client file where that file is compiled with the knowledge or skill of the lawyer or where the disclosure of the contents of the file would reveal what the lawyer considered in providing legal advice to the client.[^8]

[21] While the onus of establishing that privilege exists is on the party asserting it,[^9] the courts resolve conflicts about whether solicitor-client privilege covers a given document in favour of protecting privilege. The stakes are high in this context. Invoking solicitor-client privilege necessarily imports constitutional and institutional considerations, not merely the balance of convenience or fairness among the parties. The courts “err on the side of non-disclosure if unable to determine whether a communication is or is not privileged.”[^10]

[22] I am guided by these principles.

Analysis

[23] The factual context is important here.

[24] As referenced above, at the time of the Accident on July 18, 2016, Mr. Chelli was employed by Yamaha Canada as its National Manager of Regulatory Affairs. Mr. Chelli is not an engineer and has no responsibility for evaluating or recommending possible design changes to Yamaha products. Rather, as reflected in Mr. Chelli’s job description, which was included in Yamaha’s productions, his responsibilities included:

a. “[o]verseeing the management and defense of product liability claims and suits including coordination of activities with internal staff, other Yamaha divisions, corporate attorneys and technical experts”; and

b. “[o]verseeing and coordinating all legal suits or claims brought against YMCA by dealers, consumers, or other parties. This will include liaison with legal counsel across Canada and providing assistance to employees where required.”

[25] The evidence before me indicates that on July 25, 2016 – exactly one week after the date of the Accident – Mr. Chelli first learned of the Accident involving Erik’s serious injuries, and he promptly opened a claim investigation file.

[26] As well, on that same day, Mr. Chelli was advised, through reports by his “team,” that Erik’s mother, Ms. Belanger, was trying to convince Erik to commence a lawsuit. Consequently, later that same day, Mr. Chelli wrote to Yamaha Canada’s external litigation counsel, Bowman and Brooke LLP, seeking legal advice and assistance with Yamaha Canada’s pre-lawsuit claim investigation.

[27] The evidence indicates that the Bowman and Brooke firm had served as Yamaha Canada’s national product liability litigation counsel for many years, and their retention, on a case-by-case basis, was coordinated through Yamaha Canada’s liability insurer. Tellingly, the firm’s invoices were paid directly by the liability insurer. The evidence is that the Bowman and Brooke firm handles only insured pre-suit and litigated claims and has never been retained by Yamaha Canada to conduct an independent product investigation.[^11]

[28] The evidence of Mr. Chelli on discovery was that when there was any action or claim filed against Yamaha Canada, it “would make our counsel, Bowman and Brooke, aware of such action as they were a representative for our insurer.”

[29] I accept that the circumstances surrounding the incident with Erik and the Accident were somewhat unusual in that Erik (plaintiff) was employed at the Yamaha dealership (defendant) that was owned by his father, Lindsay Belanger (defendant). Indeed, Yamaha Canada first learned of the Accident, not by reason of a demand letter from a personal injury lawyer, but from Mr. Belanger.

[30] The evidence suggests that, not surprisingly, as an owner of a Yamaha dealership, Mr. Belanger basically had a direct line of communication to Yamaha Canada staff. The evidence also indicates that as of that same date of July 25, 2016, Mr. Chelli was also aware that Mr. Belanger had raised some questions with Yamaha Canada staff about a design concern, being that there was no shift interlock on the throttle control in question.

[31] The plaintiffs argue that the dominant purpose of the investigations undertaken by Yamaha and, in particular, the Bowman and Brooke firm, was not because litigation had been threatened but rather to address the design concern raised by Mr. Belanger.

[32] In my view, that submission is not supported by the evidence. It is common ground that Mr. Chelli was aware of the design concern that was raised by Mr. Belanger. However, I note that there was never any follow-up report back to Mr. Belanger concerning the alleged investigation into his design concern.

[33] I note the evidence of Mr. Chelli on discovery, as follows:

Q. … Did you ever get back to Lindsay Belanger to provide answers to the concerns that he had raised?

A. No. And there’s really two reasons for that. I mean, the first reason as we dug deeper into the issue, and once we realized that all the manufacturers are using the same style of dual binnacle control without a lockout, it no longer seemed like it was a defect, but more is simply a standard that the industry had designed and manufactured the controls to.

Q. Well, if that’s the case, sir, … why wouldn’t you then have contacted Lindsay to tell him that?

A. Because the second point is that we discovered that it was Erik’s intent to file a claim against Yamaha, and in that case everything then was basically turned over to the lawyers for communication, and really, that ended my communication with Lindsay.[^12] [Emphasis added.]

[34] It seems odd to me that if the whole purpose of the investigation that was undertaken by the Bowman and Brooke firm was to look into the design concern that was raised by Lindsay Belanger, there was never any follow-up report back to Mr. Belanger. Put differently, in my view, the absence of any report back to Mr. Belanger is telling evidence that the purpose of the investigation was not to address the design concern raised by Mr. Belanger.

[35] On the other hand, the evidence suggests that the only reason Mr. Chelli became involved in this matter is because litigation arising out of the Accident was reasonably anticipated.

[36] In my view, the evidence is clear, and I find, that the investigation files, reports, retainer letters, and other documents in question were prepared for the dominant purpose of anticipated litigation. There may have been other reasons related to the Accident (or a manufacturer or distributor’s concern for the safety of their products or the desire to maintain good relations with a dealership owner) but I am satisfied that the dominant purpose was the anticipation of litigation.

[37] Moreover, on the evidence before the court, I am satisfied that Yamaha first had reason to believe that Erik would pursue litigation on July 25, 2016. Clearly, neither Mr. Chelli nor Yamaha had direct evidence that Erik had conclusively determined as of that date that he would be commencing a lawsuit, but that level of certainty is not required. The question is whether litigation was reasonably anticipated. Given all of the events that occurred and all of the “moving pieces” that were in play on July 25, 2016, the potential threat of litigation was real, and I am satisfied that it was reasonable for Yamaha to anticipate litigation as of that date.

[38] In my view, Yamaha has satisfied its onus of establishing the basis of the privileges claimed. I find that the documents in question are protected by the privileges claimed. The attempts by the plaintiffs to pierce the litigation privilege and solicitor-client privilege, in demanding the production of external counsel’s retention letter, external counsel’s investigation file, Yamaha’s investigation file, and the related documents in question, must fail.

[39] The plaintiffs’ motion is therefore dismissed.

[40] On the question of costs of the motion, again to the credit of the parties and their counsel, they have come to an agreement on the costs disposition of this motion. I am advised that the parties agree that the successful party on the motion should have their costs in the total amount of $7,500, all inclusive.

Conclusion

[41] Therefore, for the reasons expressed above, the plaintiffs’ motion is dismissed with costs.

[42] As a result, and in accordance with the agreement of the parties, there shall be an order that the plaintiffs shall pay Yamaha’s collective and total costs of the instant motion in the all-inclusive amount of $7,500, within 30 days.

J. Paul R. Howard

Justice

Date: October 16, 2023

[^1]: Family Law Act, R.S.O. 1990, c. F.3.

[^2]: Among other things, I noted that the plaintiffs had been offered an opportunity to conduct further examinations of Mr. Chelli on the affidavit, which offer was refused.

[^3]: Many of the relevant principles governing solicitor-client privilege were conveniently summarized by Glustein J. in Wintercorn v. Global Learning Group Inc., 2022 ONSC 4576 (S.C.J.) [Wintercorn], leave to appeal to Div. Ct. refused, 2023 ONSC 199 (Div. Ct.), at para. 45.

[^4]: See also Factum of the Yamaha Defendants re Admissibility of Tim Chellie Affidavit dated February 23, 2023, at paras. 16-19.

[^5]: Wintercorn, at para. 45(iv).

[^6]: Ibid., at para. 45(vii).

[^7]: Ibid., at para. 45(viii).

[^8]: Ibid., at para. 45(ix).

[^9]: Ibid., at para. 45(vi).

[^10]: Ibid., at para. 45(xvii).

[^11]: As such, the plaintiffs’ reliance on Fresco v. CIBC, 2019 ONSC 3309 (S.C.J.), in support of their position that the reports prepared by Yamaha’s external counsel are not privileged is misplaced. The reports in Fresco were not prepared by legal counsel but, rather, by a third party survey specialist, who then sent it to CIBC’s lawyer, who then asserted a claim for privilege. See ibid., at paras. 23-25. Fresco is distinguishable.

[^12]: Motion Record, Affidavit of Zachary Grace sworn April 29, 2022, Exhibit “C”, Transcript of the examination for discovery of Mr. Timothy Chelli, as representative for Yamaha Motor Canada Ltd., taken February 22, 2021, at p. 719 (Motion Record), ll. 4-25.```