Court File and Parties

COURT FILE NO.: CV-19-69132 DATE: 20231128

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tar Heel Investments Inc., Plaintiff A N D: H.L. Staebler Company Limited, Lisa Arseneau and Debbie Sutton, Defendants

BEFORE: The Honourable Justice B. MacNeil

COUNSEL: S. Gleave and B. Needham – Lawyers for Plaintiff N. Gupta and S. Johnston – Lawyers for the Defendants

HEARD: November 27, 2023

E N D O R S E M E N T

[1] This was the first day of trial. The Plaintiff makes this motion for production of redacted/non-disclosed portions of an email produced by the Defendants, dated December 9, 2015 (“the December 2015 Email”), which in its original format had a document attached which the Defendants claim is protected by solicitor-client privilege (“the Non-Disclosed Attachment”). The December 2015 Email also has a redacted portion in its “Attachments” descriptor line.

[2] Counsel advised that the parties did not exchange particularized Schedule “Bs” in their affidavits of documents. Rather, only the boilerplate Schedule “B” language was used.

[3] Rule 30.03(2)(b) of the Rules of Civil Procedure provides:

(2) The affidavit shall list and describe, in separate schedules, all documents relevant to any matter in issue in the action,

(b) that are or were in the party’s possession, control or power and for which the party claims privilege, and the ground for the claim; …

[4] Use of boilerplate language for Schedule “Bs” is problematic since (i) it does not comply with Rule 30.03; and (ii) it does not inform the other party for them to be able to properly challenge a claim of privilege, if so advised.

[5] A Schedule “B” description should include “the function, role and status of the receiver and sender of the documents in question and their relationship to the party to the action, the grounds for the claim of privilege, and a description of each document consistent with the law which renders it privileged”: see Segnitz v. Royal & Sunalliance Insurance Co. of Canada (2004), 49 C.P.C. (5th) 167 (Ont. S.C.J.), at para. 14.

[6] In my view, the Plaintiff has not been given sufficient information regarding the Non-Disclosed Attachment.

[7] The Defendants are ordered to immediately provide to the Plaintiff a description of the Non-Disclosed Attachment and the redacted descriptor found at the top of the December 2015 Email, that complies with Segnitz v. Royal & Sunalliance, as set out above. That is, the subject email and its attachment are to be identified, with their nature described, the sender and receiver identified, and with the claimed privilege set out, along with the grounds for that privilege. The particulars are to be described sufficiently to enable the privilege to be challenged, if the Plaintiff is so advised.

[8] The Plaintiff should then be in a position to argue whether or not there is any privilege attaching to the document(s) and, if so, whether such privilege has been waived either expressly or impliedly.

[9] Waiver of privilege attaching to a solicitor-client communication will be implied where the communication is “legitimately brought into issue in an action”. Implied waiver is limited to situations where the relevance of the privileged evidence is high. In determining whether there has been an implied waiver of privilege, the court must balance the principles of fairness and consistency against the importance of solicitor-client privilege: see Bank Leu AG v. Gaming Lottery Corp., [1999] O.J. No. 3949 (Ont. S.C.J.), at para. 5; McQueen v. Mitchell, 2022 ONSC 649, at paras. 59-60; and Laliberté v. Monteith, 2021 ONSC 4133 (Ont. Div. Ct.), at para. 22.

[10] The onus lies on the party seeking to overcome the privilege to establish that the communication ought to be compelled from the party asserting the privilege: see Guelph (City) v. Super Blue Box Recycling Corp. (Ont. S.C.J.), 2004 CarswellOnt 4488, at para. 76.

[11] Tomorrow morning, I will hear from the parties as to their submissions and argument on the waiver of privilege issue.

Justice B. MacNeil DATE: November 28, 2023