COURT FILE NO.: CV-17-11723-00CL

DATE: 20240124

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GRANT MCDANIEL and MARC MCDANIEL as Estate Trustees for CAROL ANN MCDANIEL and AUREA DEMPSEY, JUDE DEMPSEY and RENA R. DEMPSEY, as Estate Trustees for the ESTATE OF STEPHEN DEMPSEY, Plaintiffs

AND:

DEMPSEY CORPORATION, 835677 ONTARIO INC., BOWES DEMPSEY, BENJAMIN DEMPSEY and FRANK O. DEMPSEY, Defendants

BEFORE: Cavanagh J.

COUNSEL: Colin Pendrith, for the Plaintiff in the Henry Action, Beverley Henry,

Michael O’Brien and Joshua Hearn for Plaintiffs in the McDaniel Action, Grant McDaniel and Marc McDaniel as Estate Trustees for Carol Ann McDaniel and Aurea Dempsey, Jude Dempsey and Rena R. Dempsey as Estate Trustees for the Estate of Stephen Dempsey

Meredith L. Hayward, Masiel A. Matus, and Ardita Sinojmeri, for the Defendants in each action

John Picone, for non-party, Michael Henry

HEARD: January 17, 2024

ENDORSEMENT

Introduction

[1] The moving parties are the Defendants in two oppression actions that will be tried together starting April 8, 2024.

[2] The Plaintiff in one action (the “Henry Action”) is Beverley Henry. The Plaintiffs in the other action (the “McDaniel Action”) are Grant McDaniel and Marc McDaniel as Estate Trustees for the Estate of Carol Ann Dempsey and Rena Dempsey and other persons as Estate Trustees for the Estate of Stephen Dempsey.

[3] The Plaintiffs in both actions are minority shareholders of a large private family run company, the Dempsey Corporation. The Plaintiffs’ oppression allegations in both actions are against Dempsey Corporation, a shareholder of Dempsey Corporation, 835677 Ontario Inc., and personally against the Executive Chairman, Bowes Dempsey, and the Chief Operating Officer, Frank Dempsey.

[4] The Moving Parties move in the McDaniel Action for the following relief in both the Henry Action and the McDaniel Action:

a. An Order requiring Beverley Henry, Grant McDaniel as Estate Trustee for Carol McDaniel, and Rena Dempsey as Estate Trustee for Stephen Dempsey to re-attend their examinations for discovery to answer refusals listed in a schedule to the Notice of Motion (updated in the Defendants’ factum) or, in the alternative, to answer the refused questions in writing.

b. An Order requiring Beverley Henry, Grant McDaniel and Rena Dempsey to re-attend their examinations for discovery to answer any questions arising from performance of the Order requested at (a).

c. And Order granting leave for the Defendants to examine a non-party, Michael Henry, Beverley Henry’s son, to answer questions relevant to discoverability and the Defendants’ limitation period defence, pursuant to rule 31.10 of the Rules of Civil Procedure.

[5] For the following reason, the Defendants’ motion is dismissed.

Analysis

[6] The Defendants seek answers to questions in the following categories:

a. Category A: Questions relating to production of the Voorheis solicitor file (as described below).

b. Category B: Questions relating to issues of discoverability of Beverley Henry’s claim.

c. Category C: Questions relating to issues of discoverability of the McDaniel Plaintiffs’ claims – including follow-up questions arising from answers to prior refusals.

[7] The Defendants also seek leave to examine Michael Henry, a non-party.

[8] One of the Defendants’ defences is that the Plaintiffs in the actions knew about their alleged claims long before the commencement of these proceedings (March 10, 2017 for the McDaniel Action and March 31, 2017 for the Henry Action) and, therefore, their claims were commenced after the expiry of the limitation period under the Limitations Act. The Defendants also plead that the Estate of Stephen Dempsey is barred from bringing the claim by section 38 of the Trustees Act.

[9] The Plaintiffs deny that their actions are statute barred.

[10] The Defendants submit that the Plaintiffs have put their state of mind and the discoverability of their claims in issue by way of their Reply pleadings.

[11] In their Reply, the McDaniel Plaintiffs plead that the Defendants have obstructed the discovery of claims against them and the McDaniel Plaintiffs’ claims are of necessity premised on suspicions, rather than on facts that the McDaniel Plaintiffs actually know, or reasonably ought to have known. The McDaniel Plaintiffs plead that the claims of the Estate of Stephen Dempsey were not discoverable by Stephen Dempsey in his lifetime and involve losses incurred by the Estate after his death, such that section 38 of the Trustee Act is inapplicable.

[12] In her Reply, Beverley Henry denies that the claims are outside the applicable limitation period. She pleads that the Defendants’ oppressive conduct is ongoing and, in any event, has been purposely concealed from her. She pleads that by the Defendants’ design, she does not have complete knowledge of their surreptitious conduct. She pleads that the Defendants cannot rely on the concealment of their own improper conduct to avoid her claims.

[13] Through their reply pleadings, Beverley Henry and the McDaniel Plaintiffs have taken the position that their claims were not discovered or discoverable more than two years before they commenced their actions.

[14] In the actions, the Defendants produced a document that on its face is a draft retainer agreement dated December 14, 2015. The draft retainer agreement is between a law firm, Voorheis & Co. LLP (“Voorheis”), and Beverly Henry, the Estate of Stephen Dempsey, Carol Ann Dempsey (now deceased) and Carol’s son, Grant. The draft retainer agreement also names some, but not all, of the non-party shareholders of Dempsey Corporation.

Questions asked of Beverley Henry

[15] The Defendants asked Beverley Henry at her examination for discovery to confirm whether she or anyone else on her behalf met with Voorheis. She gave the following answer to this question:

In the interest of looking out for his mother, Michael Henry took the initiative to attend a meeting with Voorheis & Co. LLP in 2015, but not on Beverley Henry’s instruction. Beverley Henry has no recollection of Michael Henry attending the meeting.

[16] On December 16, 2022, the Defendants asked follow-up questions arising from this answer. The follow up questions asked for information in the possession of Michael Henry. One question was for any notes taken by Michael Henry at the meeting with Voorheis. Another question was for production of the entire Voorheis file with respect to the engagement with Voorheis.

[17] On January 19, 2023, Ms. Henry responded: “Michael Henry has refused to provide further answers.”

[18] Beverley Henry made inquiries of Michael Henry in response to follow-up questions asked of her by the Defendants and gave an answer to these questions. There are no refusals from the examination for discovery of Beverley Henry.

[19] I will address separately the Defendants’ request for an order granting them leave to examine Michael Henry.

Questions asked of Rena Dempsey

[20] The Defendants asked Rena Dempsey to advise when she first consulted a lawyer with respect to the conduct that is pleaded against the Defendants in this action. She answered on January 5, 2024 that the Estate of Stephen Dempsey first consulted a lawyer with respect to the conduct that is pleaded against the Defendants in this action in and around February 2016.

[21] The Defendants asked follow-up questions (in respect of 3 topics) following receipt of this answer.

[22] The question asked in respect of the first topic was who was the lawyer consulted. In response, Rena answered, without conceding that the question is proper and without waiving privilege, that Voorheis was the law firm consulted.

[23] The questions in respect of the second topic were:

a. When did the Estate form a view that it had an action against the existing defendants in this action?

b. Is it as of February 2016 and with respect to all claims pleaded?

c. If not, please provide the date and specify the claims to which the date relates.

[24] With respect to the three questions in the respect of the second topic, Rena Dempsey responded that these questions are not a proper follow-up questions and that they are not appropriately connected to the initial question. She took the position that the time has passed to make these inquiries and no undertaking was sought or provided on examination for discovery with respect to these questions.

[25] When Rena Dempsey was examined for discovery, the question asking when the Estate formed a view that it had an action against the Defendants was not asked. It would not be proper to re-open the examination for discovery to allow the Defendants to ask additional questions that were not already asked, unless the questions arise from the answer to an undertaking or refusal. I am not persuaded that the question asking when the Estate formed a view that it had an action against the Defendants arises from the answer to the question asking for the identity of the lawyer consulted. These questions need not be answered. See Seabreeze Electric Corp. v. Young Estate, 2005 CanLII 31996 at para. 22.

[26] The first question in respect of the third topic is:

a. Did Rena or any of her siblings and/or estate trustees attend the meeting in 2015 with Wes Voorheis?

[27] Rena Dempsey responded that this question had been asked and answered and “the answer is no”. As a result of this answer, it was not necessary for Rena to answer the other follow-up questions in relation to this topic.

[28] The Defendants asked Rena Dempsey to produce the entire solicitor file with respect to the Plaintiffs’ engagement with Voorheis. This question was refused on the basis of privilege.

[29] I address the question asking for production of the entire Voorheis file as it was put to Rena Dempsey. My reasons will apply to the same question asked of Grant McDaniel.

[30] The Supreme Court of Canada has explained that solicitor-client privilege is broad and all-encompassing. It attaches to communications made within the framework of a solicitor and client relationship, which arises as soon as the potential client takes the first steps, and, consequently even before the formal retainer is established. The three criteria required to establish solicitor and client privilege are: (i) a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice; and (iii) which is intended to be confidential by the parties. See Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, at paras. 14-16.

[31] The Defendants submit that the Voorheis file would speak to the issue of when the Plaintiffs discovered their claims and/or will show what information and documents the McDaniel Plaintiffs had at the time Voorheis was consulted. The Defendants submit that this information is relevant and that the Voorheis file is comprised of relevant documents that are required to be produced. The Defendants submit that production of the Voorheis file may confirm which claims were already known by the time the Plaintiffs consulted with lawyers in 2015.

[32] The Defendants submit that no solicitor and client privilege exists with respect to the draft retainer agreement and the meeting attended by Michael Henry with Voorheis in 2015 (the “Voorheis Meeting”) or other consultations by any of the Plaintiffs with Voorheis, and, consequently, the Voorheis solicitor’s file. The Defendants submit that where there is a limitation period issue relating to a plaintiff’s objective and subjective knowledge as to when he or she knew or ought to have known that he or she had a claim, questions pertaining to what the plaintiff told professionals with whom he or she consulted are relevant to that person’s belief or knowledge and must be answered.

[33] In support of this submission, the Defendants rely on Jack v. Canada (Attorney General), 2004 CanLII 6217 (ON SC). In Jack, the defendant moved to require the plaintiff to answer questions relating to legal advice sought and instructions given by her to her former solicitors in or around 1993. The action was commenced in April 2000. The motion judge in Jack addressed the issue of waiver of privilege in relation to questions pertaining to the plaintiff’s dealings with legal counsel on the question of her supposed exposure to pesticide. See Jack, at para. 115.

[34] I do not accept the Defendants’ submission that no solicitor and client privilege exists with respect to the Voorheis file. Solicitor and client privilege presumptively cloaks in confidentiality matters properly within its scope without regard to the particulars of the situation and necessarily operates in derogation of the judicial search for truth and is insensitive to the facts of the particular case: R. v. National Post, 2010 SCC 16, at para. 42. I am satisfied that communications between Voorheis and their clients and prospective clients, including any material in solicitor files, are, prima facie, covered by solicitor and client privilege. I accept, however, that a person who is entitled to assert solicitor and client privilege who has placed his or her state of mind in issue and has received legal advice to help form the state of mind may have waived the privilege that would otherwise apply to this advice. The Defendants contend that Rena Dempsey has done so. I turn to the waiver of privilege issue.

[35] The motion judge in Jack addressed whether privilege should be deemed to have been waived and held that in determining whether the plaintiff knew or ought to have known of the facts giving rise to the claim, the knowledge of her solicitor is imputed to her. The motion judge held that material facts that would lead a reasonable person to believe that he or she had a claim include the knowledge, information and facts known to the plaintiff’s solicitors. The motion judge held that in order to ascertain when the plaintiff could reasonably have become aware that she had a claim, the defendant is entitled to know what instructions or advice were communicated to the plaintiff by her solicitors and the extent to which he acted upon such advice. The motion judge held that the critical date is when the plaintiff or her solicitors reasonably ought to have known, by the exercise of due diligence, that she had a claim. The motion judge held that questions relating to the knowledge of the plaintiff and/or her counsel as to when they knew or ought to have known by the exercise of due diligence that she had a claim are relevant and should be answered.

[36] In Jack, the communications with the former solicitors occurred both prior to and after the expiry of the applicable six-year limitation period. In contrast, on this motion, the draft Retainer Agreement in respect of which the Voorheis Meeting is said to have been held is dated in December 2015. Grant McDaniel answered on discovery that he initially consulted Voorheis on September 9, 2015. Rena Dempsey answered that the Estate of Stephen Dempsey first consulted a lawyer, Voorheis, with respect to the conduct that is pleaded against the Defendants in this action in and around February 2016. The actions were commenced in March 2017.

[37] The Defendants also rely on Tomasone v. Capo, Sgro, Dilena, Hemsworth, Mendicino LLP, 2014 ONSC 2922. In Tomasone, the defendants brought a refusals motion to compel the plaintiffs to disclose communications and documents containing legal advice provided to the plaintiffs and the research and evaluation by counsel of the claims and strategy. The plaintiffs had put forward affidavit evidence suggesting that they discovered their claims after retaining counsel. The lawyers swore affidavits. The plaintiffs refused questions about when or how they discovered their claims and refused to let their lawyers answer questions about the discovery of the claims on the ground of privilege.

[38] The motion judge in Tomasone, at para. 48, held that the plaintiff ought not to be allowed to rely on discoverability arguments to avoid a limitations defence without making full disclosure with respect to all relevant facts relating to what knowledge was acquired and when. The motion judge held, at para. 62, that where the plaintiffs undertake to prove that an action is not statute barred and they put their state of mind and their lawyer’s state of mind in issue to argue that the action is not statute barred, the plaintiffs will have waived privilege over relevant communications with their lawyers.

[39] The Plaintiff can only be said to have waived privilege over communications and documents that are relevant. I turn to whether the communications and documents in the Voorheis file are relevant.

[40] In Creative Career Systems Inc. v. Ontario, 2012 ONSC 649, Perell J. addressed the legal principles with respect to waiver of privilege and, at para. 26, held that if a party places its state of mind in issue with respect to its claim or defence and has received legal advice to help form the state of mind, privilege will be deemed to be waived with respect to such advice. Perell J. went on, at paras. 27-28, to address the issue of relevance as it relates to waiver of privilege:

There is, however, a subtle and profound point here about when a party must answer questions about the occurrence of legal advice in the factual narrative of the case. The subtle and profound point is that there is no waiver of the privilege associated with lawyer and client communications from the mere fact that during the events giving rise to the claim or defence, the party received legal advice, even if the party relied on the legal advice during the events giving rise to the claim or defence. For a party to have to disclose the legal advice more is required.

In Doman Forest Products Ltd. v. GMAC Commercial Credit Corp., 2004 BCCA 512, a case about whether privilege associated with legal advice had been waived, Justice Smith points out at para. 28 that it is not enough to constitute waiver that a pleading puts a party’s state of mind in issue and that its state of mind might have been influenced by legal advice, there must be the further element that the state of mind involves the party understanding its legal position in a way that is material to the lawsuit. In other words, the presence or absence of legal advice itself must be material to the claims or defence to the lawsuit. The materiality of the legal advice to the claims or defences in the lawsuit makes questions about it relevant.

[41] The Defendants submit that discoverability is not determined based upon when the Plaintiffs sought advice from Voorheis in 2015 and 2016, however, those dates are a persuasive point in time to evaluate what the Plaintiffs already knew regarding their claims, and how long they had known it. They seek production of the Voorheis file to confirm that the Plaintiffs had discovered their claims by the time they or someone on their behalf met with Voorheis. On this basis, the Defendants submit that the Voorheis file is relevant.

[42] I do not accept the Defendants’ submission. The dates of the consultations with Voorheis are well within the limitation period. Any knowledge learned by the Voorheis lawyer in or after September or December 2015, or in or after February 2016, and imputed to the Plaintiffs, or any legal advice given in such time frames that may have influenced the Plaintiffs’ understanding of their legal position in relation to discovery of their claims are not material to the issue raised in the actions, that is, whether the Plaintiffs’ claims were discovered or discoverable more than two years before the actions were commenced. This is so because any communications with Voorheis were within two years of the commencement of the actions.

[43] I conclude that the Voorheis file is not relevant to the issue of discoverability of the McDaniel Plaintiffs’ claims and, therefore, privilege has not been waived over this file and Rena Dempsey does not need to produce it.

[44] The Defendants submit that any solicitor and client privilege that may have existed has been waived due to the presence of Michael Henry and Grant McDaniel, who are not named in the draft retainer agreement or the contemplated litigation referenced therein, at consultations with Voorheis.

[45] I do not accept that privilege has been waived on this basis. Mr. McDaniel answered that the draft retainer agreement was not finalized. Mr. Henry has asserted privilege over communications with Voorheis. The Defendants have not shown that Voorheis or their clients or prospective clients admitted into the privacy of their relationship persons whose presence is not of assistance to the consultation, such that it should be presumed that the communications were not intended to be made in confidence. The Defendants have not met their onus of showing that privilege has been waived on this basis.

[46] Rena Dempsey was asked on discovery to advise of the “contemplated litigation” referenced in the draft retainer agreement. She answered on January 5, 2024 that as the Estate had not consulted with a lawyer as of the date of the document in question, Rena Dempsey had no knowledge of any contemplated litigation referred to in the document.

[47] The Defendants asked the following follow-up questions with respect to the draft retainer agreement: Does Rena Dempsey or any of her siblings and/or estate trustee’s know what the contemplated litigation is referring to, either because they attended the Voorheis meeting or otherwise and to provide complete particulars. Rena Dempsey answered that the question has been asked and answered and “[t]he answer is no”. There is no refusal to be answered.

Questions asked of Grant McDaniel

[48] The first set of questions in issue begin with the defendants asking Grant McDaniel to advise whether he hired Voorheis to provide tax planning advice, and if so, to advise what they advised upon, and why it wasn’t followed up on by Carol Ann McDaniel if this was done on her behalf. On January 5, 2024, Mr. McDaniel answered that without in any way waiving privilege, he did not hire Voorheis to provide tax planning advice.

[49] The Defendants asked follow-up questions on January 8, 2024. These questions asked why Grant McDaniel sent Wes Voorheis the handout from the “Cadesky meeting” and what advice was being sought from Voorheis at this time. Mr. McDaniel responded that the question is irrelevant to any of the claims asserted in the Statement of Claim and that the information sought is solicitor-client privileged.

[50] The advice sought by Mr. McDaniel from Voorheis is, prima facie, protected from disclosure by solicitor and client privilege. Any privileged communications between Mr. McDaniel and Voorheis occurred within two years of the commencement of the McDaniel action. For reasons given in respect of similar questions asked of Rena Dempsey, I conclude that any information received by Voorheis and imputed to them, and any advice given by Voorheis to Mr. McDaniel, are not relevant to whether the McDaniel Plaintiffs discovered their claims more than two years before the action was commenced.

[51] The second set of questions in respect of which the Defendants seek answers are follow-up questions to answers given by Mr. McDaniel on January 5, 2024. In these answers, Mr. McDaniel advised that (1) he did not form a view in December 2015, as reflected in the draft retainer agreement, that he had a cause of action against the existing defendants in this action, and the draft retainer agreement was not finalized; (2) Mr. McDaniel first consulted a lawyer regarding the issue addressed in Carol Ann McDaniel’s letter to Bowes Dempsey dated April 30, 2015 in April 2015, (3) the lawyer was Alexander Sennecke, (4) Voorheis was consulted on September 9, 2015, (5) when Mr. McDaniel initially consulted Mr. Voorheis, he did so independently, (6) Mr. McDaniel was not thinking of suing the Defendants when he initially consulted with Voorheis.

[52] The Defendants asked nine follow-up questions on January 8, 2024. These questions are:

a. Why was the Draft Contingency Fee Retainer Agreement not finalized?

b. To produce the finalized retainer agreement with Voorheis.

c. To advise whether Mr. Sennecke was retained and if so, to produce that retainer agreement.

d. To advise whether Mr. Sennecke provided any advice to either Mr. McDaniel and/or Carol McDaniel regarding the conduct pleaded in the action other than with respect to what is disclosed in the document at D0303.

e. To produce the solicitor’s file for Mr. Sennecke.

f. Other than Mr. Sennecke and Mr. Voorheis, were any other lawyers consulted by Mr. McDaniel or Carol McDaniel regarding the conduct pleaded in this action. If so, who was consulted and when did the consultations take place?

g. When did Mr. McDaniel form of view that he or his mother had an action against the existing Defendants in this action.

h. What was the purpose of the September 9, 2015 consultation? We are aware from Michael Henry that a meeting took place with Mr. Voorheis. Wasn’t Grant also at this meeting? Who else attended the meeting? What was the purpose of that consultation? What documents were exchanged between grant or any others in the Voorheis firm?

i. Was Grant of the view that his mother had a claim against the Defendants as pleaded in the action at any time he consulted with Voorheis? To provide particulars of what he knew and when he knew it with respect to any claims his mother may have against the Defendants. Did Grant ever share with his mother Carol anything about his consultations and retainer with Voorheis? If so, what did he share? When did he share it? To provide full particulars.

[53] With respect to the first six questions, and the eighth and ninth questions, Mr. McDaniel responded that the questions seek solicitor-client privileged information and are irrelevant to the claims asserted in the Statement of Claim.

[54] Questions asking for information about the draft retainer agreement, and about Mr. McDaniel’s communications with Mr. Sennecke, including the request for production of Mr. Sennecke’s file are, prima facie, subject to solicitor and client privilege. The McDaniel Plaintiffs did not waive this privilege because, for reasons I have given, information about the draft retainer agreement dated December 2015 and communications with Mr. Sennecke in and after April 2015 are not relevant to the issue in the McDaniel Action, that is, whether the McDaniel Plaintiffs discovered their claims more than two years before their action was commenced.

[55] Mr. McDaniel answered that he first consulted a lawyer, Mr. Sennecke, in April 2015. Follow-up question number six asks whether, other than Mr. Sennecke and Mr. Voorheis, there were any other lawyers consulted by Mr. McDaniel and/or Carol McDaniel, regarding the conduct pleaded in the action. This answer would involve disclosure of such consultations, if any, after the first consultation with Mr. Sennecke in April 2015 and, therefore, for reasons I have given, the answer would not be relevant.

[56] The answer to the seventh follow-up question is that the question is not proper as it is not connected to the initial question, the time has passed to make the inquiry, and it is irrelevant as Mr. McDaniel was not in the role of Estate Trustee when the action was commenced by Carol and McDaniel personally. For reasons I have given in relation to the same question asked of Rena Dempsey, I conclude that this question need not be answered. This also applies to the second question within follow-up question nine.

[57] The third question in respect of which the Defendants seek an answer is, with respect to the conduct pleaded in the draft retainer agreement and with respect to the matters which are pleaded in this action, to provide the entire file of Voorheis. Mr. McDaniel refused this question on the basis of solicitor and client privilege. I addressed the same question asked of Rena Dempsey and, for reasons I have given, the Voorheis file is privileged and need not be produced.

[58] The fourth question in respect of which the Defendants seek an answer is to advise as to who Wes Voorheis is in the header of the email produced between Michael Henry, Grant McDaniel and Bill Henry dated September 22, 2016. The answer given on January 5, 2024 is that, without waiving privilege, Wes Voorheis is a lawyer.

[59] On January 8, 2024, the defendants asked follow-up questions to the fourth question. The follow-up questions are: “Is Wes Voorheis a lawyer who was retained by Grant or his mother? If so, please provide the date and a copy of the retainer agreement”. The answer given is that the nature of any advice provided by Wes Voorheis is solicitor-client privileged and, in part, litigation privilege. It is also irrelevant to the issue of limitations given that all meetings took place within the two-year limitation period.

[60] The Defendants refer to production by the McDaniel Plaintiffs of this email chain between Grant McDaniel and Wes Voorheis which includes a non-privilege attachment produced by the Defendants, the subject of which, they contend, the Plaintiffs have put in issue in the actions. Michael Henry is also a party to that email chain. The Defendants submit that by producing this document, the Plaintiffs have further waived any existing solicitor and client privilege, and the Defendants are entitled to ask questions pertaining to this document and obtain facts regarding their knowledge during the Voorheis retainer. The Defendants submit that the Plaintiffs cannot be permitted to produce a document which is clearly relevant and claim solicitor and client privilege over its contents.

[61] The McDaniel Plaintiffs cite the transcript of the examination for discovery of Grant McDaniel where, when this email chain was referenced, counsel for Mr. McDaniel advised that this email may have been inadvertently disclosed and ought to have been redacted and is privileged. Counsel objected to questions about the document over which privilege was claimed.

[62] The Defendants note that the McDaniel Plaintiffs have not led evidence that the disclosure was inadvertent or of attempts to retrieve the document or that its disclosure is prejudicial. They note that Grant McDaniel has answered questions on the document in question.

[63] The McDaniel Plaintiffs rely on the decision of the Divisional Court in McQueen et al. v. Mitchell et al., 2022 ONSC 649 where, at para. 70, the Court held:

The court is the gatekeeper, protecting litigants from inappropriate requests for disclosure and balancing fairness with the importance of solicitor-client privilege. It is not the law that waiver of privilege over one document or fact to which solicitor-client privilege attaches, impliedly waives privilege over other solicitor-client privileged information or documents. It must be shown that without the additional privileged documents, the information produced is somehow misleading: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co., 1995 CanLII 7258 (Ont. S.C.), at para 41.

[64] The Defendants have failed to show that even if privilege was waived over this email chain, there is an implied waiver of privilege over privileged communications other than this document. They have not shown that without additional privileged documents or information, the information produced is somehow misleading. I conclude that by producing this email chain, the McDaniel Plaintiffs did not impliedly waive privilege over other documents or information.

[65] For reasons I have given, questions asked of Grant McDaniel about communications with Voorheis including any retainer are privileged and not relevant. This follow-up question need not be answered.

Should leave be given for the examination of Michael Henry?

[66] Rule 31.10(1) of the Rules provides that the Court may grant leave to examine for discovery of person who there is reason to believe has information relevant to a material issue in the action.

[67] Rule 31.10(2) of the Rules provides that an order under subrule (1) shall not be made unless the court is satisfied that,

a. the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine;

b. it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and

c. the examination will not,

i. unduly delay the commencement of the trial of the action,

ii. entail unreasonable expense for other parties, or

iii. resulting in unfairness to the person the moving party seeks to examine.

[68] The Defendants submit that they have been unable to obtain answers to questions asked of Beverly Henry, or from Michael Henry, who has refused to provide answers.

[69] The Defendants submit that, given that the parties to the draft retainer agreement largely mirror the Plaintiffs in these actions and the draft retainer agreement contemplates legal proceedings in connection with “matters relating to the Dempsey Corporation and 835677 Ontario Inc.”, they reasonably believe that discussions at the Voorheis Meeting at any subsequent retainer agreement related to the matters pleaded in these actions. The Defendants submit that the questions that Michael Henry refused to answer are directly relevant to the issues in relation to the Defendants limitation period defence and, therefore, they are entitled to discovery of the facts of which Beverly had knowledge with respect to her claim against the Defendants and when she had such knowledge.

[70] The Defendants submit that follow-up and clarifying questions that are relevant to the issue of discoverability of Beverly’s claims must be answered. They submit that it would be unfair to require them to proceed to trial without obtaining answers to these questions which, they contend, are critical to the Defendants’ limitation defence.

[71] In response to this motion, Mr. Henry relies on an affidavit from his lawyer, John Birch, that appends a letter he sent to counsel for the Defendants dated December 22, 2023. In the letter, Mr. Birch provides information he received from Mr. Henry about the meeting Mr. Henry attended with Voorheis and Mr. Henry’s knowledge of the draft engagement letter. Mr. Birch states in the letter that Mr. Henry maintains the privilege that exists in his favour. Mr. Birch asserts in the letter that any information Mr. Henry has about the meeting is privileged and, given that Mr. Henry is not a party and seeks no relief against the Defendants, not relevant.

[72] In his affidavit, Mr. Birch states that the letter “accurately reflects the nature of the discussions that Mr. Henry had with Voorheis & Co. LLP, including the fact that Mr. Henry obtained legal advice for his own benefit and that he asserts privilege over those communications with counsel”.

[73] The Defendants submit that Mr. Birch’s affidavit should be struck out or given little weight because Mr. Henry’s lawyer does not specify in his affidavit the source of the information in his affidavit and the fact of the belief, contrary to rule 39.01(4) of the Rules.

[74] The information in Mr. Birch’s affidavit stating the reason that Mr. Henry attended a meeting with Voorheis is inadmissible because the affidavit does not comply with rule 39.01(4). The letter appended as an exhibit to Mr. Birch’s affidavit is also an exhibit to the affidavit of Jenny Chen, a law clerk who provided affidavit evidence for the McDaniel Plaintiffs, and is admissible to show that Mr. Birch, on behalf of his client, asserted privilege over Mr. Henry’s communications with Voorheis.

[75] Whether Mr. Henry met with Voorheis to seek legal advice only for himself or also for the benefit of his mother, the communications would be privileged and protected from disclosure unless the privilege was waived. For reasons I have given, privilege was not waived by the Plaintiffs over communications with Voorheis. Michael Henry has not waived privilege over his communications with Voorheis.

[76] The Defendants have failed to show that there is reason to believe that Michael Henry has information relevant to a material issue in the actions.

Disposition

[77] For these reasons, the Defendants’ motion is dismissed.

[78] If the parties are unable to resolve costs, they may make written submissions. The Plaintiffs’ submissions and Michael Henry’s submissions (not longer than 3 pages, excluding costs outline) are due within 10 days. The Defendants’ responding submissions are due with 10 days thereafter (same page limit for each response). Reply submissions, if any, (1 page) within 5 days thereafter.

Cavanagh J.

Date: January 24, 2024