Theodore P. Charney

The defendant insurer brought a motion for leave to appeal an order upholding a Master's decision that required the production of certain documents.

The insurer asserted litigation privilege over the documents, arguing that any document created after litigation was reasonably contemplated is automatically privileged.

The Divisional Court dismissed the motion, finding no conflicting decisions or reason to doubt the correctness of the order.

The court affirmed that the dominant purpose test applies even after litigation is contemplated, and the party asserting privilege bears the burden of proving that the documents were created for the dominant purpose of the anticipated litigation.

The appellant appealed a trial judge's ruling that he was entitled to only 90 days' notice upon the non-renewal of a contract.

The Court of Appeal dismissed the appeal, finding that because the contract allowed for termination during its term on 90 days' notice, the notice of non-renewal could not exceed 90 days.

The court also upheld the trial judge's finding that the appellant's records were too unreliable to establish anything more than nominal damages for the shortfall in notice.

The appellant appealed an order refusing to set aside a default judgment.

The Court of Appeal dismissed the appeal, finding no reason to interfere with the motion judge's assessment that the appellant failed to offer a plausible explanation for her default, as she had advanced a patently false assertion that she was not the person named in the statement of claim.