A-363-77
Egmont Towing and Sorting Ltd. and Shields
Navigation Ltd. (Plaintiffs) (Appellants)
v.
Heatley Boom Services Ltd. and Lawrence David
Heatley (Defendants) (Respondents)
Court of Appeal, Pratte and Urie JJ. and MacKay
D.J.—Vancouver, January 16 and 23, 1978.
Practice — Legal professional privilege — Two documents
in possession of plaintiffs' solicitors not included in list com
piled pursuant to Rule 447(2) and privilege not claimed —
Documents not of category required to be listed by Rule —
Whether or not plaintiffs precluded from invoking privilege
because of their not claiming protection as prescribed by the
Rules — Federal Court Rules 447(2) and 449(2).
APPEAL.
COUNSEL:
A. B. Oland and G. Davies for appellants
(plaintiffs).
J. R. Cunningham and J. W. Perrett for
respondents (defendants).
SOLICITORS:
Owen, Bird, Vancouver, for appellants (plain-
tiffs).
Macrae, Montgomery, Spring & Cunning-
ham, Vancouver, for respondents (defend-
ants).
The following are the reasons for judgment
delivered orally in English by
PRATTE J.: This is an appeal from a decision of
the Trial Division [T-3208-76] ordering the pro
duction of a certain document which was held not
to be protected by legal professional privilege.
The plaintiffs have sued the defendants for dam
ages. During the examination for discovery of an
officer of one of the plaintiffs, counsel for the
defendants learned of the existence of two docu
ments which were then in the possession of the
plaintiffs' solicitors. He requested that they be
produced and adjourned the examination after
counsel who represented the plaintiffs at the
examination had agreed to accede to his request. A
few days later, however, counsel for the plaintiffs
revised his position and refused to produce the two
documents on the ground that, having been pre
pared in anticipation of litigation in order to be
submitted to plaintiffs' counsel, they were protect
ed by legal professional privilege. The defendants
then applied for an order that the two documents
in question be produced. The Trial Division grant
ed that application in respect of one of the docu
ments. That is the decision from which the plain
tiffs have appealed. It must be added, however,
that the defendants have launched a separate
appeal from that part of the same decision relating
to the document which, in the view of the Court
below, did not have to be produced. As those two
appeals are, to say the least, intimately related,
and raise identical questions, I will deal with them
both in these reasons.
The defendants' contention that the two docu
ments are not protected by legal professional privi
lege rests, if I understood counsel correctly, on
three arguments:
(1) the documents were not prepared in circum
stances such as to give rise to the privilege;
(2) the plaintiffs have not invoked the privilege
in the manner prescribed by the Rules of the
Court and, for that reason, cannot benefit from
its protection; and
(3) in any event, the privilege, if it ever existed,
has been waived.
In my view, the evidence clearly shows that the
two documents were prepared in order to be sub
mitted to plaintiffs' counsel at a time when litiga
tion was contemplated. One of them was prepared
at the request of one of plaintiffs' counsel; the
other, at the instigation of the insurance adjuster
employed by the plaintiffs' underwriters. Contrary
to what was argued by counsel for the defendants,
I am therefore of opinion that the circumstances in
which the two documents were prepared were such
as to give rise to the privilege.
The defendants' second argument is that the
plaintiffs are precluded from invoking the privilege
by reason of the fact that they have not claimed its
protection in the manner prescribed by the Rules
of the Court. In order to understand that argu
ment, it is necessary to know that the list of
documents filed by the plaintiffs pursuant to Rule
447(2) did not contain any express mention of the
two documents here in question. It is the defend
ants' contention that the plaintiffs thus failed to
comply with Rule 449(2) and that this procedural
irregularity precludes them from invoking the
privilege. Rule 449(2) reads as follows:
Rule 449... .
(2) If it is desired to claim that any documents are privileged
from production, the claim must be made in the list of docu
ments with a sufficient statement of the grounds of the
privilege.
While I incline to the view that the failure to
comply with that Rule does not preclude a party
from invoking a privilege, it is not necessary, for
the purpose of this appeal, to express any opinion
on this point since it cannot be said in this case
that the Rules have not been complied with. Under
Rule 449(2), as I read it, the only documents in
respect of which privilege must be claimed in the
list are those which, according to the Rules, must
be mentioned in the list. Here, the plaintiffs' list
was filed pursuant to Rule 447(2) and need not
mention any document other than those required
by that Rule, namely, the documents that might be
used in evidence to support the plaintiffs' case.
There is no suggestion that the two documents of
which production is sought are of that kind; there
fore, they did not have to be mentioned in the list
and it cannot be said that the plaintiffs have not
complied with Rule 449(2).
The defendants' last argument is that the privi
lege was waived when, during the examination for
discovery, both the person being examined and the
counsel representing the plaintiffs agreed that the
two documents be produced. I cannot share that
view. There is no indication in the evidence that
those who thus agreed to produce the documents
knew that they were privileged from production or
had the authority to waive the privilege on behalf
of the plaintiffs. Such being the case, I cannot
infer from what transpired at the examination for
discovery any waiver or renunciation that would
bind the plaintiffs.
For these reasons, I would allow the appeal with
costs; I would set aside the judgment of the Trial
Division and dismiss with costs the defendants'
application for production of documents.
* * *
URIE J. concurred.
* * *
MACKAY D.J. concurred.
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