IN THE SUPREME COURT OF NOVA SCOTIA
Citation: DeBaie v. Wilson Fuel Co., 2004 NSSC 244
Date: 20041201
Docket: S.H. 18524
Registry: Halifax
Between:
Bruce E. DeBaie
Plaintiff
v.
Wilson Fuel Co. Limited
Defendant
Judge: The Honourable Justice Donald M. Hall
Heard: October 3, 2004, in Halifax, Nova Scotia
Counsel: Bruce W. Evans, Esq., counsel for the plaintiff
Peter M. Rogers, Esq., counsel for the defendant
By the Court:
[1] The plaintiff has applied for the following interlocutory relief as set out in the his notice of application:
(1) for an order and directions pursuant to Rule 18 for a second Examination for Discovery of Mr. Fred Chalmers, General Manager of the Home Heating Division of the Defendant, Wilson Fuel Company Limited.
(2) for an order pursuant to Rule 20.01(2) requiring the Defendant to file an amended List of Documents describing each document with respect to which privilege is claimed by the Defendant under Part II of its List, including the date of each document; its author; the author's relationship to the Defendant; the purpose for which the document was made; the name of the person or persons to whom the document was communicated and their relationship to the Defendant, and a clear statement of the privilege claimed, so that a prima facie assessment can be made regarding the validity of the claim for privilege.
[2] The issues to be decided on this application are simply whether the requested relief ought to be granted.
[3] The plaintiff was formerly employed by the defendant company. On June 24, 2002, the defendant terminated the plaintiff's employment alleging just cause for doing so. Discovery examinations were held including the discovery of Mr. Fred Chalmers on June 20, 2003, by the plaintiff. In the course of the discovery it was revealed that at the time of informing the plaintiff of his dismissal, Mr. Chalmers told the plaintiff that there were two reasons for his dismissal; first, that he had used the defendant's credit card to buy cigarettes for himself, and second, that he did not take proper care of the credit card that was entrusted to him which resulted in other employees fraudulently using the card for their own purposes.
[4] On October 7, 2003, the plaintiff served a demand for particulars on the defendant demanding the particulars of the alleged just cause. The respondent replied on December 23, 2003, as follows:
1. (a) Particulars of the grounds constituting just cause:
The Plaintiff knew or ought to have known that credit cards entrusted to the Plaintiff were being used fraudulently by one or more members of the work crew for which the Plaintiff was the senior staff member and failed to take steps to prevent the improper use or improper continued use of the credit card or to apprehend or report the wrongdoer(s).
(b) Particulars of the facts alleged to establish the grounds constituting just cause:
The Defendant relies on the credit cards and the transactions referenced in the List of Documents provided by the Defendants to the Plaintiff and states that the transactions could not have occurred if the Plaintiff had taken proper steps to safeguard the credit cards from use by others when the Plaintiff himself was not present, to verify the appropriateness of transactions recorded on credit card slips and to report any work crew members failing to comply with appropriate precautionary measures.
[5] An amended statement of claim was filed January 7, 2004, claiming that the defendant had negligently caused harm to the plaintiff by dismissing the plaintiff on the grounds that the plaintiff had misused the defendant's credit card to purchase cigarettes for himself without having conducted an investigation. In the amended document the plaintiff also claims aggravated and punitive damages.
[6] The defendant filed an amended defence on January 16, 2004, stating that it had reasonably relied upon the report of an independent, reputable private investigation service that it apparently had hired in reaching its conclusion of misconduct on the part of the plaintiff, as well as the testimony of an independent eye witness.
[7] The plaintiff asked defence counsel to make Mr. Chalmers available for further discovery on the ground that new allegations had arisen as the result of the amended pleadings, discovery of other potential witnesses and production of documents pursuant to undertakings given during the discovery.
[8] The defendant has refused to produce Mr. Chalmers for further discovery contending that all issues had been canvassed by the plaintiff at the June 20, 2003, discovery examination.
[9] On December 4, 2002, the defendant filed its list of documents and on May 21, 2003, it filed a supplementary list of documents. Under Part II of the supplementary list the defendant's counsel noted:
Various correspondence, notes, memoranda, other communications, and witness statements obtained by or for or prepared by or for counsel for the Defendant either subsequent to retention of counsel or obtained in contemplation of litigation for all of which solicitor-client privilege is claimed.
[10] As set out in the notice of application the plaintiff is requesting that the defendant provide a list of the documents for which privilege is being claimed and certain particulars respecting each document which the defendant has refused to do.
[11] With respect to the further discovery of Mr. Chalmers, as Mr. Evans pointed out, the discovery rules in Nova Scotia are very broad and have been given a liberal interpretation by the courts. Statements by Chief Justice Cowan to this effect were quoted with approval by MacDonald, J.A., of the Appeal Division of this Court in Schwartz et al v. Royal Insurance Company, (1978) 26 N.S.R.(2d) 223 at page 227, paragraph 11 as follows:
Counsel for the respondent does not disagree with the statement by Chief Justice Cowan in King v. King (1977), 20 N.S.R.(2d) 260; 27 A.P.R. 260, at p. 263 that "The Nova Scotia rule with regard to examination for discovery is wider than similar rules in force in other Canadian jurisdictions". He also does not take issue with the following remarks of Chief Justice Cowan in Imperial Oil Ltd. v. Nova Scotia Light and Power Co. Ltd. (1974), 41 D.L.R.(3rd) 594, at pp. 595 and 596:
This is a new Rule which is wider than the Rule formerly in force in Nova Scotia. It is wider than any other Rule, of which I am aware, in any other Province [* page 228] in Canada. It was intended, in my opinion, to provide for the widest possible examination for discovery, the intention being that the parties should not be restricted to parties to a proceeding or to employees of parties to the proceeding, but that anyone who was thought to have any information regarding any matter relevant to the subject-matter of the proceeding should be subject to examination on discovery.
. . . . .
My disposition is to give a literal or wide construction to a Rule of this type. On the other hand, unless there are some limits placed upon its application, it can be used in a way which is burdensome, and it is for that reason that Civil Procedure rule 18.01(2) provides that the Court may limit the number of persons to be examined where it is unnecessary, improper or vexatious . . . .
[12] In the present application, although I am mindful of Mr. Rogers' argument that there is nothing new to be discovered and that it was all covered in the discovery examination of Mr. Chalmers that has already taken place, I accept Mr. Evans' contention that, at least from his point of view, new matters have arisen that were not known at the time of Mr. Chalmers' examination. It is because of this that Mr. Evans claims it is necessary for him to further examine Mr. Chalmers in order to properly prepare the plaintiff's case.
[13] It seems to me that to deny him that opportunity would be unjust. To require a further discovery of Mr. Chalmers, in my view, is not likely to be particularly burdensome for him or the defendant. On balance, it seems to me, that if I am to err in the exercise of my discretion on an application such as this, it should be in favour of permitting a full exploration of the facts so that justice may be done and be seen to be done.
[14] In my opinion, the plaintiff has met the onus on him of establishing that there are special circumstances justifying a second discovery of Mr. Chalmers.
[15] Accordingly, it will be ordered that Mr. Chalmers be required to submit to a further discovery, but his examination is to be confined to new matters arising as a result of the amended pleadings, the production of documents pursuant to the undertakings and the discovery examination of Kimberly Sedgewick and David Pyke.
[16] As to requiring the defendant to provide a detailed listing and particulars of its documents claimed as privileged, Rules 20.01 and 31.15 provide in part:
20.01 (1) Unless the court otherwise orders, a party to a proceeding shall, within ten days after the close of the pleadings between an opposing party and himself, or within seven days after the service of the originating notice where there are no pleadings, serve on the opposing party a list in form 20.01A of the documents that are or have been in his possession, custody or control relating to every matter in question in the proceeding and file with the prothonotary the list without a copy of any document being attached thereto.
(2) A list of documents under paragraph (1) shall enumerate the documents in a convenient order with a short description of each document or, in the case of bundles of documents of the same nature, of each bundle.
(3) A claim that any document is privileged from production shall be made in the list of documents with a sufficient statement of the grounds of the privilege.
31.15 (1) Unless the court orders, no document shall be admissible in evidence on behalf of a party unless,
(a) reference to it appears in the pleadings, or in a list of documents filed and served under rule 20.01 by any party;
. . . .
(2) Paragraph (1) does not apply to a document that is used solely as a foundation for, or as part of a question in, cross-examination or re-examination.
[17] In Creaser v. Warren & Warren (1987) 77 N.S.R.(2d) 429, Clarke, C.J.N.S., of the Appeal division of this Court at page 431 had the following to say on the question:
In our opinion, this Rule is not to be interpreted in such a way that, because documents are bundled, they are therefore exempt from "a short description of each document". The description need not be so detailed that it discloses the contents of the document in a manner that would destroy its privilege. It must be sufficient to enable a court to make a prima facie decision whether a likely claim for privilege exists. Whether a judge goes beyond the description to examine the document is, of course, in the discretion of the court. It is difficult to lay down a hard and fast rule for every document. However, the description of each document or series of similar type documents should have sufficient detail to reveal the nature of the documents to the opposing party and to avoid the necessity of frequent applications to the court for rulings.
As Reid, J., said in Grossman et al. v. Toronto General Hospital (1983), 41 O.R.(2d) 457, at p. 469:
". . . a party must candidly describe in an affidavit on production not only documents for which no privilege is claimed but also those for which a privilege is claimed. It is not enough to do the one but not the other."
. . . .
In this instance, the description given to bundle "B" was inadequate. The respondents should have provided a short description of each document by identifying the status of the receiver and sender, their relationship to the respondents as parties to the action and the basis upon which the claim for privilege is grounded.
[18] The question arises however, whether documents which fall under the realm of a solicitor's work product, or documents which are withheld solely for the purposes of cross-examination, are an exception to the general rule and need not be itemized. In Rozee v. Johnson [2001] N.S.J. No. 547, Wright, J., decided that it is. He said at paragraphs 9 and 10:
If there were documents in existence that preceded Mr. Machum's retention as defence counsel over which privilege is now claimed, then those documents would have to be listed in Part II of the List of Documents. In this case, there are none and there is certainly no right to inquire into or to obtain disclosure of communications between a party and its legal counsel once appointed. Neither is there any right to require a party to itemize, in Part II of its List of Documents, anything which comprises the solicitors work product in conducting the litigation.
That is not to say that the mere appointment of counsel automatically gives rise to a blanket of privilege for all purposes. It clearly does not and there are situations where courts may still be left to decide whether the dominant purpose for the preparation of the document was for legal advice and use in litigation such that a claim for privilege will be upheld. However, once counsel is retained and takes charge of the file and directs the file, counsel's work product in conducting the litigation is cloaked with privilege and need not be itemized in a Part II List of Documents (including whether or not surveillance evidence has been commissioned). I do not accept the proposition that plaintiff's counsel is entitled to have revealed, through a Part II List of Documents, any attachments or documents generated as part of opposing counsel's work product in the conduct of the litigation over which privilege has been claimed.
[19] The decision of Wright, J., was upheld on appeal to the Appeal Division of this Court reported in [2002] N.S.J. No. 245.
[20] In his affidavit Mr. Rogers stated that his law firm was first consulted by the defendant respecting the plaintiff's dismissal on August 6, 2002. It appears that legal proceedings by the plaintiff were anticipated at that time. Subsequently, on September 10, 2002, the day after the Originating Notice was served, the firm was specifically instructed to defend against the plaintiff's claim. Mr. Rogers went on to state in paragraph 3 of his affidavit:
From my review of the file, all of the documents for which privilege has been claimed by the Defendant that relate to Mr. DeBaie or the subject matter of this lawsuit are either direct communications between the client and its solicitor on and after August 6, 2002 or are our law firm's work product pertaining to the litigation on and after September 11, 20002.
[21] It would appear, therefore, that the documents for which privilege is claimed by the defendant come within the exception enunciated by Wright, J., in Rozee v. Johnson (supra).
[22] Accordingly, I decline to grant the application of the plaintiff in connection with the listing of the documents for which privilege is claimed.
[23] Since success has been divided there will be no order for costs.
Donald M. Hall, J.