IN THE SUPREME COURT OF NOVA SCOTIA
Citation: National Bank Financial Ltd. v. Potter, 2005 NSSC 113
Date: 20050510
Docket: S. H. 206439
Registry: Halifax
Between:
National Bank Financial Ltd.
Plaintiff and Defendant by Counterclaim
- and -
Daniel Potter
Defendant, Plaintiff by Crossclaim and by Counterclaim
And Defendant by Crossclaim
- and -
Raymond Courtney
Defendant and Plaintiff by Crossclaim and by Counterclaim
- and -
Bruce Clarke Defendant, Plaintiff by Counterclaim and Defendant
By Crossclaim and by Counterclaim
- and -
Knowledge House Inc., Starr’s Point Capital Incorporated, Fiona Imrie, Gramm & Company Incorporated, 2532230 Nova Scotia Limited, 3020828 Nova Scotia Limited, Donald Snow, Meg Research.com Limited, 3027748 Nova Scotia Limited, Calvin Wadden, Bernard Schelew, and 3217540 Nova Scotia Limited
Defendants and Plaintiffs by Counterclaim
- and -
Blois Colpitts and Stewart McKelvey Stirling Scales
Defendants and Defendants by Crossclaim
- and -
Real Raymond, Jean Turmel, Michel LaBonte, Lorie Haber, Guy Roby, Eric Hicks, Barry Morse, David Mack, Joel Wiesenfeld, Alan V. Parish, Brian K. Awad and Donald Winchell
Defendants by Counterclaim
- and -
Ronald Richter
Defendant
LIBRARY HEADING
Revised library sheet: The original library heading has been amended changing the date to May 10, 2005. This library sheet replaces the previously released library sheet.
Judge: The Honourable Justice J. E. Scanlan
Heard: March 7,8,9,10,11,14,15,16,17,21,22,23 & 24, 2005
Subject: Breach of Solicitor-client privilege by opposing counsel
Abuse of Process
Collateral Purpose Rule
Summary:
In the context of a complex series of litigation solicitors for a client obtained a computer server containing in excess of 185,000 e-mails. The account holders were all connected to the same private company and did not know the e-mails were being accessed. The e-mails included many solicitor-client communications. There were no safeguards put in place to ensure the privileged communications were not viewed by the party gaining access to the e-mails.
Several arguments were advanced alleging the actions of one of the parties amounted to an abuse of process. This stemmed not just from the use of e-mails but other grounds including breach of collateral purpose rule.
Result:
Counsel for the offending party ordered to be removed from the file including in-house counsel. Copies of e-mails as circulated by that party ordered destroyed. Portions of the pleadings ordered struck insofar as they may have been based on privileged communication.
Court not satisfied that stay of proceedings warranted based on abuse of process even though the actions of counsel are not in any way condoned.
Leave granted as relief against the collateral purpose rule.
Reserved on the issue of costs pending representation from counsel.
THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT’S DECISION. QUOTES MUST BE FROM THE DECISION, N0T THIS LIBRARY SHEET.