Citation: Halifax (Regional Municipality Pension Committee) v. State Street Global Advisors Ltd., 2012 NSSC 6
Date: 20120105
Docket: Hfx 309063
Registry: Halifax
Between:
The Halifax Regional Municipality Pension Committee
Plaintiff
v.
State Street Bank and Trust Company and State Street Global Advisors Ltd./ Conseillers En Gestion Global State Street, Ltée
Defendant
Judge: The Honourable Justice Patrick Duncan
Heard: In camera Review pursuant to Civil Procedure Rule 86.06(2)(c)
Counsel: George MacDonald, Q.C.,
Jane O’Neill, and
Peter Rogers, Q,C, for the plaintiff
Michael Ryan, Q.C.
John Keith,
Christopher Zimmerman,
Andrea Robinson, and
Michael Dube for the defendants
By the Court:
[1] In Halifax (Regional Municipality Pension Committee) v. State Street Global Advisors Ltd., 2011 NSSC 355, at paras. 302-345, I considered the defendants’ motion to compel the plaintiff to produce relevant documents and electronic information in the possession of the plaintiff’s law firm, McInnes Cooper.
[2] I concluded that there was a sufficient evidentiary and legal basis upon which to compel McInnes Cooper to deliver to the court, under seal, their file materials as I described them in para. 344. The purpose was to determine whether otherwise privileged information should be disclosed to the defendants.
[3] The file materials were delivered to the court as directed and acting under the authority of Civil Procedure Rule 85.06(2)(c) I conducted an in camera review of those materials.
[4] Some of the information I reviewed has already been produced to the defendants. e.g., memo of May 25 , 2007 from Hugh Wright to Terri Troy. Indeed, it was that earlier disclosure which triggered the defendants’ interest in accessing more detail from the McInnes Cooper file.
[5] The basis advanced by the defendants, in support of its argument to require production of the file, is that to fail to do so could result in unfairness to the defendant and or cause the court and defendants to be misled. The defendants’ position is that if the information in the file materials could contribute to such a result then the privilege otherwise attaching to that information should be treated as waived by implication.
[6] In reaching my conclusions herein I have applied the relevant legal principles that I previously set out in my decision referred to in paragraph one above.
[7] The communications I have reviewed as between the plaintiff and its’ legal counsel are cloaked with solicitor- client privilege. I find nothing in the information which would support a conclusion that privilege should be waived.
[8] Specifically I find:
1. There is relevant information in the materials, but it is privileged;
2. There is nothing in the undisclosed materials that contains information that is inconsistent with the plaintiff’s pleadings;
3. There is nothing in the reviewed materials upon which to conclude that failure to disclose could result in the defendant or the court being misled;
4. There is no basis upon which to conclude that failure to disclose the information in the file materials would result in unfairness to the defendants.
[9] I conclude that the privilege over this information remains and there will be no disclosure of the McInnes Cooper file materials. The defendants’ motion is denied.
[10] In accordance with Civil Procedure Rule 85.06 (5) I have sealed the record for a possible review by the Court of Appeal, should one be held. That record will be retained in my control and will not form part of the court record in this proceeding.
Duncan J.