Fridays With Rogers Partners

At our muffin meeting this morning, we discussed a case wherein the defendants sought production of the plaintiffs’ lawyers’ files based on an alleged waiver of privilege. We also went over a costs decision following a trial.

Motion for Lawyers’ Files

Ankita Abraham discussed the case of Joshi v. Chada, 2020 ONSC 1367, a motion seeking production of the plaintiffs’ lawyers’ files.

This action arises out of a medical malpractice case for wrongful birth. The minor plaintiff was born on December 16, 2003, and was shortly after diagnosed with spina bifida. The claim was commenced on December 8, 2016.

The defendants brought a summary judgment motion to dismiss the adult plaintiffs’ claim on the basis that it is statute barred, and that they should have discovered their claim by December 2003 at the latest.

In response to the summary judgment motion, the plaintiffs delivered responding evidence from the mother stating that she did not discover her claim against the defendants until she received legal advice from her current lawyers in 2016.

As such, the defendants brought this motion on the basis that the mother has put her state of mind in issue and therefore waived any privilege over the advice received from her lawyers and the contents of her lawyers’ files. The defendants further argued that the selective disclosure of privileged information in the affidavit delivered in response to the motion also amounts to a waiver of privilege.

Master Muir disagreed and emphasized the importance of lawyer/client privilege and confidentiality in our system of justice. Moreover, Master Muir notes that lawyer/client privilege and confidentiality “should not be cast aside except when absolutely necessary and only in limited measure,” and this circumstance was not one of them.

He further finds that only discussions and documents which touch on the mother’s state of mind prior to her retaining her current lawyers are proper and relevant. Therefore, Master Muir concludes that the more appropriate and fair approach in the circumstances is for the defendants to cross-examine the mother on her affidavit by asking specific questions about her discussions with her lawyers and documents her lawyers may have in her possession. As a result, the defendants’ motion was dismissed.

Costs Decision Following Trial

Micah Pirk O’Connell went over the case of Infinity Construction Inc. v. Skyline Executive Acquisitions Inc. et al, 2020 ONSC 1366.

This was a ruling on costs following a four day trial. The plaintiff succeeded at trial in obtaining a judgment for the full amount claimed as well as prejudgment interest calculated based on the contractual interest rate compounded monthly.

The invoices totalled over $1.19 million. The defendants acknowledged that they owed the plaintiff $743,894. In the court’s reasons for judgment, it was concluded that non-payment of the amount owing was a tactic to force the plaintiff to settle on terms favourable to the defendants.

The plaintiff sought costs of the trial and preparation of cost submissions totalling $201,587.75 plus HST and disbursements.

The plaintiff submitted the following in support of the motion:

1. Had the defendants paid the undisputed amount, settlement could have been reached and a trial could have been avoided.
2. The withholding of payment was a tactical decision to force the plaintiff’s hand.
3. The global settlement offers by the defendants were consistently low across this and other ongoing actions between the parties.
4. The last written offer of the plaintiff should have been treated as a Rule 49 offer because, although it was not served seven days prior to trial, the late timing was a result of trial starting earlier than expected.
5. The defendants had no real prospect of success at trial.

The defendants submitted that the plaintiff’s costs were higher than reasonable, with 568 hours compared to the defendant’s 215. The defendants also argued that none of the plaintiff’s offers met Rule 49.10, and that substantial indemnity was not available because legitimate legal defences were advanced.

The court held that Rule 49.10 was not engaged in this case. The plaintiff’s last offer to settle was made the night before trial, and counsel knew months in advance that the action was likely to be called for trial on November 18, 2019.

Despite that, plaintiff’s counsel revoked their Rule 49 offer made in October of 2019 on November 15, 2019, risking that the trial would not be called to begin the following Monday. This was a gamble taken by the plaintiff, and not a factor in deciding whether or not the requirements of Rule 49 were met.

Regardless, the court took into account the offer in deciding costs because it was a genuine and continued effort to settle the action. However, because Rule 49.10 was not engaged, enhanced costs could only be awarded on a clear finding of reprehensible conduct on the part of the defendants.

In this case, withholding funds which were known to be owed came close to crossing the line into reprehensible conduct, but fell short of meriting an enhanced cost award. There was no basis to reach the conclusion that had the funds been paid, a settlement would have been reached. This, compounded with the 8% interest rate penalty paid by the defendants on the funds owing, meant that the plaintiff was compensated for the delay.

With respect to the number of hours spent on the action, plaintiff’s counsel had a higher burden of proof, which warranted the disproportionate expenditure of resources. Coupled with a more favourable result at trial than the plaintiff’s last two settlement offers, the court awarded $175,000 in costs, inclusive of HST.