COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Shooting Star Amusements Ltd. v. Prince George Agricultural and Historical Association,

 

2009 BCCA 452

Date: 20091022

Docket: CA037102

Between:

Shooting Star Amusements Ltd.

Respondent

(Plaintiff)

And

Prince George Agricultural and Historical Association
carrying on business as Prince George Exhibition

Appellant

(Defendant)

Corrected Judgment:  Names of counsel have been changed to properly

reflect the parties for whom they acted.

Before:

The Honourable Madam Justice Newbury

(In Chambers)

On appeal from the Supreme Court of British Columbia, April 15, 2009
(New Westminster Registry, Docket No. S113041)

Counsel for the Appellant:

T. Dungate

Counsel for the Respondent:

E.P. Caissie

Place and Date of Hearing:

Vancouver, British Columbia

September 29, 2009

Place and Date of Judgment:

Vancouver, British Columbia

October 22, 2009


Reasons for Judgment of the Honourable Madam Justice Newbury:

[1]             The defendant seeks leave to appeal an interlocutory order made by Madam Justice Bruce of the Supreme Court of British Columbia on April 15, 2009.  The order required the defendant to produce unredacted copies of documents over which the defendant claims privilege on the basis of what counsel called “anticipated and/or existing litigation privilege”, “settlement negotiation privilege”, “confidential communication privilege”, and solicitor-client privilege.

[2]             For the reasons that follow, I have concluded that the application must be dismissed.

Factual Background

[3]             The parties have a contractual dispute which is scheduled to come to trial in May of next year.  The defendant is a non-profit society run by volunteers and its lawyers have experienced difficulty in producing a final list of documents in accordance with the Supreme Court Rules.  Ultimately, the plaintiff applied pursuant to R. 26(10) for, inter alia, production of “minutes of directors’, executive and other meetings at which dealings of the Plaintiff were discussed, or which in any way relate to the matters at issue in the pleadings”.  These minutes had been requested on a few occasions by counsel for the plaintiff, and the defendants had been asked to specify what form of privilege was being asserted in refusing to produce them.  Eventually, the defendants produced copies of the minutes of certain meetings of its directors, but the portions relating to the matter in dispute were deleted.  Counsel took the position that once he stated that in his opinion the deleted information was privileged, the defendant was not required to provide any further information supporting the claims of privilege.  The plaintiff insisted on further information, he said the proper course was to seek orders under R. 26(1.1), 26(4) and 26(6).

[4]             This and other matters came before Bruce J. on April 15.  She pointed out to counsel for the defendant that there was nothing in the lists of documents or other disclosure material that would give her “a clue” as to why privilege was being claimed in respect of the minutes.  Mr. Dungate again took the position that it was sufficient simply for him to advise the Court that in his opinion the documents were privileged, citing Chief Justice McEachern’s comments in Delgamuukw v. British Columbia (1988) 32 B.C.L.R. (2d) 156 (B.C.S.C.):

If counsel wishes to maintain a claim to solicitor's privilege, I think it must be done by furnishing a reasonable description of the document or an edited copy and by making a specific oral or written claim to privilege which in rare cases might have to be supported by affidavit, but I would expect most such questions can be decided on the statements of counsel.  [At 161.]

The Chief Justice went on to say:

If cross-examining counsel does not accept the claim to privilege then I see no alternative to the judge examining the document pursuant to Rule 26(12) and deciding the question that way. As I have said, I think the privilege should be maintained wherever possible.  [At 162.]

[5]             In response to the defendant’s argument below, Bruce J. said this to Mr. Dungate in the course of the hearing:

Well, I would -- I would suggest that to accept counsel's submissions on what happened entirely without any material, in a situation where it is a key fact in dispute between the parties in this litigation, where counsel for the plaintiff is -- has made an application and has put forth a very strong case for disclosure of those documents, disclosure of not only the contents of the discussion but any notes of it.  I suggest that it would have been wise for you to have an affidavit from [previous counsel] before the court setting out the background to this so there would be some basis upon which I could say, yes or no.

After a great deal more discussion, the chambers judge concluded that the defendant had not established on the balance of probabilities that the redacted portions of the minutes were privileged on any particular basis and that there was no material before her to suggest any such grounds.  She referred to a decision of Madam Justice Gray in Keefer Laundry Ltd. v. Pellerin Milnor Corp. (2006) 59 B.C.L.R. (4th) 264 (S.C.) in which the Court stated:

Litigation Privilege must be established document by document. To invoke the privilege, counsel must establish two facts for each document over which the privilege is claimed:

1.         that litigation was ongoing or was reasonably contemplated at the time the document was created; and

2.         that the dominant purpose of creating the document was to prepare for that litigation.

(Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada (2005) 40 B.C.L.R. (4th) 245, 2005 BCCA 4 at paras. 43-44.)

The first requirement will not usually be difficult to meet. Litigation can be said to be reasonably contemplated when a reasonable person, with the same knowledge of the situation as one or both of the parties, would find it unlikely that the dispute will be resolved without it. (Hamalainen v. Sippola, supra.)

To establish “dominant purpose”, the party asserting the privilege will have to present evidence of the circumstances surrounding the creation of the communication or document in question, including evidence with respect to when it was created, who created it, who authorized it, and what use was or could be made of it. Care must be taken to limit the extent of the information that is revealed in the process of establishing “dominant purpose” to avoid accidental or implied waiver of the privilege that is being claimed.  [At paras. 96-8.]

[6]             The defendant proposes to argue on appeal that Bruce J. erred in failing to grant the defendant liberty to file affidavit material in support of its claim or in failing to inspect the documents herself and that as a result, the defendant may suffer irreparable damage in that documents that are privileged have been ordered disclosed.  It is also said that the existing case law is unclear as to the proper procedure to be followed by a litigant when asserting claims of privilege, that this question is of importance to the practice as well as to the parties, and that the defendant has a reasonable prospect of success in its proposed appeal.

[7]             In my view, the criteria necessary for leave to be granted have not been met in this case.  I do not read the authorities that were provided to us as uncertain or conflicting.  A careful examination of Delgamuukw indicates that the Chief Justice’s comments were “designed for this unusual case where counsel have established some lines of communications and are working together ... with a common understanding of the nature of this massive case and of the problems each of them are enduring.”  (My emphasis.)  The circumstances of this case and of Keefer are very different from those in Delgamuukw, and it is only common sense that where a claim of privilege is contested, a court would normally require something more than counsel’s opinion offered in the course of argument.  As Mr. Cassie argued on behalf of the plaintiff, it has been clear at least since this court decided Hamalainen (Committee of) v. Sippola (1991) 62 B.C.L.R. (2d) 254, 3 C.P.C. (3d) 297 that the party asserting privilege in respect of a document bears the onus of establishing the privilege.

[8]             In the case at bar, Mr. Dungate stated in the course of his application in this court that at their meetings, the directors of his client had discussed certain settlement discussions and legal advice given to the defendant by its previous solicitor.  However, the transcript indicates that he steadfastly refused to provide these “details” to Bruce J. below, either orally or by affidavit.  Without any such information, she understandably declined to accede to the argument that privilege had been established, and was reluctant to review the documents herself.  I think it highly unlikely that this court would interfere with her exercise of discretion in these circumstances.

[9]             Finally, with respect to irreparable harm, I note that although the defendant was ordered to disclose the minutes, unredacted, to the plaintiff, this does not mean they, or the information they contain, will be admissible at trial.  A claim of privilege can still be asserted by the defendants if and when the plaintiff seeks to introduce the minutes into evidence and it will be for the trial judge to determine whether any kind of privilege does indeed attach.

[10]         The application for leave is dismissed.

“The Honourable Madam Justice Newbury”