February 26, 2020

The Court must Jealously Protect Solicitor-Client Privilege: Affirmed

Author: Katelynn Drake, Associate Lawyer

 

This is an action arising out of the medical treatment provided to the Plaintiff in 2007, which led to a stroke and resulting brain injury. The Plaintiff initially retained a lawyer who represented him until 2011 when the lawyer was removed as lawyer of record. No litigation guardian (LG) had been appointed when the lawsuit was started, despite the Plaintiff’s brain injury. A litigation guardian, The Public Guardian and Trustee (PGT), was appointed by the Court in 2012 when the lawyer was removed as the Plaintiff’s counsel.

Later in 2012, the Plaintiffs added the Defendant Doctors as Defendants in the action, without prejudice to them raising a limitation defence in the future. The Plaintiffs say that the limitation period within which to start an action did not begin to run until 2012, when the PGT was appointed as LG.  At Examinations for Discovery, the Plaintiffs were questioned about the limitation issue, but refused to answer questions about their communications with the former lawyer and refused to produce the former lawyer’s file, on the basis of solicitor-client privilege.

On this motion, the Defendant Doctors sought a determination as to whether or not they are entitled to the disclosure of the former lawyer’s file to assist them in the limitation defence. The Defendant Doctors argued that the file is relevant to Plaintiff’s capacity and to whether his brother was acting as a de facto LG.

The relief sought was successfully opposed.  The Court dismissed the Defendant Doctors’ motion for production of the file for the following reasons:

Capacity:

It is for the Plaintiffs to prove incapacity prior to the LG appointment in 2012, and that is largely done through the use of medical records. Capacity was not a question before the Court. Master Sugunasiri stated that what the former lawyer thought of his client’s capacity could be a factor as to whether he had capacity before issuing the claim in 2007, however that alone does not warrant disclosure of the entire lawyer’s file.  She said “it is still incumbent on the court to jealously protect solicitor-client privilege unless it is unfair to do so”.   This could be solved by production of any capacity assessment that may have been done at the relevant time.

De Facto LG:

The court found that relevant consideration in determining the existence of a de facto LG, in the absence of a formally appointed LG, is whether the person represents himself to the defendants as a LG. A person’s dealings with his own lawyer does not make the person a de facto LG. There was no evidence that the brother represented himself to the Defendants as a LG, and how he represented himself to his lawyer was not a relevant consideration. Therefore, it was agreed that the lawyer’s file was  not only privileged, it is irrelevant and not producible in the medical malpractice litigation.

Please click this link to view the long endorsement- Superior Court of Justice, Ontario Court File, dated January 29, 2020

 

If you have questions or comments about this post, contact Katelynn Drake at Legate Personal Injury Lawyers: k.drake@legate.ca