Bone et al. v. Person et al., (2000) 145 Man.R.(2d) 85 (CA)

• Judge: Scott, C.J.M., Huband and Philp, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: Wednesday December 08, 1999
• Jurisdiction: Manitoba
• Citations: (2000), 145 Man.R.(2d) 85 (CA);2000 CanLII 26955 (MB CA);185 DLR (4th) 335;[2000] 5 WWR 199;[2000] MJ No 107 (QL);145 Man R (2d) 85;41 CPC (4th) 277

Bone v. Person (2000), 145 Man.R.(2d) 85 (CA);

    218 W.A.C. 85

MLB headnote and full text

Temp. Cite: [2000] Man.R.(2d) TBEd. MR.004

Maria Bone (nee Lejermarea/Faskerti), Laslo Bone and Pal Bone (plaintiffs/appellants) v. Brian Person, Kennan Hspahic, Elaine Hspahic, Joanne M. Pilon, Pal Bone, Robert McGarva and Sandra McGarva (defendants/respondents)

(AI 98-30-03941)

Indexed As: Bone et al. v. Person et al.

Manitoba Court of Appeal

Scott, C.J.M., Huband and Philp, JJ.A.

February 23, 2000.

Summary:

The plaintiff claimed that she was injured in four separate motor vehicle collisions. Prior to her trial, the plaintiff was arrested and charged with attempting to defraud the Manitoba Public Insurance Corp. (the insurer of all four defendants). The plaintiff's then counsel for the civil proceedings testified at the criminal trial. A waiver of solicitor/client privilege was given to facilitate his testi­mony. At issue was whether this waiver applied in the civil proceedings. Also at issue (if the first issue was answered pos­itively), was whether the court possessed a discretion to restrict the withdrawal of solic­itor/client privilege to the criminal proceed­ings if it concluded that the admission of the evidence was unfair.

The Manitoba Court of Appeal held that the waiver of privilege did apply in the civil proceedings. The court further held that while it had discretion to restrict the with­drawal of solicitor/client privilege to the earlier proceedings, it would not do so in this case.

Evidence - Topic 4106

Witnesses - Priv­ilege - Waiver of priv­ilege - The plaintiff claimed that she was injured in four separ­ate motor vehicle collisions - Prior to her trial the plaintiff was arrested and charged with attempting to defraud the Manitoba Public Insurance Corp. (the insurer of all four defendants) - The plaintiff's then counsel for the civil proceedings testified at the criminal trial - A waiver of solici­tor/client privilege was given to facilitate his testimony - At issue was whether this waiver applied in the civil proceedings - Also at issue (if the first issue was answered positively), was whether the court possessed a discretion to restrict the withdrawal of solicitor/client privilege to the criminal proceedings if it concluded that the admission of the evi­dence was unfair - The Manitoba Court of Appeal held that the waiver did apply in the civil proceedings - The court further held that while it had discretion to restrict the with­drawal of solicitor/client privilege to the earlier proceedings, it would not do so in this case.

Evidence - Topic 4255

Witnesses - Privilege - Lawyer-client communications - Waiver - By offer of evidence at trial - [See Evidence - Topic 4106].

Cases Noticed:

Power Consolidated (China) Pulp Inc. v. British Columbia Resources Investment Corp., [1989] 2 W.W.R. 679 (B.C.C.A.), refd to. [para. 10].

Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 46 C.P.C.(3d) 110 (Ont. Gen. Div.), refd to. [para. 10].

Green v. Crapo (1902), 181 Mass. 55; 62 N.E. 956, refd to. [para. 12].

McKinney v. Grand Street, P.P. & F.R. Co. (1887), 104 N.Y. 352; 10 N.E. 544, refd to. [para. 14].

State v. Mincey (1984), 687 P.2d 1180 (Ariz. S.C. In Banc), refd to. [para. 14].

People v. Phillips (1984), 470 N.E.2d 1137 (Ill. App. 5 Dist.), refd to. [para. 14].

Malone v. Malone, [1986] 1 W.W.R. 185 (B.C.S.C.), refd to. [para. 16].

British Coal Corp. v. Dennis Rye Ltd. et al. (No. 2), [1988] 3 All E.R. 816 (C.A.), refd to. [para. 17].

Elliott v. Kansas (City) (1906), 96 S.W.R. 1023 (S.C.), refd to. [para. 21].

Authors and Works Noticed:

Dolden, Eric A., Waiver of Privilege: The Triumph of Candour over Confidentiality (1989), 35 C.P.C.(2d) 56, pp. 77, 78 [para. 16].

Marcus, Richard L., The Perils of Priv­ilege: Waiver and the Litigator, 84 Mich. L. Rev. 1605, p. 1627 [para. 23].

McCormick, Charles Tilford, Handbook on the Law of Evidence (2nd Ed. 1972), p. 196 [para. 12].

Watson, Gary, Solicitor-Client Privilege in Litigation: Current Developments and Future Trends, C.B.A. Ontario Contin­uing Legal Education (October 19, 1991), generally [para. 22].

Wigmore, John Henry, Evidence in Trials at Common Law (McNaughton Rev. Ed. 1961), vol. 8, para. 2389(4) [para. 13]; p. 855 [para. 21].

Counsel:

S.B. Simmonds and D.A. Kreel, for the appellant, M. Bone;

R.B. King, Q.C., for the respondent, Brian Person.

This appeal was heard on December 8, 1999, before Scott, C.J.M., Huband and Philp, JJ.A., of the Manitoba Court of Appeal. Scott, C.J.M., delivered the follow­ing judgment on February 23, 2000.