Central Mortgage and Housing Corp. v. Foundation of Canada Ltd. and Travellers Indemnity Co. of Canada et al., (1984) 63 N.S.R.(2d) 402 (TD)

• Judge: MacIntosh, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 10, 1984
• Jurisdiction: Nova Scotia
• Citations: (1984), 63 N.S.R.(2d) 402 (TD)

Central Mortgage v. Fdn. of Can. (1984), 63 N.S.R.(2d) 402 (TD);

    141 A.P.R. 402

MLB headnote and full text

Central Mortgage and Housing Corporation v. Foundation Company of Canada Limited and Travellers Indemnity Company of Canada (defendants) and First City Developments Limited and Vit et al. (third parties) and Canadian Indemnity Company Limited (intervenor)

(1978 S.H. No. 15704)

Indexed As: Central Mortgage and Housing Corp. v. Foundation of Canada Ltd. and Travellers Indemnity Co. of Canada et al.

Nova Scotia Supreme Court

Trial Division

MacIntosh, J.

April 26, 1984.

Summary:

C.M.H.C. brought an action against a general contractor for damages for alleged construction defects in a senior citizen's complex. C.M.H.C., on its own initiative, retained an engineer to do research that was additional to that requested by its solicitor. The contractor applied for an order to require C.M.H.C. to produce the correspondence between C.M.H.C. and the engineer. C.M.H.C. claimed privilege.

The Nova Scotia Supreme Court, Trial Division, held that the correspondence was not privileged, because the sole and dominant purpose of the correspondence was not for litigation.

Practice - Topic 4575

Discovery - What documents must be produced - Privilege - The Nova Scotia Supreme Court, Trial Division, held that, since the objective of the Civil Procedure Rules was to "secure the just, speedy and inexpensive determination of every proceeding", a claim of privilege should be strictly construed - See paragraph 22.

Practice - Topic 4577

Discovery - What documents must be produced - Privileged documents - Solicitor-client communications - The Nova Scotia Supreme Court, Trial Division, held that although the substance of a relevant fact communicated to a solicitor was not privileged, the communication of it and the exact terms in which it was communicated were privileged - See paragraph 14.

Practice - Topic 4578

Discovery - What documents must be produced - Privileged documents - Prepared in contemplation of litigation - A plaintiff retained an engineer to do research in addition to that requested by the plaintiff's solicitor - The defendants requested production of the correspondence between the plaintiff and the engineer, but the plaintiff claimed privilege - The Nova Scotia Supreme Court, Trial Division, held that the correspondence was not privileged, because the additional research was relevant and not done for the purpose of the litigation - See paragraphs 6 to 23.

Cases Noticed:

Lyell v. Kennedy (No. 2) (1883), 9 App. Cas. 81, refd to. [para. 15].

Wheeler v. Le Marchant (1881), 17 Ch.D. 675, refd to. [para. 15].

Susan Hosiery Ltd. v. M.N.R. (1969), 23 D.T.C. 5278, consd. [para. 25].

Waugh v. British Railways Board, [1979] 3 W.L.R. (H.L) 150, consd. [para. 25].

Davies v. Harrington (1980), 39 N.S.R.(2d) 199; 71 A.P.R. 199, consd. [para. 25].

Mitchell v. C.N.R. (1973), 5 N.S.R.(2d) 329, consd. [para. 25].

Shaws' Estate v. Roemer et al. (1979), 38 N.S.R.(2d) 657; 69 A.P.R. 657, consd. [para. 25].

Statutes Noticed:

Civil Procedure Rules, rule 1.03 [para. 17]; rule 18.01(1) [para. 9]; rule 18.09(1) [para. 10]; rule 18.12(2) [para. 11].

Counsel:

D.I. Pink, for the plaintiff;

J.P. Merrick, Q.C., for the defendant, Foundation Company of Canada Limited.

This application was heard on April 10, 1984, at Halifax, Nova Scotia, in Chambers, before MacIntosh, J., of the Nova Scotia Supreme Court, Trial Division, who delivered the following judgment on April 26, 1984.