Di-Anna Aqua Inc. v. Ocean Spar Technologies L.L.C. et al., 2002 NSSC 138

• Jurisdiction: Nova Scotia
• Judge: Scanlan, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Citation: 2002 NSSC 138,(2002), 205 N.S.R.(2d) 97 (SC)
• Date: 07 May 2002

Di-Anna Aqua v. Ocean Spar (2002), 205 N.S.R.(2d) 97 (SC);

 643 A.P.R. 97

MLB headnote and full text

Temp. Cite: [2002] N.S.R.(2d) TBEd. MY.036

Di-Anna Aqua Incorporated (plaintiff) v. Ocean Spar Technologies L.L.C. and Net Systems Incorporated and A.M.S. Aquaculture Management Services Incorporated (defendants)

(S.T. No. 09193; 2002 NSSC 138)

Indexed As: Di-Anna Aqua Inc. v. Ocean Spar Technologies L.L.C. et al.

Nova Scotia Supreme Court

Scanlan, J.

May 14, 2002.

Summary:

The defendant A.M.S. claimed privilege for three documents that the plaintiff sought to have produced.

The Nova Scotia Supreme Court held that A.M.S. did not have to produce the docu­ments.

Practice - Topic 4578

Discovery - What documents must be produced - Privileged documents - Docu­ments prepared in contemplation of litiga­tion - In October 2000, Storey, the presi­dent of a company threatened with litiga­tion, filed a statement with Ravn, a claims examiner with the company's liability insurer - The statement was taken in antici­pation of probable litigation and for the dominant purpose of providing information to Clark Drummie, solicitors for the com­pany and its liability insurer, so that an effective defence could be put forward - Two other documents, a letter from Ravn to Storey and a "Five Point Summary" prepared by Ravn, were also prepared in anticipation of the threatened litigation and for the dominant purpose of providing information to Clark Drummie - The com­pany was sued in June 2001 - Clark Drummie was retained then - The Nova Scotia Supreme Court held that Storey's statement, Ravn's letter to Storey and Ravn's "Five Point Summary" were privi­leged and need not be produced - The file had advanced beyond the investigation stage to the point where legal action was clearly contemplated - It was important that litigants or potential litigants be able to prepare to defend an action, knowing that communications with their counsel, or with third parties to be given to their counsel, would remain privileged.

Practice - Topic 4586

Discovery - What documents must be produced - Privileged documents - Pro­cedure for claiming privilege - The de­fendant claimed privilege for three docu­ments that the plaintiff sought to have produced - In granting privilege, the Nova Scotia Supreme Court held that the onus of proving privilege rested on the individual claiming privilege - It was incumbent on the defendant here to produce through affidavit, evidence in support of the privi­lege claim - The affidavit should recite not only a claim or assertion that the com­munications consist of privileged materials but it must also refer to the content of the materials to the extent necessary to estab­lish a privilege claim - In other words, any affidavit should identify the nature and purpose of the communications - See paragraphs 4 to 6.

Cases Noticed:

McCrea v. Canada Newspapers Co. et al. (1993), 122 N.S.R.(2d) 411; 338 A.P.R. 411 (S.C.), refd to. [para. 5].

Gouthro Estate v. Canadian Indemnity Co. (1990), 88 N.S.R.(2d) 264; 225 A.P.R. 264 (T.D.), refd to. [para. 6].

Sydney Steel Corp. v. Mannesmann Pipe and Steel Corp. (1985), 69 N.S.R.(2d) 389; 163 A.P.R. 389 (T.D.), consd. [para. 7]

Burgess v. Co-operators General Insurance Co. et al. (1989), 89 N.S.R.(2d) 340; 227 A.P.R. 340 (T.D.), refd to. [para. 14].

Waugh v. British Railways Board, [1979] 2 All E.R. 1169; [1980] A.C. 521 (H.L.), refd to. [para. 14].

Nova Aqua Salmon Limited Partnership (Receivership) v. Non-Marine Under-writers, Lloyd's London (1994), 135 N.S.R.(2d) 364; 386 A.P.R. 364 (S.C.), consd. [para. 14].

MacDonald v. Acadia University et al. (2001), 196 N.S.R.(2d) 182; 613 A.P.R. 182 (S.C.), dist. [para. 15].

Ford Motor Co. of Canada Ltd. et al. v. Laconia Holdings Ltd. (1991), 108 N.S.R.(2d) 416; 294 A.P.R. 416 (T.D.), refd to. [para. 16].

Statutes Noticed:

Rules of Civil Procedure (N.S.), rule 20.01, rule 20.09(2) [para. 4].

Authors and Works Noticed:

Manes, Ronald D., and Silver, Michael P., Solicitor-Client Privilege in Canadian Law (1993), pp. 24 [para. 6]; 90 [para. 8].

Counsel:

Peter Rogers, for the plaintiff, Di-Anna Aqua Inc.;

Barry Morrison, for the defendant, A.M.S. Aquaculture Management Services Inc.

Scanlan, J., of the Nova Scotia Supreme Court heard this application in Truro, N.S., on May 7, 2002, and delivered the following decision on May 14, 2002.