Doman Forest Products Ltd. et al. v. GMAC Commercial Credit Corp. - Canada, 2005 BCCA 111

• Judge: Saunders, Levine and Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 03, 2005
• Jurisdiction: British Columbia
• Citations: 2005 BCCA 111;(2005), 209 B.C.A.C. 197 (CA)

Doman Forest Products v. GMAC (2005), 209 B.C.A.C. 197 (CA);

    345 W.A.C. 197

MLB headnote and full text

Temp. Cite: [2005] B.C.A.C. TBEd. MR.014

Doman Forest Products Limited, Western Pulp Inc., Doman Log Supply Ltd., and Eacom Timber Sales Ltd. (appellants/plaintiffs) v. GMAC Commercial Credit Corporation - Canada (respondent/defendant)

(CA031682; 2005 BCCA 111)

Indexed As: Doman Forest Products Ltd. et al. v. GMAC Commercial Credit Corp. - Canada

British Columbia Court of Appeal

Saunders, Levine and Smith, JJ.A.

March 3, 2005.

Summary:

A defendant applied for discovery of documents relating to legal advice that the plaintiffs received on certain issues.

A Chambers judge concluded that the plaintiffs, by the combined effect of their amended statement of claim and their reply to the statement of defence, had put in issue their state of mind respecting the legal issues in question and had waived solicitor client privilege. The judge ordered the plaintiffs to list and produce all documents respecting the legal advice received that related to their state of mind on the issues. The plaintiffs appealed.

The British Columbia Court of Appeal, in a decision reported at 204 B.C.A.C. 208; 333 W.A.C. 208, allowed the appeal, set aside the order of the Chambers judge and dismissed the defendant's application. The defendant applied to reopen the appeal, asserting that in considering whether the plaintiffs' plea of estoppel opened the door to the documents sought, the court failed to address the effect upon solicitor client privilege of the plaintiffs' plea of reliance upon an alleged representation.

The British Columbia Court of Appeal dismissed the application.

Practice - Topic 9136

Appeals - Hearing of appeal - Rehearing or reconsideration - When available - The British Columbia Court of Appeal stated that the circumstances in which a reconsideration of an appeal would be undertaken were limited and did not include simple re-argument of the appeal - Something in the nature of overlooked or misapprehended evidence, or failing that, a clear and compelling case in law on the point and the prospect of a very serious injustice absent reconsideration was required - An application for reconsideration was of an extraordinary nature - See paragraph 6.

Practice - Topic 9136

Appeals - Hearing of appeal - Rehearing or reconsideration - When available - A defendant sought discovery of documents relating to legal advice that the plaintiffs received - A Chambers judge concluded that the plaintiffs had put their state of mind in issue and had waived solicitor client privilege - The judge ordered the plaintiffs to list and produce all documents respecting the legal advice received that related to their state of mind on the issues - The Court of Appeal allowed the plaintiffs' appeal - The defendant applied to reopen the appeal - The defendant asserted that, in considering whether the plaintiffs' plea of estoppel opened the door to the documents sought, the court failed to address the effect that the plaintiffs' plea of reliance on an alleged representation had on solicitor client privilege - The British Columbia Court of Appeal dismissed the application - The court had completely addressed the question of whether the pleading, including the pleading of reliance, required disclosure of documents otherwise protected by solicitor client privilege - It followed that the application was, in character, an application to re-argue an appeal rather than an application to address an argument overlooked or misapprehended.

Cases Noticed:

R. v. Hummel (D.) (2003), 182 B.C.A.C. 93; 300 W.A.C. 93; 2003 YKCA 4, refd to. [para. 3].

Menzies v. Harlos and Devlin (1989), 37 B.C.L.R.(2d) 249 (C.A.), refd to. [para. 3].

R. v. Blaker (1983), 6 C.C.C.(3d) 385 (B.C.C.A.), refd to. [para. 3].

R. v. R.F. (2000), 138 B.C.A.C. 11; 226 W.A.C. 11; 2000 BCCA 139, refd to. [para. 3].

Mayer v. Mayer et al. (No. 2) (1993), 32 B.C.A.C. 261; 53 W.A.C. 261; 83 B.C.L.R.(2d) 87 (C.A.), refd to. [para. 3].

Counsel:

J.L. Carpick and K.J. Fischer, for the appellant;

I.G. Nathanson, Q.C., and K.D. Loo, for the respondent.

This application was heard at Vancouver, British Columbia, by Saunders, Levine and Smith, JJ.A., of the British Columbia Court of Appeal. The following reasons for judgment were delivered by the court on March 3, 2005.