Global Petroleum Corp. et al. v. CBI Industries Inc. et al., (1998) 172 N.S.R.(2d) 326 (CA)

• Judge: Glube, C.J.N.S., Chipman and Freeman, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: December 01, 1998
• Jurisdiction: Nova Scotia
• Citations: (1998), 172 N.S.R.(2d) 326 (CA)

Global Petroleum v. CBI Ind. (1998), 172 N.S.R.(2d) 326 (CA);

    524 A.P.R. 326

MLB headnote and full text

Temp. Cite: [1999] N.S.R.(2d) TBEd. JA.052

Global Petroleum Corp., a body corporate, Tupper Corp., a body corporate as General Partner of  Tupper Associates Limited Partnership, Scotia Synfuels Limited, a body corporate and Point Tupper Ventures Limited, a body corporate (appellants) v. CBI Industries Inc., Statia Terminals Inc., Statia Point Tupper Corporation and Statia Terminals Point Tupper Incorporated, all bodies corporate (respondents)

(CA 149383)

Indexed As: Global Petroleum Corp. et al. v. CBI Industries Inc. et al.

Nova Scotia Court of Appeal

Glube, C.J.N.S., Chipman

and Freeman, JJ.A.

December 14, 1998.

Summary:

The defendants sought an order requiring the plaintiffs' witnesses to reattend and answer questions on discovery. The witnesses claimed solicitor and client privi­lege respecting the information. The Cham­bers judge granted the order, requiring the witnesses to answer. The plaintiffs appealed.

The Nova Scotia Court of Appeal dis­missed the appeal. The Chambers judge did not err in holding that, although confidential communications were privileged, relevant facts must be disclosed.

Practice - Topic 4255

Discovery - Examination - Range of - Evidence to support facts pleaded - The plaintiffs' witnesses were ordered to re­attend and answer questions on discovery -The Nova Scotia Court of Appeal stated that the Chambers judge "drew a distinc­tion between facts or acts on the one hand and communications and advice on the other, in determining the extent of the privilege as it applied to any particular question. The privileged communication itself need not be disclosed nor need a party disclose the evidence on which he will rely to prove his case at trial in the sense of disclosing trial strategy. However, facts of which the appellants were aware that relate to the allegations in their state­ment of claim - whatever the source, including lawyers - must be disclosed. The source need not" - See paragraph 17.

Practice - Topic 4261

Discovery - Examination - Range of - Privileged topics or communications - The defendants sought an order requiring the plaintiffs' witnesses to reattend and answer questions on discovery - The witnesses were the in-house legal counsel of one of the plaintiffs, its financial officer and its president, as well as an engineering con­sultant for another of the plaintiffs - The witnesses claimed solicitor and client privilege respecting the information - The Chambers judge granted the order, requir­ing the witnesses to answer certain ques­tions - The plaintiffs appealed - The Nova Scotia Court of Appeal dismissed the appeal - The Chambers judge did not err in holding that, although confidential com­munications were privileged, relevant facts must be disclosed.

Cases Noticed:

Exco Corporation Ltd. v. Nova Scotia Savings & Loan et al. (1983), 59 N.S.R.(2d) 331; 125 A.P.R. 331 (C.A.), refd to. [para. 11].

Minkoff v. Poole and Lambert (1991), 101 N.S.R.(2d) 143; 275 A.P.R. 143 (C.A.), refd to. [para. 11].

Campbell v. Lienaux et al. (1998), 167 N.S.R.(2d) 196; 502 A.P.R. 196 (C.A.), refd to. [para. 12].

Coughlan et al. v. Westminer Canada Holdings Ltd. et al. (1989), 91 N.S.R.(2d) 214; 233 A.P.R. 214 (C.A.), refd to. [para. 13].

Soke Farm Equipment Ltd. v. New Hol­land of Canada Ltd., [1990] 2 W.W.R. 762; 82 Sask.R. 287 (C.A.), refd to. [para. 13].

Metlege v. Halifax Insurance Co. (1998), 174 N.S.R.(2d) 251; 532 A.P.R. 251 (C.A.), refd to. [para. 21].

C.M.H.C. v. Foundation Co. of Canada et al. (1984), 63 N.S.R.(2d) 402; 141 A.P.R. 402 (T.D.), refd to. [para. 21].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462; 141 D.L.R.(3d) 590; 70 C.C.C.(2d) 385, refd to. [para. 24].

Dusik v. Newton et al. (1983), 38 C.P.C. 87 (B.C.C.A.), refd to. [para. 26].

Can-Air Services Ltd. v. British Aviation Insurance Co. et al. (1988), 91 A.R. 258; 30 C.P.C.(2d) 1 (C.A.), refd to. [para. 31].

Rubinoff v. Newton, [1967] 1 O.R. 402, refd to. [para. 31].

Authors and Works Noticed:

Manes and Silver, Solicitor-Client Privi­lege in Canadian Law (1993), pp. 32 [para. 23]; 133, note 24 [para. 21].

Wigmore on Evidence (3rd Ed. 1940), vol. 1, p. 3 [para. 21].

Counsel:

Michael S. Ryan, Q.C., and Robert W. Carmichael, for the appellants;

Jonathan C.K. Stobie, for the respondents.

This appeal was heard on December 1, 1998, before Glube, C.J.N.S., Chipman and Freeman, JJ.A., of the Nova Scotia Court of Appeal. On December 14, 1998, Chipman, J.A., delivered the following judgment for the court.