Hatch Ltd. v. Factory Mutual Insurance Co. et al., (2015) 361 N.S.R.(2d) 371 (CA)

JudgeMacDonald, C.J.N.S., Beveridge and Scanlan, JJ.A.
CourtCourt of Appeal of Nova Scotia (Canada)
Case DateJune 24, 2015
JurisdictionNova Scotia
Citations(2015), 361 N.S.R.(2d) 371 (CA);2015 NSCA 60

Hatch Ltd. v. Factory Mutual (2015), 361 N.S.R.(2d) 371 (CA);

    1137 A.P.R. 371

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JN.034

Hatch Ltd., a body corporate, formerly known as SGE Acres Limited (appellant) v. Factory Mutual Insurance Company, a body corporate, Martin Marietta Materials Canada Limited, a body corporate, Bermingham Construction Limited, Atlantic Sub-Sea Construction and Consulting Incorporated, Beaver Marine Limited, a body corporate, and Dywidag Systems International Canada Ltd., a body corporate (respondents)

(CA 429986; 2015 NSCA 60)

Indexed As: Hatch Ltd. v. Factory Mutual Insurance Co. et al.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Beveridge and Scanlan, JJ.A.

June 24, 2015.

Summary:

A large portion of a wharf constructed for the plaintiff collapsed only three years after it was constructed. The insurer retained an engineering firm (SDK) to investigate the collapse. Counsel was retained to pursue subrogated litigation against the parties responsible for the collapse. SDK was directed to report to counsel. In an interlocutory decision, a judge determined that SDK's work (which was not yet completed) was done for the dominant purpose of litigation and that the materials and reports resulting from that work were protected by litigation privilege. The judge found that, objectively, litigation was reasonably anticipated almost immediately after the collapse. One of the defendants appealed.

The Nova Scotia Court of Appeal, Beveridge, J.A., dissenting, dismissed the appeal. There was no error in determining litigation privilege.

Practice - Topic 4578

Discovery - What documents must be produced - Privileged documents - Documents prepared in contemplation of litigation (litigation privilege or work product privilege) - A large portion of a wharf constructed for the plaintiff collapsed only three years after it was constructed - The insurer retained an engineering firm (SDK) to investigate the collapse - Counsel was retained to pursue subrogated litigation against the parties responsible for the collapse - SDK was directed to report to counsel - In an interlocutory decision, a judge determined that SDK's work (which was not yet completed) was done for the dominant purpose of litigation and that the materials and reports resulting from that work were protected by litigation privilege - The judge found that, objectively, litigation was reasonably anticipated almost immediately after the collapse - One of the defendants appealed - The Nova Scotia Court of Appeal dismissed the appeal - There was no error in determining that SDK was retained for the dominant purpose of pursuing anticipated litigation - The court rejected concerns with the insurer's failure to prepare a proper Affidavit Disclosing Documents (ADD) under rule 15.03, particularly the fact that Section B of the ADD did not contain a proper list itemizing each and every document over which the insurer claimed privilege - That concern had been addressed by the judge and, in any event, the issue was not raised as a ground on appeal - See paragraphs 1 to 36.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - [See Practice - Topic 4578 ].

Cases Noticed:

Sable Offshore Energy Inc. et al. v. Ameron International Corp. et al. (2015), 354 N.S.R.(2d) 333; 1120 A.P.R. 333; 2015 NSCA 8, refd to. [para. 2].

MacQueen et al. v. Nova Scotia et al. (2012), 324 N.S.R.(2d) 102; 1029 A.P.R. 102; 2013 NSCA 5, refd to. [para. 4].

Sable Offshore Energy Inc. et al. v. Ameron International Corp. et al. (2013), 329 N.S.R.(2d) 205; 1042 A.P.R. 205; 2013 NSSC 131, refd to. [para. 12].

Raj v. Khosravi (2015), 368 B.C.A.C. 62; 633 W.A.C. 62; 2015 BCCA 49, refd to. [para. 13].

Mitsui & Co. (Point Aconi) Ltd. v. Jones Power Co. et al. (2000), 188 N.S.R.(2d) 173; 587 A.P.R. 173; 2000 NSCA 96, refd to. [para. 14].

Blank v. Canada (Minister of Justice) (2006), 352 N.R. 201; 2006 SCC 39, refd to. [para. 14].

Di-Anna Aqua Inc. v. Ocean Spar Technologies L.L.C. et al. (2002), 205 N.S.R.(2d) 97; 643 A.P.R. 97; 2002 NSSC 138, refd to. [para. 15].

R. v. Mian (M.H.) (2014), 462 N.R. 1; 580 A.R. 1; 620 W.A.C. 1; 2014 SCC 54, refd to. [para. 33].

Waugh v. British Railways Board, [1980] A.C. 521; [1979] UKHL 2, refd to. [para. 47].

Moseley v. Spray Lakes Sawmills (1980) Ltd. et al. (1996), 184 A.R. 101; 22 W.A.C. 101; 1996 ABCA 141, refd to. [para. 54].

Hamalainen v. Sippola, [1992] 2 W.W.R. 132; 9 B.C.A.C. 254; 19 W.A.C. 254 (C.A.), refd to. [para. 59].

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. 61].

Creaser v. Warren and Warren (1987), 77 N.S.R.(2d) 429; 191 A.P.R. 429 (C.A.), refd to. [para. 68].

Butterfield v. Dickson (1994), 28 C.P.C.(3d) 242 (N.W.T.S.C.), refd to. [para. 76].

R. v. James (W.A.) et al. (2007), 251 N.S.R.(2d) 255; 802 A.P.R. 255; 216 C.C.C.(3d) 490; 2007 NSCA 19, refd to. [para. 106].

Halifax (Regional Municipality) v. Nicholson (2009), 283 N.S.R.(2d) 312; 900 A.P.R. 312; 2009 NSCA 109, refd to. [para. 106].

R. v. S.H. (2014), 319 O.A.C. 58; 2014 ONCA 303, refd to. [para. 109].

Horne v. Sanderson (1987), 77 N.S.R.(2d) 340; 191 A.P.R. 340 (C.A.), refd to. [para. 126].

Shaughnessy Golf & Country Club v. Drake International Inc., [1986] 3 W.W.R. 681 (B.C.C.A.), refd to. [para. 136].

Cross v. Assuras et al., [1996] 10 W.W.R. 367; 113 Man.R.(2d) 28; 131 W.A.C. 28 (C.A.), refd to. [para. 143].

Davies v. Harrington (1980), 39 N.S.R.(2d) 258; 71 A.P.R. 258 (C.A.), refd to. [para. 152].

MacDonald v. Acadia University et al. (2001), 196 N.S.R.(2d) 182; 613 A.P.R. 182; 2001 NSSC 109, refd to. [para. 153].

Authors and Works Noticed:

Brown, Donald J.M., Civil Appeals (2015 looseleaf update) (April 2015), pp. 12:5320 [para. 106]; 13:3310 [para. 32].

Hubbard, Robert et al., The Law of Privilege in Canada (2014 looseleaf update), p. 12:10 [para. 53].

Kearns and Willey, Standards of Review Employed By Appellate Courts (2nd Ed. 2006), pp. 133, 134 [para. 105].

Sharpe, R.J., Claiming Privilege in the Discovery Process, in Law in Transition: Evidence, [1984] Special Lect. L.S.U.C. 163, p. 165 [para. 44].

Counsel:

Gordon Proudfoot, Q.C., and Douglas Schipilow, for the appellant;

David A. Cameron and Leon S. Tovey, for the respondent, Factory Mutual Insurance Co.;

Murray Ritch, Q.C., for the respondents, Atlantic Sub-Sea Construction and Consulting Inc. (watching brief only).

This appeal was heard on January 26, 2015, at Halifax, N.S., before MacDonald, C.J.N.S., Beveridge and Scanlan, JJ.A., of the Nova Scotia Court of Appeal.

On June 24, 2015, the judgment of the Court was delivered and the following opinions were filed:

Scanlan, J.A. (MacDonald, C.J.N.S., concurring) - see paragraphs 1 to 37;

Beveridge, J.A., dissenting - see paragraphs 38 to 173.

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9 practice notes
  • Redhead Equipment Ltd. et al. v. Canada (Attorney General), 2016 SKCA 115
    • Canada
    • Saskatchewan Court of Appeal (Saskatchewan)
    • September 2, 2016
    ...with respect to the determination of whether discrete documents are privileged. [18] In Hatch Ltd. v Factory Mutual Insurance Co. , 2015 NSCA 60, 386 DLR (4th) 597, the Court considered an appeal from an interlocutory decision on a motion related to litigation privilege. The Court relied on......
  • Egan v. Andrychuk,
    • Canada
    • Court of Appeal (British Columbia)
    • March 25, 2022
    ...a palpable and overriding error of fact. This is consistent with the standard adopted in Hatch Ltd. v. Factory Mutual Insurance Company, 2015 NSCA 60 at paras. 3, 106 (in the context of litigation privilege, but discussing review of inclusion or exclusion of evidence generally, and the......
  • Mi’kmaw Family and Children’s Services v. Sipekne’katik,
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • November 2, 2022
    ...is exchanged with the expectation of confidentiality. [108]    In Hatch Ltd. v. Factory Mutual Insurance Company, 2015 NSCA 60, Justice Scanlan referred to what is meant by litigation privilege at para. 12, drawing from Justice Hood’s decision in Sable Offshore Energy ......
  • R. v. Fashoranti,
    • Canada
    • September 29, 2022
    ...has two requirements, which are assessed at the time the document was created, as explained in Hatch Ltd v. Factory Mutual Insurance Co, 2015 NSCA 60 at para 13: 13. The motions judge correctly noted that she had to determine whether the document or material was produced for the dominant pu......
  • Request a trial to view additional results
8 cases
  • Redhead Equipment Ltd. et al. v. Canada (Attorney General), 2016 SKCA 115
    • Canada
    • Saskatchewan Court of Appeal (Saskatchewan)
    • September 2, 2016
    ...with respect to the determination of whether discrete documents are privileged. [18] In Hatch Ltd. v Factory Mutual Insurance Co. , 2015 NSCA 60, 386 DLR (4th) 597, the Court considered an appeal from an interlocutory decision on a motion related to litigation privilege. The Court relied on......
  • Egan v. Andrychuk,
    • Canada
    • Court of Appeal (British Columbia)
    • March 25, 2022
    ...a palpable and overriding error of fact. This is consistent with the standard adopted in Hatch Ltd. v. Factory Mutual Insurance Company, 2015 NSCA 60 at paras. 3, 106 (in the context of litigation privilege, but discussing review of inclusion or exclusion of evidence generally, and the......
  • Mi’kmaw Family and Children’s Services v. Sipekne’katik,
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • November 2, 2022
    ...is exchanged with the expectation of confidentiality. [108]    In Hatch Ltd. v. Factory Mutual Insurance Company, 2015 NSCA 60, Justice Scanlan referred to what is meant by litigation privilege at para. 12, drawing from Justice Hood’s decision in Sable Offshore Energy ......
  • R. v. Fashoranti,
    • Canada
    • September 29, 2022
    ...has two requirements, which are assessed at the time the document was created, as explained in Hatch Ltd v. Factory Mutual Insurance Co, 2015 NSCA 60 at para 13: 13. The motions judge correctly noted that she had to determine whether the document or material was produced for the dominant pu......
  • Request a trial to view additional results
1 firm's commentaries
  • Don't Give The Game Away – Tips On Maintaining Litigation Privilege
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    ...2014 ONSC 3995 Security National Insurance Corp. v. Edmonton Police Service, 2013 ABPC 188 Hatch Ltd. v. Factory Mutual Insurance Company, 2015 NSCA 60 Straka v. Humber River Regional Hospital, 2000 CarswellOnt 4114 (Ont. C.A.) The content of this article is intended to provide a general gu......

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