Hospitality Corp. of Manitoba Inc. v. American Home Assurance Co. et al., (2004) 184 Man.R.(2d) 133 (CA)

• Judge: Kroft, Monnin and Freedman, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: February 20, 2004
• Jurisdiction: Manitoba
• Citations: (2004), 184 Man.R.(2d) 133 (CA);2004 MBCA 47

Hospitality Corp. v. Am. Home (2004), 184 Man.R.(2d) 133 (CA);

    318 W.A.C. 133

MLB headnote and full text

Temp. Cite: [2004] Man.R.(2d) TBEd. AP.042

Hospitality Corporation of Manitoba Inc. (plaintiff/respondent) v. American Home Assurance Company (defendant/respondent) and Household Trust Company (intervener/appellant)

(AI 03-30-05530; 2004 MBCA 47)

Indexed As: Hospitality Corp. of Manitoba Inc. v. American Home Assurance Co. et al.

Manitoba Court of Appeal

Kroft, Monnin and Freedman, JJ.A.

April 8, 2004.

Summary:

The plaintiff sued the defendant insurer. The plaintiff sought production from the insurer of a letter written by a solicitor to his client, Household Commercial Financial Services (Household). The plaintiff argued that Household waived privilege with respect to the letter when it provided a copy of the letter to the insurer. At issue was whether the letter was subject to common interest privilege so as to be exempt from production.

The Manitoba Court of Queen's Bench, in a decision reported at 169 Man.R.(2d) 123, ordered the insurer to produce the letter. The letter did not fall within the common interest privilege. Household waived privilege by providing a copy of the letter to the insurer. Household appealed.

The Manitoba Court of Appeal dismissed the appeal.

Practice - Topic 4583.1

Discovery - What documents must be produced - Privileged documents - Common interest - The plaintiff agreed to purchase property from Household - Household agreed to maintain insurance - The plaintiff alleged that the property was damaged between the date of the agreement and the closing - Prior to closing, the plaintiff notified Household that it would sue Household's insurer and would reserve the right to sue Household if it could not recover from the insurer - One of Household's solicitors met with the insurer and subsequently wrote a letter to Household - Household gave the insurer a copy of the letter - Household assigned the insurance policy to the plaintiff - The plaintiff sued the insurer and, in a separate action advancing a different cause of action, sued Household - The motions judge ordered the insurer to produce the letter to the plaintiff - Common interest privilege did not apply - The letter was, inter alia, provided to the insurer before the parties decided to co-operate in the defence of the plaintiff's claims - Further, the legal advice in the letter pertained to Household's legal position alone - Therefore, Household waived privilege by giving the insurer a copy of the letter - The Manitoba Court of Appeal dismissed the appeal.

Practice - Topic 4585

Discovery - What documents must be produced - Privileged documents - Waiver - [See Practice - Topic 4583.1 ].

Cases Noticed:

General Accident Assurance Co. et al. v. Chrusz et al. (1999), 124 O.A.C. 356; 45 O.R.(3d) 321 (C.A.), refd to. [para. 10].

United States of America v. American Telephone and Telegraph Co. et al. (1980), 642 F.2d 1285 (S.C.C.A.), refd to. [para. 11].

Almecon Industries Ltd. v. Anchortek Ltd., [1999] 1 F.C. 507; 164 F.T.R. 90 (T.D.), refd to. [para. 12].

Royal Trust Corp. of Canada et al. v. Fisherman et al., [2001] O.T.C. 134; 6 C.P.C.(5th) 281 (Sup. Ct.), refd to. [para. 12].

CC&L Dedicated Enterprise Fund (Trustee of) v. Fisherman - see Royal Trust Corp. of Canada et al. v. Fisherman et al.

Columbos et al. v. Carroll (1985), 23 C.P.C.(2d) 177 (Ont. H.C.), refd to. [para. 12].

Lehman et al. v. Insurance Corp. of Ireland et al. (1983), 25 Man.R.(2d) 198 (Q.B.), refd to. [para. 12].

Supercom of California Ltd. v. Sovereign General Insurance Co. et al. (1998), 58 O.T.C. 241; 37 O.R.(3d) 597 (Gen. Div.), refd to. [para. 12].

United States of America v. Schwimmer (1989), 892 F.2d 237 (U.S.C.A., 2nd Cir.), refd to. [para. 12].

YBM Magnex International Inc. (Receivership), Re (1999), 252 A.R. 165; 75 Alta. L.R.(3d) 99 (Q.B.), refd to. [para. 12].

Buttes Gas and Oil Co. v. Hammer (No. 3), [1980] 3 All E.R. 475 (C.A.), refd to. [para. 14].

Counsel:

A.H. Dalmyn, for the appellant;

R.M. Swystun and C.M. Arnold, for the respondent, Hospitality Corp. of Manitoba Inc.

This appeal was heard on February 20, 2004, by Kroft, Monnin and Freedman, JJ.A., of the Manitoba Court of Appeal. Monnin, J.A., delivered the following decision for the court on April 8, 2004.