Independent Fish Co. v. Manitoba Cold Storage Co. et al., (1983) 25 Man.R.(2d) 198 (QB)

• Judge: Morse, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: November 03, 1983
• Jurisdiction: Manitoba
• Citations: (1983), 25 Man.R.(2d) 198 (QB)

Ind. Fish Co. v. Man. Cold Storage (1983), 25 Man.R.(2d) 198 (QB)

MLB headnote and full text

Lehman, Offrowich, Johnston, Shaw, and Independent Fish Co. Ltd. v. Insurance Corporation of Ireland et al.

(Suit No. 1131/79)

Independent Fish Co. Ltd. v. Manitoba Cold Storage Company, W&M Storage Ltd. and Levy Service Industries Ltd.

(Suit No. 1132/79)

Indexed As: Independent Fish Co. v. Manitoba Cold Storage Co. et al.

Manitoba Court of Queen's Bench

Morse, J.

November 3, 1983.

Summary:

A defendant claimed that certain documents were privileged. A referee, in a decision reported at paragraphs 31 to 87 below, ordered that seven of the documents for which privilege was claimed be produced and declined to order production of two other documents. The defendant appealed.

The Manitoba Court of Queen's Bench dismissed the appeal and affirmed the referee's order. The court found that although all the documents were prima facie privileged, such privilege was waived with respect to seven out of the nine documents.

Practice - Topic 4578

Discovery - Production of documents - Privilege - Documents prepared in contemplation of litigation - A plaintiff sought production of nine reports of experts prepared for the defendants - The defendants claimed privilege - The Manitoba Court of Queen's Bench held that prima facie the documents were privileged because they were prepared in contemplation of litigation and the substantial purpose of preparation of the reports was to place them before counsel for advice and direction in the anticipated litigation - See paragraphs 17 to 20.

Practice - Topic 4585

Discovery - Production of documents - Privilege - Waiver - The plaintiff commenced two actions arising out of the same accident against different groups of defendants - Each group of defendants had experts' reports prepared - The defendants exchanged several of the reports - The defendants claimed that all the reports were privileged - The Manitoba Court of Queen's Bench held that any privilege the exchanged reports may have had was waived when the reports were exchanged - The court found that there was no common interest between the defendants such as to give rise to a "common interest privilege" on the exchange of documents - See paragraphs 21 to 29.

Cases Noticed:

Waugh v. British Railways Board, [1979] 2 All E.R. 1169, not folld. [para. 19].

Kowall v. McRae et al., [1980] 2 W.W.R. 492; 2 Man.R.(2d) 78, folld. [para. 19].

Sumitomo Shoji Can. Ltd. v. Sanko SS Co. (1978), 5 B.C.L.R. 306 (B.C.C.A.), refd to. [para. 19].

Voth Brothers Construction (1974) Limited v. North Vancouver Board of School Trustees et al., [1981] 23 C.P.C. 276, refd to. [para. 19].

Buttes Gas and Oil Co. v. Hammer et al., [1980] 3 All E.R. 475; [1981] Q.B. 223, dist. [paras. 24 to 26]; refd to. [para. 75].

Slavutych v. Baker, [1975] 4 W.W.R. 620; 3 N.R. 587, refd to. [para. 23].

Lyell v. Kennedy (No. 3) (1884), 27 Ch.D. 1, refd to. [para. 43].

Watson v. Cammell Laird & Co., [1959] 1 W.L.R. 702, refd to. [para. 43].

Authors and Works Noticed:

Wigmore on Evidence (3rd Ed. 1961), vol. 8, p. 52, para. 2285, [para. 23].

Williams, N.J., "Discovery in Civil Litigation Trial Preparation in Canada" (1980), 58 Can. Bar Rev., pp. 45, 46, 50 to 53 [para. 43].

Counsel:

R.C. Roy, for plaintiffs in both actions;

M. Monnin, for defendant insurers in 1131/79;

D. Newman, for defendants Milne and Low in 1131/79;

R.D. MaDonald, for defendants in 1132/79.

This appeal was heard before Morse, J., of the Manitoba Court of Queen's Bench, who delivered the following judgment on November 3, 1983: