Maritime Steel and Foundries Ltd. v. Whitman Benn & Associates Ltd. et al., (1994) 130 N.S.R.(2d) 211 (SC)

• Judge: Saunders, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 06, 1994
• Jurisdiction: Nova Scotia
• Citations: (1994), 130 N.S.R.(2d) 211 (SC)

Maritime Steel v. Whitman Benn (1994), 130 N.S.R.(2d) 211 (SC);

  367 A.P.R. 211

MLB headnote and full text

Maritime Steel and Foundries Limited (plaintiff) v. Whitman Benn & Associates Limited, Daniel H. Franklin, Vaughan Engineering Associates Limited and Frank G. Murphy (defendants)

(S.H. No. 93-4601)

Indexed As: Maritime Steel and Foundries Ltd. v. Whitman Benn & Associates Ltd. et al.

Nova Scotia Supreme Court

Saunders, J.

April 15, 1994.

Summary:

Two groups of codefendants claimed privilege over a report prepared by their insurer in contemplation of claims arising over alleged design errors in the construction of a bridge. One group, an engineer and his company, applied for an order prohibiting production of the report while the other group claimed it had waived its privilege and opposed withholding the report.

The Nova Scotia Supreme Court dismissed the application.

Practice - Topic 4578

Discovery - What documents must be produced - Privileged documents - Docu­ments prepared in contemplation of litiga­tion - Two groups of codefendants were sued by Maritime Steel for negligence - Both groups had the same insurer - A report was prepared by the insurer - The Nova Scotia Supreme Court held that the report was privileged because it had been prepared with the dominant purpose of being used in litigation - See paragraphs 36 to 38.

Practice - Topic 4585

Discovery - What documents must be produced - Privileged documents - Waiver - Two groups of codefendants had the same insurer - A copy of an engineering report prepared for the insurer was given to both groups - One group claimed privilege and sought to withhold production of the report at discovery - The other group wanted to produce the report and argued it had waived its privilege - The Nova Scotia Supreme Court held that the two groups originally had joint privi­lege which could not be unilaterally waived but that had been lost when the defendants abandoned the idea of a joint settlement offer and cross-claimed against each other - See paragraphs 39 to 47.

Cases Noticed:

Strait Printing and Publishing Ltd. v. Causeway Insurance Agencies Ltd. (1989), 91 N.S.R.(2d) 391; 233 A.P.R. 391 (T.D.), refd to. [para. 22].

Bolivar v. Craft (1991), 101 N.S.R.(2d) 167; 275 A.P.R. 167 (T.D.), refd to. [para. 22].

Rochefoucauld v. Boustead (1896), 65 L.J. Ch. 794, refd to. [para. 25].

Buttes Gas and Oil Co. v. Hammer (No. 3), [1980] 3 All E.R. 475 (C.A.), refd to. [para. 31].

Waugh v. British Rys. Board, [1979] 3 W.L.R. 150 (H.L.), refd to. [para. 37].

Davies v. Harrington (1980), 39 N.S.R.(2d) 258; 71 A.P.R. 258 (C.A.), refd to. [para. 37].

Economical Mutual Insurance Co. v. Ital­ian Village Ltd. et al. (1981), 45 N.S.R.(2d) 280; 86 A.P.R. 280 (C.A.), refd to. [para. 37].

Lehman et al. v. Insurance Corp. of Ire­land et al. (1983), 25 Man.R.(2d) 198; 40 C.P.C. 285 (Q.B.), refd to. [para. 44].

Columbos v. Carroll (1985), 23 C.P.C.(2d) 177 (Ont. H.C.), reving. 50 O.R.(2d) 593 (S.C. Master), refd to. [para. 44].

Bajpai v. Hunter (1990), 45 C.C.L.I. 225 (B.C. Master), refd to. [para. 44].

Authors and Works Noticed:

Corpus Juris Secundum (1957), vol. 97, p. 851 [para. 24].

Cross on Evidence (7th Ed. 1990), p. 452 [para. 24].

Counsel:

William L. Ryan, Q.C., for the plaintiff;

George W. MacDonald, Q.C., for the defendants, Whitman Benn & Associates Limited and Daniel H. Franklin;

S. Bruce Outhouse, Q.C., and Colin D. Bryson, for the defendants Vaughan Engineering Associates Limited and Frank G. Murphy.

This application was heard at Halifax, Nova Scotia, on April 6, 1994, before Saunders, J., of the Nova Scotia Supreme Court, who delivered the following judgment on April 15, 1994.