Ocean Marine Management Corp. v. Harbour Grace Fishing Co., (1997) 150 Nfld. & P.E.I.R. 137 (NFTD)

• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: January 20, 1997
• Jurisdiction: Newfoundland and Labrador
• Citations: (1997), 150 Nfld. & P.E.I.R. 137 (NFTD)

Ocean Marine Mgt. (1997), 150 Nfld. & P.E.I.R. 137 (NFTD);

    470 A.P.R. 137

MLB headnote and full text

Ocean Marine Management Corporation (plaintiff) v. The Harbour Grace Fishing Company Limited (defendant)

(1994 St. J. No. 3715)

Indexed As: Ocean Marine Management Corp. v. Harbour Grace Fishing Co.

Newfoundland Supreme Court

Trial Division

Hickman, C.J.T.D.

January 20, 1997.

Summary:

The plaintiff's solicitor provided documents to its insurance adjusters on a "without prejudice" basis. The 14 documents were all referred to and listed in a letter to the adjusters. The plaintiff filed a List of Docu­ments which contained all the documents referred to in the letter, except for #12. The plaintiff applied for production of certain documents. The plaintiff claimed privilege with respect to materials pro­vided to its insurance adjusters on a "without preju­dice" basis.

The Newfoundland Supreme Court, Trial Division, held that document #12 and the letter were privileged because it was writ­ten on a "without prejudice" basis and for settlement purposes. The plaintiff had waived privilege with respect to all the exhibits referred to in its List of Documents (i.e. Documents 1 to 11, 13 and 14).

Practice - Topic 4556

Discovery - Production and inspection of documents - General - Proper procedure where privilege claimed or relevancy contested - A plaintiff applied for produc­tion of docu­ments - The plaintiff claimed that certain documents were privileged - The defend­ant argued that the question of privilege should be left to the trial judge rather than being dealt with by way of interlocutory application - The Newfound­land Supreme Court, Trial Division, rejected the argu­ment - Rule 32.02(c) conferred upon the court jurisdiction to determine before trial issues similar to those raised in this appli­cation - There­fore, it was appropriate to deal with the question of privilege at this time - See paragraph 13.

Practice - Topic 4571.1

Discovery - What documents must be produced - Documents listed in affidavit of documents - [See Practice - Topic 4580 ].

Practice - Topic 4580

Discovery - What documents must be produced - Privileged documents - Docu­ments prepared for purpose of settlement - The plaintiff's solicitor provided documents to its insurance adjusters on a "without prejudice" basis - The 14 documents were all referred to and listed in a letter to the adjusters - The plaintiff filed a List of Documents which contained all the docu­ments referred to in the letter, except for #12 - The plaintiff asserted that the materials provided to its insurance adjusters were privileged - The Newfoundland Supreme Court, Trial Divi­sion, held that docu­ment #12 and the letter were privileged because it was written on a "without prejudice" basis and for settle­ment purposes - The plaintiff had waived privilege with respect to all the exhibits referred to in its List of Documents (i.e. Documents 1 to 11, 13 and 14) - See paragraphs 10 to 19.

Practice - Topic 4585

Discovery - What documents must be produced - Privileged documents - Waiver - [See Practice - Topic 4580 ].

Practice - Topic 4586

Discovery - What documents must be produced - Privileged documents - Pro­cedure for claiming privilege - [See Prac­tice - Topic 4556 ].

Cases Noticed:

Middlekamp et al. v. Fraser Valley Real Estate Board et al. (1992), 17 B.C.A.C. 134; 29 W.A.C. 134; 71 B.C.L.R.(2d) 276 (C.A.), red to. [para. 15].

Costello and Dickoff v. Calgary (City) (1994), 153 A.R. 161; 19 Alta. L.R.(3d) 74 (Q.B.), refd to. [para. 17].

College of Physicians and Surgeons (Alta.) v. Cooper et al. (1994), 152 A.R. 204; 18 Alta. L.R.(3d) 188 (Q.B.), refd to. [para. 17].

Statutes Noticed:

Rules of Court (Nfld.), Supreme Court Rules, rule 32.02(c) [para. 3].

Authors and Works Noticed:

Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992), pp. 719 [para. 14]; 722 [para. 16].

Sopinka and Lederman, The Law of Evi­dence in Civil Cases, p. 156 [para. 13].

Counsel:

Cecily Y. Strickland, for the plaintiff;

David D. McKay, for the defendant.

This case was heard by Hickman, C.J.T.D., of the Newfoundland Supreme Court, Trial Division, who delivered the following judg­ment on January 20, 1997.