Roadside Fisheries Ltd. v. Canadian General Surety Co. et al., (1996) 156 N.S.R.(2d) 315 (SC)

• Jurisdiction: Nova Scotia
• Judge: Kelly, J.
• Citation: (1996), 156 N.S.R.(2d) 315 (SC)
• Court: Supreme Court of Nova Scotia (Canada)
• Date: 23 October 1996

Roadside Fisheries v. Cdn. Surety (1996), 156 N.S.R.(2d) 315 (SC);

    461 A.P.R. 315

MLB headnote and full text

Roadside Fisheries Limited (plaintiff) v. The Canadian General Surety Company, Simcoe & Erie General Insurance Company and Ecclesiastical Insurance Office Public Limited Company (defendants)

(S.H. No. 116127)

Indexed As: Roadside Fisheries Ltd. v. Canadian General Surety Co. et al.

Nova Scotia Supreme Court

Kelly, J.

October 23, 1996.

Summary:

Roadside commenced an action against the defendant insurance companies for wrongful refusal to indemnify a fire loss. The defen­dants sought to obtain the results of private polygraph tests taken by the principals of Roadside, who were under suspicion for the loss.

The Nova Scotia Supreme Court denied the application as the polygraph test results were privileged communications.

Practice - Topic 4578

Discovery - What documents must be produced - Privileged documents - Doc­u­ments prepared in contemplation of litiga­tion - Roadside sued the defendant insur­ance companies for wrongful refusal to indemnify a fire loss - Roadside's princi­pals were under suspicion for the loss and retained counsel following a police request for a polygraph test - The plainti­ff's coun­sel determined that the principals should have private polygraph testing - The de­fendants sought to obtain the results of the private polygraph tests - The Nova Scotia Supreme Court denied the applica­tion as the polygraph test results were privileged communica­tions - Applying the "dominant purpose" test, the court con­cluded that the private polygraph test was taken on coun­sel's instructions for the dominant purpose of using its results to assist him in provid­ing legal advice in the conduct of both the civil and criminal litigation - See para­graphs 6 to 21.

Cases Noticed:

McCrea v. Canada Newspapers Co. et al. (1993), 122 N.S.R.(2d) 411; 338 A.P.R. 411 (S.C.), refd to. [para. 8].

Director of Investigation and Research v. Canadian Safeway Ltd. (1972), 26 D.L.R.(3d) 745 (B.C.S.C.), refd to. [para. 10].

Nickerson (H.B.) Ltd. v. Sommerville Belkin Industries Ltd. (1985), 72 N.S.R.(2d) 289; 173 A.P.R. 289 (T.D.), refd to. [para. 12].

Waugh v. British Railways Board, [1979] 2 All E.R. 1169 (H.L.), refd to. [para. 14].

Shaw Estate et al. v. Roemer et al. (1979), 38 N.S.R.(2d) 657; 69 A.P.R. 657 (T.D.), refd to. [para. 14].

Burgess v. Co-operative General Insur­ance Co. et al. (1989), 89 N.S.R.(2d) 340; 227 A.P.R. 340 (T.D.), affd. (1989), 91 N.S.R.(2d) 163; 233 A.P.R. 163 (C.A.), refd to. [para. 14].

Authors and Works Noticed:

Cudmore, Civil Evidence Handbook, p. 6-20.01 [para. 11].

Sopinka, John, Lederman, Sydney N., and Byrant, Alan W., The Law of Evi­dence in Canada, pp. 655, 656 [para. 12].

Counsel:

Ronald E. Pizzo, for the plaintiff;

Cheryl L. Hodder, for the defendants.

This case was heard in Halifax, Nova Scotia, before Kelly, J., of the Nova Scotia Supreme Court, who rendered the follow­ing decision orally on October 23, 1996, with written reasons released on December 4, 1996.