Sendagire v. Co-Operators General Insurance Co., 2009 SKQB 265

• Judge: Gabrielson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 30, 2009
• Jurisdiction: Saskatchewan
• Citations: 2009 SKQB 265;(2009), 339 Sask.R. 70 (QB)

Sendagire v. Co-op General (2009), 339 Sask.R. 70 (QB)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. JL.068

Hassan Sendagire (plaintiff) v. Co-Operators General Insurance Company and the Co-Operators (defendants)

(2004 Q.B. No. 1994; 2009 SKQB 265)

Indexed As: Sendagire v. Co-Operators General Insurance Co.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Gabrielson, J.

June 30, 2009.

Summary:

The plaintiff was injured in an automobile accident and hired solicitors (the previous solicitors) to represent him in an action against the owner and operator of the other automobile involved in the accident (the Burnett action). The plaintiff settled the Burnett action for the limits of their insurance and sued the defendant insurance companies under an S.E.F. underinsured motorist endorsement in a policy owned by the plaintiff's brother who was the owner and operator of the vehicle in which the plaintiff was riding (the S.E.F. 44 action). The defendants claimed that they were not given notice of the S.E.F. 44 action as required by the endorsement. The plaintiff therefore sued the previous solicitors for negligence (the previous solicitors action) and a discovery was held. On that same date, the plaintiff was also examined for discovery in the S.E.F. 44 action by defendants' counsel, with the plaintiff refusing to produce certain documents. The defendants applied for an order that the plaintiff disclose and produce (i) documents from the plaintiff's solicitors' files respecting the Burnett action; and (ii) a copy of the transcripts of the examinations for discovery in the previous solicitors action and copies of all documents included in the plaintiff's statement as to documents in that action.

The Saskatchewan Court of Queen's Bench held that the defendants were entitled to an order for disclosure and production of the files and records of the plaintiff's solicitors in respect to the Burnett action provided that the plaintiff was not required to produce or include any communications or documents passing between the plaintiff and his solicitors or memorandum created by use of such communications as such documents were covered by solicitor-client privilege. The defendants were not entitled to a copy of the transcripts of the examinations for discovery conducted in the previous solicitors action or copies of any documents disclosed as part of the statement as to documents of the parties in that action as they were covered by the implied undertaking rule.

Insurance - Topic 5194

Automobile insurance - Compulsory government schemes - Uninsured or underinsured motorist coverage - Limitation period - A Saskatchewan automobile insurance policy underinsured motorist endorsement (S.E.F. 44), s. 6(c), provided that "Every action or proceeding against the insurer for recovery under this endorsement shall be commenced within 12 months of the date that the eligible claimant or his legal representatives knew or ought to have known that the quantum of claims with respect to an insured person exceeded the minimum limits for motor vehicle liability insurance in the jurisdiction in which the action occurred. No action which is commenced within 2 years of the date of the accident shall be barred by this provision" - The Saskatchewan Court of Queen's Bench discussed the meaning of the phrase "legal representatives" as used in this endorsement - See paragraphs 26 to 31.

Practice - Topic 4490

Discovery - Use of examination in court or other proceedings - General - The plaintiff sued the defendant insurance companies under an S.E.F. underinsured motorist endorsement in a policy (the S.E.F. 44 action) - The plaintiff then sued his previous solicitors for missing a limitation period in the S.E.F. 44 endorsement (the previous solicitors action) - At discovery in the S.E.F. action, the plaintiff refused to produce certain documents - The defendant insurance companies applied for an order that the plaintiff produce a copy of the transcripts of the examinations for discovery in the previous solicitors action and copies of all documents included in the plaintiff's statement as to documents in that action - The Saskatchewan Court of Queen's Bench held that the defendants in the S.E.F. 44 action were not entitled to a copy of the transcripts of the examinations for discovery conducted in the previous solicitors action or copies of any documents disclosed as part of the statement as to documents of the parties in that action as they were covered by the implied undertaking rule.

Practice - Topic 4577

Discovery - What documents must be produced - Privileged documents - Attorney-client communications (legal advice privilege) - The Saskatchewan Court of Queen's Bench discussed what types of privilege applied to solicitor's files - See paragraphs 12 to 14.

Practice - Topic 4577

Discovery - What documents must be produced - Privileged documents - Attorney-client communications (legal advice privilege) - A plaintiff settled a motor vehicle injury action for the limits of Burnett's insurance (the Burnett action) - The plaintiff then sued the defendant insurance companies under an S.E.F. underinsured motorist endorsement in a policy respecting the vehicle in which the plaintiff was riding (the S.E.F. action) - At discovery in the S.E.F. 44 action, the plaintiff refused to produce certain documents - The defendant insurance companies applied for an order that the plaintiff produce documents from the plaintiff's solicitors' files respecting the Burnett action - The Saskatchewan Court of Queen's Bench held that litigation privilege no longer protected the contents of the solicitors' files in the Burnett action after the settlement; however, any communication between the plaintiff and his previous solicitors was protected by solicitor-client privilege even though the Burnett action was settled - There had been no waiver of privilege in this case - Therefore, the defendants were entitled to an order for production of the files and records of the plaintiff's solicitors respecting the Burnett action provided that the plaintiff was not required to produce or include any communications or documents passing between the plaintiff and his solicitors or memorandum created by use of such communications as such documents were covered by solicitor-client privilege.

Practice - Topic 4578

Discovery - What documents must be produced - Privileged documents - Documents prepared in contemplation of litigation (litigation privilege or work product privilege) - [See both Practice - Topic 4577 ].

Words and Phrases

Legal representatives - The Saskatchewan Court of Queen's Bench discussed the meaning of the term "legal representatives" as used in s. 6(c) of an S.E.F. 44 (underinsured motorist) endorsement in a Saskatchewan automobile insurance policy - See paragraphs 26 to 31.

Cases Noticed:

Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319; 352 N.R. 201; 2006 SCC 39, refd to. [para. 13].

Jones v. Smith, [1999] 1 S.C.R. 455; 236 N.R. 201; 120 B.C.A.C. 161; 196 W.A.C. 161, refd to. [para. 18].

R. v. Ritter (1988), 91 A.R. 302; 44 C.C.C.(3d) 344 (Prov. Ct.), refd to. [para. 28].

Somersall v. Friedman et al., [2002] 3 S.C.R. 109; 292 N.R. 1; 163 O.A.C. 201; 2002 SCC 59, refd to. [para. 30].

Potash Corp. of Saskatchewan Mining Ltd. v. Saskatchewan Government Insurance (1990), 83 Sask.R. 19 (Q.B.), refd to. [para. 32].

Lavoie v. Hulowski (2005), 265 Sask.R. 181; 2005 SKQB 26, refd to. [para. 33].

Trends Holdings Ltd. (Bankrupt) v. Tilson et al. (2007), 296 Sask.R. 54; 2007 SKQB 115, refd to. [para. 39].

C.P. v. Canada (Attorney General), [2003] Sask.R. Uned. 11; [2003] 6 W.W.R. 718; 2003 SKQB 34, refd to. [para. 40].

Sterling v. Sullivan et al. (2003), 236 Sask.R. 148; 2003 SKQB 359, refd to. [para. 42].

Letourneau et al. v. Clearbrook Iron Works Ltd. (2003), 238 F.T.R. 241; 28 C.P.R.(4th) 71; 2003 FC 949, refd to. [para. 44].

Schreiber v. Canada (Attorney General) et al. (2000), 269 A.R. 97; 83 Alta. L.R.(3d) 346; 2000 ABQB 536, refd to. [para. 44].

Authors and Works Noticed:

Hubbard, Robert W., Magotiaux, Susan, and Duncan, Suzanne M., The Law of Privilege in Canada (2008 Looseleaf), paras. 11.10 [para. 17]; 11.220.10 [para. 22]; 11.220.80 [para. 24].

Wigmore, John Henry, Evidence in Trials at Common Law (MacNaughton Rev. 1961), vol. 8, p. 630, para. 2323 [para. 20].

Counsel:

D. Quon, for the plaintiff;

G. Zabos, Q.C., for the defendants.

This matter was heard before Gabrielson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following decision on June 30, 2009.