Shannon v. Canadian Medical Protective Association, (2015) 437 N.B.R.(2d) 234 (TD)

• Judge: DeWare, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: June 08, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 437 N.B.R.(2d) 234 (TD);2015 NBQB 123

Shannon v. CMPA (2015), 437 N.B.R.(2d) 234 (TD);

    437 R.N.-B.(2e) 234; 1140 A.P.R. 234

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. JL.015

Renvoi temp.: [2015] N.B.R.(2d) TBEd. JL.015

Shirley Shannon and Michael Shannon (plaintiffs) v. Canadian Medical Protective Association (defendant)

(SJC-664-2005; 2015 NBQB 123; 2015 NBBR 123)

Indexed As: Shannon v. Canadian Medical Protective Association

Répertorié: Shannon v. Canadian Medical Protective Association

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

DeWare, J.

June 12, 2015.

Summary:

Résumé:

The plaintiffs (the Shannons) brought an action against the Canadian Medical Protective Association ("CMPA") seeking indemnification from the CMPA for a civil judgment they obtained against Dr. Akuffo-Akoto. The CMPA brought a motion requesting an order pursuant to rule 53.01 that its witness (Gillis) testify at a time fixed prior to trial given the witness's unavailability during the scheduled trial dates. The Shannons filed a motion requesting that the court inspect various documents set out in Schedule "B" of the CMPA's affidavit of documents in order to determine the validity of the privilege claimed over those documents. The Shannons requested disclosure of any identified Schedule "B" documents in which the privilege claimed had not been upheld. In addition, the Shannons requested further discovery with respect to the potential additional disclosure of those documents.

The New Brunswick Court of Queen's Bench, Trial Division, found that the only paragraph of the CMPA's amended affidavit of documents which inadequately described the document and/or corresponding privilege was paragraph 4(a). It was appropriate to inspect the documents captured under that paragraph pursuant to rule 31.06(d). In the event the documents were determined not to be privileged, their production would be ordered pursuant to rule 31.06(c). The court could not identify any other difficulties with the claims of privilege as set out in the challenged paragraphs of the CMPA's amended affidavit of documents. Gillis's testimony would be received following the scheduled trial dates.

Evidence - Topic 4251

Witnesses - Privilege - Lawyer-client communications - Loss of privilege - Communications respecting crime - The Shannons brought an action against the Canadian Medical Protective Association ("CMPA") seeking indemnification for a civil judgment they obtained against Dr. Akuffo-Akoto ("Akoto") - The Shannons challenged the claims of privilege set out by the CMPA in its affidavit of documents - The Shannons maintained that contents of the file of Rodney Gillis, Q.C., were not subject to solicitor-client privilege because the crime/fraud exception or the furtherance of unlawful conduct exception applied - According to the Shannons, the fact that Akoto absconded from Canada to avoid professional, civil and criminal liability for his conduct in relation to Mrs. Shannon rendered his communications and consultations with Gillis in 1997 suspect - The New Brunswick Court of Queen's Bench, Trial Division, found no evidence to substantiate such an argument - Furthermore, the court was far from satisfied that such an exception had been accepted in the New Brunswick courts - The court stated that "While there was no dispute that Akoto's conduct vis-à-vis Mrs. Shannon during the course of his treatment of her was abhorrent and potentially criminal, that in and of itself does not deprive him of the right to seek legal counsel with respect to threatened civil proceedings. Further, there is absolutely no evidence that Mr. Gillis conspired to provide advice with respect to criminal activity with Akoto, nor that Mr. Gillis failed to realize his advice was being sought regarding an unlawful act" - See paragraphs 15 to 22.

Practice - Topic 4577

Discovery - What documents must be produced - Privileged documents - Attorney-client communications - [See Evidence - Topic 4251 ].

Practice - Topic 4577.1

Discovery - What documents must be produced - Privileged documents - Solicitor's files, notes, etc. - [See Evidence - Topic 4251 ].

Practice - Topic 4638

Discovery - Affidavit or list of documents - Sufficiency of statement of grounds of privilege - [See Practice - Topic 4639 ].

Practice - Topic 4639

Discovery - Affidavit or list of documents - Description of documents - The Shannons brought an action against the Canadian Medical Protective Association ("CMPA") seeking indemnification for a civil judgment they obtained against Dr. Akuffo-Akoto ("Akoto") - The Shannons requested that the court inspect various documents set out in Schedule "B" of the CMPA's affidavit of documents in order to determine the validity of the privilege claimed over those documents - The Shannons alleged that various paragraphs in Schedule "B" did not adequately describe the privilege nor the document to which the privilege attached - The Shannons maintained that the factual requirements upon which a privilege could be claimed had not been appropriately set out - The New Brunswick Court of Queen's Bench, Trial Division, found that the only paragraph which inadequately described the document and/or corresponding privilege was paragraph 4(a) - Paragraph 4(a) referred to confidential communications for the purpose of seeking and providing legal advice between Akoto and Gilbert McGloan Gillis - There were three documents captured under that paragraph, B-1, B-24 and B-27 - The description of those documents did not provide the necessary factual background required to determine if the privilege was appropriately claimed - It was appropriate to inspect the documents described as B-1, B-24 and B-27 pursuant to rule 31.06(d) - If the documents were determined not to be privileged, their production would be ordered pursuant to rule 31.06(c) - See paragraphs 23 to 34.

Cases Noticed:

Blue Line Hockey Acquisition Co. et al. v. Orca Bay Hockey Limited Partnership et al., [2007] B.C.T.C. Uned. C74; 2007 BCSC 143, refd to. [para. 16].

Patrick and Littleton, Re, 2006 QCCS 2276, refd to. [para. 17].

R. v. Central Criminal Court, ex parte, Francis and Francis, [1989] A.C. 347, refd to. [para. 18].

Dredger "Kamal XXVI" & the Barge "Kamal XXIV" (The Owners and/or Demise Charterers of) v. "Ariela" (Owners of the Ship) & Ors, [2010] EWHC 2531 (Comm), refd to. [para. 18].

Corrier v. Seely (2009), 340 N.B.R.(2d) 262; 871 A.P.R. 262; 2009 NBCA 3, refd to. [para. 23].

Delta Electric Co. v. Aetna Casualty Co. of Canada et al. (1984), 53 N.B.R.(2d) 406; 138 A.P.R. 406 (T.D.), refd to. [para. 24].

Counsel:

Avocats:

E.J. Mockler, Q.C., for the plaintiffs;

Kenneth B. McCullogh, Q.C., and Jonathan M. O'Kane, for the defendant.

These motions were heard on June 8, 2015, before DeWare, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following decision on June 12, 2015.