Mathieson v. Abarent Construction Ltd., 2010 ABQB 783

Court of Queen ’ s Bench of Alberta Citation: Mathieson v. Abarent Construction Ltd., 2010 ABQB 783 Date: 20101208 Docket: 0903 19261 Registry: Edmonton Between: Lori Mathieson Plaintiff - and - Abarent Construction Ltd., Mike Doucette Carrying on Business as Plans Plus, Konstantin Ashkinadze and Platinum Plumbing & Heating Limited Operating as Academic Plumbing & Heating, Platinum Plumbing & Heating Limited, ABC Corporation and John Doe Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.P.

Marceau _______________________________________________________ I. Nature of the Application [ 1 ] On November 5, 2010, I heard the Defendant Konstantin Ashkinadze’s application for an order revoking the litigation privilege over a professional engineer’s report prepared for the Plaintiff by Becker Elzein and Associates.

[2] The Defendant brought this application as a result of the Plaintiff raising the following at para. 32 of her amended statementof claim: “[t]he Plaintiff sought independent evaluation of the Plans, as prepared, and was advised by Becker, Elzein and Associates Ltd.,a professional engineering firm, that the Plans were deficient.” [3] After I reserved my decision, I asked the parties to submit their legal authorities. Many of the authorities provided dealt withwhether the report of the engineering firm was privileged. [4] In Hamalainen (Committee of) v.

Sippola, (BC CA), [1992] 2 W.W.R. 132 (B.C.C.A.), Wood J.A. of theBritish Columbia Court of Appeal accepted that the correct test for litigation privilege is that stated by Barwick C.J. of the AustralianHigh Court in Grant v.

Downs (1976), 135 C.L.R. 674 at p. 677: ... a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authorityunder whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order toobtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should beprivileged and excluded from inspection. [5] That, in my view, is the law today. [6] The Plaintiff deposed in her affidavit, sworn on October 28, 2010 in opposition to Mr.

Ashkinadze’s application, that she hadhired the Defendant Abarent Construction Ltd. to replace the foundation of her home and that company in turn retained the services ofMr. Ashkinadze to prepare the engineering plans for the foundation replacement. The Plaintiff stated in her affidavit that in the beginningmonths of 2009, she became concerned about the quality of the work done and as of April 2009, when she retained legal counsel, shewas confident that litigation was a real possibility.

The Plaintiff deposed that: “[a]s a result of the legal advice I obtained, I retainedBecker Elzein and Associates Ltd. to conduct an independent evaluation of my home and prepare a report.” She asserted that the reportwas created for no other purpose than the pending litigation. According to the Plaintiff, Mr.

Ashkinadze confirmed during cross-examination on his affidavit filed in support of this application that there was evidence to confirm that, as of March 2009, litigationregarding this matter was a possibility. [7] It does not appear that the Plaintiff was examined on her affidavit or that (as is often the case in applications of this kind) arequest was made that the report be produced to a judge so that on reading the report the judge could determine whether the dominantpurpose of the report was to use it for purposes of litigation. [8] In his notice of motion, Mr.

Ashkinadze seeks “Revocation of Litigation Privilege.” Given that specific wording, Mr.Ashkinadze has implicitly agreed, at least for the purpose of this application, that the report of the engineering firm is privileged.Therefore, without deciding the point, but assuming the document was privileged, I will deal only with the question of whether thePlaintiff, by pleading reliance on the engineering report, has waived any litigation privilege attached to it, such that the report should beordered produced to Mr. Ashkinadze. II.

Law Cited by the Parties [9] Madam Justice McLachlin, then of the British Columbia Supreme Court, set out the law on waiver of privilege in S. & K.Processors Ltd. v. Campbell Ave. Herring Producers Ltd.. (BC SC), [1983] 4 W.W.R. 762 at para. 6: Waiver of privilege is ordinarily established where it is shown that the possessor of the privilege (1) knows of the existence of theprivilege, and (2) voluntarily evinces an intention to waive that privilege. However, waiver may also occur in the absence of an intentionto waive, where fairness and consistency so require.

Thus waiver of privilege as to part of a communication, will be held to be waiver asto the entire communication. Similarly, where a litigant relies on legal advice as an element of his claim or defence, the privilege whichwould otherwise attach to that advice is lost: Hunter v. Rogers, (BC SC), [1982] 2 W.W.R. 189.

[10] In Hunter, the plaintiff testified during examinations for discovery that his delay in disclosing certain facts was based onlegal advice he had received. The defendants proceeded to apply for an order compelling the plaintiff to produce memoranda written bythe plaintiff’s counsel recording the advice he had given to the plaintiff. Meredith J. of the British Columbia Supreme Court held at para.6 that: .. assuming the advice was legal advice, in exposing it and further in setting it up as a reason for the delay in disclosure, the plaintiffwaived the privilege which would otherwise attach.

It would be unfair if the defendants were not able to examine the statements made bythe plaintiff to the solicitor upon which the advice was founded. [11] In reaching the decision to order production of the memoranda, Meredith J. relied (at para. 7) on the following passage fromJohn Henry Wigmore’s Evidence in Trials at Common Law, vol. 8, McNaughton rev. (Boston: Little, Brown & Co., 1961) at pp. 635-36: What constitutes a waiver by implication? Judicial decision gives no clear answer to this question.

In deciding it, regard must be had to the double elements that are predicated inevery waiver, i.e., not only the element of implied intention, but also the element of fairness and consistency. A privileged person wouldseldom be found to waive, if his intention not to abandon could alone control the situation. There is always also the objectiveconsideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether heintended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.

He may elect towithhold or to disclose, but after a certain point his election must remain final. [12] Veit J. in H.H. v. R.L., (AB KB), [1997] 7 W.W.R. 625 (Q.B.) reached the same conclusion as MeredithJ. in Hunter. [13] In Talisman Energy Inc. v. Petro-Canada Inc., 2000 ABQB 147, 262 A.R. 344, Hart J. determined at para. 27 that: “...waiver is triggered by demonstrating reliance on legal advice for the resolution of an issue, not by the mere reference to having receivedit.” [14] In S. & K. Processors Ltd., the defendants produced an accountants' report particularizing their claim for administrationexpenses.

The report was produced in accordance with the British Columbia Evidence Act, which required that an expert’s opinion andthe facts on which it was based be produced 14 days before the expert gives evidence. The plaintiff sought disclosure of all thedocuments and communications involved in the report’s preparation, claiming that by producing the report, the defendants had waivedprivilege not only with respect to the report itself but also in terms of the associated communications.

McLachlin J. held that simplybecause the Evidence Act required that an expert’s report must be disclosed shortly before the trial did not mean that privilege over thereport and communications between the expert, the instructing solicitor and the client in the course of preparation of the report had beenwaived. Production of the report was required by the statute. Accordingly, it could not be regarded as a “waiver,” as that impliessomething done voluntarily. [15] In Krusel v.

Firth, (BC SC), [1991] 56 B.C.L.R. (2d) 96 (S.C.), Sinclair Prowse J. determined that thevoluntary production of an expert’s report by the plaintiff on an application to add defendants did not constitute a waiver of the privilegeprotecting the working papers, notes, and drafts of the expert as the expert report had not been tendered for the purpose of enabling thecourt to make findings of fact or to weigh evidence. On an application to add a defendant, the court was only required to assess whetherthe claim was frivolous, assuming that at trial the plaintiff could prove the facts as alleged.

Krusel is distinguishable from the presentcase as the issue there was whether disclosure of an expert’s report necessarily meant that privilege had been waived in relation to thewhole of the expert’s file. [16] In Pinder v. Sproule, 2003 ABQB 33, 333 A.R. 132, Slatter J. (as he then was) held that two medico-legal reportscommissioned by counsel for the plaintiff did not cease to be privileged because they were provided to a doctor who was treating theplaintiff. The case is distinguishable because it dealt with disclosure to a third party.

The pleadings filed by the plaintiff in Pinder did notstate the litigation was based on the findings or opinions stated in the medico-legal reports. [17] The plaintiffs in Millott Estate v. Reinhard (2000), (AB KB), 265 A.R. 350 (Q.B.) were asked todisclose information not in their knowledge but known to their lawyer as a result of the investigation of a motor vehicle accident. Then

Chief Justice Moore held that the information in question was covered by litigation privilege and, in any event, it constituted possible evidence rather than facts. The case is not concerned with waiver. [ 18 ] Similarly, in Blair v.

Wawanesa Mutual Insurance Company , 2000 ABQB 447 , 265 A.R. 50 , Mason J. of this Court ruled that a plaintiff could not circumvent litigation privilege by asking the defendants what facts they relied on for their defence where those facts came to the knowledge of the defendants through privileged communications from the insurer to its solicitors and privileged information obtained from an independent adjuster and his private investigator. Again, the issue in Blair was not waiver of privilege. III. Conclusion [ 19 ] In my view, this case cannot be distinguished from Hunter .

It is implicit from the Plaintiff’s Amended Statement of Claim that she relied on the report of the engineers. By in effect pleading reliance on that report, the Plaintiff has waived the litigation privilege she otherwise had over the report and the report must be produced to Mr. Ashkinadze. Fairness and consistency demand this result. [ 20 ] Accordingly, I direct production to Mr. Ashkinadze of the report of Becker Elzein and Associates Ltd. Heard on the 5 th day of November, 2010. Dated at the City of Edmonton, Alberta this 7 th day of December, 2010. R.P. Marceau J.C.Q.B.A. Appearances: Amanda M.

Read MacPherson Leslie & Tyerman for the Plaintiff Kenneth A. Holmstrom and Kurtis K. Kruse Chomicki Baril Mah for the Defendant Abarent Construction Konstantin Ashkinadze was self-represented