Larry Medynski v. Jean Medynski, 2023 SKCA 88

Court of Appeal for Saskatchewan Docket: CACV4000 Citation: Medynski v Rural Municipality of Prince Albert No. 461 , 2023 SKCA 88 Date: 2023-08-10 Between: Larry Medynski and Jean Medynski Appellants (Applicants) And Rural Municipality of Prince Albert No. 461 Respondent (Respondent) Before: Caldwell, Kalmakoff and Drennan JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Mr.

Justice Caldwell The Honourable Madam Justice Drennan On appeal from: QBG 1 of 2017, Prince Albert Appeal heard: June 5, 2023 Counsel: Trevor Klassen for the Appellants Adryan Toth and Courtney Riviere for the Respondent Kalmakoff J.A. I.

Introduction [ 1 ] Larry Medynski and Jean Medynski appeal against a decision in which a judge of what was then the Court of Queen’s Bench, sitting in Chambers, dismissed their application for an order under Rule 5-12 of The Queen’s Bench Rules [ Rules ] requiring the Rural Municipality of Prince Albert No. 461 [RMPA] to produce certain documents over which RMPA asserted solicitor-client privilege ( Hawryluk v Medynski (16 March 2022) Prince Albert, QBG 1 of 2017 (Sask QB) [ Decision ]). [ 2 ] The Medynskis contend that the Chambers judge erred in several ways in reaching the conclusion that production of the documents was not required, including by finding that privilege in the documents had not been waived and by not inspecting the documents herself before making that determination. [ 3 ] For the reasons that follow, I conclude that the appeal should be dismissed.

II. Background A. The proceedings [ 4 ] Dustin Hawryluk purchased a house from the Medynskis in 2010. Some time after taking possession of the house, Mr. Hawryluk discovered what he alleged were significant structural and engineering defects which included, among other things, the fact that the house had been constructed on an unstable slope. He also alleged that the house had been moved from its original location as the result of a fire and that it had been re-constructed or altered without the necessary permits having been obtained from RMPA. [ 5 ] As a result of these issues, Mr.

Hawryluk commenced a civil action against the Medynskis and RMPA by filing a statement of claim in August of 2016. In the claim, Mr. Hawryluk asserted several causes of action against the Medynskis, including breach of contract, negligence, negligent misrepresentation, and fraudulent misrepresentation. In broad strokes, he alleged that the Medynskis were aware of, and had concealed, the existence of the problems when they sold the house to him. As against RMPA, Mr.

Hawryluk alleged that it had negligently failed to take reasonable steps to enforce its own bylaws and had failed to meet its statutory duties under The Planning and Development Act, 2007 , SS 2007, c P-13.2 . [ 6 ] In its initial statement of defence, RMPA denied all liability. In their statement of defence, the Medynskis also denied liability, and they asserted that Mr. Hawryluk’s claim was statute-barred under The Limitations Act , SS 2004, c L-16.1 . [ 7 ] In November of 2019, Mr. Hawryluk filed an amended statement of claim. RMPA and the Medynskis responded by amending their respective statements of defence.

One of the amendments that RMPA made was to assert a limitation period defence, pleading that Mr. Hawryluk’s claim against it was statute-barred under s. 344 of The Municipalities Act , SS 2005, c M-36.1 . [ 8 ] As the matter worked its way through the course of litigation, questioning occurred, and disclosure and production of documents took place. As part of this process, on February 2, 2021, RMPA served the other parties with a Second Supplementary Affidavit of Documents. One of the documents referred to therein, which RMPA indicated it was prepared to produce, was entitled “Statement of Jason Kaptein”.

At the times relevant in this case, Mr. Kaptein was the director of planning and development for the Prince Albert District Planning Commission. In a nutshell, Mr. Kaptein’s statement supported the limitation period defences being asserted by RMPA and the Medynskis, as he said that Mr. Hawryluk had told him things that showed Mr. Hawryluk had discovered his claims at a

time that placed him outside the limitation period to bring an action. In the statement, Mr. Kaptein also quoted directly from portions ofemails he had written to RMPA’s lawyer, Larry Zatlyn, on June 24, 2014, and July 18, 2014, concerning Mr. Hawryluk’s claim. Thestatement also referred to other email exchanges Mr. Kaptein had had with Mr. Zatlyn on July 15, 2014, and July 21, 2014. [9] After receiving Mr.

Kaptein’s statement, along with other documents noted in the Second Supplementary Affidavit ofDocuments, the Medynskis applied for leave to file a crossclaim against RMPA on the basis that it had caused or contributed to Mr.Hawryluk’s losses by failing to properly apply and enforce its bylaws when the Medynskis constructed the house and by failing to provideaccurate information to Mr. Hawryluk as a prospective purchaser. Leave was granted for the Medynskis to file their crossclaim on August18, 2021 (Hawryluk v Medynski (18 August 2021) Prince Albert, QBG 1 of 2017 (Sask QB)). [10] In addition to identifying Mr.

Kaptein’s statement and its willingness to produce it, RMPA’s Second Supplementary Affidavitof Documents also identified seven documents that it refused to produce on the basis of solicitor-client privilege. Those documentsincluded the June 24, 2014, and July 18, 2014, emails that Mr. Kaptein had quoted in his statement, as well as emails he had sent to ZatlynLaw Office on July 15, 2014, and September 23, 2014, and emails sent from Zatlyn Law Office to Mr. Kaptein on July 15, 2014, July 21,2014, and September 23, 2014. On November 5, 2021, the Medynskis requested that RMPA produce all of these emails.

Eventually,RMPA voluntarily produced the June 24, 2014, and July 18, 2014, emails that Mr. Kaptein had written – and from which he had quoted inhis statement – but it refused to produce the rest. [11] The Medynskis then applied for an order under Rule 5-12 requiring RMPA to produce the documents. They took the positionthat the email exchanges between Mr. Kaptein and Mr. Zatlyn were relevant to the question of the discoverability of Mr. Hawryluk’sclaim and the operation of the limitation period. They also contended that, because Mr. Kaptein’s statement referred to a series of emailexchanges between him and Mr.

Zatlyn – two of which had already been produced in their entirety – RMPA had effectively waivedsolicitor-client privilege in all of the documents. B. The Decision [12] The Chambers judge disagreed with the Medynskis.

She found that RMPA’s asserted solicitor-client privilege in the documentsthat it refused to produce must be upheld and dismissed the Medynskis’ application. [13] The Chambers judge began by acknowledging the Medynskis’ argument that, based on the reasoning in SaskatchewanEconomic Development Corp. v Smith-Roles and Royal Bank of Canada (1990), (SK KB), 82 Sask R 233 (QB) [Smith-Roles], fairness and consistency required that RMPA be found to have waived privilege in the communications and emails over which itasserted privilege.

However, she found that the analysis was not as straightforward as the Medynskis had urged her to conclude. In thatrespect, she said: [9] Medynskis’ counsel submits that fairness requires that the RM fully disclose all of its communications with its solicitor because ithas disclosed two of the communications.

However, the analysis required to determine whether the RM has waived its solicitor-clientprivilege is far more nuanced than this. [14] To orient herself to the approach that would guide her analysis, the Chambers judge referred to the reasoning set out in Crowev Saskatchewan Indian Gaming Authority Inc., 2004 SKQB 226 at para 79, which had in turn relied upon Western Canada InvestmentCompany Limited v McDiarmid, (SK CA), [1922] 1 WWR 257 at 261 (Sask CA), and S & K Processors Ltd. vCampbell Avenue Herring Producers Ltd., [1983] 4 WWR 763 at 764–766 (BCSC) [S & K], and concluded that two essentialprerequisites were necessary to establish a waiver of solicitor-client privilege: (1) that the party who possessed privilege knew of itsexistence and their right to enjoy it; and (2) that there be clear evidence of that party’s intention to waive privilege (Decision at para 10). [15] At paragraph 11 of the Decision, the Chambers judge quoted directly from the reasons of the Supreme Court of Canada inGoodis v Ontario (Ministry of Correctional Services), 2006 SCC 31, [2006] 2 SCR 32 [Goodis], where Rothstein J. wrote that judges mustnot interfere with the confidentiality of communications between a solicitor and client except to the extent that it is “absolutely necessary”(at para 15), and that “solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance”(at para 16, quoting from R v McLure, 2001 SCC 14 , [2001] 1 SCR 445 at 459 [McClure]).

She then went on to say: [12] In applying the law to this case, it is clear that the RM has appropriately produced the entirety of its communication in [the June24, 2014, and July 18, 2014, emails written by Mr. Kaptein] because it had already disclosed part of that communication in [Mr. Kaptein’sstatement]. These documents are a benefit to the RM as against Hawryluk because the RM pleads s. 344 of The Municipalities Act, SS2005, c M-36.1 at paragraph 13.1 of its defence to Hawryluk’s claim, alleging Hawryluk’s claim is statute-barred.

Just as importantly,these documents are a benefit to the Medynskis because they too plead the defence that Hawryluk’s claim against them is statute-barred. [13] However, the Medynskis have failed to prove that the RM has waived its solicitor-client privilege to all communications duringthe same time frame. By providing the entirety of the contents of [the June 24, 2014, and July 18, 2014, emails written by Mr.

Kaptein]falls far short of an intention of the behalf of the RM to disclose other privileged communications. [14] The Medynskis have not established that fairness and consistency require any further disclosure. They have already benefited fromthe willingness of the RM to provide the full contents of [the June 24, 2014, and July 18, 2014, emails written by Mr. Kaptein]. In furtherevidence the Medynskis’ failure in establishing that fairness and consistency require production of all the communication in

Schedule 2,Hawryluk himself does not join in this application. Hawryluk is the party that the RM claims a benefit against by alleging his claim isstatute barred. However, Hawryluk does not argue that fairness and consistency require any further production from the RM. [15] The RM’s privilege in this case must be upheld. The Medynskis’ application is dismissed… III. The grounds of appeal

[16] As the Medynskis’ appeal is taken from an interlocutory decision, they were required to seek leave to appeal. In that regard,leave to appeal was granted on four grounds (Medynski v Rural Municipality of Prince Albert No. 461 (18 January 2023) Prince Albert,CACV 4000 (Sask CA)): (

a) The Chambers judge erred in mixed fact and law by failing to find an implied intention to waive solicitor-client privilege as tothe additional emails, and that fairness and consistency required their disclosure; (

b) The Chambers judge erred in law by deciding whether implied waiver had occurred on the basis of the RM’s subjectiveintentions, rather than its objective intentions; (

c) The Chambers judge erred in law in failing to find that RMPA had voluntarily waived solicitor-client privilege to theadditional emails, as part of a sequence of emails relating to the same subject matter; and (

d) The Chambers judge erred in law, or in mixed fact and law, by failing to inspect the additional emails for the purpose ofdeciding the validity of the claim for privilege, in accordance with Rule 5-12(4) of The Queen’s Bench Rules. IV. Analysis [17] Before delving into the analysis of the grounds of appeal, it is important to understand that the dispute in this case is not aboutwhether the documents for which the Medynskis seek production are privileged.

The parties agree that the documents over which RMPAasserts a claim of privilege were communications between a lawyer and a client that entailed the seeking or giving of legal advice, andwhich, at the time they were made, were intended to be confidential as between the lawyer and the client (see: Solosky v The Queen, (SCC), [1980] 1 SCR 821 at 837; Redhead Equipment v Canada (Attorney General), 2016 SKCA 115 at para 31, 402 DLR (4th)649 [Redhead]). [18] In the hearing before the Chambers judge, the Medynskis argued that RMPA’s partial waiver of privilege – i.e., the productionof the two emails written by Mr.

Kaptein – constituted a waiver with respect to all other related privileged documents. The Medynskisasserted that, in the circumstances, fairness and consistency required that RMPA be ordered to produce the entire chain of emails betweenMr. Kaptein and the Zatlyn Law Office. [19] In this Court, the Medynskis take a slightly different tack.

While they continue to assert that RMPA’s partial waiver ofprivilege should have been viewed as a full waiver, they make the additional argument that the Chambers judge erred by basing herdetermination on RMPA’s subjective intentions regarding waiver and by failing to find that an intention to waive privilege could beimplied from RMPA’s overall conduct. As an alternative argument, the Medynskis say that the Chambers judge ought to have inspectedthe documents in question, pursuant to Rule 5-12(4), before ruling on RMPA’s claim of privilege. A.

Standard of review [20] The issues raised by the Medynskis’ grounds of appeal engage various standards of review. [21] Dealing first with the grounds of appeal that impugn the Chambers judge’s failure to find that there was an implied orvoluntary waiver of privilege by RMPA, the identification of the proper legal test for making that determination is an extricable questionof law and therefore reviewable on a correctness standard. The question of whether the identified legal test was properly applied to theevidence before the Chambers judge is also one of law and, thus, reviewable for correctness.

If the Chambers judge correctly identifiedand properly applied the legal test for finding waiver, her findings with respect to whether privilege was waived in relation to particulardocuments are to be reviewed on the standard of palpable and overriding error (Redhead at paras 13 and 21–24; Nova Scotia (AttorneyGeneral) v Cameron, 2019 NSCA 38 at para 27, 434 DLR (4th) 521; and Peak Products Manufacturing Inc. v Gross, 2023 BCCA 214 atpara 37 [Peak Products]). [22] Deciding whether to inspect documents for the purpose of determining the validity of a claim of privilege, pursuant to Rule 5-12(4), involves an exercise of discretion on the part of a Chambers judge.

Discretionary decisions are reviewed on the standard set out inKot v Kot, 2021 SKCA 4 at para 20, 63 ETR (4th) 161, meaning that appellate intervention will be appropriate if the Chambers judgemade a palpable and overriding error in her assessment of the facts, failed to correctly identify the legal criteria which governed theexercise of her discretion, or misapplied those criteria, thereby committing an error of law (see also: MacInnis v Bayer Inc., 2023 SKCA37 at paras 38–39). B.

Waiver of privilege: the governing legal principles [23] Solicitor-client privilege is fundamental to the proper functioning of our legal system in Canada. It is more than just a rule ofevidence; it is a substantive rule, and one that has attained a quasi-constitutional status. It is a cornerstone of access to justice that isjealously guarded.

The Supreme Court of Canada has stated that, as a substantive rule, “solicitor-client privilege must remain as close toabsolute as possible and should not be interfered with unless absolutely necessary” (Alberta (Information and Privacy Commissioner) vUniversity of Calgary, 2016 SCC 53 at paras 34–43 and 81–86, [2016] 2 SCR 555). [24] That said, Canadian law also recognizes that a party who holds solicitor-client privilege can waive it, either expressly orimplicitly.

The onus of establishing waiver of privilege rests on the party asserting that there has been waiver (S & K at para 10; SuperiorPlus Corp. v The Queen, 2015 TCC 132 at para 42, affirmed 2015 FCA 241). [25] Express waiver occurs where the possessor of the privilege knows of the existence of the privilege and voluntarily evinces anintention to waive it (S & K at para 6). The importance of solicitor-client privilege in our legal system means that, in order for an expresswaiver to be effective, the party waiving privilege must do so clearly, freely and with knowledge of the consequences of the waiver

(Kulchar v Marsh, (SK KB), [1950] 1 WWR 272 at paras 7–8 (Sask KB)).

Because solicitor-client privilege issomething that has the qualities of a substantive right, the requirements for finding an express waiver must be strictly applied (see, forexample: Syndicat Northcrest v Anselem, 2004 SCC 47 at para 96; [2004] 2 SCR 551; R v Clarkson, (SCC), [1986] 1SCR 383 at paras 18–19; and Godbout v Longueuil (City), (SCC), [1997] 3 SCR 844 at paras 71–73). [26] In certain circumstances, waiver of solicitor-client privilege may be implied even in the absence of an express intention to doso, but this will be the case only where fairness and consistency so require (Peak Products at para 39; S & K at para 6).

Implied waiverdoes not turn on the subjective intent of the disclosing party but, rather, on whether the objective nature of their actions permit the court toinfer an intention to waive privilege (Federation of Newfoundland Indian Bands Inc. v Benoit, 2020 NLCA 16 at para 34; Peach v NovaScotia (Transportation and Infrastructure Renewal) (2010), 2010 NSSC 91 , 289 NSR (2d) 141 at para 21 (NSSC)). [27] Implied waiver will be found where a litigant voluntarily takes a position in litigation that is inconsistent with the maintenanceof the privilege or makes legal assertions that make it unfair to permit the litigant to retain the benefit of the privilege (Do Process LP vInfokey Software Inc., 2015 BCCA 52 at para 23 [Do Process]; Araya v Nevsun Resources Ltd., 2019 BCCA 205 at para 23).

This will bethe case, for example, where “a party voluntarily injects its understanding of its legal position or relies on legal advice to justify itsconduct, and acts in a manner inconsistent with maintaining the privilege” (Soprema Inc. v Wolridge Mahon LLP, 2016 BCCA 471 at para22, 405 DLR (4th) 594 [Soprema]).

In such circumstances, waiver can be implied as a result of the voluntary conduct of the party, even ifthe party did not intend that result. [28] In considering whether there has been an implied waiver, courts must remain mindful of the important role that solicitor-clientprivilege plays in our legal system. Justice Harris made this point in Soprema, where he said: [50] …The starting point of an articulation of the test for implied waiver must recognize what the Supreme Court of Canada has madeclear about the importance of solicitor-client privilege.

In R. v McClure, 2001 SCC 14 at para. 35, [2001] 1 SCR 445, the Court said thatsolicitor-client privilege “must be as close to absolute as possible to ensure public confidence and retain relevance.

As such, it will onlyyield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis” (emphasis added).Furthermore, the Court said (at para 17) that solicitor-client privilege “is part of and fundamental to the Canadian legal system. ... [I]t hasevolved into a fundamental and substantive rule of law.” This view was affirmed in Goodis v Ontario (Ministry of CorrectionalServices), 2006 SCC 31 at paras 20-21, [2006] 2 SCR 32, where the Supreme Court of Canada made clear that communications protectedby privilege should be disclosed only where “absolutely necessary”, applying “as restrictive a test as may be formulated short of anabsolute prohibition in every case.” … [53] Where legal advice may have influenced a party’s “state of mind” on a material issue, it is inevitable that upholding the privilegewill confer a litigation advantage on the party claiming it because the other would be denied access to relevant information about theopposing party’s state of mind.

One might think that this is an inevitable result of recognizing and upholding claims of solicitor-clientprivilege because part of the point of privilege is to protect from disclosure communications which are otherwise material and relevant.But it does not follow from this that that litigation advantage is “unfair”. I do not think one can properly describe a litigation advantage“unfair” when it results from the recognition and protection of a fundamentally important principle in the legal system.

Furthermore,protecting privilege in these circumstances does not raise an issue of inconsistency because the party asserting the privilege is not relyingon the advice it received to justify its conduct at the same time as it shields that advice from disclosure. [29] Implied waiver will not be found simply because a party discloses that it has received legal advice or that it has communicatedwith a lawyer for that purpose. Where it is alleged that waiver should be implied from the conduct of the privilege-holder, the partyasserting waiver must establish three things: (

a) the privilege holder has voluntarily disclosed that they sought or received legal advice; (b)the privilege-holder’s seeking or receiving of legal advice is material to the claims or defences in the action, such that the legal advice isrelevant; and (

c) the privilege holder has attempted to rely on the legal advice in order to justify a particular course of action, such that itwould be unfair for the holder of the privilege to retain the benefit of the privilege (Adam M.

Dodek, Solicitor-Client Privilege (Toronto:LexisNexis Canada, 2014) at II. 7. 6.3 [Dodek]); Peak Products at paras 38–44; Do Process at paras 22–25; Long v Red BranchInvestments Limited, 2022 BCCA 293 at para 26; and Guelph (City) v Super Blue Box Recycling Corp., (ON SC), 2CPC (6th) 276 at paras 108 and 111 (Ont Sup CT)). [30] Holders of privilege may, of course, waive privilege over some or all of their confidential communications with counsel.Express waiver of privilege over some documents from a file does not automatically constitute waiver with respect to all solicitor-clientcommunications.

The Manitoba Court of Appeal made this point in Bone v Person (2000), (MB CA), 145 Man R (2d)85, 185 DLR (4th) 335 [Bone], where Scott C.J.M. said: [10] …The law is clear that a party to legal proceedings may voluntarily waive solicitor/client privilege on a limited basis, that is to saywith respect to a particular defined subject matter. See, for example, Power Consolidated (China) Pulp Inc. v British ColumbiaResources Investment Corp., (BC CA), [1989] 2 WWR 679 (BCCA) at 682. However, a reasonable balance must bestruck so that the court and the other parties are not misled.

The party making the disclosure cannot pick and choose between thefavourable and the unfavourable. In Transamerica Life Insurance Co. of Canada v Canada Life Assurance Co. (1995), (ON SC), 46 CPC (3d) 110 (Ont. Ct. (Gen. Div.)), Sharpe J., as he then was, put the matter this way, at paras 41-42: It is plainly not the law that production of one document from a file waives the privilege attaching to other documents in the same file. Itmust be shown that without the additional documents, the document produced is somehow misleading. . . . . .

The waiver rule must be applied if there is an indication that a party is attempting to take unfair advantage or present a misleading pictureby selective disclosure. [31] As this passage from Bone illustrates, courts must be cautious when dealing with cases in which a party purports to waive

privilege over only some documents that contain solicitor-client communications and not others. As a general rule, parties should not bepermitted to engage in selective and self-serving disclosure where it would mislead either the court or other litigants, or where it wouldpresent an incomplete and inaccurate picture.

In short, selective or partial waiver should not be permitted where it would result inunfairness or inconsistency (see, for example: Leadbeater v Ontario (2004), 70 OR (3d) 324 at para 68 (Ont Sup CT); Lowry v CanadianMountain Holdings Ltd. (1984), 59 BLCR 137 at para 17 (BCSC); Ranger v Penterman (2011), 2011 ONCA 412 , 342 DLR(4th) 690 at para 16 (Ont CA); and Canada (Attorney General) v Slansky, 2013 FCA 199 at para 261, 364 DLR (4th) 112 (per StratasJ.A., dissenting, but the majority not disagreeing with the legal principle) [Slansky].

By the same token, where the documents that havebeen voluntarily disclosed can stand alone from the remaining documents without creating a misleading picture, partial waiver will notconstitute a complete waiver of all documents. As Dodek states, the consideration that drives the result is fairness: §7.68 Courts must balance fairness to both parties. They must ensure that the partial waiver does not mislead the other party or the court.At the same time, courts must ensure that partial waiver is not used as an opportunity for an opponent to wade through the opposite party'sprivileged communications.

As one Court stated, “[n]otions of fairness cannot be a guise for a fishing expedition into the plaintiff'slawyers’ files”. If the court has a legitimate basis to question fairness but is not clear as to the just result, it should view the disputeddocuments to assess whether there is an inconsistency and resulting unfairness by non-disclosure. (Citations omitted) C. Applying the principles to the grounds of appeal 1.

Did the Chambers judge err in mixed fact and law by failing to find an implied intention on thepart of RMPA to waive solicitor-client privilege in the additional emails, and that fairness and consistencyrequired their disclosure? 2.

Did the Chambers judge err in law by deciding whether implied waiver had occurred on the basisof RMPA’s subjective intentions, rather than its objective intentions? [32] I will deal with the first two grounds of appeal together as, in my view, they are variations on the same theme, namely, thatalthough the Chambers judge correctly identified the legal test to be applied in determining whether privilege had been waived, she madeboth legal errors and palpable and overriding factual errors in applying that test. [33] As for the legal errors, the Medynskis make three submissions.

First, they contend that the Chambers judge took into accountan irrelevant consideration – the fact that Mr. Hawryluk had not joined the application for production – when determining whetherfairness and consistency required production of the documents in question. Second, they assert that the Chambers judge improperly reliedon RMPA’s subjective intention, rather than viewing its actions objectively, in determining whether an intention to waive solicitor-clientprivilege should be implied. Third, they say she failed to properly consider the nature of what was disclosed in Mr.

Kaptein’s statementand what it said about RMPA’s willingness to disclose privileged communications. [34] On the factual side, the Medynskis say the Chambers judge made a finding of fact that was not supported by the evidence.

Inthis respect, they point to her conclusion that the documents RMPA disclosed fell “far short of an intention [on its behalf] to disclose otherprivileged communications” (Decision at para 15) and assert that this conclusion reflects error because there was no evidence whatsoeverabout the extent to which RMPA actually intended to waive privilege. [35] I would not give effect to any of these arguments. [36] To begin, as RMPA correctly points out, in the application before the Chambers judge, the Medynskis bore the onus ofestablishing waiver and, in that regard, they provided no evidence about why the information they sought was relevant or important to theissues in dispute between the parties.

This is significant because, as the jurisprudence demonstrates, and as the Chambers judgerecognized, solicitor-client privilege is a substantive rule of fundamental importance, and one that “must be as close to absolute as possibleto ensure public confidence and retain relevance” (McClure at 459; Goodis at para 16).

It is difficult to see how that standard would bemet without some explanation as to why the documents for which the Medynskis sought production were relevant and, more to the point,why permitting RMPA to maintain privilege over them would be unfair. [37] In addition, I would note that there was nothing in the pleadings to suggest that RMPA had injected its understanding of itslegal position into the mix, or that it was relying on the legal advice it had received from the Zatlyn Law Office as part of its defence tothe case, or to otherwise justify a course of action. In that respect, Mr.

Kaptein’s statement also made no reference to any such advice. Hisstatement, and the emails that were quoted in it and later produced, disclosed only his recollection and description of certain factual events.In short, no legal advice was disclosed or put in issue in the litigation. Filtering all of that through the relevant jurisprudence, I can find noerror in the way the Chambers judge approached her analysis or in the way that she considered Mr. Kaptein’s statement and the nature ofRMPA’s actions. [38] I also reject the assertion that the Chambers judge erred by taking into account the fact that Mr.

Hawryluk had not joined theapplication for production. On its face, the only aspect of the action to which Mr. Kaptein’s statement appeared to be relevant was theoperation of the limitation period defence. Mr. Kaptein’s statement was beneficial to the Medynskis’s defence on that front and harmful toMr. Hawryluk’s position. One of the important considerations for a judge in determining whether a waiver should be implied is whetherpermitting the privilege-holder to retain privilege would be unfair to the other parties.

The position taken by a party whose ox stands to begored by the information in question is, in my view, patently relevant to that assessment. [39] Finally, I also see no merit in the Medynskis’ submission that the Chambers judge improperly relied on, or made a palpable andoverriding factual error about, RMPA’s subjective intention with respect to waiver of privilege. The Medynskis are correct to suggest that

subjective intention is not the determining factor where an implied waiver of privilege is asserted. It is also fair to say that there was no direct evidence in this case about whether, or to what extent, RMPA intended to waive privilege in the documents it refused to produce. However, as I read the Decision , the Chambers judge made no explicit finding about what RMPA’s subjective intention actually was. She simply found that the evidence fell short of demonstrating an intention on RMPA’s part to disclose the privileged communications it had refused to produce.

In other words, she found that the Medynskis had not met the onus of establishing waiver. I see no error in that conclusion. 3. Did the Chambers judge err in law in failing to find that RMPA had voluntarily waived solicitor- client privilege to the additional emails, as part of a sequence of emails relating to the same subject matter? [ 40 ] Under the third ground of appeal, the Medynskis contend that the Chambers judge erred by failing to find that RMPA had voluntarily waived privilege in the entire chain of communication between Mr.

Kaptein and the Zatlyn Law Office by voluntarily producing some of that chain of communication. On this front, they rely on paragraphs 261–262 of Slansky and paragraph 11 of Smith- Roles as authority for the proposition that a party cannot simply pick and choose what privileged information it will disclose because, at a certain point, waiver of privilege becomes an all-or-nothing proposition. [ 41 ] I reject this argument as well. As I have explained, the production of some privileged documents does not automatically result in the waiver of privilege in relation to all other related documents.

Rather, the question is whether partial production would present an incomplete or misleading picture of the circumstances and, thus, leave the party opposite in a position of disadvantage. In other words, if the party asserting waiver can establish that permitting the privilege-holder to make only a partial waiver would result in unfairness or inconsistency, then it will have met its burden. [ 42 ] In this case, although the Chambers judge’s analysis on this point was brief, I see no error in her approach or in her bottom-line conclusion.

In that regard, she made a clear finding that the Medynskis had “not established that fairness and consistency require any further disclosure” ( Decision at para 14). As part of the underpinning of that finding, she observed that they had already benefitted from RMPA’s willingness to produce the full contents of two emails that contained privileged communications (in that the information they had received assisted the limitation period defence they had pleaded), and that they had drawn to her attention no other reason as to why the additional communications of which they sought production might be relevant.

In other words, she found that the Medynskis had not met their onus of establishing how permitting RMPA to waive privilege with respect to the communications it had produced, while maintaining privilege in those it refused to produce, would be misleading or present such an incomplete picture as to place them at a disadvantage. [ 43 ] This ground of appeal, therefore, cannot succeed. 4.

Did the Chambers judge err in law, or in mixed fact and law, by failing to inspect the additional emails for the purpose of deciding the validity of the claim for privilege, in accordance with Rule 5-12(4)? [ 44 ] The Medynskis’ final argument, advanced in the alternative, is that the Chambers judge erred by deciding the validity of RMPA’s claim of privilege without first inspecting the documents in issue. [ 45 ] I would also reject this argument. [ 46 ] Rule 5-12 of The Queen’s Bench Rules permits a party desiring production of documents to apply to the Court of King’s Bench for various orders where another party to the proceeding has made a claim of privilege with respect to those documents.

In addition to having the power to make various orders respecting production, a judge hearing an application under Rule 5-12 may inspect the documents in question for the purpose of deciding the validity of the claim of privilege. In that regard, the relevant portions of the Rule read as follows: 5-12(1) A party desiring production of documents may apply to the Court for an order mentioned in subrule (2) if any party: … (

c) has made a claim of privilege with respect to documents referred to in an affidavit of documents; …

(2) In the circumstances mentioned in subrule (1), the Court may make any of the following orders: (

a) an order requiring the other party to produce documents; (

b) an order for further or better production of documents; (

c) an order for inspection; (

d) an order determining whether documents with respect to which privilege is claimed are in fact privileged.

(3) In an order made pursuant to subrule (2), the Court may make an order for production or inspection of documents in any manner that the Court thinks just.

(4) If on an application pursuant to subrule (1) any privilege is claimed for any document, the Court may: (

a) inspect the document for the purpose of deciding the validity of the claim for privilege; and (

b) consider all relevant evidence that may be adduced tending to establish or destroy the claim for privilege.

[47] As is apparent from its text, Rule 5-12(4) confers upon a Chambers judge the discretion to inspect any documents over which aparty asserts a claim of privilege for the purpose of determining the validity of that claim.

While the Rule provides this discretion, it doesnot mean that a party seeking production of documents has an absolute right to demand that a judge inspect the documents in every casewhere a claim of privilege is made (Amok Ltd. v Kilborn Engineering Ltd. and Kilborn (Saskatchewan) Ltd. (1986), (SK KB), 52 Sask R 1 at para 6 (QB)). [48] Inspection of documents may be necessary to determine the validity of a claim of privilege in cases where there is a livequestion as to whether a document properly falls into the class of privilege being asserted (see, for example: Canadian Natural ResourcesLtd. v ShawCor Ltd., 2014 ABCA 289, 376 DLR (4th) 581; and Mabee v Siemens Canada Limited, 2019 SKQB 82 at para 36), butinspection will generally not be required where such a question does not arise.

The jurisprudence from this province indicates that, wherethere is nothing in the material filed with the application that provides a reason to question the privilege claimed, an order for inspectionmay not be appropriate (see, for example: Henry v Great Western Brewing Company Limited, 2006 SKQB 528 at para 26, 291 Sask R 1;HMW-Bennett & Wright Contractors Ltd. v BWV Investments Ltd. (1992), (SK KB), 99 Sask R 282 at 283–284 (QB);Vickery v Canadian Pacific Railway Company, [1921] WWR 517 (Sask KB)). [49] In a case such as this one, where the question is not whether the documents at issue fall under the umbrella of privilege butinstead is whether that privilege has been waived (either impliedly or because permitting only partial waiver would be unfair), the judge’sexercise of discretion should be guided by considerations of fairness.

To repeat the words of Dodek at §7.68, “[i]f the court has alegitimate basis to question fairness but is not clear as to the just result, it should view the disputed documents to assess whether there is aninconsistency and resulting unfairness by non-disclosure”. [50] Cutting directly to the bottom line, Rule 5-12(4) does not place an obligation on a Chambers judge to inspect documents beforedeciding on whether to uphold a claim of privilege; it confers a discretion.

That discretion comes into play where the party seekingproduction of the documents raises a legitimate basis upon which to question the fairness of permitting the party asserting privilege torefuse disclosure on that basis. [51] Although the Chambers judge did not directly address Rule 5-12(4) in the Decision, a fair reading of her reasons is that she tookthe approach she did because the Medynskis had not raised any legitimate question about whether it would be fair to permit RMPA tocontinue to assert privilege over the documents it refused to produce.

On that point I would observe, as the Chambers judge did, that thedocuments that RMPA had produced contained only factual information, which was to the Medynskis’ benefit, in that it supported acentral plank of their defence to Mr. Hawryluk’s claim against them. There is also nothing that I can see in the evidence or the pleadingsthat even hinted at a basis to conclude that partial production of the sort that RMPA had made in this case would place the Medynskis at adisadvantage or present a misleading picture.

In short, I can see no basis to conclude that the Chambers judge failed to correctly identifythe criteria that governed the exercise of her discretion, that she misapplied those criteria, or that she made a palpable and overridingfactual error. There is no basis to intervene on the strength of this ground of appeal. V. Conclusion [52] For the foregoing reasons, I would dismiss the appeal, with costs in favour of RMPA both for the appeal, and the applicationfor leave to appeal, calculated in the usual way. “Kalmakoff J.A.” Kalmakoff J.A.I concur. “Caldwell J.A.” Caldwell J.A.I concur. “Drennan J.A.” Drennan J.A.