Legal Research

A Canadian Judge Did Say This

By Angela Swan

I came across this opening paragraph in a judgment of the British Columbia Court of Appeal in Kripps v. Touche Ross & Co, 1991 CanLII 2261.

On December 4, 1990 this appeal was heard by three judges of this court. Judgment was reserved. In the course of drafting reasons for judgment it was discovered that two judgments of this court relied on by the appellant had been the subject of adverse comment in the judgment of the House of Lords in Rush & Tompkins Ltd. v. Greater London Council and another, [1988] 3 All E.R. 737. It was decided the appeal should be re-argued before five judges in order that, if it thought it right to do so, the court could reverse or vary its earlier decisions.

The House of Lords in Rush & Tompkins had said this:

In Canada there are conflicting decisions. In Schetky v. Cochrane and the Union Funding Co. [1918] 1 W.W.R. 821 the Court of Appeal in British Columbia ordered oral discovery to be given to a defendant of negotiations between the plaintiff and another defendant in the action but held that on the trial there would be no higher right to use the statements or admissions than that which a party to the negotiations would have who sought to introduce them in evidence. This decision was followed in British Columbia in Derco Industries Ltd, v. A. R. Grimwood Ltd., Insurance Corporation of British Columbia and P.L.C. Construction Ltd. [1985] 2 W.W.R. 137 in which Lambert J.A. said, at p. 142;

to the extent that there is a rule that prevents the production of documents that were prepared in the course of negotiations leading to a concluded settlement, it is my opinion that the rule does not extend to the prevention of the production of those documents at the instance of a litigant who was not a party to the settlement and whose claim for production comes under the rule in the Peruvian Guano case.” (Compagnie Financière et Commerciale du Pacifique v. Peruvian Guano Co. (1882) 11 Q.B.D. 35)

Schetky v. Cochrane and the Union Funding Co. was not followed by the Court of Appeal of Ontario in I. Waxman & Sons Ltd, v. Texaco Canada Ltd., [1968] 2 O.R. 452. The Court of Appeal in a short judgment upheld a long reasoned judgment by Fraser J. who expressed the following opinion [1968] 1 D.R. 642, 656:

I am of opinion that in this jurisdiction a party to a correspondence within the ‘without prejudice’ privilege is, generally speaking, protected from being required to disclose it on discovery or at trial in proceedings by or against the third party.

Is this what a Canadian court should do? Should it do so more often and, perhaps, at the urging of a Canadian Court? The Court of Appeal did not refer to its previous judgments or to the judgment of the Ontario Court of Appeal.

Full post as published by Slaw.ca on December 02, 2009 (boomark / email).