Ontario Civil

Civil Procedure

Litigation not contemplated as dominant purpose in commissioning investigation

Motion by plaintiff for production of documents. Plaintiff contracted with defendant for various items of electrical work from 1980 to 2001 on basis of contracts that were awarded according to process set out in unilateral bidding contracts. Plaintiff claimed that from 2005 on, it was excluded from projects, except for two minor ones, in spite of having been asked to bid. Plaintiff said it was excluded corruptly and in breach of bidding contract, and that defendant agents libelled plaintiff by publishing defamatory comments to persons in industry. In examination for discovery of defendant’s representative, plaintiff asked for production of reports of investigations commissioned by defendant. Defendant refused to produce reports on basis of litigation privilege and solicitor-client privilege. Motion granted. One report was commissioned to determine merits of allegations and whether any internal action was required. It had nothing to do with litigation. Second report was result of independent investigation by external body with relevant expertise. Litigation was not contemplated as dominant purpose in commissioning investigation. Solicitor-client privilege did not apply. Retainer of investigator was not essential to existence or operation of solicitor-client relationship. Both reports were to be produced within 30 days.

Weinmann Electric Ltd. v. Niagara Falls Bridge Commission (May. 15, 2013, Ont. S.C.J., J.A. Ramsay J., File No. St Catharines 53868/12) 228 A.C.W.S. (3d) 657.

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