SHINWA KAIUN K.K.,
- and -
THE SHIP "QUEEN OF ALBERNI", CENTRAL
TRUST CO., BRITISH COLUMBIA FERRY
CORP., AND ALL OTHERS INTERESTED IN
THE SHIP "QUEEN OF ALBERNI",
REASONS FOR ORDER
JOHN A. HARGRAVE
At issue on this motion is access to work product contained in counsel's brief. The importance of this material is evident from the nature of the action which involves a collision between the bulk carrier Shinwa Maru and the ferry Queen of Alberni. The Shinwa Maru had earlier left berth at Robert's Bank, just north of the Tsawwassen ferry terminal, from which the Queen of Alberni had just departed. The Defendant has pleaded, upon other things, limitation of liability under the Canada Shipping Act. As this may be a classic radar assisted collision, many questions on Examination for Discovery deal with the Queen of Alberni's radar and its condition both at the time of the collision and shortly after the collision.
The Plaintiff, on the Examination for Discovery of the Defendant's witness on limitation of liability, asked the witness the date on which counsel for the Defendant had had an expert examine the radar on the Queen of Alberni. At issue is whether the Plaintiff may delve into the brief of counsel for the Defendant and if so, to what extent.
There is a certain sanctity about counsel's brief, "... which has historically been inviolate.", and for good reason: see Hodgkinson v. Simms (1989), 55 D.L.R. (4th) 577 at 581 and following (B.C.C.A.). Otherwise counsel, in preparing a case for trial, would have to keep in mind that all of his mental impressions, private memoranda, personal recollections and written statements formed and collected in the course of his legal duties might be put on display for all to see, for all to capitalize upon and perhaps result in prejudice to his client. Such a liberal approach, of allowing lawyers to look into each other's briefs, would distort, in a most unsatisfactory way, the manner in which lawyers prepare the cases of their clients.
There are some obvious limitations bordering experts and their material. Certainly the witness, by reason of Rule 458 (1)(b), need not identify the expert. Further, if a report of the Queen of Alberni's radar, has been obtained by counsel and to the extent that it is in the nature of an expert's report, disclosure is governed by Rule 482 and should be addressed under that rule and not on examination for discovery: Aerlinte Eireann Teoranta v. The Queen, unreported reasons of Mr. Justice Strayer (as he then was) of 25 July 1984 in action T-1250-80 and upheld by the Court of Appeal in A-972-84 on 26 February 1984.
The issue of access to material in counsel's brief is discussed in the current edition of Wigmore on Evidence, the seventh edition, 1961, under the heading of Attorney-Client Privilege and particularly in the context of knowledge acquired by the attorney from persons other than the client. Wigmore and his current editors write in part from an American perspective, but one well grounded in the English tradition. Wigmore makes the point that one should not confuse two principles, one relating to privilege and the other to the scope of discovery, when analyzing attorney-client privilege. On the one hand, are many documents which come into the hands of attorneys and which may or may not be covered by the doctrine of privilege. On the other hand, there are limitations on discovery and particularly a doctrine that exempts from discovery the work product of the attorney, including records of communication with third persons who are not within attorney-client privilege (see s. 2318 at page 620) and here Wigmore refers to Hickman v. Taylor (1947), 329 U.S. 495.
In Hickman the District Court had ordered counsel to turn over all of his written witnesses' statements and to state the substance of any fact he had learned orally from witnesses. In the Hickman case, pages 508 to 510, Mr. Justice Murphy of the Supreme Court of the United States clearly makes the point that solicitor/client privilege does not extend to information which a lawyer secures from a witness while acting for his client in anticipation of litigation, nor does that privilege concern the solicitor's brief, but rather the privilege is that of an exemption from the discovery process. Mr. Justice Murphy wrote of the initial application and inquiry into counsel's brief:
|"Here is simply an attempt, without purported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party's counsel in the course of his legal duties. As such, it falls outside the arena of discovery and contravenes the public policy underlying the orderly prosecution and defense of legal claims. Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney." (page 510)|
Wigmore, at s. 2320, page 628, sums this up as follows:
|"Thus, for example, two documents in the hands of an attorney may be beyond reach of the opposing party - one because it is a confidential communication to the attorney by the client or his agent, and the other because it is a communication to the attorney by a prospective third-party witness. The reason for immunity in the former instance is the present privilege; the reason in the latter is the totally unrelated rule exempting certain matters from discovery....|
|Confusion can be avoided only if the two principles are kept within their proper dimensions."|
In the English context, Wigmore comments that these two principles, privilege for confidential attorney-client communications and the exemption from discovery of certain documents and prospective witnesses' statements, have not been kept entirely separate, "And in Canada some confusion persists." (Ibid. s. 2318 at page 621).
In support of this application, counsel for the Plaintiff refers to reasons in a Competition Tribunal interlocutory proceeding, Director of Investigation and Research v. Dennis Washington, an unreported decision of Mr. Justice Rothstein in proceeding CT-96/1, 8 October 1996. There, one of the respondents had pleaded that at issue was a natural monopoly. Counsel had obtained factual material, to support that plea, from a large number of sources who were not parties. Mr. Justice Rothstein indicated that the Director of Investigation and Research was trying to obtain an understanding of the plea of natural monopoly and to obtain factual information on that issue and that:
|"As a general rule, the party examining is entitled to ask questions that are grounded in the pleadings. In doing so, the party examining is entitled to specific material, relevant facts but not economic or legal opinions.|
|"... The law is clear that factual information must be provided and is not protected by privilege even if facts were obtained through an investigation conducted by counsel."|
For this latter proposition, Mr. Justice Rothstein referred to Susan Hosiery Ltd. v. M.N.R.,  C.T.C. 353 (Ex.Ct.), to which I will turn shortly.
The Washington case does not particularly assist the Plaintiff for central was factual information, put at issue in the respondent's pleadings, which had been obtained by counsel from third party sources. All the more so given Mr. Justice Rothstein's comment as to the part in the case played by facts obtained from the third party sources and the way in which examination for discovery had progressed and that, for practical purposes, it was necessary to place greater onus on the party being examined than would normally be appropriate. The Washington case does not hand the examining party the brief of opposing counsel on a platter. The case can be limited to its particular circumstances and facts, all of which placed a greater onus on the party being examined, including particularly that the respondent had made an issue of natural monopoly, had interviewed and obtained on point information from a great number of witnesses (some of whom had contributed more than others), and although the respondent was required to provide names and addresses and indicate whether information from those sources was positive or negative it was, in the final analysis, up to counsel for the applicant to take the list of witnesses names and speak to those people in an effort to advance the applicant's case.
Returning to the Susan Hosiery case, a decision of the President of the Exchequer Court, at issue was production of a memorandum arising out of a meeting between lawyers and the appellant's accountant, together with subsequent correspondence, relating to legal advice on the business affairs of the appellant. Such documents were held to be privileged. However, in the course of his reasons, President Jackett touched on several of the basic cases dealing with solicitor/client privilege and then summarized two principles at page 359, the second of which is germane in the present instance:
|"... all papers and materials created or obtained specially for the lawyer's brief for litigation, whether existing or contemplated are privileged."|
He considered the reason for such a rule, which is worth quoting in full:
|"Turning to the 'lawyer's brief' rule, the reason for the rule is, obviously, that, under our adversary system of litigation, a lawyer's preparation of his client's case must not be inhibited by the possibility that the materials that he prepares can be taken out of his file and presented to the Court in a manner other than that contemplated when they were prepared. What would aid in determining the truth when presented in the manner contemplated by the solicitor who directed its preparation might well be used to create a distortion of the truth to the prejudice of the client when presented by someone adverse in interest who did not understand what gave rise to its preparation. If lawyers were entitled to dip into each other's briefs by means of the discovery process, the straightforward preparation of cases for trial would develop into a most unsatisfactory travesty of our present system."|
President Jackett then observed that the rules did not "...afford a privilege against the discovery of facts that are or may be relevant to the determination of the facts in issue.": rather what is privileged are the materials created for the lawyer's brief and that "The facts or documents that happen to be reflected in such communications or materials are not privileged from discovery if, otherwise, the party would be bound to give discovery of them." (page 360). President Jackett referred to Lyell v. Kennedy (No. 2) (1883), 9 App. Cas. 81 (H.L.) for an example to the effect that if an examined party learned, from a solicitor's brief, that a certain tombstone or pedigree existed at a particular place and if he or she then went to that place, looked and saw the thing itself, what was observed by the witness would not be privileged, even though the knowledge of its existence came from counsel's brief. But alternately, a discovery question as to the belief formed by reading counsel's brief is improper.
President Jackett recognized the difference between communication between lawyer and client and work product constituting a lawyer's brief for litigation, although he categorizes both as forms of privilege. However, to determine the Susan Hosiery case, he needed to rely only upon the first category, which is clearly a privileged category, in characterizing the documents as privileged on the basis of legal advice between solicitor and client. This to my mind leaves open the true nature of the immunity from production, on discovery, of a lawyer's work product, whether it is a situation of privilege, as suggested in the Susan Hosiery case, or an exception from discovery as asserted by Wigmore and as indicated by the House of Lords in Lyell v. Kennedy (supra).
In the 1992 edition of Sopinka on the Law of Evidence in Canada (Butterworth's) the editors recognize that it is a misnomer to characterize counsel's work product under the rubric of solicitor-client privilege which in fact refers to the professional relationship between two individuals. Sopinka refers to Ottawa-Carleton (Regional Municipality) v. Consumers' Gas Co. Ltd. (1991), 74 D.L.R. (4th) 742 at 748, an appeal out of Ontario, where the immunity is discussed in terms of invasion of the privacy of counsel's trial preparation, which would be counterproductive and perhaps might even tempt counsel to forego any conscientious investigation of his own case. Sopinka notes that the American doctrine of immunity for discovery is that enunciated by the Supreme Court of the United States in Hickman v. Taylor (supra) and then goes on to point out that the American protection given to a lawyer's work product arises in the context of procedural principles of discovery and not under the umbrella of attorney-client privilege and that there is no bar to lawyer's work product falling within the anticipation of litigation privilege. Yet in Lyell v. Kennedy (supra), referred to at length in the Susan Hosiery case, two of the three law Lords looked upon counsel's brief not as being shielded by privilege, but rather as material prepared by solicitor or attorney in the course of preparing the case that is protected from disclosure: see the reasons of Lord Blackburn, particularly at page 87 and Lord Watson at page 91.
In Lyell v. Kennedy Lord Blackburn pointed out that the side discovering is entitled to discover all of the knowledge and beliefs of the other side and may ask the witness what he or she personally may have seen or knows and for all of the facts and information forming such knowledge and belief derived from the agent of the witness, but that there is a further rule:
|"This further rule has been established, that the other side is not entitled, on discovery, to require the opponent to produce as a document those papers which the solicitor or attorney has prepared in the course of the case...when a solicitor, having made inquiry as to everything which is going on, and having prepared the case, has written out a brief, and sent it to his client, I think it must be considered as perfectly well settled that the other side is not entitled to say, 'Shew me that brief which you have got from your attorney.'" (page 86)|
An argument was made in Lyell v. Kennedy that examining counsel was entitled to establish whether the party being discovered had read counsel's brief and if so what was the witnesses' belief derived from reading the brief. Lord Blackburn said it was a new point, not raised before, but that it was a question which might not be asked. He acknowledged that some questions might be proper and this appears in the lengthy quotation from Lyell v. Kennedy (pages 86 and 87), which appears in the Susan Hosiery case, to the effect that if a client, on reading his attorney's brief, saw a reference to a tombstone or a pedigree in a particular place and if the client then went there and looked at it and saw the thing itself, it was no answer to say that "I know the thing you want to discover, but I first got possession of the knowledge in consequence of previous information", for that would be a proper question. But alternately, the mere opinion and belief of the party being examined, which is obtained only from material in counsel's brief, should be protected.
In Lyell v. Kennedy the witness answered the question at issue to the effect that he had no knowledge or belief other than what he had determined from reading counsel's brief. That was held to be a good and sufficient answer.
In the present instance, the question by the Plaintiff was simply as to a date contained in counsel's brief. Counsel for the Defendant declined to answer on the grounds that it constituted trying to find out what was in his brief. All of the knowledge of the witness as to the date would be from counsel's brief. As the House of Lords pointed out in Lyell v. Kennedy such would not be proper question, and the witness might refuse an answer. In the present instance the witness need not answer the question as to the date that counsel organized and expert examination of the radar aboard the Queen of Alberni.
Returning to the broader question, where does this leave us as to whether it is solicitor/client privilege or an exemption from discovery that protects counsel's brief? I do not see that either the Washington case or the Susan Hosiery case decides the point: in the former instance the case is, in my view, limited to its narrow and peculiar facts; and in the latter instance, in Susan Hosiery, protection of counsel's brief is touched upon, but it was not counsel's brief that was at issue, rather it was communication between client and legal advisor, that is the legal advice privilege. Perhaps Wigmore is still correct in his observation that in Canada a state of confusion exists. I would, however, observe that President Jackett accepted Lyell v. Kennedy as an important authority and there the majority of the Court seems to indicate protection of counsel's brief is not a matter of solicitor/client privilege, but rather that it is an area on which the other side is not entitled to discovery.
(Sgd.) "John A. Hargrave"
21 May 1997
Vancouver, British Columbia
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: SHINWA KAIUN K.K.
- and -
|THE SHIP "QUEEN OF ALBERNI", CENTRAL TRUST CO., BRITISH COLUMBIA FERRY CORP., AND ALL OTHER INTERESTED IN THE SHIP "QUEEN OF ALBERNI"|
COURT NO.: T-659-92
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: May 21st, 1997
REASONS FOR ORDER OF Mr. John A. Hargrave, Prothonotary dated
May 21, 1997
W. G. Wharton for Defendant
D. G. Morrison for Plaintiff
SOLICITORS OF RECORD:
Campney & Murphy for Defendant
Bull, Housser & Tupper for Plaintiff