Date: 19981002
Docket: T-992-92
BETWEEN:
ALMECON INDUSTRIES LIMITED
Plaintiff
- and -
ANCHORTEK LTD., EXPLOSIVES LIMITED,
ACE EXPLOSIVES ETI LTD. and
WESTERN EXPLOSIVES LTD.
Defendants
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario
on Friday, October 2, 1998 as edited)
GILES, A.S.P.
[1] In an interlocutory proceeding in this action I recently held that certain questions did not have to be answered because the documents to which they related were privileged. The following are my reasons for doing so.
[2] The motion before me involved a claim for privilege in legal opinions given to Anchortek with respect to an alleged patent infringement by a device made by the defendant Anchortek. Anchortek in turn gave copies of those opinions to Western, a retailer of such devices who purchased them for resale from Anchortek. Both are now defendants in this action. The opinions were delivered with a covering note which indicated they were delivered to Western because of threatened litigation and because Western was going to help Anchortek in the anticipated law suit. The covering note incorporated by reference a lawyer's letter which indicated the solicitor/client privilege attaching to the opinion and the necessity of keeping the opinion confidential. I held that in accepting the documents covered by the note Western became obliged to maintain confidentiality of the allegedly privileged documents and the information in them.
[3] I held also that privilege was not waived by supplying the documents because Western and Anchortek had a common interest and release by one party with a common interest to the other party did not of itself waive privilege in the documents. In so doing I relied on the reasoning in the English Court of Appeal in Buttes Gas and Oil Co. v. Hammer and Others (No 3) [1980] 3 All ER 475.
[4] In another action now consolidated with this action Western produced the privileged documents on discovery and answered questions about them. It was alleged before me that by so doing Western had waived the privilege.
[5] The interests of Western and Anchortek are either joint or common. It has been held that where parties have a joint interest one cannot claim privilege as against the other, but where their interest in the matter is common, one can claim privilege against the other. In the Thirteenth Edition of Phipson on Evidence at page 300 et seq it is indicated that as against third parties whether the interest is joint or common, one party can claim privilege but all must waive it.
[6] The fact here is that the documents for which privilege is claimed are in the hands of the opposing party, having been placed there by Western. Whether or not the implied undertaking would apply to them was not raised possibly because the actions are now consolidated. The question arises whether because one of the persons privy to the information has in fact provided it is the plaintiff entitled to make use of it against Anchortek. In finding that he was not so entitled I relied on the reasoning of Muldoon, J. in Double-E Inc. v. Positive Action Tool Western Ltd. 21 CPR (3d) 195 and particularly at pages 200 et seq.
[7] I note also that the privilege originally arose when the information was in the hands of Anchortek only and that it was Anchortek's privilege. While Western could have, and possibly was obliged to claim privilege, Western could not on its own waive that privilege it being the privilege, primarily, of Anchortek. Phrased differently, a party having a privileged document who shares that document with a second party having a joint or common interest in litigation does not authorize that second party to waive privilege. Privilege here therefore continues to exist in the subject documents and Anchortek does not have to answer questions with respect to them.
"Peter A.K. Giles"
A.S.P.
TORONTO, ONTARIO
October 2, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-992-92
| STYLE OF CAUSE: ALMECON INDUSTRIES LIMITED |
- and -
| ANCHORTEK LTD., EXPLOSIVES LIMITED, |
ACE EXPLOSIVES ETI LTD. and
WESTERN EXPLOSIVES LTD.
DATE OF HEARING: FRIDAY, OCTOBER 2, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GILES, A.S.P.
DATED: FRIDAY, OCTOBER 2, 1998
APPEARANCES: Mr. Henry Lue
For the Plaintiff
Ms. Shonagh McVeian
For the Defendant
Anchortek
SOLICITORS OF RECORD: Dimock Stratton Clarizio
Barristers & Solicitors
Suite 3202, Box 102
20 Queen Street West
Toronto, Ontario
M5H 3R3
For the Plaintiff
Smart & Biggar
Barristers & Solicitors
55 Metcalfe Street, Suite 900
P.O. Box 2999, Station "D"
Ottawa, Ontario
K1P 5Y6
For the Defendant
Anchortek
Burnet Duckworth & Palmer
Barristers & Solicitors
1400, 350 - 7th Ave. S-W
Calgary, Alberta
T2P 3N9
For the Defendants
Explosives Ltd.
Ace Explosives ETI Ltd. and
Western Explosives Ltd.
FEDERAL COURT OF CANADA
Date: 19981002
Docket: T-992-92
Between:
ALMECON INDUSTRIES LIMITED
Plaintiff
- and -
| ANCHORTEK LTD., EXPLOSIVES LIMITED, ACE EXPLOSIVES ETI LTD. and |
WESTERN EXPLOSIVES LTD.
Defendants
REASONS FOR ORDER