Case Report – Leave to appeal granted in breach of privilege case

2 Nov

On October 25th, the Ontario Superior Court of Justice (Divisional Court) granted leave to appeal on a narrow issue in a case in which plaintiff counsel was ordered to be removed as counsel of record in two related actions after it retained a former member of the defendant hospital’s executive team as an expert witness.

Patillo J. made the impugned order in June. He held that the plaintiff had received confidential information attributable to the defendant’s solicitor-client relationship and held that the plaintiff had not rebutted the inference that the defendant would suffer prejudice as a result of the breach. In considering the six factors going to remedy first articulated by the Supreme Court of Canada in Celanese, he held that the potential effectiveness of after the fact precautionary steps was not an appropriate factor to consider because plaintiff counsel had initiated contact with the hospital’s former employee without taking any precautionary steps.

The Divisional Court granted leave to appeal on this issue, stating the question for appeal as, “Before being removed from the record, are these plaintiff’s precluded from an opportunity to propose ‘other precautionary steps,’ after the fact, having obtained privileged information from defendants by the plaintiffs’ own actions.”

Miele (Litigation Guardian of) v. Humber River Regional Hospital, 2007 CanLII 448209 (Ont. Div. Ct.).

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