5.11: Order for record to be produced
14.48: Stay pending appeal
14.37: Single appeal judges

Case Summary

The Defendant Applicants each applied under Rules 14.37 and 14.48 for a Stay of an Order. Pursuant to Rule 5.11, the Order required the Applicants to submit records for inspection by a Judge of the Court of Queen’s Bench. In its Decision, the Court had directed that the Judge, to whom the matter was referred, was to determine whether “an exception to solicitor-client privilege applies to the records produced for inspection”. In support of the Applications, the Applicants relied on an Affidavit confirming the retention of counsel to bring an Application for leave to appeal to the Supreme Court of Canada, and the deadline for filing materials for leave to appeal.

Counsel agreed that the matter should be resolved in accordance with the test set out in RJR Macdonald v Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311, which requires the following considerations:

…(i) whether there is a serious question to be determined in the sense of a claim that is not frivolous or vexatious; (ii) whether the applicants would suffer irreparable harm if the stay is refused; and, (iii) an assessment of the balance of convenience in the sense of which party would suffer the greater harm from the granting or refusal of a stay pending a decision on the merits…

Justice Schutz proceeded to consider each of these factors, noting that the moving party has the onus of establishing that a Stay should be granted. Given that the issues at hand involved consideration of solicitor-client privilege, which is a substantive rule, Her Ladyship maintained that there was a serious question to be considered, which may be of public and national importance. Justice Schutz then considered the second and third stages of the test together. Schutz J.A. remarked that the parties agreed that the Case Management Judge, who was “intimately familiar with all matters in issue”, would review the records and make privilege determinations, that the parties would undoubtedly have input on the safeguards to be taken for the inspection and privilege determinations, and that the Case Management Judge’s procedures would undoubtedly not “permanently interfere with the confidentiality of such communications in a way that cannot be undone”. Based on this, Her Ladyship was not persuaded that the Applicants would suffer harm or that the Appeal would be rendered nugatory if the Stay were not granted. Further, Justice Schutz held that the balance of convenience did not favour granting a Stay.

Accordingly, Schutz J.A. dismissed the Applications without prejudice to future Stay Applications, having regard to the fact that circumstances might change and that solicitor-client privilege is of a “sacrosanct nature”.

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