The Defendants (Applicants) in an Action for misrepresentation and breach of contract, applied for an Order compelling the Plaintiffs (Respondents) to produce additional records and answer questions related to outstanding undertakings. The Respondents claimed privilege over the records at issue.

Before considering the specific outstanding undertakings, McCarthy J. considered whether the Court ought to review contested records over which privilege had been claimed. Justice McCarthy considered Rule 5.11, and held that, while the Court has discretion to inspect such records, this discretion ought to be exercised sparingly. It is not “common practice”, as the Applicants had suggested, for the Court to review contested records to determine whether privilege has been properly claimed. His Lordship observed that it is “preferable to assess a privilege claim on the basis of admissible affidavit evidence when available”.

Justice McCarthy considered whether the Respondents’ corporate representative’s Affidavit was admissible to support the response to the Application. The Applicants argued that the Affidavit was inadmissible on multiple grounds, including that the Respondents’ corporate representative failed to disclose the source of his information pursuant to Rule 13.18, and that the corporate representative did not have personal knowledge of the evidence contained in his Affidavit. McCarthy J. agreed with the Respondents that corporate representatives may establish personal knowledge per Rule 13.18 by familiarizing themselves with the corporate records. His Lordship noted that Rule 5.8 requires a party to identify the type of privilege asserted. Since the corporate representative had familiarized himself with the Respondents’ records, and his Affidavit asserted the type of privilege that the Respondent was relying on, Justice McCarthy held that the Affidavit was admissible evidence for the Application. The outstanding Undertaking was then reviewed and the Court made specific conclusions with respect to each based on the Respondents’ corporate representative’s Affidavit.