Khullar J

6.8: Questioning witness before hearing

Case Summary

The Defendant applied pursuant to Rule 6.8 to compel the Plaintiff, Ms. Plamondon’s former legal counsel to answer written questions. Ms. Plamondon objected to the Application on the basis of solicitor and client privilege. The Defendant argued that Ms. Plamondon had waived privilege by deposing to her conversations with her former counsel in an Affidavit which was filed in response to the Defendant’s Application to declare the Plaintiff in contempt.

Justice Khullar noted that the Application pursuant to Rule 6.8:

…is similar to a subpoena duces tecum and that a party wishing to examine a witness must establish that the evidence from the witness may be relevant and material in order to compel the witness to attend. The onus is then on the witness to object as to why he or she does not have to attend.

The Court reviewed the Affidavit in issue and found that it contained four paragraphs related to the Plaintiff’s knowledge of events relevant to the Defendant’s contempt Application, and those four paragraphs contained information about the Plaintiff’s conversations with her counsel. On that basis Khullar J. concluded that the Plaintiff had waived privilege with respect to the communications with her former counsel, but the waiver extended only to the particular topics of conversation set out in the Affidavit. Justice Khullar noted that the Defendant’s questions were “broad and inappropriate”. As such Her Ladyship allowed the Application and permitted only a narrow line of questions for the Plaintiff’s former counsel.

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