The Plaintiff applied to compel production of records from the Defendant lawyer that would otherwise have been privileged or confidential. Records held by the Defendant were privileged documents relating to his former client from a separate lawsuit.

Master Schlosser noted that Rule 5.8 is essentially a codification of the law in Dorchak v Krupka (1997), 196 AR 81 (CA), which requires: (1) categorization, so that the type of objection can be identified, and (2) numbering, so that it is possible to say categorically whether a given record is disclosed. The Court required the Defendant to prepare a further and better Affidavit of Records that complied with Rule 5.8.

Because the Plaintiff sought records from a separate Action, the Master indicated that the threshold for disclosure of information subject to the Implied Undertaking Rule (codified as Rule 5.33) is quite high, since the interest in disclosure must outweigh the relevant privacy value sought to be protected by the Implied Undertaking.

Master Schlosser pointed out that, although records on a lawyer’s file are physically tied to the lawyer’s possession, they are not, arguably, within his “control” for the purposes of Rule 5.6(2). In the context of this Application, “control” depended on privilege and belonged to the Defendant’s former client. The Court concluded that if the Plaintiff wished production of these records, it should apply pursuant to Rule 5.13 to have the client, who was the “source of the confidentiality and privilege”, release control of the documents directly.