In this Appeal, the Court considered a Chambers Judge’s refusal to vary an earlier Order pursuant to Rule 9.13.

The underlying matter arose in the context of bankruptcy proceedings in which Milot Law Professional Corporation, as a creditor and assignee under Section 38 of the Bankruptcy and Insolvency Act, disclosed certain client records obtained during a prior solicitor-client relationship with the bankrupts, Heather and Sheldon Sittler. The Chambers Judge found that none of the disclosed information breached solicitor-client privilege, with the exception of a single email sent by Milot Law on May 13, 2016, which he determined did contain privileged legal advice.

Milot Law subsequently applied under Rule 9.13 to vary that finding and to admit new evidence, specifically an unredacted version of the email in question. The Chambers Judge declined to vary the Order or admit the unredacted version into evidence. On Appeal, the Court of Appeal found that the Chambers Judge erred in refusing to consider the new evidence under Rule 9.13. The Court held that the full context of the unredacted email string made it clear that the impugned portion did not contain legal advice and therefore was not protected by solicitor-client privilege.

In doing so, the Panel reaffirmed that Rule 9.13 permits the Court to vary an order at any time before it takes effect, particularly where the variation is necessary to correct a material factual error. In conclusion, the Appeal was dismissed, and the Cross-Appeal was allowed, eliminating the finding of a breach of privilege.