United Furniture Warehouse LP v. 551148 B.C. Ltd. et al.

United Furniture Warehouse LP v. 551148 B.C. Ltd. et al.

The application for summary judgment under Rule 18(6) was dismissed because the legal effect of the transfer clauses and whether tort claims were assigned or barred raised issues of construction and fact requiring a trial; however counsel's affidavit constituted a waiver of privilege limited to materials reviewed by in-house counsel in forming the opinion about the six, nine and twelve month adjustment claims, and those documents must be produced.

Citation
2007 BCSC 68
Parties
Plaintiff/respondent: United Furniture Warehouse LP; Defendant/applicant: 551148 B.C. Ltd.; Defendant/applicant: 462307 B.C. Ltd.; Defendant/applicant: U.B.S. Realty Ltd.; Defendant/applicant: John Volken
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
16 January 2007
Procedural Posture
Civil (contract and Tort) / Interlocutory Applications: Rule 18(6) Summary Judgment Application and Application for Production of Documents (waiver of Privilege)
Outcome
Defendants' Rule 18(6) application for summary judgment dismissed; defendants' application for production of in-house counsel documents granted in part.
Legal Topics
Assignment of Tort Claims, Champerty, Summary Judgment Under Rule 18(6), Waiver of Solicitor Client Privilege, In House Counsel Privilege, Production of Documents, Construction of Purchase and Sale Agreement, Assumption of Liabilities, Adjustment Holdback/escrow
Source Language
English
Contract Tort Civil Procedure Evidence Legal Professional Privilege Assignment of Tort Claims Champerty Summary Judgment Under Rule 18(6) +6 more

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Parties

United Furniture Warehouse LP

Plaintiff/respondent

551148 B.C. Ltd.

Defendant/applicant

462307 B.C. Ltd.

Defendant/applicant

U.B.S. Realty Ltd.

Defendant/applicant

John Volken

Defendant/applicant

Procedural Posture

Civil (contract and Tort) / Interlocutory Applications: Rule 18(6) Summary Judgment Application and Application for Production of Documents (waiver of Privilege)

Legal Issues

  1. 1 Whether the assignee (plaintiff) has standing to pursue tort claims alleged to arise out of the Purchase Agreement following assignment
  2. 2 Whether clauses in the master transfer agreement operate to assign non-personal tort causes of action to the plaintiff
  3. 3 Whether any purported assignment of non-personal tort claims would be champertous and thus unenforceable

Ratio Decidendi

The application for summary judgment under Rule 18(6) was dismissed because the legal effect of the transfer clauses and whether tort claims were assigned or barred raised issues of construction and fact requiring a trial; however counsel's affidavit constituted a waiver of privilege limited to materials reviewed by in-house counsel in forming the opinion about the six, nine and twelve month adjustment claims, and those documents must be produced.

Court Disposition

Defendants' Rule 18(6) application for summary judgment dismissed; defendants' application for production of in-house counsel documents granted in part.

Orders

  • Rule 18(6) summary judgment application dismissed
  • Plaintiff to produce all documents in in-house counsel's possession or control that were reviewed in formulating the opinion that the six month, nine month and twelve month claims were valid, including accounting records, agreements, correspondence and memoranda