National Bank Financial Ltd. v. Potter

National Bank Financial Ltd. v. Potter

The court refused to decide the 'illegal purpose' issue at the October chambers application because it is a factually complex issue that would be unfair to resolve without full pre-trial disclosure and discovery; the issue may be decided at trial or become moot if privilege is otherwise waived.

Citation
2004 NSSC 143
Parties
Plaintiff; Defendant by Counterclaim: National Bank Financial Ltd.; Defendant; Plaintiff by Counterclaim: Daniel Potter; Defendant; Plaintiff by Counterclaim: Starr’s Point Capital Incorporated; Defendant: Fiona Imrie; Defendant: Gramm & Company Incorporated; Defendant: 2532230 Nova Scotia Limited; Defendant: 3020828 Nova Scotia Limited; Defendant: Ronald Ritcher; Defendant: Kenneth MacLeod; Defendant: Futureed.com Ltd.; Defendant: Donald Snow; Defendant: Meg Research.com Limited; Defendant: 3027748 Nova Scotia Limited; Defendant: Calvin Wadden; Defendant: Raymond Courtney; Defendant: Bernard Schelew; Defendant: Blois Colpitts; Defendant: Stewart McKelvey Stirling Scales; Defendant: Bruce Clarke; Defendant: 2317540 Nova Scotia Limited; Defendant; Plaintiff by Counterclaim: Knowledge House Inc.; Defendant by Counterclaim: Real Raymond; Defendant by Counterclaim: Jean Turmel; Defendant by Counterclaim: Michael LaBonte; Defendant by Counterclaim: Lorie Harber; Defendant by Counterclaim: Guy Roby; Defendant by Counterclaim: Eric Hicks; Defendant by Counterclaim: Barry Morse; Defendant by Counterclaim: David Mack; Defendant by Counterclaim: Joel Wisenfeld; Defendant by Counterclaim: Alan V. Parish; Defendant by Counterclaim: Brian K. Awad; Defendant by Counterclaim: Donald Winchell; Intervener: Nova Scotia Barrister's Society
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
14 July 2004
Procedural Posture
Civil Commercial/multi Party Litigation / Chambers Application for Preliminary Determination of Solicitor Client Privilege and Related Motions (pre Trial)
Outcome
Request to determine whether solicitor-client communications were made in furtherance of an illegal purpose at the October chambers hearing denied.
Legal Topics
Illegal Purpose Exception to Privilege, Privilege Waiver, Disclosure and Discovery, Pre Trial Procedure, Joinder
Source Language
English
Civil Procedure Solicitor Client Privilege Evidence Commercial Law Securities Law Professional Liability Illegal Purpose Exception to Privilege Privilege Waiver +3 more

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Parties

National Bank Financial Ltd.

Plaintiff; Defendant by Counterclaim

Daniel Potter

Defendant; Plaintiff by Counterclaim

Starr’s Point Capital Incorporated

Defendant; Plaintiff by Counterclaim

Fiona Imrie

Defendant

Gramm & Company Incorporated

Defendant

2532230 Nova Scotia Limited

Defendant

3020828 Nova Scotia Limited

Defendant

Ronald Ritcher

Defendant

Kenneth MacLeod

Defendant

Futureed.com Ltd.

Defendant

Donald Snow

Defendant

Meg Research.com Limited

Defendant

3027748 Nova Scotia Limited

Defendant

Calvin Wadden

Defendant

Raymond Courtney

Defendant

Bernard Schelew

Defendant

Blois Colpitts

Defendant

Stewart McKelvey Stirling Scales

Defendant

Bruce Clarke

Defendant

2317540 Nova Scotia Limited

Defendant

Knowledge House Inc.

Defendant; Plaintiff by Counterclaim

Real Raymond

Defendant by Counterclaim

Jean Turmel

Defendant by Counterclaim

Michael LaBonte

Defendant by Counterclaim

Lorie Harber

Defendant by Counterclaim

Guy Roby

Defendant by Counterclaim

Eric Hicks

Defendant by Counterclaim

Barry Morse

Defendant by Counterclaim

David Mack

Defendant by Counterclaim

Joel Wisenfeld

Defendant by Counterclaim

Alan V. Parish

Defendant by Counterclaim

Brian K. Awad

Defendant by Counterclaim

Donald Winchell

Defendant by Counterclaim

Nova Scotia Barrister's Society

Intervener

Procedural Posture

Civil Commercial/multi Party Litigation / Chambers Application for Preliminary Determination of Solicitor Client Privilege and Related Motions (pre Trial)

Legal Issues

  1. 1 Whether solicitor-client privilege is lost where communications were in furtherance of an illegal purpose
  2. 2 Whether the issue of illegal purpose can be decided on a chambers application before full pre-trial disclosure and discovery
  3. 3 Whether it would be unfair to determine the illegal purpose issue without full pre-trial processes

Ratio Decidendi

The court refused to decide the 'illegal purpose' issue at the October chambers application because it is a factually complex issue that would be unfair to resolve without full pre-trial disclosure and discovery; the issue may be decided at trial or become moot if privilege is otherwise waived.

Court Disposition

Request to determine whether solicitor-client communications were made in furtherance of an illegal purpose at the October chambers hearing denied.

Orders

  • The issue of whether solicitor-client communications were made in furtherance of an illegal purpose will not be determined at the October chambers hearing.
  • The October chambers hearing may proceed on other preliminary matters (including waiver) but the illegal purpose issue is reserved for trial or until full pre-trial disclosure occurs.