Nielsen v. Nielsen

Nielsen v. Nielsen

The court exercised its discretion to permit cross-use of the documents (finding either no implied undertaking applied or that leave should be granted), struck three specifically identified privileged documents and ordered their return/destruction, ordered return/destruction of other privileged and confidential documents except those shown on their face to have been sent directly to Dean or Darin, ordered return/destruction of personal employee e-mails, and refused to disqualify respondents' counsel because disqualification was not required on the facts (mitigation by counsel, delay by applicants, and prejudice to respondents).

Citation
2017 BCSC 269
Parties
Petitioner/plaintiff: Rudolf John Dean Nielsen; Petitioner/plaintiff: Darin Craig Nielsen; Respondent/individual Shareholder: Rudolf Franz Nielsen (Rudy); Respondent/corporate Defendants: Niho Group of Companies (Niho Development Group Inc., 466015 B.C. Ltd., Landcor Data Corporation, Landcor BC Data Corporation, Landcor Alberta Data Corporation, Landcor Manitoba Data Corporation, Niho Land & Cattle Company Ltd., Niho Land Ltd., Niho Land (1986) Ltd., Dedar Development Corp., Landquest Realty Corporation, Kanaka Creek Holdings Ltd., 0830561 B.C. Ltd., Harbros Developments Limited)
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
20 February 2017
Procedural Posture
Petition (oppression) and Two Actions (wrongful Dismissal and Property Claim) / Interim Application for Return/destruction of Documents, Striking Evidence and Disqualification of Counsel (pre Trial)
Outcome
Application partially granted in favour of applicants on documents and partially dismissed on disqualification and implied undertaking objections
Legal Topics
Implied Undertaking of Confidentiality, Solicitor Client Privilege, Waiver of Privilege, Disqualification of Counsel, Return and Destruction of Documents, Oppression Remedy
Source Language
English
Civil Procedure Corporate Law Evidence Law Employment Law Privilege Law Implied Undertaking of Confidentiality Solicitor Client Privilege Waiver of Privilege +3 more

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Parties

Rudolf John Dean Nielsen

Petitioner/plaintiff

Darin Craig Nielsen

Petitioner/plaintiff

Rudolf Franz Nielsen (Rudy)

Respondent/individual Shareholder

Niho Group of Companies (Niho Development Group Inc., 466015 B.C. Ltd., Landcor Data Corporation, Landcor BC Data Corporation, Landcor Alberta Data Corporation, Landcor Manitoba Data Corporation, Niho Land & Cattle Company Ltd., Niho Land Ltd., Niho Land (1986) Ltd., Dedar Development Corp., Landquest Realty Corporation, Kanaka Creek Holdings Ltd., 0830561 B.C. Ltd., Harbros Developments Limited)

Respondent/corporate Defendants

Procedural Posture

Petition (oppression) and Two Actions (wrongful Dismissal and Property Claim) / Interim Application for Return/destruction of Documents, Striking Evidence and Disqualification of Counsel (pre Trial)

Legal Issues

  1. 1 Whether an implied undertaking of confidentiality prevented use of documents across related proceedings
  2. 2 Whether specific documents are protected by solicitor-client privilege and whether privilege was waived
  3. 3 Whether respondents had lawful possession or misappropriated confidential and private corporate/employee documents

Ratio Decidendi

The court exercised its discretion to permit cross-use of the documents (finding either no implied undertaking applied or that leave should be granted), struck three specifically identified privileged documents and ordered their return/destruction, ordered return/destruction of other privileged and confidential documents except those shown on their face to have been sent directly to Dean or Darin, ordered return/destruction of personal employee e-mails, and refused to disqualify respondents' counsel because disqualification was not required on the facts (mitigation by counsel, delay by applicants, and prejudice to respondents).

Court Disposition

Application partially granted in favour of applicants on documents and partially dismissed on disqualification and implied undertaking objections

Orders

  • Implied undertaking objection dismissed
  • Three documents attached to Dean's affidavits (1998 confidential memo and related items and a February 11, 2005 Bull Housser & Tupper letter) struck and removed from the record; all paper copies returned and electronic copies deleted and any references in affidavits struck