Southwest Construction Management Limited v. EllisDon Corporation

Southwest Construction Management Limited v. EllisDon Corporation

The court ordered production of the Spatz binder except for two specific pages (tab1 page 6 and the final page of tab7) which were protected by solicitor-client privilege; the Allaway notes as described were not privileged and should have been disclosed; the loss of Allaway's materials in the face of the disclosure application was unacceptable and attracts cost consequences, with written submissions invited on quantum.

Citation
2018 NSSC 162
Parties
Plaintiff/defendant by Counterclaim: Southwest Construction Management Limited; Defendant/plaintiff by Counterclaim: EllisDon Corporation; Third Party: Southwest Properties Limited
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
4 July 2018
Procedural Posture
Construction Contract Dispute; Builder's Lien; Breach of Contract / Pre Trial Discovery; Motion for Production of Documents
Outcome
Production ordered with narrow privilege exceptions; EllisDon substantially successful; costs to EllisDon with quantum to be determined following written submissions.
Legal Topics
Litigation Privilege, Solicitor Client Privilege, Discovery, Production of Documents, Spoliation, Costs
Source Language
English
Construction Law Contract Law Civil Procedure Evidence Privilege Law Litigation Privilege Solicitor Client Privilege Discovery +3 more

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Parties

Southwest Construction Management Limited

Plaintiff/defendant by Counterclaim

EllisDon Corporation

Defendant/plaintiff by Counterclaim

Southwest Properties Limited

Third Party

Procedural Posture

Construction Contract Dispute; Builder's Lien; Breach of Contract / Pre Trial Discovery; Motion for Production of Documents

Legal Issues

  1. 1 Whether litigation privilege or solicitor-client privilege protects the Spatz binder and Allaway materials from production
  2. 2 What consequences flow from the loss/misplacement of Allaway’s materials in face of pending disclosure application

Ratio Decidendi

The court ordered production of the Spatz binder except for two specific pages (tab1 page 6 and the final page of tab7) which were protected by solicitor-client privilege; the Allaway notes as described were not privileged and should have been disclosed; the loss of Allaway's materials in the face of the disclosure application was unacceptable and attracts cost consequences, with written submissions invited on quantum.

Court Disposition

Production ordered with narrow privilege exceptions; EllisDon substantially successful; costs to EllisDon with quantum to be determined following written submissions.

Orders

  • Southwest to produce copies of the Spatz binder except for tab1 page 6 and the final page of tab7 which are privileged.
  • The Allaway materials, as described in affidavits, are not protected by litigation or solicitor-client privilege and should have been disclosed.