National Bank Financial Ltd. v. Potter; Barthe v. National Bank Financial Ltd.; 1384156 Ontario Ltd. v. National Bank Financial Ltd.

National Bank Financial Ltd. v. Potter; Barthe v. National Bank Financial Ltd.; 1384156 Ontario Ltd. v. National Bank Financial Ltd.

NBFL improperly adopted a process that led to access and review of solicitor-client privileged materials on KHI servers; the circumstances were rare and exceptional and caused wasted expense and risk to proper administration of justice, therefore the court exercised its discretion under the Civil Procedure Rules to...

Source-derived case information.

Citation
2005 NSSC 264
Parties
Plaintiff and Defendant by Counterclaim: National Bank Financial Ltd.; Applicant; Defendant and Plaintiff by Counterclaim: Daniel Potter; Defendant; Plaintiff by Counterclaim: Raymond Courtney; Defendant and Defendant by Counterclaim: Blois Colpitts; Defendant and Defendant by Counterclaim: Stewart McKelvey Stirling Scales; Plaintiff and Defendant by Counterclaim: Michael Barthe; Plaintiff and Defendant by Counterclaim: Lutz Ristow; Plaintiff (keating Company): 1384156 Ontario Inc.
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
23 September 2005
Procedural Posture
Civil Litigation Interlocutory Applications Regarding Solicitor Client Privilege and Costs / Post Hearing Costs Application Following Interlocutory Privilege Hearings
Outcome
Costs awarded to multiple applicants against National Bank Financial Ltd.; awards made as lump sums payable forthwith and not in the cause; no costs awarded against Raymond Courtney or his counsel; costs between Potter and Courtney remain in the cause.
Legal Topics
Solicitor Client Privilege, Costs Awards, Electronic Disclosure, Counsel Disqualification
Source Language
english
Civil Procedure Evidence Professional Negligence Technology and E Discovery Solicitor Client Privilege Costs Awards Electronic Disclosure Counsel Disqualification

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Parties

National Bank Financial Ltd.

Plaintiff and Defendant by Counterclaim

Daniel Potter

Applicant; Defendant and Plaintiff by Counterclaim

Raymond Courtney

Defendant; Plaintiff by Counterclaim

Blois Colpitts

Defendant and Defendant by Counterclaim

Stewart McKelvey Stirling Scales

Defendant and Defendant by Counterclaim

Michael Barthe

Plaintiff and Defendant by Counterclaim

Lutz Ristow

Plaintiff and Defendant by Counterclaim

1384156 Ontario Inc.

Plaintiff (keating Company)

Procedural Posture

Civil Litigation Interlocutory Applications Regarding Solicitor Client Privilege and Costs / Post Hearing Costs Application Following Interlocutory Privilege Hearings

Legal Issues

  1. 1 Whether NBFL improperly accessed and used solicitor-client privileged documents
  2. 2 Whether and to whom costs should be awarded for the privilege litigation
  3. 3 Appropriate form and quantum of costs (tariff, lump sum, solicitor-and-client)

Ratio Decidendi

NBFL improperly adopted a process that led to access and review of solicitor-client privileged materials on KHI servers; the circumstances were rare and exceptional and caused wasted expense and risk to proper administration of justice, therefore the court exercised its discretion under the Civil Procedure Rules to award substantial lump-sum costs (above tariff) to the Potter group and other affected parties as compensation and deterrence, payable forthwith and not in the cause, with differing quantum reflecting degree of involvement and success.

Court Disposition

Costs awarded to multiple applicants against National Bank Financial Ltd.; awards made as lump sums payable forthwith and not in the cause; no costs awarded against Raymond Courtney or his counsel; costs between Potter and Courtney remain in the cause.

Orders

  • Awarded to the Potter group (Daniel Potter, Knowledge House Inc., Starr's Point Capital Inc.): $70,000 inclusive of disbursements, payable forthwith and not in the cause
  • Awarded to Blois Colpitts: $125,000 inclusive of disbursements, payable forthwith and not in the cause