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Evidence - Privilege - Solicitor-Client (6). De Longte v. De Longte
In De Longte v. De Longte (Ont CA, 2025) the Ontario Court of Appeal allowed an intervention (as an 'added party') in a family law appeal, here by the appellant's former counsel where the appellant raised 'ineffective assistance of counsel' grounds.
The court also allowed the intervenor to augment the record (which is rare for intervenors), here by a sealed affidavit - and issued a declaration that solicitor-client privilege had been waived:[1] The proposed intervener seeks to be added as a party to this appeal. Other than filing an affidavit in response to Mr. De Longte’s allegations of ineffective assistance of counsel and a 15-page factum, he does not seek to augment the record on the appeal. He asks to be able to seek costs and shall be liable for costs. Ms. De Longte consents to the motion. Mr. De Longte opposes it.
[2] The proposed intervener is the former trial lawyer for Mr. De Longte in this family law dispute (“the solicitor”). The trial judge granted his removal as counsel of record prior to the end of the trial because of a breakdown in his relationship with Mr. De Longte.
[3] In his submissions respecting the trial costs and as grounds for his appeal of the trial judgment, Mr. De Longte alleges that he received ineffective assistance from the solicitor during his trial. These allegations include that the solicitor was ineffective in his examination and cross-examination of witnesses, failed to proffer relevant exhibits and did not object to all of the respondent’s tendered exhibits.
[4] On September 17, 2024, Mr. De Longte commenced an action against the solicitor and his firm for professional negligence based on essentially the same allegations of ineffective assistance as he relied on during his trial costs submissions and as he puts forward on his appeal.
[5] Mr. De Longte will seek to file fresh evidence on the appeal in relation to the ineffective assistance of counsel ground. He has asserted other grounds of appeal that are intertwined with the ineffective assistance of counsel allegations.
[6] Rule 13.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, prescribes the criteria for intervention as an added party:13.01(1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the proceedings; or
(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.
(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just. [7] As interpreted by this court, the nature of the dispute between the parties on appeal is crucial to the determination of whether the intervention should be permitted. Where the intervention is sought in a private dispute, “the standard to be met by the proposed intervener is more onerous or more stringently applied”: Jones v. Tsige (2011), 2011 CanLII 99894 (ON CA), 106 O.R. (3d) 721 (C.A.), at para. 23.
[8] Further, the nature of the contribution to be made by the proposed intervener is another important consideration. The proposed intervener’s contribution to the litigation must be useful and more than “mere repetition of the position advanced by a party”: Jones, at para. 29.
[9] Applying these principles to the present case, I am satisfied that the solicitor should be added as a party to the appeal. He does not seek to intervene in the matrimonial issues in dispute between the parties. Rather, he wishes to intervene in the issue of ineffective assistance of counsel that Mr. De Longte pursues on appeal. The trial judge declined to determine this issue, leaving it to be adjudicated on appeal.
[10] The proposed intervention is not novel and has been permitted on appeals in the context of ineffective assistance of counsel allegations. The solicitor has a recognized interest in the subject matter of the ineffective assistance of counsel allegations and is the only party who is in a position to respond to them. As such, the solicitor will be able to complete the record before the appeal panel which will assist in the proper adjudication of this issue. See: Butty v. Butty (2009) 96 O.R. (3d) 713 (C.A.); SMTCL Canada Inc. v. Master Tech Inc., 2017 ONCA 291.
[11] Amicus queried the necessity of the intervention. First, the solicitor can provide a full response to Mr. De Longte’s allegations in the existing solicitor’s negligence action. Second, as the claim of ineffective assistance of counsel in a civil context is rarely available, the appeal on that ground may be dismissed as frivolous: W.(D.) v. White (2004), 2004 CanLII 22543 (ON CA), 189 O.A.C. 256 (C.A.), leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 486; 8150184 Canada Corp. v. Rotisseries Mom’s Express Ltd., 2016 ONCA 115.
[12] Strathy C.J.O. addressed the same concerns about necessity in SMTCL Canada Inc. and concluded at para. 10 of his reasons that intervention was warranted in order to have a full record because “the search for the truth should be an over-arching concern” and “the interests of justice favour a complete evidentiary record.” I would apply the same reasoning to this case.
[13] Moreover, this court’s determination of the issue of ineffective assistance of counsel may resolve all or at least part of Mr. De Longte’s claim against the solicitor, one way or the other. If so, this will benefit the administration of justice and the parties to avoid a multiplicity of proceedings and be in keeping with “the just, most expeditious and least expensive determination of every civil proceeding on its merits” in accordance with the general principles enshrined in r. 1.04 of the Rules.
[14] As for prejudice, there is none. As earlier noted, Ms. De Longte has consented to the intervention. Mr. De Longte was not able to raise any possibility of prejudice. The appeal has not yet been scheduled for hearing and will not be scheduled for some time until Mr. De Longte’s pending motion in the Superior Court to set aside the trial judgement under r. 25(19) of the Family Law Rules, O. Reg. 114/99, has been scheduled and disposed of.
[15] The proposed intervener also requests a declaration that Mr. De Longte has waived solicitor and client privilege with respect to the content of the solicitor’s file and solicitor and client communications pertaining to the matters in dispute. I make that declaration. By his trial costs submissions and grounds of appeal, he has clearly waived that privilege.
[16] While I do not agree with Mr. De Longte’s suggestion that the materials submitted by the solicitor go beyond what was necessary to respond to the allegations of ineffective assistance of counsel, I do agree that, as proposed fresh evidence, they should be filed in a sealed envelope and not form part of the record until the appeal panel accepts the fresh evidence.
[17] Accordingly, order to go as follows:1. The solicitor is granted leave to intervene in Mr. De Longte’s fresh evidence motion and the appeal;
2. I declare that Mr. De Longte has waived solicitor and client privilege with respect to the content of the solicitor’s file and solicitor and client communications pertaining to the matters in dispute;
3. Mr. De Longte shall serve and file his fresh evidence motion in relation to the allegations of ineffective assistance of counsel within 30 days of the release of these reasons;
4. The solicitor may serve and file a responding affidavit in response to the fresh evidence motion and appeal within 30 days of delivery of Mr. De Longte’s fresh evidence motion;
5. The solicitor may cross-examine Mr. De Longte on his affidavit respecting the allegations of ineffective assistance of counsel;
6. Mr. De Longte may cross-examine the solicitor on his responding affidavit;
7. The parties shall agree on the order and schedule for cross-examinations to be completed within 30 days of the delivery of the solicitor’s responding affidavit;
8. The solicitor shall be entitled to deliver a factum not to exceed 15 pages in length;
9. The solicitor shall be entitled to seek costs and shall be liable for costs, in the discretion of the panel hearing the appeal; and
10. If any adjustments need to be made to this schedule, the parties may seek a case conference before Lauwers J.A. [18] The parties shall file any materials related to the fresh evidence motion in a sealed envelope or as directed otherwise by Lauwers J.A. . 1307839 Ontario Limited et. al. v. Klotz Associates et. al.
In 1307839 Ontario Limited et. al. v. Klotz Associates et. al. (Div Court, 2024) the Divisional Court considered solicitor-client privilege:Law regarding privilege
Solicitor-client privilege
[20] Solicitor-client privilege is fundamental to the Canadian legal system and has evolved over the years from a rule of evidence to a rule of substantive law: R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at para. 17; Descôteaux c. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, [1982] S.C.J. No. 43, at paras. 26-27.
[21] While solicitor-client privilege is not absolute, the Supreme Court of Canada has repeatedly held that it “must be as close to absolute as possible to ensure public confidence and retain relevance”: McClure, at para. 35; Goodman Estate v. Geffen, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53; Smith v. Jones, 1999 CanLII 674 (SCC), [1999] 1 S.C.R. 455, [1999] S.C.J. No. 15; R. v. Lavallee, Rackel & Heintz, 2002 SCC 61, [2002] 3 S.C.R. 209; Ontario (Ministry of Correctional Services) v. Goodis, 2006 SCC 31, [2006] 2 S.C.R. 32.
[22] In determining whether a document for which privilege is claimed should be ordered disclosed, the appropriate test to be applied is “absolute necessity”: Goodis, at para. 24.
[23] Privilege may be waived expressly or impliedly. Implied waiver typically happens either by way of disclosure or reliance. Once a privileged document or legal advice has been disclosed, the privilege attaching to it is considered to be lost. If a party claiming privilege pleads or otherwise relies upon a privileged document or legal advice for the purpose of pursuing their position in a legal proceeding, then the privilege is considered lost. Waiver of privilege attaching to a solicitor-client communication will be implied where the communication is “legitimately brought into issue in an action”. Waiver of privilege attaching to legal advice will be implied where a party has put in issue its state of mind and that state of mind has been informed by legal advice received. In determining whether there has been an implied waiver of privilege, the court must balance the principles of fairness and consistency against the importance of solicitor-client privilege: Bank Leu AG v. Gaming Lottery Corp., 43 C.P.C. (4th) 73, at para. 5; McQueen et al. v. Mitchell et al., 2022 ONSC 649, at paras. 59-60; Laliberté, at para. 22.
[24] Once it has been established that a communication is subject to solicitor-client privilege, the party seeking to overcome the privilege bears the onus of establishing that the communication ought to be compelled from the party asserting the privilege: Guelph (City) v. Super Blue Box Recycling Corp., 2004 CanLII 34954 (ON SC), 2 C.P.C. (6th) 276, at para. 76.
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