Mar 18, 2014

Summary of Saturley v. CIBC World Markets Inc.

Saturley v. CIBC World Markets Inc., 2010 NSSC 361 (CanLII)
The plaintiff investment advisor brought this action soon after the defendant terminated his employment. His firing stemmed from the recommendations of a working group comprised of several of the defendant's senior advisors. The group was formed to address problems arising as a result of third-party errors (which the plaintiff had relied on, but which he eventually noticed and alerted them to) that led to significant client losses. The group eventually reached a large, monetary settlement with some of the clients. Others filed a class action suit. He brought this motion to compel disclosure of numerous documents (emails, recorded communications, letters, etc.) identified by the defendant as protected by solicitor-client and/or litigation privilege.Motion granted in part; most of the documents must be disclosed. After a detailed review of the law in relation to both solicitor-client and litigation privilege, the court examined each document to determine whether the criteria for either had been established. To have protection under solicitor-client privilege, the communication must: be between solicitor-client; entail the seeking/giving of legal advice; and be intended confidential. For litigation privilege to attach: litigation must have been a reasonable prospect; and the document must have been produced with litigation in mind, with the dominant purpose of receiving legal advice or aiding the litigation. One must look at the dominant purpose driving each document. Initially, the working group's dominant purpose was dealing with the client losses; later, it was dealing with whether or not to terminate the plaintiff. The substance of the document, not just its form (e.g., a heading that reads 'for counsel') matters most. The function the documents' author is performing is more important than his title. Here the company's general counsel was also the CEO. It was necessary to look at whether a particular communication was made in relation to his capacity as counsel or as senior management. A draft document can be privileged while the final report is not. This is an interlocutory matter and unnecessary findings (such as how the plaintiff's employment became a subject of controversy in the first place) should not be made.