SRE Successfully Defends Right to Solicitor-Client Privilege in Wrongful Birth Case

Sommers Roth and Elmaleh is currently representing the plaintiffs (a mother and her child) in a civil case seeking damages for wrongful birth. The defendants recently brought a motion seeking the production of documents that would normally be protected under the principle of solicitor-client privilege. Our lawyer, Michael Hershkop, was successful in defending our clients’ right to protect their correspondence with us, and their right to maintain solicitor-client privilege.

In the case at hand, the plaintiff mother became pregnant in 2003 and later that year delivered a child who was soon diagnosed with spina bifida. The plaintiff mother and her now-adult child began the claim against the defendants in 2016, and the defendants brought a motion for summary judgment, claiming that issue was statute-barred under the Limitations Act. The defendants claimed the plaintiffs should have discovered their claim shortly after the birth, and therefore the limitation period should have expired in 2005.

We responded, noting that the mother and her child did not become aware of their claim until discussing the matter with our firm in 2016, and then began their claim soon thereafter. The defendants then brought a motion seeking the disclosure of several documents in our files, claiming that the plaintiff mother had put her state of mind at issue and therefore waived her right to solicitor-client privilege. The defendants further claimed an affidavit our firm had filed in response to their motion made “selective disclosure of privileged information and also amounts to a waiver of privilege”. The defendants demanded disclosure and/or production of some 13 years of records, from 2003 until the Statement of Claim was issued in 2016. They relied on several cases that seemed to support a ‘general waiver’ of privilege over large swaths of the file.

The Honourable Master Muir disagreed. His Honour accepted Mr. Hershkop’s submissions that courts must approach the issue of solicitor-client privilege very carefully – the analysis must be done on a document-by-document basis, “with a scalpel and not a saw”. The scope of waiver must be closely scrutinized and zealously guarded.

Addressing our affidavit first, His Honour agreed with Mr. Hershkop that the affidavit had been submitted in direct response to the defendants’ motion and was necessary in that regard. The information regarding the timing and subject matter of our firm’s retainer in the case was essential to challenge the motion and did not result in a waiver of privilege.

With respect to the second issue, Mr. Hershkop was successful in distinguishing the case at hand from precedents put forward by the defendants. Past decisions have held that when a defendant puts their state of mind in issue and has obtained legal advice to inform that state of mind, this may in fact serve to waive solicitor-client privilege. However, in the primary decision cited by the defendants, the plaintiff had received legal advice about their right to a claim in December of 2003 yet did not commence an action until June of 2005! At the time, this type of action was governed by the Regulated Health Professions Act, which contained a limitation period of one year from the discovery of the claim. If the plaintiff in that case had discovered her right to a claim in January 2004 or later, her matter would have been governed by the Limitations Act instead and would have been permitted, so the timing was key. This is why the court ordered the production of some of the solicitor’s files.

We successfully demonstrated the fact that our client had brought her claim against the defendants well within the limitation period from the first time she consulted with us and discovered her claim. As a result, the court found that the defendants had significantly overreached with their motion and denied it, limiting them instead to questions in cross-examination as to the state of our client’s mind before she sought our advice.

If you believe your child suffered an injury at birth that is now significantly impacting them, we can help. Contact the lawyers at Sommers Roth & Elmaleh to find out what options are available for you and your family. We have represented parents, children, and their families in a number of ground-breaking medical malpractice lawsuits and have obtained significant compensation for many individuals with spina bifida. Call us at 1-416-961-1212 or contact us online for a free, no-obligation consultation.

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