Background
The litigation arose from the September 2020 collapse of a newly constructed agriproducts silo at Fibreco Export Inc.’s marine terminal in North Vancouver. AGT had contracted to use the silos, AG Growth International Inc. and related companies had worked on their engineering, manufacture, and construction, and Marsh Canada Limited and Thomas Liu were involved in arranging insurance. The collapse led to multiple actions, counterclaims, and third-party claims among the parties.
Fibreco and AGI reached a settlement agreement and entered into a common-interest privilege agreement while the litigation continued. AGT and Marsh later alleged that the timing and manner of disclosure of those agreements amounted to an abuse of process. After Fibreco and AGI filed affidavits addressing the circumstances surrounding the agreements, the case management judge found an implied waiver of privilege and ordered broad production of documents, including communications concerning the agreements and a June 22, 2023 meeting. Fibreco and AGI sought leave to appeal that limited appeal order and requested a stay pending appeal.
The Court’s Holding
Justice MacNaughton granted leave to appeal. Although production orders are discretionary and attract substantial deference, the proposed appeal raised a good arguable case about whether the case management judge applied the correct legal principles governing implied waiver and whether the evidence filed by Fibreco and AGI justified the scope of the waiver and production ordered.
The issues were significant both to legal practice and to the litigation because they concerned the breadth and primacy of solicitor-client privilege and the possible effect of such disclosure orders on settlements in complex litigation. An expedited appeal would not unduly hinder the proceedings because the trial was more than ten months away and other pending procedural matters could independently affect the April 2027 trial date. The Court also stayed the production order until the appeal is resolved, citing the importance of solicitor-client privilege and the need to determine the proper scope of disclosure.
Key Takeaways
- A discretionary document-production order may warrant interlocutory appellate review when it raises an arguable question about the legal test for implied waiver of solicitor-client privilege.
- The appeal will consider whether affidavits filed to answer requested adverse inferences justified the breadth of the waiver and disclosure ordered.
- The Court granted both leave to appeal and a stay of the production order; it did not decide the merits of the privilege and waiver issues.
Why It Matters
The decision permits appellate scrutiny of when a party’s voluntary evidence about settlement-related events may place privileged communications in issue. That question has practical importance for parties responding to allegations about settlement conduct without intending to expose a broader body of solicitor-client communications.
The ruling is procedural rather than a final determination: the Court held only that the proposed appeal merited review and that production should be stayed pending its resolution.