- IV. Practice Issues
- November 22, 2017
A. Notes prepared for a witness to rely upon to refresh his/her memory prior to a Questioning may not be privileged and, if they are, relying on those notes to testify waives any privilege over the notes.
Hudye Inc v Rosowsky, 2016 ABQB 724, per Gates, J. 
I. FACTS AND ISSUES
The Applicant (Defendant/Plaintiff by Counterclaim), Rosowsky, sought an order to compel the Respondent (Plaintiff/Defendant by Counterclaim) to produce a document alleged to have been used by their Respondent, Hudye, to refresh his memory of past events in preparation for his Questioning the following day. The Applicant brought the application based on a suspicion and concern that the notes were prepared by someone other than Mr. Hudye.
The Applicant filed an affidavit swearing that on April 14, 2016, after he was questioned by the Respondent’s counsel, the Applicant observed Hudye sitting in the reception area reviewing the content of a file. The following day, Mr. Hudye was Questioned. During the Questioning the Applicant noticed that the file that Mr. Hudye was holding during Questioning was the same file he had been observed reviewing a day earlier.
The Applicant’s counsel Klym questioned Hudye about his type-written notes and the file that was in front of him. Hudye responded that he prepared the notes himself for his own use based on the documents provided to him and that all of these documents were the same as those that “everybody has”. He also stated that the documents in front of him at the Questioning were not provided to him by his lawyer. Klym asked to have the notes marked as an Exhibit and Hudye’s counsel, Stein, objected. Klym and Stein discussed off the record whether the notes and the file were producible. Hudye interjected and said that he did not once look at the notes during Questioning.
The Applicant submitted that the Respondent could have sworn an Affidavit stating that the notes are privileged, and that Mr. Hudye did not refer to the notes to refresh his memory on the day prior to his Questioning, but the Respondent failed to do so despite having several months to prepare such evidence. Therefore, the Applicant asked the Court to draw adverse inferences against the Respondent. The Applicant argued that if the notes were not privileged, they should be able to cross-examine Hudye on them because he appeared to have reviewed them the day before his questioning. Further, if the notes were privileged then this privilege was waived when Hudye used the notes to refresh his memory the day before his Questioning, relying on case law to the effect that waiver of privilege occurs when the witness refers to notes anytime “during or before” a Questioning.
The Respondent argued the notes were not producible because they were privileged. The Respondent contended that the notes were prepared through reflective discussions Mr. Hudye had with his counsel and were therefore subject to solicitor-client privilege. The Respondent also argued that the notes attracted litigation privilege because they were prepared on the basis of documents that were produced during Questioning, and that those documents were provided to Hudye by his counsel. The Respondent further contended that the mere fact that Hudye was given documents from either the Plaintiff or Defendant’s affidavits of records was sufficient for any notes made by Hudye while referencing those documents to attract litigation privilege; however no authority was provided to support this position. The Respondent advanced a narrow interpretation of case law and argued that privilege is only waived if the notes were referred to during the course of Questioning, and therefore since Mr. Hudye did not do so, he did not waive the privilege. Further, the Respondent argued that the notes were not relevant and therefore not producible. The Respondent argued that the Applicant’s affidavit contained pure speculation that the file he saw a day prior was the same file that the Respondent had at Questioning, and that the notes were part of the file.
The Court considered three issues:
1. Whether the notes attracted either solicitor-client or litigation privilege;
2. If the notes were privileged, whether privilege had been waived; and
3. If the notes are not privileged, whether the notes were producible.
II. HELD: For the Applicant, Application allowed: Respondent compelled to produce the notes was allowed with costs.
1. The Court held that the burden was on the Respondent to establish that the notes are privileged. A person claiming privilege must do more than just make a bare assertion of privilege; they must provide evidence to substantiate the claim.
2. The Court held that the test in Solosky v. The Queen,  1 SCR 821 states that solicitor-client privileges applies to:
a. communication between solicitor and client,
b. which entails the seeking or giving of legal advice, and
c. which is intended to be confidential by the parties.
Further the test must be established for each document alleged to be protected by solicitor-client privilege.
3. The Court held that test for litigation privilege is the dominant purpose test i.e. what was the dominant purpose of the document when it was created?
4. The Court held that if privilege is established, the burden is on the party seeking disclosure to establish that the privilege has been waived.
5. The Court held that if a person creates a document to refresh his/her memory at trial the document is not privileged because that person could not have an expectation that the document would be kept confidential which is a hallmark of privilege.
a. The privilege can be waived when a witness refers to notes for the purpose of giving evidence at Questioning.
b. The Court held that evidence about the degree of refreshing and when the witness refreshed his/her memory is important to consider as well in deciding whether or not there has been a waiver of privilege. The law is not clear regarding whether or not privilege is waived by a mere glance at the document but favours recognizing a waiver for reviewing documents beyond a mere glance before a Questioning.
c. The closer in time the witness refers to a document to refresh their memory, the higher their degree of reliance on that document.
6. The notes were held not to be protected by solicitor-client or litigation privilege for the following reasons:
a. The Respondent had failed to provide authorities that address the threshold issue of whether the notes are in fact privileged.
b. The notes did not attract the solicitor-client privilege as they do not meet the Solosky test. Based on Hudye’s transcript and his responses to the questions posed by Klym, the Court concluded that there was no evidence that the notes:
1. Were a communication made between Hudye and his counsel;
2. Entailed the seeking or giving of legal advice; or
3. Were intended to be confidential.
Further, the Court noted that Hudye made several inconsistent statements regarding notes being prepared at the request of his counsel and the notes reflecting the discussions he had with his counsel.
c. Based on the transcript and Hudye’s responses to the questions posed by Klym, the dominant purpose of the notes was to assist the Applicant in refreshing his memory during Questioning and therefore this was not protected by litigation privilege.
7. In the alternative, if the Court held that if notes were in fact privileged, then the privilege was waived for the following reasons:
a. Whether a witness refreshes their memory a minute before entering the room for Questioning or during the Questioning itself should not be determinative of the issue. Rather, if the witness provides evidence that is not a true recollection but rather a recollection “refreshed” through reference to a pre-prepared document, the opposing party is entitled to cross-examine the witness on that document to test the credibility and reliability of the witness’ memory. Making such a narrow distinction between refreshing one’s memory prior to an Examination and during an Examination serves no purpose towards advancing trial fairness.
b. Given the Applicant’s observations and Hudye’s own evidence, the Court concluded that Hudye relied on the notes to refresh his memory notwithstanding the fact he did not look at them during questioning.
The Court states that the Respondent could have established privilege (solicitor-client or litigation) through affidavit evidence instead of relying entirely on the content of Hudye’s Questioning transcript to support the various positions advanced on the Application. The absence of such evidence supported the Applicant’s contention that no privilege attached to the notes. In the absence of evidence to the contrary, the Applicant’s observations supported a reasonable inference. Therefore, this case highlights the practical impact of having affidavit evidence before the Court in support of a position advanced at an application hearing. It also highlights the important link between the creation of the document and the purpose it is intended to serve or the reason for the creation of the document in establishing a privilege.