Canada: Hudye Inc v Rosowsky

Last Updated: November 7 2017
Article by Field LLP


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. [4244]


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, [1980] 1 SCR 821 states that solicitor-client privileges applies to:

    1. communication between solicitor and client,
    2. which entails the seeking or giving of legal advice, and
    3. 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.

    1. The privilege can be waived when a witness refers to notes for the purpose of giving evidence at Questioning.
    2. 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.
    3. 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:

    1. The Respondent had failed to provide authorities that address the threshold issue of whether the notes are in fact privileged.
    2. 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.
    3. 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:

    1. 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.
    2. 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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
22 Jan 2019, Webinar, Calgary, Canada

Learn about the most important professional regulatory Court cases of the past year. What are the key legal trends?

23 Jan 2019, Seminar, Calgary, Canada

Field Law and IISA are excited to present an in-depth workshop on how the legalization of recreational cannabis is impacting and will impact the insurance industry.

6 Feb 2019, Other, Calgary, Canada

Join Field Law for a review of the most important legal cases from 2018.

Similar Articles
Relevancy Powered by MondaqAI
Osler, Hoskin & Harcourt LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Osler, Hoskin & Harcourt LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions