Canada: In What Circumstances Must Joint Defence Agreements Be Produced?

Last Updated: September 30 2019
Article by Mike Adlem

Joint Defence Agreements ("JDAs") memorialize the agreement of defendants to exchange confidential and/or privileged information without waiving privilege over that information while tolling agreements toll limitation periods and preserve the rights of defendants to claim against each other in subsequent proceedings. From time to time, plaintiffs will demand production of JDAs and tolling agreements and two B.C. cases where the court came to opposite conclusions are helpful in identifying when JDAs and tolling agreements must be produced.

Joint Defence Agreements ("JDAs") memorialize the agreement of defendants to exchange confidential and/or privileged information without waiving privilege over that information while tolling agreements toll limitation periods and preserve the rights of defendants to claim against each other in subsequent proceedings. From time to time, plaintiffs will demand production of JDAs and tolling agreements and two B.C. cases where the court came to opposite conclusions are helpful in identifying when JDAs and tolling agreements must be produced. 

In Bilfinger Berger (Canada) Inc. v. Greater Vancouver Water District 2014 BCSC 1560 ("Bilfinger") the Court concluded that the JDA was producible. More recently, however, the Court in Colburn and Watson's Metropolitan Home v. B.M.O. Financial Group 2019 BCSC 1456 ("Colburn") concluded that the defendants were not required to produce the JDA. This article will examine each of these decisions then will summarize the circumstances in which a JDA must be produced. 

In Bilfinger, the plaintiffs commenced a claim in respect of a construction contract and there were two sets of defendants. The Metro Vancouver defendants were represented by one law firm and another defendant, HMM, was represented by a different law firm. On the day of a case management hearing, the lawyer for the Metro Vancouver defendants disclosed to plaintiffs' counsel that a JDA (which included a tolling agreement) had been entered into by the Metro Vancouver defendants and HMM more than four years before.  The plaintiffs brought an application seeking judgment against all of the defendants on the basis that the JDA should have been disclosed as soon as it had been entered into and failure to disclose it amounted to an abuse of process which should be punished by the court. 

The Court stated that the existence of the JDA should have been disclosed soon after a witness for Metro Vancouver had been asked about a JDA during an examination for discovery. However, the Court concluded that the disclosure of the JDA the day of the case management hearing was sufficiently in advance of the trial date that there was no prejudice to the plaintiffs caused by late disclosure and accordingly the plaintiffs' application for judgment was dismissed. 

The Colburn case was a class action involving allegations of price-fixing pertaining to credit card fees paid by merchants. Some defendants settled and the lawsuit is proceeding against the remaining defendants. The defendants disclosed the existence of a JDA and tolling agreements and the plaintiff applied for a court order compelling production of all of the agreements. 

The Court in Colburn concluded that unlike in Bilfinger, none of the agreements had to be produced. The Court in Colburn noted that "where a joint defence agreement or tolling agreement contains a provision relating to evidentiary arrangements, or affects a change to the relationship between or among the parties to it, different than what is apparent from the pleadings such that it may affect the evidence or motivation of a witness and the weight a court might give to that evidence, the privilege associated with a joint defence agreement and/or tolling agreement should give way in order to ensure a fair trial on the merits of a case."

The Court in Colburn also noted that the Court in Bilfinger had been concerned about the following provision in the Bilfinger JDA:

"In the event a dispute between Metro Vancouver and HMM is referred to courts, 'the parties shall not be bound by the evidence given or any findings of the Court in the [Bilfinger Action] but shall be free to call such evidence and take such positions as if there had been no [Bilfinger Action].'"

The Court in Colburn stated:

"[22] In my view, Bilfinger does not stand for the broad, sweeping proposition advocated by the plaintiff.  Fundamental to the decision in Bilfiinger and the cases it followed was the overarching need to ensure that the litigation process is not affected by agreements between or among the defendants, together with the concern that the agreement in issue in Bilfiinger could have had the effect of altering the adversarial orientation of the litigation landscape. 

[23] There is no evidence before me that the Joint Defence Agreement or the Tolling Agreements can be said to have altered the litigation landscape in any way that is contrary to the pleadings. The interests of the Non-Settling Defendants are aligned on the pleadings as they are in the Joint Defence Agreement and the Tolling Agreements.

[24] I am not persuaded that, given the evidence before me, disclosure of the Joint Defence Agreement and the Tolling Agreements is required under the law as set out in Bilfinger." 

Pursuant to Bilfinger and Colburn, JDAs must be produced to plaintiffs when the following circumstances are present:

  1. When defendants who are parties to a JDA do not have a sufficient commonality of interest.
  2. When a JDA contains a provision relating to evidentiary arrangements.
  3. When a JDA affects a change to the relationship between the parties to the JDA, different than what is apparent from the pleadings such that the JDA may affect the evidence or motivation of a witness and the weight a court might give to the evidence of that witness.

Stating it differently as was done by the Court in Aviaco International Leasing Inc. v. Boeing Canada Inc. [2000] OJ No. 2420, para. 23, if a JDA is simply directed at sharing information and otherwise concentrating on the defence of a plaintiff's claim, which all defendants would plainly have an interest in achieving and which the court would expect the defendants to pursue, the common interest privilege that would apply to the JDA would survive a challenge.   

Mike Adlem is a commercial litigation and insurance lawyer in our Vancouver office. Mike along with Shayne Strukoff and others in our Vancouver office represented one of the banks in the Colburn class action. 

Read the original article on GowlingWLG.com

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.

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