McKay v Home Depot of Canada Inc, 2022 NSSC 73.
By: Weston McArthur (Student-at-Law)
Reading Time: 4 Minutes
Sometime in 2016, the McKays (the Plaintiffs) had renovations done to their house that involved
the installation of new hardwood floors and a bathroom shower. They bought everything from
Home Depot (the Defendant), which hired a third party to handle installation.
The Plaintiffs were happy with the renovations. From February 2017 until the end of 2018, they
communicated consistently with the Defendanst about fixing the renovations. While the floors
were eventually replaced, they remained unhappy because the shower issues remained
unresolved.
In December 2018, the Plaintiffs retained legal counsel and sued the Defendant. The Plaintiffs
wanted the Defendant to give them access to various internal correspondences concerning their
case; however, the Defendant claimed litigation privilege over those materials. The materials in
question included, for example, notes that an employee of the Defendant took during the course
of a March 2018 phone call in which the Plaintiff threatened to take the matter to court if not
resolved.
A party relying on litigation privilege does not need to disclose the protected materials to the
opposing party. For litigation privilege to apply, two requirements must be met: firstly, litigation
must be existing or there must be a strong indication that it is imminent; secondly, the primary
reason for creating the document/correspondence must have been in preparation for that
litigation.
The Nova Scotia Supreme Court ruled that these notes did not meet the requirements to be
protected by litigation privilege. Firstly, the Plaintiff’s threat was not an indication that litigation
was forthcoming, but was instead within the scope of a frustrated customer lodging a complaint
to a retailer during discussion about resolving that complaint (discussion which continued for
many month before legal counsel was retained). Secondly, the notes were not created for the
purpose of preparing for litigation, but in the course of attempting to resolve the customer’s
complaints without needing to resort to litigation. As it was determined that litigation privilege
did not apply to the materials, the Defendants were required to turn them over to the Plaintiff.
Link:
ay%20v%20home%20dep&autocompletePos=3
