In this class action the plaintiff claimed that the defendant bank had contravened s. 347 of the Criminal Code (charging or receiving interest at a criminal rate) by charging in excess of 60% interest on credit card cash advances.

The plaintiff brought a motion for an order requiring the defendant do conduct a more thorough search of their records, produce a further and better affidavit of documents, and a declarations that legal opinions obtained by the defendant regarding s. 347 were not subject to privilege.

The litigation plan stated that documents to be provided at this stage were those that were “relevant and necessary,” and laid out specific categories of such documents. The plaintiff took issue with the document production by the defendant in its original affidavit of documents. Specifically, the plaintiff complained that not all relevant documents had been disclosed, and that the defendant had claimed privilege over documents that it was obliged to disclose.

The plaintiff identified three categories of documents that they sought production of:

  1. communication with cardholders, including communication that explains or gives meaning to the terms of cardholder agreements;
  2. all versions of cardholder agreements, disclosure statements and other documents that communicate or impact on the terms of the agreements with cardholders and the meaning and effect of the terms relating to interest on cash advances, and;
  3. all documents relating to the defendant’s consideration of s. 347 of the Criminal Code or the charging of interest at a criminal rate.

During the course of the motion the parties agreed to expand the document search with regards to 1 and 2 (communication with cardholders and cardholder agreements). The judge found that the defendant had made significant efforts to identify and produce relevant documents, however affidavit evidence made it clear that some documents were still missing. The judge disagreed with the defendant’s claim that the request for further documents offended the principle of proportionality.

With regards to the disclosure of documents concerning legal advice on s. 347 of the Criminal Code, the judge found that sufficient clarity and particulars had been provided.

The plaintiff argued that the documents were not privileged because the communications “arose in furtherance of an anticipated unlawful or criminal purpose.” Also, the plaintiff argued that the defendant had “put its state of mind in issue through its reliance on the voluntariness defence” and had thus waived privilege.

The judge found that since such communication is prima facie privileged, the onus is on the plaintiff to prove that the defendant engaged in such communications for the purpose of committing a crime. The plaintiff had not met the burden of proof in this case. The judge also found that simply because the defendant had relied on the voluntariness defence did not mean that they were required to produce privileged documents.

Ultimately, the judge held that a further and better affidavit of documents be produced with regard to communications with cardholders, and versions of cardholder agreements. However, the request for privileged documents was dismissed.