At Singleton Reynolds, our people are what makes us great. We come together every day with the common goal of providing exceptional legal services and ensuring we go above and beyond for each and every client.
The range of backgrounds of the partners, counsel, associates and staff of Singleton Reynolds enables us to offer a broad range of services.
Singleton Reynolds’ lawyers spend a significant amount of time researching and thinking about how industry or legislative changes could affect your business.
Singleton Urquhart Reynolds Vogel LLP is recognized as a leader in construction and infrastructure, insurance, commercial litigation, real estate and business law.
Singleton Reynolds has offices to serve you in Vancouver and Toronto.
Singleton Reynolds believes in community. Our team members are teaching at Canadian universities and abroad, lecturing the next generation of lawyers.
How was Singleton Reynolds first established? Find out more here.
Recognizing the leadership that contributes to the company successes.
Singleton Reynolds prides itself in being a leader in corporate social responsibility. We encourage diversity, charity, mentorship, civic dedication and neighbourhood support.
Singleton Reynolds strives to understand the balance between your career and your personal goals and encourages our legal and operations staff in the pursuit of their interests outside of the firm.
Our goal is to develop strong lawyers from student right through to partner. Mentoring and training start when you are a student and continue throughout your practice.
We are always on the lookout for talented professionals to contribute to our team. Singleton Reynolds offers a professional and challenging work environment, with a competitive compensation and benefits package.
The Ontario Superior Court’s decision in Ontario Securities Commission v Go-To Developments Holdings Inc et al (“Go-To Developments“) highlights the significance of a receiver’s authority during their investigative mandate. In this case, the Court considered whether a receiver had the authority to access email correspondence involving the principal of the companies under receivership, on the one hand, and other interested parties, on the other hand. The Court’s decision in Go-To Developments serves as an important reminder that solicitor-client privilege cannot be used as a shield to a receiver’s investigative duties.
In Go-To Developments, KSV Restructuring Inc. (the “Receiver“), was appointed as a receiver pursuant to an application by the Ontario Securities Commission (the “OSC“) under sections 126 and 129 of the Securities Act, R.S.O. 1990, c. S.5. This appointment gave KSV Restructuring authority over the specific real property and assets of a collection of corporations collectively identified as the Receivership Respondents, which were entities involved in real estate projects in Ontario that had raised significant funds from investors.
Oscar Furtado, the principal of the Receivership Respondents (the “Principal”), played a key role in these projects, particularly in raising capital for the Go-To Spadina Adelaide Square LP project (“Adelaide LP”). Over time, a dispute emerged that involved around 11,271 emails (the “Identified Emails”) sent or received by the Principal, some of which involved Alfredo Malanca (also known as Palmeri), who represented entities that conducted business with the Receivership Respondents.
Ultimately, Adelaide Square Developments Inc. (“ASD”) filed a claim of approximately $11.1 million against Adelaide LP and its general partner, Go-To Adelaide Spadina Inc. The Receiver disallowed the ASD Claim, leading to a dispute that impacted the distribution of funds within the broader receivership proceedings.
As would be expected, the Receivership Order granted the Receiver extensive powers over the Receivership Respondents’ assets and businesses, with no exceptions. This order also authorized the Receiver to examine individuals with knowledge of the Receivership Respondents’ affairs under oath.
To govern the handling of privileged information within the receivership proceedings, a Privilege Protocol was established. Within this context, the Principal’s legal counsel raised objections to the release of around 78,000 records, including the Identified Emails at the center of the dispute in the case.
The Receiver brought a motion to compel the Principal to release the Identified Emails to the Receiver. The Principal, being the only party opposing the Receiver’s motion, claimed solicitor-client privilege or common interest privilege in respect of the emails requested by the Receiver.
On the other hand, the Receiver stated that in fulfilling its role, it effectively stepped into the shoes of the Receivership Respondents and was entitled to access the Receivership Respondents’ emails for the purposes for which the Receiver was appointed, which included the investigation of the alleged improper dealings between the Principal and ASD.
The crux of the dispute therefore centered on whether the Principal was obligated to release the Identified Emails to the Receiver so as to facilitate the Receiver’s exercise of its powers under the Receivership Order.
As outlined below, the Court found that the Principal was obligated to release the approximately 11,271 Identified Emails to the Receiver without further delay.
In that regard, the Court recognized the Receiver’s entitlement to review the emails for the purpose of exercising its powers under the Receivership Order, noting that the Identified Emails were primarily sent and received by the Principal during his tenure at Go-To, often without any lawyers copied in the correspondence. When lawyers were involved, they represented either the Receivership Respondents or ASD. Importantly, the Principal had not retained his own personal lawyer to seek separate director and officer advice, which influenced the Court’s decision.
The Receiver argued that it stepped into the shoes of the Receivership Respondents and, in this capacity, possessed the authority to access the emails. This authority was deemed necessary for the investigation of alleged improper dealings between the Principal and ASD, aligning with the broader purpose of the Receiver’s appointment, which aimed to protect the interests of the public.
Relying on Ontario (Securities Commission) v Greymac Credit Corp, the Court confirmed that a receiver’s ability to waive privilege is derived from the powers granted to the receiver by the appointing order. This power typically exists for the purpose of obtaining information about the assets and affairs of the company from the company’s solicitor or former solicitor.
Conversely, the Principal stressed the importance of safeguarding solicitor-client privilege, emphasizing its status as a “principle of fundamental justice”, and argued that it should only be set aside under exceptional circumstances, such as a genuine risk of wrongful conviction. In other words, the Principal argued that the present case did not rise to the level of “exceptional circumstances”.
However, the Court clarified that the Receiver’s mandate was broad and encompassed all the property and businesses of the Receivership Respondents. Furthermore, with respect to the Principal’s argument as to the primacy of solicitor-client privilege, the Court confirmed that in this instance it was not being asked to pierce or set aside that privilege; rather, it was being asked to confirm that the Receiver was the party who had the authority to assert or waive that privilege.
Regarding the language of the Receivership Order itself, the Receiver’s powers were further expanded under paragraph 4(r), which authorized the Receiver to examine, under oath, any person with knowledge of the affairs of the Receivership Respondents, including former and current directors, officers, employees, or individuals registered with regulatory bodies. Additionally, paragraph 4(s) of the Receivership Order permitted the Receiver to take any steps reasonably incidental to the exercise of its powers or the fulfillment of statutory obligations. The Court also emphasized that the Receiver possessed exclusive authorization and empowerment to take actions or steps in pursuit of its mandate without interference from any other party, including the Receivership Respondents.
Ultimately, the Court concluded that the language in the Receivership Order clearly supported the Receiver’s authority to investigate the affairs of the Receivership Respondents, including by review of the Identified Emails.
Further, the Court reiterated that the primary purpose of appointing the Receiver was to safeguard the interests of investors in the Go-To projects, ensuring proper management and protection of their investments.
Lastly, the Court observed that the outcome of the adjudication of the ASD Claim had significant implications for distributions to stakeholders, given the substantial balance in Go-To Adelaide’s receivership bank account. The Court clarified that the privilege carve-out provision in the Receivership Order did not apply to protect the Identified Emails, as any privilege rights, if applicable, belonged to the Receivership Respondents and not the Principal himself.
Consequently, the Receiver was authorized to access and review the Identified Emails, such that the Principal was accordingly required to deliver them to the Receiver for that purpose.
This case serves as an important reminder of the status and the limits of solicitor-client privilege in the context of a receivership. This is particularly important for persons in the construction industry, where the current economic climate is seeing a rise in insolvencies, and it is especially relevant in cases where the receiver is appointed to protect the interests of investors (as was the case here).
As the Court’s reference to the relevant case law suggests, a Receiver generally has a wide authority to manage the affairs of the person(s) under receivership, including to waive privilege to extent that doing so is consistent with the purpose(s) for which the Receiver was appointed. The receivership order – which, as readers will appreciate, is generally in the standard form used by bankruptcy and insolvency counsel, subject to modifications in order to fit the circumstances of a given case – will almost always confirm the wide breadth of the Receiver’s authority.
Finally, it is important for parties to bear in mind that, in the context of a receivership of a corporate person or persons, employees’ communications with their employer’s counsel are the subject of solicitor-client privilege that resides with the employer – not the employee. In this case, the Court’s analysis suggests that the Principal’s position misstated this crucial point, insofar as it seemingly treated the Receivership Respondents’ counsel as the Principal’s own, personal counsel. Accordingly, parties would be well served to remember this distinction and to govern themselves accordingly.
 2023 ONSC 5921 (CanLII) [“Go-To Developments“].
 Ibid at paras 5-14.
 Ibid at para 17.
 Ibid at para 19.
 1983 CanLII 1894 (ON SC), 41 O.R. (2d) 328 (Div. Ct.).
 Go-To Developments, supra note 1, at paras 23-25.
 Ibid at paras 28-29.
 Ibid at para 30.
 Ibid at para 36.
For more information, please contact:
Or call toll-free at 1-877-682-4404
This field is required