Justice Macaulay dismissed an appeal brought by the defendants, Viterra, against a decision of an associate judge refusing to order that the plaintiff, Cargill, produce certain documents for inspection during discovery. The associate judge had upheld Cargill's argument that the documents were protected from disclosure because of legal professional privilege. In a sale of business context, Cargill pleaded its claim (among other things) based on misleading and deceptive conduct and breach of warranty. The question below, and on appeal, was whether Cargill had impliedly waived the privilege by pleading a case which necessarily laid open the documents to scrutiny, and had thereby acted inconsistently with the maintenance of the privilege.

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