N.G. v. Upper Canada College [Indexed as: G. (N.) v. Upper Canada College]
70 O.R. (3d) 312
[2004] O.J. No. 1202
Docket Nos. M31085 and M31088
Court of Appeal for Ontario
Sharpe J.A. (in Chambers)
March 22, 2004
Appeal -- Stay pending appeal -- Plaintiff bringing action against school arising out of alleged sexual assault by teacher -- Videotaped statement by plaintiff to police having been produced to accused as part of Crown disclosure in ongoing criminal proceedings -- Master making [page313] order for production of videotape to defendant in civil action -- Divisional Court affirming order and augmenting confidentiality safeguards attached to order -- Attorney General applying for leave to appeal and moving for stay of order pending appeal -- Motion dismissed -- Leave to appeal would almost certainly not be granted -- Crown would not suffer irreparable harm if stay not granted -- Balance of convenience strongly favouring denying stay.
Civil procedure -- Discovery -- Documents -- Master having jurisdiction under rule 30.10 to order production of document from Crown brief in ongoing criminal proceeding -- Litigation privilege not attaching to videotape which had been produced to accused as part of Crown disclosure in criminal proceedings -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 30.10.
The plaintiff made allegations of sexual assault against B, a teacher formerly employed by the defendant school. Criminal charges were laid against B, and the plaintiff gave the police a videotaped statement shortly after B's arrest. The videotape was produced to B in the criminal proceedings as part of the Crown disclosure. In the plaintiff's civil action, the Crown initially agreed to produce the videotape but then changed its position. The plaintiff consented to the production of the videotape. The defendant moved for production of the videotape as a document in the possession of a non-party pursuant to rule 30.10 of the Rules of Civil Procedure. The Master found that it would be unfair to require the defendant to proceed to trial without the videotape and that the public interest in preserving the integrity of the criminal proceedings could be met by imposing confidentiality safeguards as conditions of the production order. That decision was affirmed by the Divisional Court, but the confidentiality safeguards were augmented. The Attorney General applied for leave to appeal, arguing that the Master had no jurisdiction to order production of documents generated in criminal proceedings for use in collateral civil proceedings as such jurisdiction is reserved exclusively to Superior Court judges; that production of documents generated in criminal proceedings for use in civil proceedings may only be ordered pursuant to the screening mechanism established in P. (D.) v. Wagg and the Divisional Court erred in holding that the Master was entitled to order production pursuant to rule 30.10; and that the videotape was subject to litigation privilege. The Attorney General brought a motion for a stay of the production order.
Held, the motion should be dismissed.
The Master has jurisdiction to make an order under rule 30.10 for production from a Crown brief in an ongoing criminal proceeding. Even if the Master did not have jurisdiction, the matter had now been carefully reviewed by a Superior Court judge who modified the confidentiality conditions on the production order. It was highly unlikely that leave to appeal would be granted. There is nothing in rule 30.10 that is inconsistent or incompatible with the screening mechanism contemplated by Wagg. The Divisional Court correctly concluded that litigation privilege did not apply in the circumstances of this case. Litigation privilege might attach to some materials prepared by the police for the purpose of a criminal trial, but there was no basis for its application in the circumstances of this case. The purpose of litigation privilege is to protect work product in the adversarial litigation process. Production to the opposite party in litigation effectively ends the privilege. The videotape had already been produced to D in the criminal proceedings, so privilege no longer attached to it. The leave to appeal application was doomed to almost certain failure. The Attorney General's submission that it would suffer irreparable harm if the videotape were produced in the civil proceedings as [page314] there was a risk that witnesses in the criminal proceedings could become "tainted" was without merit. The risk of "tainting" was met by the strict confidentiality conditions imposed by the Master and the Divisional Court. Moreover, this motion dealt only with production of the videotape, not its use at trial. Even if the focus were the use of the videotape at trial, any risk of tainting was remote, if non-existent. The balance of convenience strongly favoured denying the stay. There were concurrent findings by the Master and the Divisional Court that it would be unfair to require the defendant to proceed to trial without production of the videotape. The harm that would be suffered by the parties in the civil action clearly outweighed any harm that might be suffered by the Attorney General and its interest in a fair criminal trial by reason of the production of the videotape. The possibility that denial of the stay might render the Attorney General's appeal moot did not have any weight in the balance of convenience. Moreover, the Court of Appeal had the discretion to grant leave to appeal even where the appeal was moot.
MOTION for a stay of a production order pending the hearing of an application for leave to appeal.
Cases referred to
Ontario (Attorney General) v. Ontario (Information and Privacy Commission, Inquiry Officer) (2002), 2002 18055 (ON CA), 62 O.R. (3d) 167, 220 D.L.R. (4th) 467, 22 C.P.R. (4th) 169 (C.A.), affg (2001), 2001 40268 (ON SCDC), 16 C.P.R. (4th) 1 (Ont. Div. Ct.); P. (D.) v. Wagg (2004), 2004 39048 (ON CA), 184 C.C.C. (3d) 321, 46 C.P.C. (5th) 13, [2004] O.J. No. 2053 (QL) (C.A.), supp. reasons (2004), 239 D.L.R. (4th) 501 (Ont. C.A.), revg (2002), 2002 23611 (ON SCDC), 61 O.R. (3d) 746, 222 D.L.R. (4th) 97, 97 C.R.R. (2d) 324, 26 C.P.C. (5th) 377, [2002] O.J. No. 3808 (QL) (Div. Ct.), revg in part (2001), 2001 28033 (ON SC), 52 O.R. (3d) 624, 81 C.R.R. (2d) 182, 8 C.P.C. (5th) 252 (S.C.J.); R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 206 D.L.R. (4th) 444, 279 N.R. 345, 88 C.R.R. (2d) 189, 159 C.C.C. (3d) 321, 47 C.R. (5th) 316, 2001 SCC 81 (sub nom. Ontario v. 974649 Ontario Inc.); R. v. Felderhof (2003), 2003 37346 (ON CA), 68 O.R. (3d) 481, 235 D.L.R. (4th) 131, 180 C.C.C. (3d) 498, 17 C.R. (6th) 20, [2003] O.J. No. 4819 (QL) (C.A.)
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 30.10
Luba Kowal and Crystal O'Donnell, for appellant (non-party), the Attorney General for Ontario. David Outerbridge, for respondent Upper Canada College. Elizabeth Grace, for respondent N.G.
[1] SHARPE J.A. (in chambers): -- The Attorney General for Ontario moves for a stay of an order requiring the production in a civil action of a videotape statement given by the plaintiff to the police for use in criminal proceedings.
[2] The stay motion arises in the following context. The plaintiff and others have made allegations of sexual assault against Douglas Brown, a teacher formerly employed by the defendant school. Those allegations have led to criminal charges against Brown and this civil action in which the plaintiff claims damages [page315] against the defendant Upper Canada College, alleging negligence, breach of fiduciary duty, vicarious liability and occupier's liability.
[3] Shortly after Brown's arrest in August 2001, the plaintiff gave the police a videotaped statement that is the subject of this motion. The videotape formed part of the Crown brief prepared with respect to the criminal charges against Brown. The videotape has been produced to Brown in the criminal proceedings as part of the Crown disclosure. The Crown initially agreed to produce the videotape, but changed its position when a new Crown counsel took over the file. The plaintiff consents to the production of the videotape in this action.
[4] The defendant moved for production of the videotape as a document in the possession of a non-party to a civil action pursuant to rule 30.10 [Rules of Civil Procedure, R.R.O. 1990, Reg. 194]. Master Albert found that it would be unfair to require the defendant to proceed to trial without the videotape and that the public interest in preserving the integrity of the criminal proceedings could be met by imposing confidentiality safeguards as conditions of the production order. On appeal to a single judge of the Divisional Court, Lang J. agreed with both findings, but added to the confidentiality safeguards. The result is that the videotape must be produced, but on the following conditions:
Only counsel for the parties to the civil action may receive copies of the videotape and transcript;
Counsel may show the videotape to their clients (including insurers) and may discuss the contents with them, but counsel shall ensure that no copies are made for anyone;
Counsel and the parties are to take all reasonable steps to ensure that potential witnesses in the criminal trial are not exposed to the contents of the videotape, subject to any ruling the trial judge may make with respect to admissibility and the imposition of any safeguards appropriate to that context.
[5] The Attorney General has applied for leave to appeal to this court from the judgment of the Divisional Court.
[6] The criminal trial, originally scheduled to begin in February 2004 is now scheduled to proceed in September 2004. The civil action is scheduled to begin on April 13, 2004, although the defendant has indicated that it will argue that the confidentiality conditions are unduly restrictive and that the trial should be adjourned to ensure that it can make full use of the videotape. [page316] The plaintiff is most anxious to have the civil trial proceed at the earliest possible date.
[7] The Attorney General raises three grounds in its application for leave to appeal:
That the Master has no jurisdiction to order production of documents generated in criminal proceedings for use in collateral civil proceedings as such jurisdiction is reserved exclusively to judges of the Superior Court.
That production of documents generated in criminal proceedings for use in collateral civil proceedings may only be ordered pursuant to the screening mechanism established in P.(D.) v. Wagg (2002), 2002 23611 (ON SCDC), 61 O.R. (3d) 746, 97 C.R.R. (2d) 324 (Div. Ct.) and that the Divisional Court erred in holding that the Master was entitled to order production pursuant to rule 30.10.
That the videotape is subject to litigation privilege.
[8] The Attorney General argues that these grounds of appeal constitute a serious question to be tried, that production of the videotape would give rise to irreparable harm, and that the balance of convenience favours granting the stay.
Analysis
1. Serious question to be tried.
i. Jurisdiction of the Master
[9] The Attorney General relies on the following passage from paras. 48-50 of Wagg for the proposition that only a Superior Court judge can order production from a Crown brief in an on- going criminal proceeding for the purposes of a collateral civil action:
The notion of the court reserving control over documentation contained in the Crown Brief is consistent with, and supports, the court's general jurisdiction to control its own process in order to protect the public interest and ensure the proper administration of justice. . . .
A superior court has original and plenary jurisdiction in all civil and criminal matters including inherent jurisdiction to control and regulate its process and to prevent this from being abused or obstructed. . . .
I am therefore satisfied that the court has the authority to make the ruling and give the directions respecting the process that I propose. . . .
[10] This statement must be read in context. Wagg dealt with a request for production of a Crown brief that was in the possession [page317] of one of the parties as a result of Crown disclosure. Under the Rules of Civil Procedure, there was no procedural mechanism to put the Crown on notice and to afford the Crown an opportunity to be heard on the issue. I agree with the respondent U.C.C.'s submission that the quoted statements do not deal with exclusivity of jurisdiction, but rather with the question of jurisdiction to create the screening mechanism. As the present case involves production from the Crown as a non-party, rule 30.10 applies and provides the required mechanism. Masters have jurisdiction to deal with rule 30.10 motions and statutory courts have by necessary implication the power to control their own process and the procedural tools to ensure the effective and efficient disposition of matters falling within their competence: R. v. Felderhof (2003), 2003 37346 (ON CA), 68 O.R. (3d) 481, [2003] O.J. No. 4819 (QL) (C.A.) at para. 41; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, 206 D.L.R. (4th) 444, at para. 38. Under rule 30.10, Masters routinely weigh and balance the public interest concerns of non-parties, including government agencies. Masters also routinely make procedural orders arising under the rules that arguably have a more significant impact upon criminal proceedings than the order sought here: for example, ordering accused persons to be examined for discovery as non-parties and staying civil proceedings pending the completion of related criminal proceedings. In my view, the Master and the Divisional Court correctly dismissed the Attorney General's submission that the Master lacked jurisdiction and I see no merit in this ground of appeal.
[11] Even if the Attorney General is correct and the Master did not have jurisdiction to entertain the motion, the matter has now been carefully reviewed by a Superior Court judge who, indeed, did modify the confidentiality conditions on the production order. No arguable point has been advanced to suggest that the Divisional Court erred in its assessment of the public interest. In these circumstances, it seems to me highly unlikely that leave to appeal would be granted.
ii. Application of rule 30.10
[12] It would appear that to a significant extent, this point overlaps with the argument relating to the jurisdiction of the Master. Putting the jurisdiction argument to one side, I see nothing in rule 30.10 that is inconsistent or incompatible with the screening mechanism contemplated by Wagg. In my view, Lang J. correctly concluded that in the context of a request for production of material from a Crown brief, the fairness test under rule 30.10 "encompasses balancing consideration of the needs of the [page318] moving party for access to the particular material against the interests of a third party, the interests of the public in protecting the material from disclosure, and any other relevant interests". The reasons of both the Master and the Divisional Court, as well as the conditions they imposed upon production, demonstrate that they both fully considered the public interest arguments identified in Wagg under the regime of rule 30.10. Accordingly, I conclude that this ground of appeal does not meet the "serious issue to be tried" test.
iii. Litigation privilege
[13] In my view, the Divisional Court correctly concluded that litigation privilege does not apply in the circumstances of this case. The Attorney General does not suggest that the videotape is protected by solicitor-client privilege. Litigation privilege may attach to some materials prepared by the police for the purpose of a criminal trial, but I fail to see any basis for its application in the circumstances of this case. The purpose of litigation privilege, as distinct from solicitor-client privilege, is to protect work product in the adversarial litigation process: see Ontario (Attorney General) v. Ontario (Information and Privacy Commission, Inquiry Officer) (2002), 2002 18055 (ON CA), 62 O.R. (3d) 167, 220 D.L.R. (4th) 467 (C.A.). It follows that production to the opposite party in the litigation effectively ends the privilege. The videotape has already been produced to the accused in the criminal proceedings and hence in that litigation, privilege no longer attaches to the videotape. Litigation privilege, unlike solicitor-client privilege, does not survive the litigation in which it arose, although legislation may extend broader protection to material prepared for the purposes of litigation: Ontario (Attorney General) v. Ontario (Information and Privacy Commission, Inquiry Officer).
[14] At this stage, any interest the Attorney General may assert to refuse production does not arise from litigation privilege but rather under the heading of the public interest identified in Wagg. As I have already stated, those concerns were fully and fairly considered by the Master and the Divisional Court.
Serious question to be tried -- conclusion
[15] While I am mindful that the threshold is low, I consider it so unlikely that leave to appeal will be granted in this case that I am prepared to conclude that the Attorney General has failed to satisfy this first branch of the test for a stay. I see no merit in the only substantive ground of appeal (privilege) and the remaining [page319] two grounds of appeal are entirely procedural in nature. The Attorney General's submissions with respect to the jurisdiction of the Master and the application of rule 30.10 are not strong. Moreover, the Attorney General has had the benefit of a comprehensive review by a Superior Court judge and no arguable point has been advanced to suggest that the Divisional Court erred in its assessment of that issue. In these circumstances, the leave to appeal application appears to me to be doomed to almost certain failure.
2. Irreparable harm
[16] The Attorney General contends that it will suffer irreparable harm if the civil trial proceeds with the videotape in the hands of the defendant, as there is a risk that witnesses in criminal proceedings could become "tainted" if they were to learn what the plaintiff told the police in the videotape. I find this submission to be without merit. First, the risk of "tainting" witnesses is met by the strict confidentiality conditions imposed by the Master and the Divisional Court. Second, this motion deals only with production of the videotape, not its use at trial, and so the fears raised by the Attorney General are entirely speculative. If and when the defendant seeks to make use of the videotape during the trial, it would be open to the trial judge to impose conditions to shield the videotape from eyes that should not see it, if indeed that is required. Third, even if we were to focus on the use of the videotape at trial, any risk of tainting from the videotape seems to me to be remote, if not non-existent. If there is a risk of tainting, it surely stems from the fact that the plaintiff will testify, not from production of the videotape. The videotape may enter the trial if the plaintiff is cross-examined on any inconsistent statements, but any added tainting that would flow from revealing such contradictions seems to me to be very remote.
[17] If there was any merit to the Attorney General's argument that the videotape is protected by privilege, it would be arguable that requiring production before the determination of the criminal proceeding could give rise to irreparable harm. However, as I view the privilege claim to be without merit, I find no irreparable harm on that count.
3. Balance of convenience
[18] In my view, the balance of convenience strongly favours denying the stay. There have been concurrent findings by the Master and by the Divisional Court that it would be unfair to [page320] require the defendant to proceed to trial without production of the videotape. The likely effect of a stay will be to force the trial court to decide whether to proceed without production of the videotape, or adjourn the trial until after the Attorney General's proposed appeal has run its course or until after the completion of the criminal trial. If the civil trial proceeds before the criminal trial, the defendant will suffer prejudice. If the defendant is granted an adjournment of the civil trial because the videotape has not been produced, the plaintiff will suffer the prejudice of delay. In my view, the harm that would be suffered by the parties in the civil action clearly outweighs any harm that might be suffered by the Attorney General and its interest in a fair criminal trial by reason of the production of the videotape. The rights of the parties to fair and expeditious justice should prevail.
[19] The Attorney General submits that denial of the stay may render its appeal moot. Given my assessment of the merits of the proposed appeal, I do not regard that possibility as having any weight on the balance of convenience.
[20] I hardly need to add that if I am wrong in my assessment of the merits of the proposed appeal, and three of my colleagues conclude that the Attorney General does raise points deserving the consideration of this court, they clearly have the discretion to grant leave to appeal even where the appeal has become moot.
Conclusion
[21] Accordingly, the motion for a stay is dismissed. The respondents are entitled to their costs of the motion fixed at $2,500 to each party, inclusive of GST and disbursements.
[22] As an addendum, I note that Exhibit 3 to the supplementary affidavit of Thomas Ward contains a copy of the information in the criminal proceedings revealing the names of the complainants, that affidavit shall be sealed and the plaintiff is directed to file for the public record another copy of the affidavit with those names deleted.
Motion dismissed. [page321]