Ontario Civilian Police Commission v. Oliver, 2013 CanLII 148013

Ontario Civilian Police Commission

OCPC-INQ -#13-03 2013 ONCPC 2503

IN THE MATTER OF A HEARING UNDER S. 25 OF THE POLICE SERVICES ACT, R.S.O. 1990, C. P.15, AS AMENDED, INTO THE CONDUCT OF GREG OLIVER, MEMBER OF THE STIRLING-RAWDON POLICE SERVICES BOARD

DECISION ON MOTION

Panel: Noëlle Caloren, Member Roy Conacher Q.C., Member

Hearing Date: March 4, 2013 Hearing Location: Toronto, Ontario

Ontario Civilian Police Commission 250 Dundas Street West, Suite 605 Toronto, ON M7A 2T3 Tel: 416-314-3004 Fax: 416-314-0198 Website: www.ocpc.ca

Appearances: Prabhu Rajan, Counsel for the Ontario Civilian Police Commission Patrick E. Hurley, Counsel for Greg Oliver

Introduction

1This decision relates to a Motion brought by Counsel for the Ontario Civilian Police Commission (the "Commission") with respect to information disclosed by the Commission to Mr. Oliver, member of the Stirling-Rawdon Police Services Board, in advance of the contemplated Section 25 hearing.

2At issue is the disclosure of information which the Commission claims is protected by solicitor-client privilege and is contained in handwritten notes made by Brian Haggith, an Ontario Provincial Police Officer seconded to the Ministry of Community Safety and Correctional Services (the "Ministry") as a Police Services Advisor. Mr. Haggith was responsible for providing advice to Police Services Boards in the Eastern Ontario region, which included the Stirling-Rawdon Police Services Board (the "Board").

3On March 4, 2013, the Panel heard a motion brought by the Commission for the following Orders:

(a) a declaration that the notes disclosed are privileged; (b) an Order that counsel for Mr. Oliver return any and all copies of the notes in question forthwith; (c) an Order prohibiting counsel from using the privileged information for the purpose of this litigation or any other litigation; (d) an Order requiring counsel for Mr. Oliver to ensure that all work product related to the information contained in the disclosed document be destroyed; (e) an Order requiring counsel for Mr. Oliver to confirm compliance with the Orders, in writing, to counsel for the Commission; (f) in the event that counsel provided the document to any third party, including Mr. Oliver, that similar Orders be made against all such persons and; (g) an Order abridging the time for service and filing of the Motion.

Decision

4An order is granted abridging the time for service of the Motion materials. The Motion is dismissed for the reasons set out below.

Background

5Mr. Oliver is a member of the Board. As a result of an investigation undertaken by the Commission under Section 25(1) of the Police Services Act, R.S.O. 1990 c.P15 as amended (the "Act"), Mr. Oliver was charged with engaging in conduct which discredits and compromises the integrity of the Board or the Stirling-Rawdon Police Services, contrary to sections 4, 5, 7, 8, 9 or 13 of the Members of Police Services Board, Code of Conduct, Ontario Regulation 421/97. A disciplinary hearing is scheduled to take place with regard to the charges against Mr. Oliver.

6In anticipation of the scheduled hearing, the parties agreed to and have acknowledged compliance with their disclosure obligations as stipulated in the Statutory Powers Procedure Act, R.S.O. 1990, c.S22 and the Commission's Rules of Practice. The Motion presented to the panel relates to the disclosure of handwritten notes which the Commission claims are privileged but were inadvertently disclosed by the Ministry Police Advisor, Mr. Haggith. The privileged information consists of approximately five lines of writing (the "Alleged Privileged Communication") in a larger set of handwritten notes which were disclosed in advance of the hearing to the Respondent, Mr. Oliver.

7The Alleged Privileged Communication relates to information obtained from Ministry counsel in response to a question posed by Mr. Haggith who had been contacted by the then Chair of the Stirling-Rawdon Police Services Board on March 8, 2011 in respect of the Board's authority to extend its Police Chief's employment contract. The Panel was provided with the excerpt of the notes containing the Alleged Privileged Communication and notes relating to Officer Haggith's communication with the Chair of the Board. It must be noted that Mr. Haggith advised the Chair that his advice did not constitute a legal opinion regarding the relevant Police Services Act provisions and that if a legal opinion was required, the Chair ought to seek advice from legal counsel.

Position of the Parties

The Ontario Civilian Police Commission

8The Commission seeks the return of the Alleged Privileged Communication on the basis that it was inadvertently disclosed to the Respondent. Counsel for the Commission argued that the affidavit evidence placed before the Panel confirms that there existed no intention to disclose the Alleged Privileged Communication nor were there any implicit or explicit waivers of the privilege attached to the Alleged Privileged Communication. The evidence suggests that neither Mr. Haggith nor the Commission staff responsible for the disclosure of documents to the Respondent turned their minds to the possibility that Mr. Haggith's notes might contain privileged information. He further submitted that the evidence consisted of five lines within a set of 55 pages of material comprised of 1,267 pages of documents which had been collected and disclosed by the Commission to the Respondent.

9Mr. Rajan drew a parallel between the disclosure facts in this case and those at issue in the case of Chan v. Dynasty Executive Suites Ltd. [2006] O.J. 2877 (Sup. Ct.) in which 14 privileged documents contained in 17 volumes of disclosed documents were inadvertently disclosed by a law clerk in a civil matter. Counsel stressed that no waiver of privilege had occurred in this case, either implicitly or explicitly, and stressed that the Commission had immediately attempted to retrieve the document once it became aware of its disclosure.

10Mr. Rajan argued that support for the return of the Alleged Privileged Communication is found in recent Canadian civil court decisions which have recognized that inadvertent disclosure does not automatically result in the waiver of Alleged Privileged Communications. He stressed that the determination as to whether waiver has occurred is to be made on a case by case basis considering a number of factors including, the manner in which the documents were released; how promptly the disclosing party sought to retrieve the documents; the timing of the discovery of the disclosure and the retrieval process; the number and nature of third parties to whom the documents were disclosed; whether the maintenance of the privilege would bring about an actual or perceived unfairness to the opposing party; and the overall impact on the fairness of the legal process involved. Mr. Rajan argued that the criminal case of R. v. Dunbar 1982 CanLII 3324 (ON CA), [1982] O.J. no.581 (C.A.), relied upon by the Respondent, resulted in a finding that inadvertent disclosure does not protect against the law of privilege. That case is distinguishable and, in addition, no longer represents the current state of the law on involuntary disclosure.

11Counsel for the Commission suggested that the appropriate remedy in this case was actually the return of the Alleged Privileged Communication rather than declaratory relief and confirmed to this Panel that the Commission was not seeking the removal of the Respondent's Counsel from the record. He suggested that under the circumstances, it would simply be necessary that the return be supplemented by an order prohibiting Counsel and the Respondent from using the Alleged Privileged Communication in the context of this matter and that all third parties having received the Alleged Privileged Communication be subject to the same orders.

Mr. Oliver

12In response to the Commission's motion, Counsel for Mr. Oliver presented a three-pronged position, arguing firstly that the Commission does not have the jurisdiction to order the relief sought; secondly that the Alleged Privileged Communication is in fact not privileged; and thirdly, that when disclosure occurred, the privilege, if any, was lost or deemed waived.

13With respect to the jurisdictional argument, the Respondent argues that the relief sought by the Commission is in the nature of injunctive relief which can only be exercised by a Superior Court pursuant to its inherent jurisdiction or by virtue of Section 101 of the Courts of Justice Act, R.S.O. 1990, c. C43. Further, because the Commission seeks a remedy in equity, only a Superior Court would be in a position to order the requisite declaratory relief. In support of this position, Mr. Hurley cited the decisions in Grover v. Hodgins, [2011] ONCA 72 and Todd v. Chevalier [2000] O.J. no. 5038 (SCJ).

14While Mr. Hurley was prepared to concede that the Statutory Powers Procedure Act, R.S.O. 1990, c.S22, which the Parties agree applies in this case, confers upon the Commission the right to rule regarding the admissibility of evidence, he submitted that the Commission does not have the authority to assess the relevance of the evidence in advance of the hearing. As we understood Mr. Hurley's argument, a decision to deal with the issue in advance of the hearing would amount, if made in favour of the Applicant, to a blanket prohibition on the admissibility of evidence without a determination as to its relevancy. Mr. Hurley's position was opposed by Counsel for the Commission on the basis that the Statutory Powers Procedure Act confers sufficient authority to the Commission to deal with all issues regarding disclosure.

15The Respondent actually challenges the characterization by the Commission of the Alleged Privileged Communication. In this regard, Mr. Hurley argued that the Alleged Privileged Communication relates to information sought in response to an inquiry by the Police Services Board Chair, and could therefore not have been intended to be confidential. He further argued that the information obtained by Mr. Haggith, was in fact communicated to the Chair of the Board at the time, Mr. Shawn LaPalm.

16In support of his contention, Counsel referred us to the case of Dunbar, supra, in which the Court of Appeal confirmed that if a communication is intended to be revealed to a third party, the element of confidentiality will be lacking. He invited us to conclude on this basis, that privilege would not attach to the Alleged Privileged Communication.

17The crux of the Respondent's third argument is that disclosure of the Alleged Privileged Communication could not have been inadvertent. Counsel drew the Panel's attention to the fact that a number of Commission representatives were involved in the investigation leading to the Commission's decision to order a hearing into the Respondent's conduct and that it was incumbent on the Commission to ensure that prior to disclosure to the Respondent, the documents be vetted with a view to considering the issue of privilege. He stressed that accordingly, the Commission had several opportunities to prevent inadvertent disclosure.

Issues

18From the Panel's perspective, three issues need to be determined in the context of this Motion:

a) Does the Commission have jurisdiction to order the relief sought? b) Is the Alleged Privileged Communication privileged? c) If the information at issue is privileged, is its return appropriate in the circumstances?

Jurisdiction of the Commission

19The Panel agrees with the position of the Commission that it has the power, pursuant to the Statutory Powers Procedure Act, in particular Section 25.01.1, to make orders with respect to the procedures and practices that will apply in a proceeding, including matters relating to any issues that may arise and be presented in advance of the actual hearing of the matter.

20In particular, we note that subsection 5.4(1) of the Statutory Powers Procedure Act provides that if a Tribunal's rules deal with disclosure, the Tribunal, may at any stage of the proceedings before all hearings are complete, make Orders for:

Subsection 5.4(1)

(a) the exchange of documents; (e) any other form of disclosure.

21We note that the Commission has adopted Rules of Practice (the "Rules") regarding disclosure and in particular Rules 3.3 and 7.1 which deal with the disclosure of documentation relevant to a proceeding:

Commission Powers

3.3 The Commission may make such ruling and orders as it deems necessary for the proper functioning of the Commission proceedings and processes, including interim rulings and orders. Such interims rulings or orders may contain conditions that the Commission considers appropriate.

Disclosure

7.1 The Commission may, at any time, order any party to provide to any other party and to the Commission such further information or documents as the Commission considers necessary for a full and satisfactory understanding of the issues in the proceeding. This rule is restricted to sections ... 25 ... of the Act.

Under section 2.1(k) of the Rules, the term "ruling" means: A finding or order of the Commission which is not a decision, and may include interim rulings, motion rulings, rulings concerning evidence or procedure, and other directions of the Commission.

22It would make little sense, in our view, if the power to make Orders regarding the exchange of documents did not include the ability for the Tribunal to determine the relevancy of the documents to be disclosed, and if required, the basis of which a relevant document could be exempted from the disclosure obligation. The practical corollary to that power must be the power to order the return of a document on the basis that it was improperly disclosed.

23The Respondent made reference to a number of cases in support of his position that the Commission does not have jurisdiction to order the relief requested by the Commission in this case, namely the decisions in Campbell v. Maytown [2005] CanLII 49966 (ON SCDC), and Todd v. Chevalier, supra. The Panel has considered these decisions and has determined that they have no application in the circumstances of this case in that they deal with the authority to award substantive damages, namely punitive damages and the return of personal property. In this case, the Commission is not being asked to award relief of a substantive nature, but rather to determine a procedural issue.

Is the Alleged Privileged Communication Privileged?

24Having determined that the Commission has the jurisdiction to address the issue of the return of the Alleged Privileged Information, we now turn to the crux of the matter at issue in this Motion, which is whether the Alleged Privileged Communication is in fact of a privileged nature.

25There is no doubt that the five lines identified as the Alleged Privileged Communication included in Mr. Haggith's notes relate to information conveyed by legal counsel in respect of provisions to the Act. However, given Mr. Haggith's role as advisor and the fact that the legal advice sought was the direct result of an inquiry made by the Chair of the Board, we are unable to conclude that the Alleged Privileged Communication is in fact in the nature of what is commonly understood to be an Alleged Privileged Communication (communication between a solicitor and a client).

26The reason for this is first and foremost Mr. Haggith's role as advisor to, in this particular case, the Board, and the fact that Mr. Haggith volunteered the information obtained from legal counsel to the Chair of the Board in his capacity as advisor, making it clear that if the Board wanted legal advice it ought to take steps to obtain it.

27From our review of the notes in question, we are satisfied that Mr. Haggith had already formulated his opinion as to an appropriate answer to Mr. LaPalm's question, about which he then sought confirmation from legal counsel, following which he relayed his viewpoint to Mr. LaPalm.

Is the Return of the Alleged Privileged Communication Appropriate in the Circumstances?

28Even if the Alleged Privileged Communication contained privileged information, the Panel is not convinced, given the evidence submitted in the context of this Motion, that the disclosure of the information can be properly characterized as inadvertent as the term has been described in the caselaw.

29Although the Courts have recognized that inadvertent disclosure will not automatically result in a loss of privilege, an attempt to assert privilege cannot come as an afterthought. There should be evidence that the disclosing party took steps to preserve the privileged information or at the very least turned its mind to the issue of preservation of privilege. As this principle was stated in Airst v. Airst 1998 CanLII 14647 (ON CTGD), [1998] OJ 2615, the considerations at play are described as follows:

Inadvertent disclosure should not logically override the privilege in all cases, though there may be some level of obligation upon the solicitor and the client to take steps to ensure that their communications remain confidential.

30The Panel agrees that the release of the information by Mr. Haggith is not to be considered an act of disclosure in respect of the Respondent. Indeed, the notes provided by Mr. Haggith to the Commission were provided in the context of an investigation where disclosure to a third party was not necessarily contemplated.

31However, disclosure as the term is understood pursuant to the Statutory Powers Procedure Act and in the context of the hearing in which the parties are involved, did occur when the Commission provided to Mr. Oliver, through his counsel, all of the documentation relevant to the issues to be determined in the Section 25 hearing. At that juncture, it would be reasonable to expect that the documents would be vetted to determine whether disclosure was appropriate, both on the basis of relevancy and privilege.

32The Panel has taken note of the evidence set out in the Affidavit of Cathy Boxer in which, at paragraph 7, it is stated that the "Commission does not have a practice of vetting for documents which might be subject to solicitor-client privilege".

33In light of this evidence, it is difficult to conclude that disclosure of the Alleged Privileged Communication was inadvertent, or that the privilege was not waived, if not expressly at least implicitly.

34On the basis of our consideration of the issues, we therefore find that, while the Panel has the jurisdiction to determine whether documents subject to disclosure were disclosed in error, and to grant the relief necessary to rectify such a situation, in this case, we find that:

(a) the Alleged Privileged Communication was not in fact privileged information which ought to be subject to protection; and (b) if the Alleged Privileged Communication was in fact privileged information, it was not inadvertently disclosed in this case.

35The balance of the relief requested is not required. For the reasons set out above, the Motion is dismissed.

DATED AT TORONTO THIS 11th DAY OF APRIL, 2013

Noëlle Caloren, Member, OCPC Roy Conacher Q.C., Member, OCPC