COURT FILE NO.: 624/10

DATE: May 8, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

Summitt Energy Management Inc.

Appellant

• and -

Ontario Energy Board

Respondent

COUNSEL:

• William J. Burden and Linda I. Knol for the Appellant, Summitt Energy Management Inc.
• Mahmud Jamal and Raphael T. Eghan for the Respondent Ontario Energy Board
• M. Philip Tunley for the Respondent, the Ontario Energy Board (Compliance Counsel)
• Arif Virani for the Intervenor, The Attorney General of Ontario

HEARING DATE: April 24, 2012

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION

1After a six-day hearing, the Ontario Energy Board found that Summitt Energy Management Inc. (“Summitt”) had breached the Ontario Energy Board Act, 1998, S.O. 1998, c. 15, Schedule B. Summitt appealed, and as part of its appeal, it has brought a motion to submit new evidence. In aid of its motion, it has issued summonses to examine Marika Hare, who was a member of the Energy Board panel that decided against Summitt, and Patrick Duffy of Stikeman Elliott LLP, which was the Energy Board’s external legal counsel. The Energy Board brings this motion to quash the two summonses.

2For the reasons that follow, I quash the summonses.

B. FACTUAL BACKGROUND

3Summitt Energy Management Inc. (“Summitt”) is a retail energy marketer that provides fixed-price natural gas and electricity programs to homes and businesses in Ontario, Quebec, and British Columbia. It has a sales force that markets door-to-door.

4In Ontario, Summitt is licensed and regulated by the Ontario Energy Board (“the Energy Board”), an administrative tribunal that oversees electricity and natural gas sectors through regulation and enforcement in accordance with the Ontario Energy Board Act, 1998.

5Summitt is a member of the Ontario Energy Association (“OEA”), which is a trade association of energy marketers and retailers, consultants from many industry sectors, and law firms.

6Summitt’s lawyer, Cassels Brock & Blackwell LLP (“Cassels Brock”), is a member of the OEA. The Energy Board’s external counsel, Stikeman Elliott LLP, (“Stikeman Elliott”) is a member of the OEA.

7Summitt is a member in the OEA’s Energy Marketers and Retailers category. Summitt’s competitors are also members in the category.

8On June 17, 2010, the Energy Board issued a Notice of Intention to Make an Order for Compliance, Suspension, and Administrative Penalty against Summitt. The Energy Board’s separate prosecutorial arm alleged that in contravention of the Ontario Energy Board Act, 1998, Ont. Reg. 200/02, the Code of Conduct for Gas Marketers, and the Electricity Retailers Code of Conduct, five of Summitt’s sales agents had engaged in unfair practices while marketing energy contracts.

9Marika Hare and Paul Somerville comprised the Energy Board panel for the enforcement proceedings. Patrick Duffy, a lawyer with Stikeman Elliott was employed by the Board as independent legal counsel for the panel. From August 30, 2010 through September 8, 2010, Mr. Duffy attended the hearing, and he advised the panel on substantive and procedural issues.

10At the hearing, Summitt was represented by Cassells Brock. The prosecutorial role was assumed by Compliance Counsel for the Energy Board.

11The Energy Board heard evidence from 19 consumer complainants and from Summitt’s sales agents among other witnesses.

12During the hearing, Compliance Counsel argued that a due diligence defence was not available under the Ontario Energy Board Act, 1998. and that the issue of due diligence should be relevant only to penalty. The Energy Board, however, did not accept Compliance Counsel’s submissions, and the panel considered but ultimately rejected a due diligence defence by Summitt.

13The Energy Board issued its decision and order on November 18, 2010, with clarifications on December 13, 2010.

14The Energy Board found that Summitt’s energy contracts were “at best ambiguous, and at worst misleading;” had been sold door-to-door by sales agents with “scarcely a few hours of training;” that Summitt’s compliance program “fell far short of any reasonable standard in its operation” and was “inadequate and poorly enforced;” and that “customer after customer was misled into signing contracts that provided an economic benefit to Summitt at the expense of the customer.” As already noted above, the Energy Board found against Summitt’s due diligence defence. The Energy Board ordered Summitt to pay an administrative penalty of $234,000 and to procure an independent review and audit of its revised sales practices and to file that review and audit with the Energy Board.

15On December 17, 2010, Summitt appealed the Energy Board’s decision and Order to the Divisional Court pursuant to the statutory right of appeal in s. 33 of the Ontario Energy Board Act, 1998. Summitt advances numerous grounds of appeal, including the submission that the Energy Board erred by considering Summitt’s due diligence program without providing Summitt with the information in its possession that was relevant to assessing whether Summitt was diligent. Summitt also submitted the Energy Board committed fundamental errors in law in its consideration of Summitt’s due diligence defence.

16The appeal to the Divisional Court was perfected, and it was scheduled to be heard on November 30, 2011.

17On October 25, 2011, Summitt received a letter from Stikeman Elliott on behalf of Just Energy Corp. and Just Energy Ontario L.P., which are competitors of Summitt. Summitt forwarded the letter to Cassels Brock and instructed it to investigate whether Stikeman Elliott had represented competitors of Summitt before or during the Energy Board hearing involving Summitt.

18Cassels Brock undertook that investigation and learned that: (a) in 2008, Stikeman Elliott acted for Universal Energy Corporation, a competitor of Summitt, in proceedings before the British Columbia Utilities Commission with respect to energy marketer and retailer sales agent conduct; (b) in 2002, Stikeman Elliott acted for Direct Energy Marketing Limited, a competitor of Summitt, in gas rate hearings before the Energy Board; (c) in 2005, Stikeman Elliott acted for AltaGas Utility Holdings Inc. and AltaGas Utilities Inc, which are affiliated with ECNG Energy L.P., which is a competitor of Summitt, in hearings before the Alberta Utilities Commission.

19As part of the investigations, Summitt also learned for the first time that Stikeman Elliott is a member of the OEA.

20Meanwhile, Summitt’s own investigations indicated that Stikeman Elliott likely had obtained documents from OEA’s Energy Markets Joint Sector Committee and from OEA’s Energy Marketers and Retailers Committee, which is a committee made up of Summitt and 14 other energy marketers and retailers. Summitt submits that the information from these OEA committees would be relevant to Summitt’s due diligence defence.

21On November 20, 2011, Cassels Brock wrote to Stikeman Elliott and asserted that Stikeman Elliott’s involvement had resulted in Summitt having been denied a fair hearing.

22By letter dated November 22, 2011, Mr. Duffy responded to Cassels Brock’s letter. He replied that “as counsel for the panel, it would not be appropriate for me to respond to the allegations made in your letter. I will not be responding further.”

23On November 25, 2011, Summitt brought a motion to adjourn the appeal in order to provide fresh evidence in support of a new ground of appeal; namely that there was a reasonable apprehension of bias because: (a) Stikeman Elliott had represented some of Summitt’s competitors in other matters and would have had an interest in ensuring Summitt’s conviction; and (b) Stikeman Elliott is a member of the OEA, an industry trade group, and would have been privy to OEA information relevant to Summitt’s due diligence defence.

24Mr. Justice Dambrot granted the adjournment, and he ordered the hearing of the appeal to be brought back on a date to be fixed by the Registrar of the Divisional Court on at least seven days’ notice to counsel.

25On December 14, 2011, Cassels Brock wrote Stikeman Elliott and asked for information about the firm’s involvement with the Energy Board in four areas; namely: (a) nature of the advice given by Stikeman Elliott to the Board’s panel; (b) whether and when the firm had acted for Summitt’s competitors; (c) the nature of the firm’s involvement with the OEA; and (4) whether the firm had acted for Summitt’s competitors in other proceedings before the Energy Board or before other provincial or federal energy regulatory agencies or had acted as compliance counsel or provided advice to other regulators.

26Cassels Brock requested a response to its December 14, 2011 letter from Stikeman Elliott by no later than January 6, 2012. Stikeman Elliott did not respond to the letter.

27The December 14, 2012 letter included a schedule that detailed four areas of inquiry for Mr. Duffy and one area of inquiry for Ms. Hare. The four areas of inquiry are as follows:

• A. Retainer Questions {For Mr. Duffy and Ms. Hare} – When did the Energy Board retain Stikeman Elliott? What was the retainer letter and related correspondence? Without disclosing the advice itself, did Stikeman Elliott provide advice on issues relevant to the appeal?
• B. Competitor Representation Questions {For Mr. Duffy} – Without disclosing the reason for the retainer, did Stikeman Elliott represent any of Summitt’s competitors during the years of 2008 to 2011?
• C. OEA Involvement Questions {For Mr. Duffy} – What information did Stikeman Elliott have by reason of its involvement with the OEA and its committees?
• D. Other Proceedings Questions {For Mr. Duffy}- Did Stikeman Elliot act for Summitt’s competitors in other proceedings before the Energy Board or before other provincial or federal energy regulatory agencies and did it act as compliance counsel or provide advice to other regulators?

28On January 16, 2012, Summitt delivered its motion to adduce fresh evidence on the appeal. In its motion, among other things, Summitt sought leave to: (1) adduce fresh evidence; and (2) revise its Amended Notice of Appeal to include as an additional ground of appeal the reasonable apprehension of bias by reason of Stikeman Elliott having acted as counsel to the Panel in circumstances where Stikeman Elliott was in conflict of interest due to: (a) its representation of Summitt’s competitors; and (b) its having access to confidential information arising from its OEA membership.

29More particularly, Summitt submits that Stikeman Elliott was in a position of conflict of interest because: (a) it had acted for direct competitors of Summitt who stood to benefit from any difficulties encountered by Summitt in the highly competitive industry sector; and (b) through its involvement with the OEA, it had confidential strategic information, as well as, training and other due diligence materials and procedures, that were relevant to Summitt’s due diligence defence.

30On January 17, 2012, Summitt served summonses on Ms. Hare and on Mr. Duffy in aid of the motion to admit fresh evidence. The summonses directed them to appear for examination on February 6, 2012 and to bring with them the following documents and things:

All correspondence, notes, memoranda, contracts, records, documents and copies of same in your custody, possession or power in any way relating to the matters which are within the scope of this proceeding or have any reference thereto.

31In response to the summonses, the Energy Board with the support of the Energy Board (Compliance Counsel) seeks to have the summonses quashed.

32The Attorney General intervenes in the motion to quash because in Summitt’s response to the motion to quash, Summitt challenged s. 10 of the Ontario Energy Board Act,1998, as ultra vires.

33The Energy Board and its Compliance Counsel submit that the summonses should be quashed because: (1) the evidence to be adduced is irrelevant to Summitt’s allegation of a reasonable apprehension of bias; (2) the summonses infringe the absolute testimonial immunity granted by s. 10 of the Ontario Energy Board Act, 1998, to Board members and employees of the Board; (3) the summonses infringe the principle of deliberative secrecy; and (4) the summonses infringe solicitor-client privilege.

34In response, Summitt’s position is that: (a) the evidence sought by means of the summonses is relevant to the issues of whether there is a reasonable apprehension of bias; (b) s. 10 of the Ontario Energy Act, 1998, does not apply to provide testimonial immunity to Ms. Hare or Mr. Duffy; (c) in the alternative, in so far as s. 10 applies to the Duffy summons, the section should be “read down” so that the court has the necessary information to determine whether a breach of natural justice has occurred; (d) the principle of deliberative secrecy does not bar either summonses; (e) in the alternative, this is an appropriate case to remove deliberative secrecy to the limited extent necessary for Mr. Duffy and Ms. Hare to answer the proposed questions; and (f) there is no infringement of solicitor-client privilege because Summitt is not seeking the content of any legal advice and the identity of Stikeman Elliott’s clients is not privileged.

35Summitt initially took the position that if s. 10 applies so as to prohibit the examinations from proceeding, then s. 10 of the Ontario Energy Board Act,1998, violates s. 96 of the Constitution Act, 1867 and must be read down. It was because of this constitutional challenge that the Attorney General of Ontario intervened as of right pursuant to s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

36The Attorney General did not take a position about the application or interpretation of s. 10 but defended s. 10 as intra vires Ontario’s legislative authority and as compliant with s. 96 of the Constitution Act, 1867. During argument, Summitt made it clear that it was making only an interpretative challenge and did not contest the constitutional validity of s. 10 of the Ontario Energy Board Act, 1998. Therefore, I will have no more to say about this point.

C. ANALYSIS

1. Introduction

37There are a matrix of issues to be resolved in this motion to quash the two summonses. Visualize, Summitt has severed a summons on Mr. Duffy to examine him on four topic areas, and it has served a summons on Ms. Hare to examine her on one of those topic areas. The Energy Board seeks to quash the summonses on four discrete grounds, of which three grounds concern testimonial immunity and privilege, and one ground concerns the relevance of the line of questioning to be pursued at the examinations of Mr. Duffy and Ms. Hare respectively.

38To determine whether to quash the two summonses, as a matter of methodology, I will analyze the four topic areas in the context of the four grounds advanced to attack the summonses.

39I will begin by asking whether the four topic areas are relevant to the particular issue that will eventually be before the Divisional Court, which is whether there could be a reasonable apprehension of bias because of: (a) Stikeman Elliott having acted for Summitt’s competitors; and (b) Stikeman Elliott having access to information that would be relevant to Summitt’s due diligence defence.

40I foreshadow to say that once the issue to be decided by the Divisional Court is accurately articulated, it will be seen that the evidence being sought pursuant to the summonses is irrelevant and, therefore, both summonses should be quashed.

41However, on the assumption that the analysis of relevancy is incorrect, I shall consider whether Ms. Hare and Mr. Duffy have testimonial immunity under s. 10 of the Ontario Energy Board Act, 1998. I foreshadow to say that my answer is yes for Ms. Hare and no for Mr. Duffy. Thus, Ms. Hare’s summons but not Mr. Duffy’s summons should be quashed on this ground.

42However, on the assumption that the above analyses are incorrect, I next consider whether Ms. Hare and Mr. Duffy have testimonial immunity under the doctrine of deliberative secrecy. I foreshadow to say that the answer is yes with respect to Ms. Hare. The answer is no with respect to Mr. Duffy being asked Competitor Representation Questions, OEA Involvement Questions, and Other Proceedings Questions. Deliberative secrecy would immunize Mr. Duffy from questioning about Retainer Questions. Thus, on the grounds of adjudicative secrecy, Ms. Hare’s summons should be quashed but not Mr. Duffy’s.

43However on the assumptions that (a) the questions are relevant, (b) s. 10 of the Ontario Energy Board Act, 1998, is not applicable, and (c) the principle of deliberative secrecy is not available, the final issue is whether the four topic areas are subject to solicitor-client privilege.

44For the analysis of solicitor-client privilege, I foreshadow to say the answer is: (1) yes with respect to the Retainer Questions; (2) subject to some instances of waiver, yes with respect to the Competitor Representation Questions and the Other Proceedings Questions; and (3) no with respect to the OEA Involvement Questions. Thus, Ms. Hare’s summons should be quashed but not Mr. Duffy’s because assuming relevancy and no testimonial immunity, there are some questions not covered by solicitor-client privilege.

45The outcome of this methodology is that there are four reasons to quash Ms. Hare’s summons and one reason to quash Mr. Duffy’s summons.

2. Relevance

46In this part, I discuss whether the summonses should be quashed on the grounds of absence of relevance. This discussion will involve describing the law about quashing a summons, and evidence law about relevancy, and a few legal principles about the nature of a reasonable apprehension of bias. Then, I will analyse the four proposed lines of inquiry to determine their relevancy.

47Where a party serves a summons to examine a witness for a pending motion, an opposing party may move to quash the summons for the examination of the witness on the grounds that the evidence sought is not relevant to the motion or that the examination or the underlying motion would amount to an abuse of process: Canada Metal Co. v. Heap (1975), 1975 675 (ON CA), 7 O.R. (2d) 185 (C.A.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 1995 7258 (ON SC), 27 O.R. (3d) 291 (Gen. Div.); Fehringer v. Sun Media Corp. (2001), 2001 28060 (ON SC), 54 O.R. (3d) 31 (S.C.J.); Ontario (Attorney General) v. Dieleman (1993), 1993 5545 (ON SC), 16 O.R. (3d) 39 (Gen. Div.).

48If the summons is challenged, the party seeking the examination should be prepared to show that the evidence is relevant to the pending motion and that the party to be examined is in a position to provide the evidence: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co., supra. If the party seeking the examination cannot satisfy the relevancy and evidentiary screening, then the summons is regarded as a “fishing expedition” and an abuse of process: Canada Metal Co. v. Heap, supra; René v. Carling Export Brewing & Malting Co. (1927), 1927 382 (ON SC), 61 O.L.R. 495 (S.C.); Agnew v. Ontario Assn. of Architects (1988), 1987 4030 (ON SC), 64 O.R. (2d) 8 (Div. Ct.).

49In considering whether to strike a summons to a witness, the court will consider the nature and grounds for the motion to determine what are the issues for which the examination is in aid: Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources), 2002 41606 (ON CA), [2002] O.J. No. 1445 (Ont. C.A.), leave to appeal refused [2002] S.C.C.A. No. 252 (S.C.C.).

50Once the party seeking to conduct the examination shows that the proposed examination is about an issue relevant to the pending motion and that the party to be examined is in a position to offer relevant evidence, it is not necessary for the party to go further and show that the proposed examination will produce evidence helpful to that party's cause: Manulife Securities International Ltd. v. Société Générale (2008), 2008 13367 (ON SC), 90 O.R. (3d) 376 (S.C.J.), leave to appeal refused [2008] O.J. No. 1698 (Ont. Div. Ct.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co., supra.

51In the case at bar, the general issue with respect to which the summonses have been issued is the issue of whether the Energy Board’s determination was tarnished by a reasonable apprehension of bias.

52The legal test for a reasonable apprehension of bias was set out by de Grandpré J., in his dissenting judgment in Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369, and the test was approved and adopted by the Supreme Court of Canada in R. v. Valente, [1985] 1 S.C.R. 673 and in R. v. S.(R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484. The test is whether an informed person, viewing the matter realistically and practically and having thought the matter through, would think that it is more likely than not that the decision-maker consciously or unconsciously would not decide the matter fairly.

53The test for a reasonable apprehension of bias has two elements of objectivity: (1) the measure is that of the reasonable and informed person; and (2) his or her apprehension of bias must be reasonable: R. v. S. (R.D.), supra; Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369. The determination of whether there is a reasonable apprehension of bias is an objective, fact-specific inquiry in relation to the facts and circumstances of a particular trial: Chippewas of Mnjikaning First Nation v. Ontario (Minister Responsible for Native Affairs), 2010 ONCA 47 at para. 230.

54Is then the evidence being sought by Summitt pursuant to its summonses relevant to the test for a reasonable apprehension of bias? The law of evidence is largely built on the principle that evidence that is not logically probative of a fact requiring proof (a fact in issue) is inadmissible; to be probative, the evidence must increase or decrease the probability of the truth of the fact: R. v. Morris, 1983 28 (SCC), [1983] 2 S.C.R. 190; Cloutier v. The Queen, 1979 25 (SCC), [1979] 2 S.C.R. 709.

55In the case at bar and in every case, relevancy is a contextual matter dependent upon the facts in question. In the case at bar, the material fact to be proven is that an objective viewer would have a reasonable apprehension of bias because of two particular alleged material facts associated with Mr. Duffy’s law firm; namely: (1) Stikeman Elliot had acted for one or more of Summitt’s competitors; and (2) the firm was a member of certain OEA committees that had developed information relevant to Summitt’s due diligence defences.

56With this articulation of the issue to be proven, then, in my opinion, the four lines of inquiry for which the summonses have been issued are irrelevant.

57In its factum, in an argument with which I agree, the Energy Board argued that Summitt had not established the threshold of relevancy for the summonses. Paragraph 38 of the factum stated:

38. Summitt cannot meet this onus because the evidence Summitt seeks to obtain is irrelevant: the relationships giving rise to Summitt’s allegation of reasonable apprehension of bias have already been established. It is important to note that Summitt has alleged that the Panel was tainted by a reasonable apprehension of bias by virtue of Stikeman Elliott’s role as independent legal counsel – there is no allegation of bias in fact. The test in law for a reasonable apprehension of bias is objective: what would an informed person, viewing the matters realistically and practically and having thought the matter through, conclude? The apprehension of bias must rest on serious grounds, in light of the strong presumption of judicial impartiality. Here, because the factual basis for Summitt’s claim of a reasonable apprehension of bias is already established through facts that Summitt has [already learned], no useful purpose would be served by allowing Summitt to engage in a fishing expedition by examining a Board member or the Board’s outside counsel

58It is not disputed that Stikeman Elliott acted for Summitt’s competitors, and it is not disputed that Stikeman Elliot was a member of the OEA committees. It is known that Summitt acts for Just Energy Corp., Just Energy Ontario L.P, Universal Energy Corporation, Direct Energy Marketing Limited, and for an affiliate of ECNG Energy L.P., all competitors of Summitt.

59Further details being sought by the summonses are collateral information. The names of other competitors that may have retained Stikeman Elliott, the nature of the retainers, the dates of the retainers, retainers involving other provinces regulators, the precise items of information available to Stikeman Elliott, and the nature of Mr. Duffy’s retainer with the Energy Board are all irrelevant. Somewhat crudely, it may be said that these details do not pass the “so what” test of relevancy.

60I wish to be clear that given that it is admitted or not disputed that Stikeman Elliot acted for Summitt’s competitors and that it was a member of OEA committees that had information relevant to Summitt’s due diligence defence, I am not determining that the lines of inquiries are irrelevant because of redundancy. The proven facts do not establish the relevancy of the proposed lines of inquiry. Rather, these lines of inquiry will tend to prove collateral facts that are immaterial to the ultimate determination of whether there was a reasonable apprehension of bias which is the issue that a full panel of the Divisional Court must determine. Putting names and dates and descriptions of the retainers with the competitors is simply beside the point.

61The relevance of the proposed lines of inquiry would be different if the issue was whether Ms. Hare or Mr. Duffy were biased because Stikeman Elliott acted for a particular Summitt competitor, in which case the details might be probative and relevant, but there is no allegation of actual bias. To borrow a quote from Agnew v. Ontario Association of Architects (1987), 1987 4030 (ON SC), 64 O.R. (2d) 8 (H.C.J.), where a summons was quashed, it cannot be said that the proposed lines of questioning are relevant and necessary having regard to the grounds of review and the state of the record. I, therefore, conclude that both summonses should be quashed.

3. Immunity under s. 10 of the Ontario Energy Board Act, 1998

62Assuming the above conclusion, is incorrect, I turn to the questions of: (a) whether as an Energy Board member, Ms. Hare has testimonial immunity; and (b) whether as retained external counsel for the Energy Board, Mr. Duffy has testimonial immunity under s.10 of the Ontario Energy Board Act, 1998.

63Section 10 of the Ontario Energy Board Act, 1998, grants testimonial immunity to members of the Board and employees of the Board with regard to information obtained in the discharge of their official duties.

64Section 10 provides as follows:

10. Members of the Board and employees of the Board are not required to give testimony in any civil proceeding with regard to information obtained in the discharge of their official duties.

65Provisions like s. 10 are designed to protect or augment deliberative secrecy, discussed below, and provisions like s. 10 guard against the chilling effect on the decision-making process that the potential of compellability wound engender: Ellis-Don Ltd. v. Ontario Labour Relations Board (1994), 1994 10531 (ON SC), 16 O.R. (3d) 698 at p. 714 (Div. Ct.).

66The summons directed at Ms. Hare seeks testimony from a “member of the Board” in a “civil proceeding” (an appeal pursuant to s. 33 of the Ontario Energy Board Act, 1998), with regard to “information obtained in the discharge of [her] official duties”. It is not disputed that Ms. Hare is a member of the Board and the information about which she is to be questioned could only have come to her in the discharge of her official duties. Thus, this summons should be quashed because of Ms. Hare’s testimonial immunity.

67The situation of Mr. Duffy is different. He not a member of the Board, and Summitt argues that he is not an “employee” of the Board. Further, Summitt submits that the information sought from Mr. Duffy is not information that he obtained in the discharge of his official duties.

68Employee is not a defined term in the Ontario Energy Board Act, 1998, and the Energy Board’s argument essentially is that giving s. 10 a purposive interpretation, independent legal counsel is and should be within the definition of an employee. The Energy Board’s argument is set out in paragraphs 26 and 27 of its factum as follows:

26. As independent legal counsel to the Board, Mr. Duffy is an “employee of the Board” within the meaning of s. 10, i.e. is a “person who works in the service of another person (the employer) under an express or implied contract for hire, under which the employer has the right to control the details of work performance:” Black’s Law Dictionary (9th ed., 2009), “employee.”

27. This interpretation is consistent with a purposive, large and liberal interpretation of s. 10. It is trite that the words of a statute must be interpreted in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and object of the Act and the intention of the legislature: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 26. It is also clear that the Legislation Act, 2006, S.O. 2006, c. 21, Schedule F, s. 64(1) directs that legislation “shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.” The purpose of the statutory testimonial immunity in s. 10 is to protect Board members and Board employees “from the distraction, the expenditure of time, and the potential intimidation associated with testifying about their board-related activities in other legal proceedings:” Ellis-Don Ltd. v. Ontario Labour Relations Board (1994), 1994 10531 (ON SC), 16 O.R. (3d) 698 at p. 709 (Div. Ct.). The Ontario Legislature intended the testimonial immunity to apply equally to both the Board’s full-time in-house counsel and to part-time independent counsel employed by the Board for a specific mandate (like Mr. Duffy in this case).

69Summitt’s counterargument is much more elaborate. It has a multifaceted argument that as external counsel Mr. Duffy is not an “employee” of the Board and it also argues that if he is an employee, then the information he obtained was not obtained in the discharge of his official duties.

70There are five branches to Summitt’s interpretation argument:

• First, Summitt submits that s. 111(1)(b) (Confidentiality) and 112.0.6(1) (Confidentiality) of the Act creates a distinction between “counsel for the Board” and “an employee of the Board” from which Summitt submits it cannot be the case that external counsel for the Board is “an employee of the Board” for purposes of section 10 because such a distinction would not be necessary and there would be no need to include the words “counsel for the Board” in these sections of the Act.
• Second, Summitt submits that there are other provisions in the Act that differentiate between “employees” and other persons such as: consultants, counsel, agents, third parties, officers, affiliates, other assistance, (See sections 28.7(4), 59(3)(d), 88.1(2), 88.3 (1), 88.3(5), 98(1), 101(1), 107(1), and 107(2).) and, therefore, it is apparent that the Legislature was very specific when it used the term “employees” versus other terms to describe the group of persons that come within the scope of each particular section, and if the Legislature had intended for external counsel to come within the ambit of section 10 of the Act, then it would have stated so expressly.
• Third, Summitt submits that s. 10 of the Act can be contrasted with the provision that was at issue in Glengarry Memorial Hospital v Ontario (Pay Equity Hearings Tribunal), (1993), 1993 9434 (ON SCDC), 99 D.L.R. (4th) 682 at 692 (Div. Ct.); varied 1993 9435 (ON SCDC), 99 D.L.R. (4th) 706 (Div Ct.); namely, section 31 of the Pay Equity Act, which expressly included within its ambit “persons whose services have been contracted for by the [tribunal]”. This contrast demonstrates that if the Legislature had intended to include external counsel in s. 10 of the Act, or more generally “persons whose services have been contracted for by the Board”, it would have stated so expressly.
• Fourth, Summitt submits that s. 14 of the Act also demonstrates that external counsel are not “employees” of the Board. Section 14 authorizes the “Board to appoint persons having technical or special knowledge to assist the Board.” However, if such persons are “employees” of the Board, then appointing such persons would be no different than hiring any other employee, and section 14 of the Act would be unnecessary.
• Fifth, relying on 671222 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] S.C.J. No. 61 at para. 47, Summitt submits that the common law distinguishes between “employees” and “independent contractors”, and Stikeman Elliott and Mr. Duffy are independent contractors and Mr. Duffy is an associate and employee of Stikeman Elliott, not an employee of the Board.

71I am not convinced by the Energy Board’s interpretation argument. As a matter of giving s. 10 a purposively interpretation, it is not necessary to include external legal counsel as “employees” because solicitor-client privilege, which I will discuss below, would immunize external counsel from giving testimony with regard to information obtained in providing legal service to the Energy Board.

72I rather favour the arguments and the ultimate conclusion of Summitt’s argument that had the Legislature intended to include external counsel within s. 10 of the Ontario Energy Board Act, 1998, it would have done so expressly. Giving “employee” its everyday ordinary meaning, external counsel are not employees whose work performance is controlled by the employer. I would not describe external counsel as “independent contractors” but rather as professionals hired to provide independent legal advice.

73With the exception of the information about Mr. Duffy’s retainer, which would be subject to solicitor-client privilege, I also agree with Summitt’s argument that the information being sought from Mr. Duffy was not information obtained in the discharge of his official duties. The information about Stikeman Elliott acting for Summitt’s competitors or about its participating in the activities of several OEA committees is external to his service for the Energy Board.

74Thus, I conclude that Mr. Duffy is not covered by s. 10 of the Ontario Energy Board Act, 1998, and he does not have testimonial immunity. Therefore, I would not quash his summons on account of s. 10 of the Act.

4. Deliberative Secrecy

75In this section, I discuss whether the summonses should be quashed on the grounds of deliberative secrecy.

76Under the doctrine or principle of deliberative secrecy, which promotes adjudicative independence, collegial debate, and the finality of decisions, a judge or an administrative tribunal adjudicator cannot be compelled to testify about the deliberations or the substance of the decision-making process or how or why a particular decision was reached by the court or administrative tribunal: Re Clendenning and Board of Police Com’rs for City of Belleville (1976), 1976 696 (ON SC), 15 O.R. (2d) 97 (Div. Ct.); Agnew v. Ontario Association of Architects (1987), 1987 4030 (ON SC), 64 O.R. (2d) 8 (H.C.J.); 156621 Canada Ltd. v. The City of Ottawa (2004), 70 O.R. (3d) 291 (S.C.J.).

77The substance of the decision-making process includes what material was considered or not considered by the adjudicator, whether the adjudicator pre-judged the matter, and the extent to which the adjudicator was influenced by the views of others: Agnew v. Ontario Association of Architects, supra, at p. 17.

78Deliberative secrecy would cover the involvement of independent counsel unless there was good reason and a factual foundation to believe that counsel transgressed the limits of fairness and natural justice: Rudinskas v. College of Physican and Surgeons of Ontario, 2011 ONSC 4819 (Div. Ct.); Aronov v. Royal College of Dental Surgeons of Canada, [2001] O.J. No. 1927 (Div. Ct.); Stevens v. Canada (Attorney General), 2003 FC 1259.

79Deliberative secrecy extends to the administrative aspects of the decision-making process, including the assignment of the adjudicator(s) to particular cases: Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) (2007), 2007 NSCA 37, 282 D.L.R. (4th) 538 at paras. 15-18 (N.S.C.A.); Tremblay v. Québec (Commission des affaires sociales), 1992 1135 (SCC), [1992] 1 S.C.R. 952.

80Under the rule of deliberative secrecy, members of administrative tribunals generally cannot be required to testify about how or why they reach their decisions: Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), supra. In Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) supra at para. 16, Cromwell, J.A., as he then was, noted that, although the principle of deliberative secrecy does not apply as strongly to administrative tribunals as to courts, the Supreme Court of Canada has confirmed that deliberative secrecy is the general rule for administrative tribunals.

81The testimonial immunity of deliberative secrecy for the administrative aspects of the decision-making process is not absolute and will yield where it is alleged that the right of natural justice has been infringed: Tremblay v. Québec (Commission des affaires sociales), 1992 1135 (SCC), [1992] 1 S.C.R. 952; Payne v. Ontario (Human Rights Commission) (2000), 2000 5731 (ON CA), 192 D.L.R. (4th) 315 (Ont. C.A.).

82The testimonial immunity of deliberative secrecy can be lifted if a litigant can show clearly articulated and objectively sound reasons for believing that the process did not comply with the rules of natural justice or procedural fairness: Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) supra; Payne v. Ontario (Human Rights Commission), supra; Agnew v. Ontario Association of Architects), supra, at p. 15.

83In the case at bar, Summitt submits that deliberative secrecy is not engaged because the lines of inquiry do not involve the decision-making process of the Energy Board or that deliberative secrecy should be lifted in the circumstances of this case.

84In my opinion, deliberative secrecy undoubtedly applies to Ms. Hare. As for Mr. Duffy, in my opinion, under the principle of deliberative secrecy, he cannot be compelled to answer Retainer Questions; however, deliberative secrecy would not apply to Competitor Representation Questions, OEA Involvement Questions, and Other Proceedings Questions. These lines of inquiry are extraneous to the Energy Board’s decision-making process.

85For clarity, I point out that the decision with respect to Mr. Duffy and three lines of inquiry is not a matter of lifting deliberative secrecy; rather, it is a matter of concluding that there is no adjudicative secrecy associated with the circumstances that Stikeman Elliott had other clients and was a member of the OEA.

86Thus, Ms. Hare’s summons should be quashed on the grounds of deliberative secrecy but not Mr. Duffy’s summons.

5. Solicitor- Client Privilege

87In this section, I discuss the extent to which solicitor-client privilege would provide grounds for quashing the summonses.

88Solicitor-client privilege protects from disclosure, communications between lawyer and client. There is a rebuttable presumption of fact that “all communications between client and lawyer and the information they shared would be considered prima facie confidential in nature: Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) Inc., 2004 SCC 18, [2004] 1 S.C.R. 456 at para. 42. It is enough for the party invoking the privilege to show that a general mandate had been given to the lawyer for the purpose of obtaining a range of services generally expected of a lawyer in his or her professional capacity: Foster Wheeler Power Co., supra.

89Privilege applies to counsel advising an administrative tribunal: Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809 at paras. 17-19, 31.

90The names of client are not categorically protected by solicitor-client privilege, but may be. For instance, the nature of a lawyer’s practice may reveal the topic and nature of the legal advice and the disclosure of the client’s name would be privileged: R. v. Lavallee, Rackel Heintz, 2002 SCC 61, [2002] 3 S.C.R. 209; Minister of National Revenue v. Welton Parent Inc. 2006 FC 67, [2006] 2 C.T.C. 177 at paras. 82-94.

91In the case at bar, however, Summitt submits that none of the lines of inquiry are subject to solicitor-client privilege.

92In this regard, Summitt attempts to draw a distinction between disclosure of communications between client and solicitor, which would be privileged, and disclosure that there were communications between client and solicitor but without disclosing the advice given, which information it submits is not privileged. With respect, this distinction is untenable. Ms. Hare has a privilege not to disclose whether she had communications with Mr. Duffy and not to disclose the topics of those communications. Similarly, Stikeman Elliott’s clients have a privilege not to disclose that they retained the firm. Mr. Duffy is bound by these solicitor-client privileges.

93In the case at bar, in my opinion, despite Summitt’s arguments to the contrary, the Retainer Questions, the Competitor Representation Questions, and the Other Proceedings Questions are subject to solicitor-client privilege, although it would appear that with respect to some of Summitt’s competitors, the privilege has been waived by the public disclosure of Stikeman Elliott’s retainers.

94The OEA Involvement Questions do not involve the communication of legal advice to a client and would not be covered by solicitor-client privilege.

95This line of reasoning leads to the conclusion that Ms. Hare’s summonses should be quashed but not Mr. Duffy’s, although he could only be questioned with respect to the OEA Involvement Questions.

D. CONCLUSION

96For the above reasons, the motion to quash the summonses should be granted.

97If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Energy Board parties and the Attorney General’s submissions within 20 days of the release of these reasons for decision followed by Summitt’s submissions within a further 20 days.

98It may be of assistance to the parties to know that my present inclination is to order costs in the cause with an exception for the Attorney General’s costs, which would be payable forthwith on a partial indemnity scale.

Perell, J.

Released: May 8, 2012

DATE: May 8, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

Summitt Energy Management Inc.

Appellant

• and -

Ontario Energy Board

Respondent