ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Wilson v. Harwich (Township)
2001 ONDR 6
2001-07-25
2001-06
STATUTE:
Drainage Act
HEARING:
BETWEEN:
CLARENCE WILSON, PAUL WILSON AND NEIL WILSON APPELLANTS
-AND -
THE CORPORATION OF THE TOWNSHIP OF HARWICH RESPONDENT
R E A S 0 N S O N RU L I N G
D. 0'BRIEN, Drainage Referee (Orally)
Gentlemen, as I have indicated before, I am prepared to make an oral order in the circumstances in the hope that it might expedite matters. This is a motion made by the defendant corporation before the Drainage Referee, at Windsor, returnable on the 24th day of July, 2001, at 1:00 p.m. The documents were duly filed with the Referee at Pembroke and duly served on the plaintiff's solicitor.
The motion requested an order directing that the appellant Clarence Wilson be recalled for cross-examination on the contents of certain documents and statements attributed to him in these documents. The specific documents are a newspaper article dated December the 17th, 1992, from the Chatham Daily News, a reporting letter from K. E. Hansen, Q.C. to the Lower Thames Valley Conservation Authority dated May the 6th, 1993, a reporting letter from K. E. Hansen, Q.C. to the Lower Thames Valley Conservation Authority dated July 23, 1993, and a letter from John C. Taylor, the Wilson's former counsel in this matter, to the Lower Thames Valley Conservation Authority dated August 31st, 1993.
The affidavit of the defendant states that on May the 31st, 2001 following the conclusion of the evidence of the appellant Clarence Wilson on April the 6th, 2001, counsel for the respondent was advised by Ed Driese (ph) of the engineering firm of Todgham (ph) and Case (ph) Associates Inc. of existence of aforementioned documents that attribute statements to the appellant Clarence Wilson. The statements allegedly made by Clarence Wilson were to the effect that in 1992 the appellant suffered crop damage of approximately $50,000 over their entire farm due to flood effects from the work known as the Indian/McGregor Creek Project which was being administered by the Lower Thames Valley Conservation Authority. The appellants gave evidence at their examination for discovery that the Indian/McGregor Creek Project had nothing to do with crop loss they were claiming in this proceeding. The purported statements in the documents directly contradict the evidence from the appellant's examination for discovery. The appellants did not correct their discovery answers or indicate the answers were incomplete as required by rules 31.09. The appellant, Clarence Wilson, gave evidence in this proceeding on April the 6th, 2001, in response to questions by his counsel, James Renaud, advising that there was no flooding at all between 1984 and 1994. The purported statements in the documents attributed to Clarence Wilson directly contradict his evidence from the trial. The defendant further said the documents and the purported statements raised important questions as to the credibility of Clarence Wilson and the appellants, and the cause of the damages claimed by the appellants. The defendant claimed that the respondent would be prejudiced and that there would be a potential serious miscarriage of justice if the cross-examination was not permitted and leave was not granted.
In reply, Mr. Renaud stated this matter first came to his attention on the morning of June the 1st, 2001 when advised of it by Mr. McTaggart. He stated that certain documents provided and a request for an adjournment was made and argued before the Court. At that time the Court adjourned the proceedings on the basis of representations made, including Mr. Renaud's primary indication that he had not had a full or fair opportunity to review the materials or discuss the same with his client and get instructions. Mr. Renaud advised that the hearing was then adjourned to a new date, set for the week of July the 24th, 2001 for the parties to address these issues in the interim. He subsequently advised that upon further review of the documents, he wrote a letter to Mr. McTaggart on June the 7th, 2001, indicating his initial position and asking for clarification of the respondent's position on various issues. He further indicated that he wrote subsequently on June the 15th, the 21st, and July the 13th, requesting a response to his June 7th letter. He stated that on the 17th of July the defendant's solicitor forwarded a reply indicating a motion record would be following. The plaintiff's solicitor further maintained that Mr. Paul Wilson and Clarence Wilson had both answered fully on the previous Discovery relating to the issues raised. Having heard the extentive and helpful submissions of counsel, I have determined to make the following Order: taking matters in reverse order, I Order the 1etter of K . E . Hansen, Q . C . to the Lower Thames Valley Conservation Authority dated July the 23rd, 1993 and the letter from John Taylor to the same authority dated August the 31st, 1993 be excluded from use in this proceeding on the basis of being privileged documents. I find as a fact that both documents reflect communications made between the parties with a view to settlement of issues so as to avoid litigation. Further, the letter dated July the 23rd, 1993 specifically referred to the negotiations as being made on a without prejudice basis. The following letter by Mr. Taylor was covered by the without prejudice characterization because it was in direct response to the matters raised from the previously referred to negotiations.
In making this ruling I am applying the law of Ontario in this matter as laid down in the Court of Appeal case I. Waxman and Sons Limited vs Texaco Canada referred to in 1968 O.R., 452 The Court of Appeal approved the words of the trial judge at that time when he said: "I am of the opinion that in this jurisdiction a party to a correspondence within the without prejudice privilege is, generally speaking, protected from being required to disclose it on discovery or at trial, and any proceeding by or against a thirty party".
With respect to the letter of May the 6th, 1993, previously referred to, I am of the opinion that it is not privileged under the without prejudice marker, not specifically referring to negotiations for settlement of a matter, but rather has the character of a reporting letter to a client, namely, the Conservation Authority. According that letter is privileged on the solicitor and client basis, unless that privilege is waived. That privilege must be waived by both Mr. Hansen and the Conservation Authority. Mr. McTaggart must assure the court that this is the case. If he can, the document may be used in cross-examination. Once again I am relying on the case of Waxman vs Texaco, supra, where Mr. Justice Fraser set forth the law of Ontario and in that case he stated that:
"Similar reasons may well be applicable to both solicitor and client privilege and to the without prejudice privilege".
With respect to the newspaper article, which is clearly hearsay evidence, I am of the opinion that in the interest of fairness and justice that it be available for cross-examination. The Drainage Referee has a broad discretion as to the Admissibility of evidence and frequently permits hearsay evidence to be used. There is a good reason for the broad discretion because many of the proceedings before the Referee are in the nature of an administrative tribunal. The matters at issue, being between a governing body, namely a municipality or the government through legislation, and landowners, in the course of administering the Drainage Act. However, many of the other proceedings before the Referee also had the character of a regular court proceeding, such as in this case where the issue is damages as between two parties. In the latter cases, adversarial considerations apply. In such cases the Referee is inclined to apply the regular court rules with respect to both evidence and procedure. Thus, I have some difficulty in this case in agreeing to allow the use of this newspaper account. I caution that I will measure carefully what weight I will give to its probative value.
On the final issue ..., namely the recall and cross-examination of Mr. Wilson, I have determined to permit the same. I do so recognizing that these documents did not come to the defendant's attention until the last day of the last proceeding I accept these documents as being relevant to the issues, but require that they be properly proven if utilized beyond cross-examination. I am of the opinion the rule in Brown vs Dunn is not significantly breached because the plaintiff in this matter has not technically closed his case. I am determined to have full disclosure and to permit the defendant an opportunity to fully pursue his defence. I do not believe the plaintiff will be prejudiced in this matter having had a considerable time to consider the documents proposed. I believe that this case has already been greatly protracted by legal challenges to the detriment of the litigants in terms of time consumed and costs incurred.
I, therefore, am firmly of the opinion that granting the motion in part will serve the interest of justice and equity in this matter and will greatly expedite proceedings. With respect to costs, I am disposed not to order costs in favour of either party on this motion. I am not fully satisfied that counsel diligently pursued the cost savings that would have been achieved if this matter had been dealt with by way of discovery. However, I am willing to receive written submissions with respect to the issue of costs.