University of Guelph Central Student Association v. University of Guelph, 2016 ONSC 3189
Court File No.: 14-60399 Date: May 13, 2016 Superior Court of Justice - Ontario
Re: UNIVERSITY OF GUELPH CENTRAL STUDENT ASSOCIATION, CANADIAN FEDERATION OF STUDENTS and CANADIAN FEDERATION OF STUDENTS-ONTARIO, Applicants (Responding Parties) And UNIVERSITY OF GUELPH, Respondent (Moving Party)
Before: Justice Marc R. Labrosse
Counsel: Benoit M. Duchesne, Counsel, for the University of Guelph Central Student Association, Co-Applicant Todd J. Burke, Counsel, for the Canadian Federation of Students and Canadian Federation of Students-Ontario, Co-Applicant Krista Chaytor, Counsel for the University of Guelph, Respondent
Heard: March 10, 2016
Endorsement
[1] The Respondent, the University of Guelph, moves for an order to compel certain affiants of the co-applicant, the University of Guelph Central Student Association (“CSA” or the “Applicant”), to re-attend to be cross-examined, to answer questions which had been objected to as well as to answer any proper questions arising as a result of those answers, and to produce the documents sought to have produced during cross-examination.
[2] The Notice of Motion seeks answers to questions from three affiants; however at the hearing of the motion, the only refusals which remained were from the cross-examination of Joshua Ofori-Darko held on April 2, 2015 and April 21, 2015.
Background
[3] The Applicants have commenced this Application seeking an order compelling the University of Guelph (the “University”) to resume collecting Canadian Federation of Students (“CFS”) and Canadian Federation of Students-Ontario (“CFS-O”) membership fees from the University’s undergraduate students. Historically, such fees were collected by the University pursuant to a policy where the University acted as the CSA’s fee collection agent, a practice that dated back to 1987.
[4] In 2010, the CSA commenced an application seeking to discontinue the CSA’s membership in CFS and CFS-O (the “2010 Application”).
[5] The 2010 Application resulted in a court-ordered referendum held in April 2010. Following an appeal to the Court of Appeal, the decision of the application judge in the 2010 Application was set aside and a new hearing was ordered. Rather than proceeding with the re-hearing of the 2010 Application, a settlement was reached whereby the CSA would maintain its membership in the CFS and CFS-O. During the period of the 2010 Application, the CSA requested that the University continue collecting the membership fees and that these be placed in interest bearing accounts. At some point in 2012, the University advised the CSA that it would no longer continue collecting the membership fees and it discontinued the practice prior to the 2012-2013 academic year.
[6] The current application seeks to have the University pay the membership fees for 2010-2011 and 2011-2012 which continue to be held in an interest bearing account, pay to the CSA the uncollected membership fees and continue collecting the membership fees into the future.
The Outstanding Refusals
[7] In the days and months leading up to the hearing of this motion, the parties managed to resolve a number of the questions in dispute. There remain seven outstanding refusals that this Court must resolve along with the issue of re-attendance. During the motion, the parties agreed to deal with each refusal individually and provided their arguments one at a time. The issue of re-attendance was not addressed during the motion.
[8] I will now deal with each refusal individually as they are set out in the Refusals Chart from which both parties worked.
Refusal #1: The personal beliefs of Mr. Garvie
| Question No. | Page No. | Specific question | Answer or precise basis for refusal |
|---|---|---|---|
| 138 | 26 | Did Mr. Garvie ever make any statements to the effect that the CSA should be a member of the CFS and the CFS-O? | I’m unsure if I can disclose that because a lot of our discussions about membership and about the litigation were in camera so in closed sessions with the Board of Directors. |
[9] Mr. Garvie was a former member of the executive of the CSA and was a signatory, on behalf of the executive of one the documents which formed part of the 2010 Application settlement, the Litigation Co-operation Agreement.
[10] The University argues that the personal beliefs of Mr. Garvie are relevant because the University does not believe that the decision of the CSA Board of Directors to continue its membership in the CSA was made in the best interest of the undergraduate students. The University questions the authority by which the settlement of the 2010 Application was entered into and states that it is at issue if the 2010 Application settlement was ever properly authorized.
[11] The University further states that the issue of relevancy is more difficult to address in this litigation as the matter was started as an Application and as such, there are no pleadings as one would find if the matter was brought by way of Statement of Claim.
[12] The University states that the evidence referred to at para. 55 of the CSA’s Factum that the 2010 Application settlement was entered into in the “best financial and other interests of the CSA” opens the door for the University to explore the personal beliefs of Mr. Garvie. Furthermore, the University states that it does not believe the reason for the settlement which was provided during cross-examination. Finally, the University seeks to establish that the execution of the Litigation Co-Operation Agreement was never ratified by the Board of Directors.
[13] I disagree with the University’s position. It is well founded in Canadian corporate law that a corporation speaks by the resolutions of its Board of Directors. Individual directors do not have a voice in most circumstances. The personal views of a member of a Board of Directors are not relevant in my view. This is particularly so when we are dealing with the Board of Directors of the CSA which is a board comprised of 35 directors. Mr. Garvie, as an executive officer of the CSA, has one vote.
[14] Furthermore, it is important to note that the issue surrounding the authority to sign the Litigation Co-operation Agreement was brought back to the Board of Directors in July of 2013 at which time the Board of Directors voted against revisiting the signing of the Litigation Co-Operation Agreement. As such, the personal beliefs of Mr. Garvie are not relevant based on the evidence before me.
[15] Question 138 does not require an answer.
Refusal #2: Recommendations of the Heenan Blaikie Law Firm
| Question No. | Page No. | Specific question | Answer or precise basis for refusal |
|---|---|---|---|
| 790 | 168 | To provide the recommendation [of the Heenan Blakie law firm that the CSA continue to defend the results of the referendum to continue membership with the CFS-N and CFS-O]. | Solicitor-client privilege. |
[16] The University relies on the July 3, 2011 Resolution of the Board of Directors which states:
BIRT, the CSA Board of Directors adopt the recommendations of the Heenan Blaike law firm and continue to defend the results of the referendum to discontinue membership with CFS-N and CFS-O.
[17] The University takes the position that this resolution is a waiver of solicitor-client privilege as the substance of the advice is put into issue.
[18] The CSA states that the resolution is properly worded and does not bring the legal advice itself into issue. The CSA relies on the matter of Guelph (City) v. Super Blue Box Recycling Corp. (“Blue Box”), at para. 87 in support of its position that the CSA merely disclosed that legal advice was received and followed to explain the nature of the resolution.
[19] I agree that the substance of the legal advice has not been put in issue by this resolution. It is difficult to imagine how such a resolution could otherwise be worded so as to allow the members of the CSA to understand the subject matter of the resolution and avoid disclosing information which would be protected by solicitor-client privilege. The answer given that the nature of the legal advice given is protected by solicitor-client privilege is proper.
[20] Question 790 was properly answered.
Refusal #3: Recommendations of the Heenan Blaikie Law Firm
| Question No. | Page No. | Specific question | Answer or precise basis for refusal |
|---|---|---|---|
| 929 | 198 | Is this [the sixth paragraph on page 401 of the Application Record] the view that the CSA held or the advice that the CSA had received from its lawyers all along since the beginning of the application? Or did that advice change? | You’re asking about legal advice, solicitor/client privileged. Mr. Ofori-Darko says it was the CSA’s view. |
[21] The University takes the same position with the document referenced in Question 922. The University states that the document found at page 401 of the Application Record represents a waiver of solicitor-client privilege.
[22] In the answer to Question 922 – the witness states that the information on page 401 came in part from the CSA’s lawyer. While this answer is somewhat ambiguous, I am unable to conclude that this document “puts the substance of the advice in issue in the legal proceedings” and thus that the privilege is lost: see Blue box at para 87.
[23] This document was an information piece provided by the CSA to its membership, namely the undergraduate students. While it includes some legal conclusions which the lawyers for the CSA reviewed, (see Question 920), it does not in my view open the door for the University to receive the actual legal advice provided to the CSA following the Court of Appeal decision. My opinion is the same as with Question 790.
[24] Question 929 was properly answered.
Refusal #4: Redactions to Memorandum dated September 12, 2012
| Question No. | Page No. | Specific question | Answer or precise basis for refusal |
|---|---|---|---|
| 840 | 181 | To provide a copy of the report [that was prepared outlining the pros and cons of the CSA remaining a member of the CFS or the CFS-O]. | Answered by the delivery of the document produced as Advisement no. 8 on June 1, 2015. |
[25] I have reviewed the un-redacted version of the report dated September 12, 2012, from the Executive to the Board of Directors of CSA (Tab 1(a) of the Supplementary Motion Record of the Moving Party). I conclude that the redactions made by the CSA are appropriate as those redacted portions are protected by solicitor-client privilege and common-interest privilege with the exception of the redaction at Note 1 - the bottom of page 4 - which shall be disclosed as this would be information available to the University in Schedule B of an Affidavit of Documents.
Refusal #5: Redactions to the Reports #1 through #4
[26] I have reviewed the un-redacted version of Reports #1 through #4 (Tab 1(c) of the Supplementary Motion Record of the Moving Party). I am of the view that these redactions are appropriate as they represent a combination of solicitor-client and common interest privilege.
[27] On the issue of common interest privilege, the redactions in these and other documents which are the subject of this Endorsement are based on the litigation strategy used by the CSA and CFS during the settlement of the 2010 Application. These communications clearly anticipate litigation involving the University and as such the underlying litigation privilege has been established: see Barclays Bank PLC v. Devonshire Trust (Trustee of), 2010 ONSC 5519. There is also an issue of relevancy of the litigation strategy used or contemplated in the 2010 Application in the context of the current Application. I am of the opinion that the use of redactions was appropriate in these circumstances.
Refusal #6: The Tolling Agreement
| Question No. | Page No. | Specific question | Answer or precise basis for refusal |
|---|---|---|---|
| 1110 | 242 | To provide a copy of the tolling agreement. | The tolling agreement is not relevant to this proceeding. |
[28] The CSA takes the position that the Tolling Agreement is not relevant to this proceeding. It was a document purported to have been entered into as part of the settlement of the 2010 Application.
[29] At Question 1107 during the cross-examination of Mr. Ofori-Darko, he indicated that he believed that it was signed in March or April of 2013 at the time of signing the Litigation Co-Operation Agreement. During the motion hearing, the CSA presented a copy of the Tolling Agreement which is dated September 15, 2012 on the first page, dated November 2013 on page 4 being the signing page and only signed by one of the three signatories. The Court was advised by counsel for the CSA at the motion that the Tolling Agreement was signed on December 2, 2013.
[30] It was openly discussed during the motion that the purpose of the Tolling Agreement was to extend certain limitation periods. The CSA objects to its disclosure although it has disclosed both the Minutes of Settlement and Litigation Co-operation Agreement which are the other two documents resulting from the settlement of the 2010 Application.
[31] In addition, the Applicants have pleaded that the CSA owes a debt to the CFS and CFS-O. Consequently, the evidence of the continued liability of the CSA is relevant to these proceedings.
[32] I conclude that the final executed copy of the Tolling Agreement shall be disclosed to the University together with any extensions or amendments thereto.
Refusal #7: Redaction of E-mails Relating to the Settlement of the 2010 Application
| Question No. | Page No. | Specific question | Answer or precise basis for refusal |
|---|---|---|---|
| 1001 | 214-215 | To produce e-mails [between lawyers that resulted in the settlement agreement you say was reached in February 2013]. | Produced under Advisement 9 are a copy of the emails exchanged between counsel for the CSA, the CFS and the CFS-O regarding the conclusion of Minutes of Settlement between the CSA, the CFS and the CFS-O with respect to the 2010 Application. Those portions of the emails which are privileged communications or are irrelevant to this proceeding have been redacted. |
[33] The CSA has produced a series of e-mails between counsel for the CSA and counsel for the CFS, setting out the exchanges between the parties leading up to the settlement of the 2010 Application. Portions of those e-mails have been redacted on the basis that they represent common interest privilege in the approach taken for the settlement of the 2010 Application. See Tab 1(b) of the Supplementary Motion Record of the Moving Party.
[34] At the motion hearing, counsel for the University advised that it was not pursuing un-redacted copies of Emails 1, 4, 9 or 12.
[35] I have been provided with un-redacted copies of Emails 2, 6, 7, 8, 10 and 11 produced pursuant to Question 1001.
[36] Question 1001 relates to the timing of the settlement of the 2010 Application and as such, the references to the finalization of the Tolling Agreement and the Minutes of Settlement are relevant. As stated above, I agree with the CSA that the litigation strategy contemplated by the CSA and CFS in the 2010 Application are governed by common interest privilege. I have attempted to work with the redacted copies of Tab 1(b) of the Supplementary Motion Record of the Moving Party to indicate where redactions should be removed (see Appendix “A” to this Endorsement). If this is not clear to the parties, I will be available for a short conference call to answer any questions.
Final Issue: Re-attendance for Further Cross-examination
[37] As previously stated, the issue of re-attendance was not canvassed during the motion. As a result of this Endorsement, the Tolling Agreement shall be disclosed and certain redactions relating to the timing of the settlement of the 2010 Application shall be removed. The question remains as to obligation of Mr. Ofori-Darko to re-attend to answer further questions. As the question was not argued during the motion, I will leave it up to the parties to see if they can agree on the issue of re-attendance (if required), failing which this issue can be resolved in a telephone conference call where the parties may make submissions on this issue.
Costs
[38] The result on this motion is somewhat divided. If the parties are unable to agree on the issue of costs, they may write to me. Any party claiming costs shall do so in writing within 30 days of this decision and the other party will have 30 days to respond. The maximum length of any costs submission will be three pages, excluding attachments.
Justice Marc R. Labrosse Date: May 13, 2016