Court File and Parties

COURT FILE NO.: CV-11-434528 DATE: 20180622 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mediamix Interactive Inc., Appellant (Plaintiff) AND: Her Majesty the Queen in Right of Ontario as represented by the Minister of Natural Resources and Camis Inc., Respondents (Defendants)

BEFORE: H. McArthur J.

COUNSEL: Andrew MacDonald, appearing as counsel for the Appellant Judith Parker, appearing as counsel for the Respondent, Her Majesty the Queen in Right of Ontario as represented by the Minister of Natural Resources

HEARD: June 18, 2018

Endorsement

H. MCARTHUR J.:

Introduction

[1] Mediamix Interactive Inc. appeals an order of Master Graham in which he upheld the refusal of Her Majesty the Queen in Right of Ontario (Ontario) to produce nine slides redacted from a 24-slide PowerPoint presentation, or “briefing deck”, on the basis that the redacted slides were covered by solicitor-client privilege.

[2] Mediamix argues that the Master erred in three ways. First, the Master erred in finding that Ontario had met its onus of establishing that the slides were protected by solicitor-client privilege. Second, the Master erred in finding that Ontario did not waive privilege by disclosing 15 out of the 24 slides in the briefing deck. Third, the Master ignored or misapprehended facts and thus made a palpable and overriding error.

[3] I do not agree. For the reasons set out below, I find that the Master correctly found that the nine redacted slides were protected by solicitor-client privilege. He also correctly found that Ontario did not waive privilege by disclosing the other 15 slides contained in the briefing deck. He did not ignore or misapprehend the facts.

[4] At the outset, I will briefly address the facts. I will then address the applicable standard of review before turning to my analysis of the issues raised.

Brief Overview of the Facts

[5] In February 2009, Mediamix responded to a request for proposal issued by the Ontario government for bids to supply the Ontario Parks Reservation and Registration Service (PRRS) with an on-line and phone system for reserving and registering campsites. In May and June 2009, Ontario’s Ministry of Natural Resources entered into a five-year contract with Mediamix.

[6] Ontario took the position that there were deficiencies with Mediamix’s work product and that Mediamix failed to provide a fully operational system within the time required under the contract. As a result, on August 30, 2010 two meetings took place to discuss what options were open: one meeting with the Minister and one meeting with the Deputy Minister. A 24-slide briefing deck was prepared for both meetings. With the exception of the cover page, the slides were identical.

[7] On October 1, 2010, Ontario terminated the contract, effective October 31, 2010. Ontario then offered the contract for the PPRS to Camis Inc.

[8] Mediamix then brought an action against Ontario and Camis Inc., alleging breach of contract, breach of confidence, restitution and conspiracy to injure. Ontario has counterclaimed, alleging breach of contract.

[9] In discoveries held in December 2014, Ontario’s witness was asked about the Minister’s briefing and the briefing deck prepared for the meeting. He asserted solicitor-client privilege. Mediamix brought a refusal motion. In response Ontario reviewed the briefing deck and redacted nine slides (slides 5-13), over which it claimed solicitor-client privilege. The remaining 15 slides were produced. At the hearing of a refusal motion before Master Hawkins on December 2, 2015, Master Hawkins found that the redacted slides were covered by solicitor-client privilege. Mediamix failed to appeal this finding.

[10] At a later examination for discovery, Ontario’s witness was asked about the Deputy Minister’s briefing. He explained that the briefing deck used for this meeting was the same as the briefing deck used for the Minister’s briefing, with the exception of the title. Counsel for Ontario undertook to search for the version of the briefing deck used for the Deputy Minister’s briefing, vet it for privilege and, if relevant, produce it. The briefing deck at issue in this appeal was ultimately produced, with slides 5-13 redacted for solicitor-client privilege. Counsel also provided earlier draft versions of the briefing deck that did not contain solicitor-client privilege and were thus produced without redactions.

[11] On November 21, 2017, Mediamix brought another undertakings and refusal motion. Mediamix sought production of the nine slides redacted from the Deputy Minister’s briefing deck, arguing that Ontario had waived privilege by producing the other 15 slides in the deck. Master Graham found that the redacted slides were covered by solicitor-client privilege and rejected Mediamix’s argument that Ontario had waived privilege by disclosing the unprivileged slides in the briefing deck.

Standard of Review

[12] The law is clear that a Master’s decision should not be interfered with unless the Master made an error in law, exercised his or her discretion on the wrong principles, or misapprehended the evidence such that there was a palpable and overriding error: Zeitoun v. Economical Insurance Group, 2008 ONSCDC 20996, 91 O.R. (3d) 131 (Div.Ct.), at para. 40; aff’d 2009 ONCA 415, 96 O.R. (3d) 639 (C.A.).

[13] In Ontario, it has been held that a determination of whether evidence is privileged is a matter of law. As such, the standard of review is correctness: Leadbeater v. Ontario, 2004 ONSC 14107, [2004] O.J. No. 1228 (S.C.J.), at para 29; Creative Career Systems Inc. v. Ontario, 2012 ONSC 649, at para. 21; Roynat Capital Inc. v. Repeatseat Ltd., 2015 ONSC 1108, at para. 10; Goldribbon Homes Ltd. v. Kessler, 2018 ONSC 987, at para. 2.

[14] Ontario points out that in some other provinces the question of whether evidence is privileged has been characterized as a question of mixed fact and law, such that the standard of review would be palpable and overriding error: Redhead Equipment Ltd. v. Canada (Attorney General), 2016 SKCA 115, at paras. 17-24; Sturgeon Lake Indian Band v. Alberta, 2016 ABCA 253, at para. 8; R. v. Ragnanan, 2014 MBCA 1, at para 37.

[15] Despite the different standard applied in other provinces, however, Ontario is content that I approach this appeal on a correctness standard.

Analysis

1) Issue One: Did the Master err in finding that Ontario had met its onus of establishing that the nine redacted slides were covered by solicitor-client privilege?

[16] Mediamix points out that in the affidavit of Desmond Byrne, dated December 1, 2015, he deposed that the slides in the briefing deck presented to the Minister consisted of, “for the most part”, confidential legal advice. Mediamix advances two arguments flowing from this. First, Mediamix notes that Mr. Byrne’s affidavit was in relation to the briefing deck provided to the Minister, but the briefing deck involved in this appeal was presented to the Deputy Minister. Thus, Mediamix argues that there is no evidence about the slides shown to the Deputy Minister.

[17] I cannot agree. Susan Roback-Lescinsky, a law clerk, swore an affidavit in which she deposed that with the exception of the cover page, the same briefing deck was used in both the presentation to the Minister and the presentation to the Deputy Minister. Her evidence was unchallenged. Thus, Mr. Byrne’s evidence that certain slides shown to the Minister contained legal advice is equally applicable to the slides shown to the Deputy Minister. The slides are identical.

[18] Second, Mediamix argues that since Mr. Byrne said that the slides “for the most part” consisted of legal advice this necessarily means that part of those slides are not covered by solicitor-client privilege. The same argument was advanced before the Master. He looked at the redacted slides, and determined that they were, in fact, covered by solicitor-client privilege. I have also looked at the slides. It is clear to me that the Master correctly found that the entirety of the redacted slides are protected by solicitor-client privilege. It is also clear to me that the Master correctly found that the 15 slides that had been produced were not covered by solicitor-client privilege.

[19] I turn now to consider whether solicitor-client privilege has been waived because 15 out of 24 of the slides in the briefing deck have been disclosed.

2) Issue Two: Did the Master err in finding that Ontario did not waive solicitor-client privilege by disclosing nine slides out of the 24-slide briefing deck?

[20] Master Graham relied on the decision of Corbett J. in Guelph (City) v. Super Blue Box Recycling Corp., 2004 ONSC 34954, [2004] O.J. No. 4468 in finding that Ontario had not waived privilege by disclosing some of the briefing deck. The Master explained:

The reference to different considerations applying when parts of the communications are privileged and parts are not are germane to the case before me, because the redacted parts of the slide deck under consideration on this motion are, as I have found, privileged, but the balance of the slide deck is not privileged.

Justice Corbett goes on in paragraph 119 to state the appropriate course of action in those circumstances. In the last sentence of paragraph 119, he states:

“The proper solution is to produce the portion of the document that is not privileged, delete the portion that is privileged, and show the deletion on the face of the document to alert the opposing party that privilege material has been removed.” This is precisely what the Defendant Crown has done in this case, and this was the appropriate course of action.

Accordingly, I find that there has been no waiver of any privileged or any portion of the privileged part of the slide deck such as would compromise the claim of privilege over the slides which have been redacted.

[21] Mediamix argues that the Master erred in two ways in his analysis. First, Mediamix submits that since solicitor-client privilege was originally asserted over all 24 slides, that it was not open to the Master to find that the 15 redacted slides were not covered by privilege. Second, since all of the slides were privileged, the Master erred in concluding that privilege had not been waived when 15 out of the 24 slides were produced.

[22] I cannot accept this argument. First, while Ontario did at one point claim privilege, it undertook to review the slides, and disclose any that were not covered by such privilege. Ontario was not bound in perpetuity by its original claim of privilege; Ontario properly reviewed the slides in the context of a refusal motion, and properly produced that which was not privileged. The Master recognized this. Moreover, having reviewed the 15 slides that were produced, in my view, the Master correctly found that these slides were not privileged.

[23] Second, since the 15 slides that were produced were not privileged, the Master correctly found that privilege had not been waived in the nine redacted slides. Mediamix argues that the Master erred because he ignored cases such as S&K Processors Ltd. v. Campbell Ave. Herring Producers Ltd., 1983 BCSC 407, [1983] B.C.J. No. 1499 (S.C.), Browne (Litigation Guardian of) v. Lavery, 2002 ONSC 49411, [2002] O.J. No 564 (S.C.), Mancinelli v. Royal Bank of Canada, 2017 ONSC 6737 and K.F. Evans Ltd. v. Canada (Minister of Foreign Affairs), [1996] F.C.J. No. 30. These cases, Mediamix argues, make clear that the court is required to consider issues of “fairness and consistency”. I note that while Mediamix argues that the Master “ignored” the above cases, with the exception of Evans, the Master was not provided with those authorities. More importantly, a review of those cases supports that the Master correctly decided that privilege had not been waived.

[24] The need to apply fairness and consistency arises when a party discloses some, but not all, privileged material. In such a situation, the selective and partial release of privileged material could be misleading. Thus, when only some privileged material has been disclosed, fairness and consistency may lead to a finding of implied waiver over the rest of the privileged material. While the Guelph decision relied on by the Master did not use the exact phrase “fairness and consistency”, the decision deals at length with implied wavier and is entirely consistent with the authorities Mediamix claims the Master ignored.

[25] The Master understood and applied the right test. Having found that the 15 slides that had been produced were not privileged, the Master correctly concluded that privilege had not been waived over the nine redacted slides.

3) Issue Three: Did the Master misapprehend the evidence such that it amounts to a palpable and overriding error?

[26] In oral submissions, Mediamix did not argue that the Master had misapprehended the facts. In its factum, however, Mediamix asserts that the Master ignored facts and misapprehended the evidence leading to a palpable and overriding error. The list of facts that the Master allegedly got wrong are set out in paragraph 62 of the factum. In my view, the submission that the Master ignored or misapprehended facts lacks merit. The Master considered the relevant facts and clearly understood those facts.

Conclusion

[27] The Master correctly found that the nine slides redacted from the briefing deck used in the presentation to the Deputy Minister were protected by solicitor-client privilege. The Master also correctly found that privilege had not been waived by disclosing 15 slides out of the 24-slide briefing deck, as those slides were not privileged. Finally, the Master did not ignore or misapprehended facts. The appeal is dismissed.

Costs

[28] If the parties are unable to agree on costs, Ontario shall serve and file with my office written costs submissions within 15 days. Mediamix shall serve and file with my office any responding costs submissions within 15 days thereafter. The written submission shall not exceed three pages in length, excluding the Costs Outline.

Justice Heather McArthur Date: June 22, 2018