Court File and Parties
COURT FILE NO.: 15-63434 DATE: 2020/01/23 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
PAUL BOONE, by his litigation guardian LAURENCE BOONE ELIZABETH BOONE, ELIZABETH BOONE and LAURENCE BOONE Plaintiffs – and – DR. KWADWO KYEREMANTENG, DR. JOSE AQUINO JR., THE OTTAWA HOSPITAL, PAULE MARCHAND and CELLINE BELLAVANCE COLLEEN ACHARYA Defendants – and – Attorney General for Ontario Intervenor
Counsel: Joseph Y. Obagi and Jacob Sazio (student-at law), for the Plaintiffs Ravi Amarnath and Andrea Bolieiro, for the Intervenor
HEARD: March 29, 2019
The text of the original Ruling on Motion was amended on January 23, 2020 and the description of the amendments are appended
AMENDED RULING ON MOTION
corthorn j.
Introduction
[1] Paul Boone is 56 years old. As a result of developmental delays diagnosed in his early childhood, he has been dependent on his parents for all of his life. Paul has never lived independently from his mother, Elizabeth, and father, Laurence.
[2] For the purpose of this action, Paul is a “person under disability” within the meaning of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194 (“the Rules”). As a result, court approval is required of (a) a settlement, which has been reached, of Paul’s claims against three of the five defendants in this action, and (b) the contingency fee retainer agreement pursuant to which Paul’s counsel are retained (“Agreement”).
[3] Paul submits that the Rules infringe upon the right of persons under disability, pursuant to s. 15(1) of the Canadian Charter of Rights and Freedoms, to be free from discrimination. The infringement is said by Paul to arise because, when providing evidence in support of a motion for court approval of a settlement or in support of an application for court approval of a contingency fee retainer agreement, persons under disability are “compelled” to disclose information that falls within the scope of solicitor-client or litigation privilege.
[4] Paul seeks a declaration that, because of their discriminatory effect, both r. 7.08(1) of the Rules (Court Approval of Settlements) and s. 5 of O. Reg.195/04 (Contingency Fee Agreements and “the Regulation”) are of no force and effect: see s. 52 of the Constitution Act, 1982. Rule 7.08 of the Rules and s. 5 of the Regulation are hereinafter referred to collectively as “the Impugned Provisions”.
Background
[5] In October 2010, Paul experienced a fall that resulted in an injury to his head. Paul received treatment at The Ottawa Hospital (“the Hospital”). The treatment included the insertion of an inferior vena cava filter within two weeks of the date of the injury. The filter was removed on February 4, 2011.
[6] Paul’s post-surgical condition on February 4, 2011 was such that he was immediately transferred to the University of Ottawa Heart Institute. He underwent emergency surgery, and his condition stabilized. On February 6, 2011, members of the Hospital staff noted that Paul had no movement in his legs and feet.
[7] Prior to the removal of the filter on February 4, 2011, Paul was fully mobile. He is now a paraplegic and unable to walk independently.
[8] In February 2015, this action was commenced on Paul’s behalf (“the Action”). Paul’s mother is his litigation guardian. Paul’s parents are also plaintiffs. The defendants are the Hospital, two nurses, and two physicians. The individual defendants were involved in the removal of the filter on February 4, 2011.
[9] A settlement of the plaintiffs’ claims against the Hospital and the nurses (the “Settling Defendants”) has been reached. The terms of the settlement include that the plaintiffs’ claims against the Settling Defendants will be dismissed without costs. This partial settlement must be approved by the court.
[10] The Agreement was previously the subject of an application for court approval and was approved in November 2018. The portion of the application dealing with the alleged infringement of Paul’s Charter rights was adjourned and scheduled to be heard together with the motion for approval of the partial settlement.
[11] The plaintiffs served a notice of constitutional question on the Attorney General for Ontario (“AGO”). The AGO submits that the plaintiffs’ constitutional challenges are entirely without merit and must be dismissed. Specifically, the AGO:
- points to the lack of an evidentiary basis supportive of Paul’s assertions of discriminatory treatment;
- submits that it is permissible for the Impugned Provisions to draw a distinction between parties to litigation on the basis of disability so long as they are not substantively discriminatory in doing so; and
- highlights that, rather than disadvantaging persons under disability, the Impugned Provisions correspond directly to the actual capacities and needs of persons under disability.
[12] The AGO submits that the Impugned Provisions do not compel a person under disability to disclose information that is subject to solicitor-client or litigation privilege. The AGO recognizes, however, that there may be cases in which the disclosure of privileged information is required as part of the approval process. The AGO submits that in those cases, relief is available to the party under disability which addresses concerns that might exist about the disclosure of privileged information. The AGO refers, as an example, to cases in which a sealing order has been granted.
[13] Before addressing the specific constitutional challenges before the court, I shall first review the law with respect to constitutional challenges.
Challenges to Constitutionality
[14] A person challenging the constitutionality of a law has the burden of establishing that the law is unconstitutional. That burden has been described as a “presumption of constitutionality”: see e.g. Ernst v. Alberta Energy Regulator, 2017 SCC 1, [2017] 1 S.C.R. 3, at para. 21.
[15] Where the person challenging the constitutionality of a law fails to provide an adequate factual basis upon which to decide the challenge, the challenge fails: Ernst, at para. 22. The lack or absence of the requisite factual basis “is not just a technicality that [can] be overlooked, but rather it is a flaw that is fatal to the [challenging party’s] position”: Mackay v. Manitoba, [1989] 2 S.C.R. 357, at p. 366.
[16] The Impugned Provisions are challenged on the basis that they infringe upon Paul’s s. 15(1) Charter rights. This section provides that “[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
[17] In Quebec (Attorney General) v. Alliance du personnel professionnel et. technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464, at para. 25, the Supreme Court of Canada summarized the two-stage test to be applied in determining whether a law breaches s. 15(1) of the Charter. The question posed at the first stage is whether “the impugned law, on its face or in its impact, create[s] a distinction based on enumerated or analogous grounds”. If the answer is “yes”, then the issue to be determined at the second stage is whether the law imposes “burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating … the disadvantage?”: see also Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548, at paras. 19-20.
[18] The Supreme Court of Canada “has repeatedly confirmed that s. 15 protects substantive equality”: Taypotat, at p. 552 [citations omitted]. This approach is described as one which “recognizes that persistent systemic disadvantages have operated to limit the opportunities available to members of certain groups in society and seeks to prevent conduct that perpetuates those disadvantages”: Taypotat, at para. 17. This approach “rests on the idea that not every difference in treatment will necessarily result in inequality and that identical treatment may frequently produce serious inequality”: Taypotat, at para. 17, quoting from Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 164.
[19] What is the outcome when these principles are applied to the Impugned Provisions?
Disposition
[20] The constitutional challenges with respect to the Impugned Provisions fail because they each suffer from the fatal flaw of not being supported, as required, by a factual basis: MacKay, at p. 366.
[21] In addition, I find that the disclosure of privileged information is neither mandated nor inevitable on a motion or an application for court approval of a settlement.
[22] The motion for approval of the partial settlement is hereby adjourned, pending delivery of a supplementary motion record that includes the evidence required pursuant to r. 7.08 of the Rules. The motion may be continued in writing or by way of a hearing. In the event the motion is continued in writing, the court reserves the right to require a hearing if necessary.
[23] A handwritten endorsement referring to this ruling has been made on the back page of the application record in Court File No. CV-18-76884. The handwritten endorsement provides that the constitutional challenge to s. 5 of the Regulation is dismissed.
[24] I turn first to the constitutional challenge with respect to r. 7.08 of the Rules.
Constitutional Challenge No. 1 – Court Approval of Settlements (r. 7.08)
a) Subrules 7.08(1), (2), and (4)
[25] For the purpose of this motion, the relevant subrules are rr. 7.08(1), (2), and (4):
(1) No settlement of a claim made by or against a person under disability, whether or not a proceeding has been commenced in respect of the claim, is binding on the person without the approval of a judge.
(2) Judgment may not be obtained on consent in favour of or against a party under disability without the approval of a judge.
(4) On a motion or application for the approval of a judge under this rule, there shall be served and filed with the notice of motion or notice of application,
(a) an affidavit of the litigation guardian setting out the material facts and the reasons supporting the proposed settlement and the position of the litigation guardian in respect of the settlement;
(b) an affidavit of the lawyer acting for the litigation guardian setting out the lawyer’s position in respect of the proposed settlement;
(c) where the person under disability is a minor who is over the age of sixteen years, the minor’s consent in writing, unless the judge orders otherwise; and
(d) a copy of the proposed minutes of settlement.
[26] There is nothing in rr. 7.08(4)(a) and (b) that requires the party seeking court approval of a settlement to disclose privileged information.
[27] As will be seen in the following discussion of the case law, the “position” of the litigation guardian and the lawyer (that the settlement reached is in the best interests of the person under disability) is based on “full disclosure of evidence regarding material issues”: Rivera v. Leblond (2007), 44 C.P.C. (6th) 180 (Ont. S.C.), at para. 23. Providing that evidence does not inevitably require the disclosure of information that is subject to either solicitor-client or litigation privilege.
[28] In summary, I find that, on the face of it, there is nothing in r. 7.08 to support a conclusion that it infringes upon the right of a person under disability to be free from discrimination.
[29] Paul asks the court to look beyond the language of r. 7.08 and to consider the impact of that rule on persons under disability. Paul argues that the disclosure of privileged information is inevitable.
[30] In support of this argument, Paul relies on two affidavits: one from his litigation guardian, and the other from one of his lawyers, Thomas P. Connolly. These two affiants, respectively, (a) set out the terms of the partial settlement, and (b) address why they are each not prepared to do anything more than describe the terms of the settlement.
[31] Does the evidence support a finding that, in its effect, r. 7.08(1) infringes on Paul’s right to be free from discrimination?
b) Evidence of Alleged Infringement of s. 15(1) of the Charter
[32] The evidence filed in support of the constitutional challenge of r. 7.08 does not support a conclusion that the impact of the rule is an infringement on the s. 15(1) Charter rights of persons under disability.
[33] I find that the affidavit evidence of both Mrs. Boone and Mr. Connolly was intentionally framed to (a) support the constitutional challenge of r. 7.08(1), and (b) obfuscate the evidentiary requirements in support of a motion for court approval of a settlement reached on behalf of a person under disability.
[34] The affidavits contain circular reasoning and conclusory statements. In addition, the affidavits are entirely lacking in substantive evidence supportive of the constitutional challenge.
[35] The circular reasoning is evident in paras. 6 and 7 of Mrs. Boone’s affidavit, and para. 9 of Mr. Connolly’s affidavit. In her affidavit, Mrs. Boone states the following:
I have met with one of our lawyers, Mr. Thomas P. Connolly, and fully understand the reasons why the partial settlement was negotiated and why it would be in Paul’s best interest that it be approved by this Honourable Court. I am not, however, prepared to divulge the advice we received from Mr. Connolly, nor am I prepared to waive solicitor and client privilege or litigation privilege to secure court approval.
I am concerned that by disclosing the communications I have had with Mr. Connolly in reference to the Minutes of Settlement, I will effectively be granting the Defendants access to information and knowledge which is otherwise fully protected by solicitor and client and litigation privileges. I do not wish to be compelled to waive these privileges in order to secure a partial settlement which I, as the Litigation Guardian for Paul, with the advice of counsel, believe to be in his best interests.
[36] Mrs. Boone says that, because of the circumstances described above, “I have asked my lawyers to seek whatever Order may be necessary to avoid compelling me and Paul from having to waive these important privileges.” In following that request and in completing the circular reasoning, Mr. Connolly’s evidence is that, because the plaintiffs are not prepared to waive any privileges, he is not at liberty to “expand or explain” why he has recommended to the plaintiffs that their claims against the Hospital and nurses be settled on the terms set out in the minutes of settlement (“the Minutes”).
[37] Mr. Connolly concludes his evidence by stating:
I have been authorized to state, however, that, in my considered opinion, disclosure of the discussions I have had with Elizabeth Boone, both in her capacity as a Plaintiff and as Litigation Guardian for Paul Boone, in regards to the reasons why I have recommended this partial settlement have the potential of prejudicing the Plaintiffs’ interests in moving forward with this litigation if same is shared with or divulged to Defendants’ counsel. While this would be problematic regardless of whether the partial settlement is approved, it would be especially prejudicial if the partial settlement is subsequently not approved by the judge presiding on this motion.
[38] In the absence of additional evidence, I find that the contents of the above-quoted portion of Mr. Connolly’s evidence consist of nothing more than unsupported, conclusory statements.
[39] At para. 9 of her affidavit, Mrs. Boone states that “The fact that Paul is a person under disability should not negate his right to the benefit privileges to which others in Ontario, who do not suffer from a mental disability, are otherwise fully entitled to under the rule of law in Canada.”
[40] Mrs. Boone is a lay witness. There is no evidence that she possesses any expertise in constitutional law or regarding the Charter. I therefore disregard that portion of Mrs. Boone’s affidavit.
c) Evidence of the Partial Settlement
[41] The conclusory statements made by Mr. Connolly are not supported by the documentary evidence before the court, or the evidence as to how and when the partial settlement was negotiated. This evidence includes:
a) the Minutes signed by counsel for all parties in January 2019 (the exact date in January on which the Minutes were signed is not filled in); b) the Full and Final Release to be executed by the plaintiffs, a copy of which is included as Schedule ‘A’ to the Minutes; and c) Mr. Connolly’s affidavit evidence as to the date on which the settlement was negotiated (January 15, 2019).
[42] In the Minutes, the settlement is described as a “partial settlement.” At para. 1 of the Minutes, the parties consent to an order in a form said to be appended as a schedule to the Minutes. There is no order appended to the copy of the Minutes included in the motion record.
[43] The Full and Final Release appended as Schedule ‘A’ to the Minutes provides that the Hospital and nurses consent to the dismissal, without costs, of the Action against them. I therefore infer that the order referred to in para. 1 of the Minutes provides for (a) approval of the partial settlement, and (b) the dismissal, without costs, of the plaintiffs’ claims against the Settling Defendants.
[44] The Minutes are signed by counsel for all parties—including counsel for the defendant physicians. I find that the defendant physicians are aware of:
- the fact of the settlement;
- the terms of the settlement; and
- that, pursuant to one of the terms of the settlement, the Settling Defendants “agree to co-operate fully and truthfully with the Plaintiffs, including … testifying at the trial of this action, if called upon by the plaintiffs to do so.”
[45] The statement of claim was issued in February 2015. The amended portion of the claim relates solely to the correction of the names of the two defendant nurses. The exchange of pleadings was completed by October 2015.
[46] The Action has been set down for trial and is scheduled to proceed to trial in October 2020. The Action could not have been set down for trial unless the oral discovery process was complete, and mediation had been conducted. I take judicial notice of the usual timeframes between when actions are set down for trial and the dates for which multi-week personal injury trials are scheduled in Ottawa. From those usual timeframes, I infer and find that the plaintiffs completed their examinations for discovery of all defendants before reaching the partial settlement of this action.
[47] Taking into consideration how and when the partial settlement was negotiated, I am unable to conclude that the impact of r. 7.08 in this case is such that the disclosure of privileged information is required (or inevitable) to support the motion for court approval of the partial settlement.
[48] In addition, the following review of the case law demonstrates that disclosure of privileged information is neither mandated by nor the inevitable impact of r. 7.08.
d) The Case Law
[49] In Rivera, at paras. 23-24, Thorburn J., as she was then, provides a helpful review of the type of evidence required on a motion pursuant to r. 7.08:
Rule 7.08(4) and the obligations of the court pursuant to its parens patriae jurisdiction require a party seeking approval to submit sufficient evidence to make a meaningful assessment of the reasonability of the proposed settlement of the claims of a person under a disability.
This is a serious and substantial requirement which cannot be satisfied by the provision of conclusory statements. It requires full disclosure of evidence regarding the material issues. Where there is a conflict in the evidence the conflicting evidence must be disclosed to the court. [Emphasis added.]
[50] It is notable that the “full disclosure of evidence regarding the material issues”—including evidence obtained through the oral and documentary discovery process, if completed—does not require the waiver of information that is subject to either solicitor-client or litigation privilege.
[51] At paras. 26-28 of Rivera, Thorburn J. emphasized that, in personal injury actions, the substantive evidence in support of a motion pursuant to r. 7.08 must be sufficient to demonstrate that
a) an appropriate investigation with respect to both liability and damages has been completed; b) an appropriate assessment of liability issues has been made; c) an appropriate assessment of damages issues has been made; and d) the fees and disbursements which the plaintiff’s lawyers propose to charge are reasonable in all the circumstances.
[52] Even when the evidence required is described with that degree of specificity, it is clear that the disclosure of information that is subject to either solicitor-client or litigation privilege is neither required nor inevitable.
[53] Subrules 7.08(4)(a) and (b) require that the litigation guardian and the lawyer for the person under disability, respectively, provide the court with their “position in respect of the settlement”. With the material facts set out and full disclosure of the evidence, it is anticipated that (a) the litigation guardian will state that it is their belief that the settlement is reasonable and in the best interests of the person under disability, and that (b) the lawyer will state their opinion to that effect. In making those statements, neither the litigation guardian nor the lawyer necessarily discloses information that is subject to either solicitor-client or litigation privilege.
[54] Based on the record, in which the material facts are set out, the evidence is fully disclosed, and the litigation guardian and counsel set out their respective belief that the settlement reached is in the best interests of the person under disability, the court must then determine whether the settlement will be approved.
[55] For counsel to fulfil their obligations pursuant to r. 7.08(4)(b), the waiver of either solicitor-client or litigation privilege is not required. Counsel can craft supporting materials in such a way that the evidentiary requirements are met without unnecessarily disclosing information that is subject to either solicitor-client or litigation privilege.
[56] Counsel’s obligation is to provide “assurance to the court that he [or she] has taken the steps that would be expected of competent counsel to get the best result possible for his [or her] client”: Makowsky (Guardian ad litem of) v. Jaron, 2004 BCSC 2, 26 B.C.L.R. (4th) 297, at para. 4. If counsel for the moving party goes further than is required in support of a motion for court approval of a settlement, then that is counsel’s problem—a problem that does not arise by reason of the relevant rule: ibid.
[57] In support of his position, Paul relies on the decision of Pierce J. in Burns Estate v. Falloon, 2007 ONSC 38558, [2007] O.J. No. 3541 (S.C.J.) for the proposition that, on a motion pursuant to r. 7.08, the disclosure of information that is subject to solicitor-client privilege is mandated and/or inevitable.
[58] On their motion for approval of a settlement reached on behalf of minors, the plaintiffs in Burns Estate requested an order dispensing with the requirement for service of the motion record on the defendant, as well as an order that the motion record be sealed. Pierce J. reviewed the history of r. 7.08 and addressed the evidentiary requirements on a motion pursuant to that rule. She noted that the rule is a codification of the decision in Poulin et al. v. Nadon et al., [1950] O.R. 219 (C.A.). At pages 223 and 224 in Poulin, the Court reviewed the type of evidence required in support of a motion for court approval of an infant settlement:
- the lawyer should, in their affidavit, set out their opinion “that the settlement benefits the infant”; and
- a similar affidavit is required from the litigation guardian.
[59] Following on those points, Pierce J. echoed the decision of Thorburn J. in Rivera, stating that “[t]he policy of the protection of the interests of children and other persons under disability requires full and frank disclosure of the merits of a settlement”: Burns Estate, at para. 18. Addressing the type of evidence required, Pierce J. stated that, “[n]ecessarily, this calls for a candid opinion by counsel. As well, the litigation guardian must understand the reasons for the settlement and accept them”: Burns Estate, at paras. 18-19.
[60] Nothing up until this point in Pierce J.’s decision suggests that rr. 7.08(4)(a) and (b) mandate the disclosure of information that is otherwise the subject of solicitor-client or litigation privilege.
[61] Pierce J. continued by observing, at para. 20, that “[a]n infant settlement represents a unique incursion on solicitor-client privilege.” I find that a more accurate or precise statement of principle would be that a motion pursuant to r. 7.08, whether in relation to a minor or a person under disability, may require a unique incursion on solicitor-client or litigation privilege.
[62] I emphasize the word “may” and highlight that, in some cases, where the disclosure of privileged information is required in support of a r. 7.08 motion, there may be relief available to the moving party. That relief may be in the form of a sealing order, as suggested in this matter by the AGO. It may also be in the form of reliance on a process for filing affidavit evidence analogous to the process now followed under Rule 15 on a motion for removal as lawyer of record. These forms of additional relief are discussed below.
[63] It is important to consider the context in which Pierce J. referred to “a unique incursion on solicitor-client privilege”. She did so (a) in the portion of her reasons addressing the request for an order dispensing with the requirement to serve the motion record, and (b) after acknowledging and agreeing with the defendant’s submission that “there is no privilege in a communication to the court mandated by law regarding an infant settlement”: Burns Estate, paras. 17 and 18.
[64] When considered in context, the reference by Pierce J. to “a unique incursion on solicitor-client privilege” does not support Paul’s position on this constitutional challenge of r. 7.08.
e) Summary
[65] Paul’s constitutional challenge of r. 7.08 fails and, with respect to that aspect of the relief requested, the motion is dismissed.
Constitutional Challenge No. 2 - Approval of Contingency Fee Retainer Agreements (s. 5)
[66] The notice of application in Court File No. CV-18-76684 was issued on June 19, 2018. Neither the originating process nor the supporting affidavits make any reference to a constitutional challenge to s. 5 of the Regulation.
[67] The evidence filed in support of the application for approval of the Agreement consists of two affidavits. The first is from Mrs. Boone in her capacity as Paul’s litigation guardian. The second is from Joseph Obagi. Both affidavits were sworn on June 19, 2018.
[68] In support of the constitutional challenge, the applicants filed a motion record dated September 2018. That record includes a notice of motion, a notice of constitutional challenge, and an affidavit of service. No additional evidence specifically supporting the constitutional challenge is included in the motion record.
[69] By the time arrangements were being made for oral argument on the constitutional challenges addressed in this ruling, the Agreement had been approved. As Mr. Obagi’s affidavit did not in any way address the constitutional challenge, the AGO consented to Mr. Obagi appearing as counsel to argue the constitutional challenges.
[70] The application and motion record in Court File No. CV-18-76684 are devoid of any evidence in support of the constitutional challenge of s. 5 of the Regulation. The challenge therefore fails.
[71] By way of commentary only, I note that parties under disability are not the only parties required to seek court approval of contingency fee retainer agreements. Consider s. 28.1(8) of the Solicitors Act, R.S.O. 1990, c. S.15 as an example. It mandates that, where a contingency fee retainer agreement provides that the lawyer shall be paid any portion of costs recovered in addition to the prescribed percentage of damages and interest, the lawyer and client must jointly apply for court approval of the agreement. The joint application must be made regardless of whether the client is a person under disability.
[72] As another example, retainer agreements in class proceedings must also be approved by the court.
[73] From these analogous examples, it is difficult to see how persons under disability could be “an isolated subset of citizenry” whose s. 15 Charter rights are infringed; persons under disability are not the only individuals required to seek court approval of contingency fee retainer agreements.
Motion for Approval of the Partial Settlement
[74] Mrs. Boone and Mr. Connolly must provide the court with sufficient evidence to demonstrate items (a) to (c) identified by Thorburn J. in Rivera (see para. 48 above). The nature of the partial settlement and the involvement of the defendant physicians in the settlement negotiations minimizes, if not eliminates, the potential for incursion into either solicitor-client or litigation privilege.
[75] The “full disclosure of evidence regarding material issues” (Rivera, at para. 24) includes a summary of the relevant evidence from the examinations for discovery of the defendants. That summary does not mandate or make inevitable disclosure of information that is subject to a claim of privilege. That summary, when read together with the pleadings, may well be sufficient to demonstrate to the court that “an appropriate assessment of [the] liability issues”, as they relate to the settling defendants, has been reached.
[76] The “positions” of Mrs. Boone and Mr. Connolly, as required pursuant to r. 7.08, will no doubt reflect that the partial settlement is in Paul’s best interests.
[77] With the requisite evidence before it, the court will be in a position to determine whether the partial settlement is approved.
[78] The plaintiffs may wish to consider whether to request either a temporary sealing order or that the court follow a process analogous to that now followed on a motion by counsel for removal as lawyer of record: see r. 15.04 of the Rules. Temporary sealing orders of the record on r. 7.08 motions have been granted in two recent matters before this court: see Lochner v. Callanan, 2015 ONSC 5598, at para. 39; Lochner v. Callanan, 2016 ONSC 591, at paras. 13-14; and Ki Ho Kim v. 260 Wellesley Residences Inc., 2017 ONSC 2993, at para. 24.
[79] In both Lochner and Kim, the presiding judge recognized the potential prejudice at trial to the moving party if the settlement was not approved and/or because the matter would, in any event, proceed to trial against a non-settling party. At para. 9 of her 2016 decision in Lochner, for instance, Matheson J. concluded that it would be prejudicial to the plaintiffs if the evidence in the supporting materials on the motion came to the attention of the trial judge.
[80] The references to these decisions are not to be taken by the plaintiffs in this action as a guarantee that, if made, the request for a temporary sealing order will be granted. If a temporary sealing order is requested, evidence in support of the relief requested must be included in the supplementary motion record.
[81] The procedure now followed on motions for removal as lawyer of record provides protection from disclosure to opposing parties of “information…that is subject to solicitor-client privilege or that could, if it were disclosed to another person, be prejudicial to the client”: r. 15.04(1.2). Redacted documents are served on the opposing party, and two versions of the motion record are filed with the court—a redacted version and an unredacted version (rr. 15(1.1)-(1.3)). The plaintiffs may, if they believe it necessary to proceed in that manner, seek leave of the court permitting them to do so.
[82] Once again, reference to this procedure is not a guarantee to the plaintiffs that, if made, a request to follow the procedure will be granted. If that request is made, evidence in support of the relief requested must be included in the supplementary motion record.
Conclusion
[83] In this action, the constitutional challenge of r. 7.08 is dismissed and the request for approval of the partial settlement is adjourned to be continued in writing on the terms set out in paragraphs 22 and 74-82, above.
[84] A handwritten endorsement appears on the back page of the application record in the related court file. That endorsement reflects that, for the reasons given in this ruling, the constitutional challenge of s. 5 of the Regulation is dismissed.
Costs
[85] If the parties are unable to agree on the costs associated of the motions, in this action and in the related application, they shall make written submissions as follows:
a) The submissions shall be limited to a maximum of four pages, exclusive of a bill of costs; b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure; c) Hard copies of any case law or other authorities relied on shall be provided with the submissions and shall comply with Rule 4 of the Rules of Civil Procedure with respect to font size; d) The submissions, the documents referred to therein, and case law and other authorities shall be on single-sided pages; e) The AGO shall deliver their costs submissions by 4:00 p.m. on the twentieth business day following the date on which this ruling is released; f) The plaintiffs shall deliver their costs submissions by 4:00 p.m. on the thirtieth business day following the date on which this ruling is released; and g) The reply submissions, if any, of AGO shall be delivered by 4:00 p.m. on the thirty-fifth business day following the date on which this ruling is released. Reply submissions shall comply with paragraphs (a) to (d) above.
Madam Justice Sylvia Corthorn
Released: January 23, 2020
APPENDIX
Page 3, at para. 14: Ernst v. Alberta Energy Regulator, 2017 SCC 1, [2017] 1 S.C.R. 3, at para. 21.
