Court File and Parties

Court File Nos.: CV-17-582560; CV-18-598782 Motion Heard: 20191030, 20191210, 20200122, 20200205, 20200212 Sealed Documents Filed: 20200306 Reasons Released: 20200611 Superior Court of Justice – Ontario

In the Matter of the Construction Act, R.S.O. 1990, c. C.30, as amended

BETWEEN:

WALSH CONSTRUCTION COMPANY CANADA Plaintiff

- and-

TORONTO TRANSIT COMMISSION, YORK UNIVERSITY, UNITED PARCEL SERVICE CANADA LTD., THE REGIONAL MUNICIPALITY OF YORK, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF INFRASTRUCTURE, and CITY OF TORONTO Defendants

BEFORE: MASTER M.P. McGRAW

COUNSEL: B. Halfin, G. Smith and M. Mandel Email: bhalfin@goodmans.ca -for Walsh Construction Company Canada (“WCC”)

M. Aboud and S. Whitmore Email: maboud@osler.com -for Toronto Transit Commission (“TTC”)

Reasons Released: June 11, 2020

Reasons For Endorsement

I. Introduction

[1] This is a motion by WCC to compel TTC to produce approximately 1,600 documents over which TTC claims litigation privilege. This is the latest in an ongoing series of large refusals motions which have proceeded before me since January 2019 arising from the first round of examinations for discovery in these proceedings.

[2] This motion proceeded over 5 days and required a separate interim evidentiary motion and 3 telephone case conferences. Given the significant number of refusals and disputed documents, significant case management was provided with a view to resolving and/or narrowing as many issues as possible.

II. Background

The Project and the Contract

[3] WCC was the general contractor for the construction of the Steeles West (Pioneer Village) Subway Station in Toronto (“SW” or the “Project”). SW is part of the Toronto York Spadina Subway Extension, a $3.184 billion project comprised of 6 above ground stations and an 8.6 km tunnel (the “TYSSE”).

[4] Pursuant to a public tender process, WCC entered into a Contract with TTC dated September 22, 2011 (the “Contract”). WCC agreed to complete the Project for a contract price of $165,925,000 with a substantial performance date of November 4, 2014. However, the Project and the TYSSE overall were significantly delayed and SW did not achieve substantial performance until June 15, 2017. WCC claims $218,751,335 from TTC for amounts owing, breach of contract, negligence and failure to act in good faith. TTC alleges that WCC and its subcontractors are responsible for delays and deficiencies and counterclaims for $22,381,666.34.

The Claims Process

[5] General Condition (“GC”) 31 of the Contract sets out a process (the “Claims Process”) by which WCC could submit claims against TTC related to delays and/or additional costs (the “Contract Claims”). Pursuant to GC 31.5 of the Contract, if WCC did not submit the Contract Claims, it would forfeit its right to do so.

[6] Under GC 31.1, WCC was required to submit a Notice of Intention to Claim (“NOIC”) before filing a Contract Claim. Throughout 2013 and 2014, WCC submitted 45 NOICs under the Contract which later formed the basis for some of the Contract Claims in the Red Book and this litigation. Pursuant to the Contract, if no settlement of these Contract Claims was reached, WCC was free to pursue them by way of arbitration or an action upon completion or alleged completion of its work under the Contract. Under GC 32.4, WCC was not entitled to commence litigation until it delivered its final invoice.

[7] On August 14, 2014, WCC submitted its “Claim for Adjustment of Contract Price and Extension of Time” (the “Red Book”) pursuant to GC 31.4 for all Contract Claims related to SW up to and including December 31, 2013. In the Red Book, WCC sought an increase in the Contract Price of $136,959,126.34 and an extension of 694 days. On September 19, 2017, four days after commencing this action, WCC delivered an updated claim entitled “Claim #2 For Adjustment of Contract Price and Extension of Time” for all claims up to and including December 31, 2016 (the “Blue Book”, collectively with the Red Book, the “Books”). Pursuant to GC 31.7.1, TTC was required to provide an opinion with regard to the validity of the Contract Claims set out in the Books within 60 days of receipt.

[8] Section SC 21 of the Contract further provides that disputes between TTC and WCC could be referred to a 3-member Dispute Resolution Board (“DRB”) the purpose of which was to avoid construction delay and litigation. WCC and TTC could agree that any decisions by the DRB would be binding. In May 2014, the DRB heard a dispute with respect to delays related to the electrical power substation at SW.

The Motions

[9] These proceedings are being case managed by Justice Koehnen and this action is currently scheduled to proceed to trial in January 2022. The present motion arises from an earlier group of 9 motions involving approximately 680 refusals between WCC, TTC and other subcontractors which proceeded before me on January 28, 29 and 30, 2019 where WCC and TTC both sought answers to approximately 200 refusals (Reasons For Endorsement dated February 22, 2019 (Walsh Construction Company Canada v. Toronto Transit Commission, 2019 ONSC 1630) (the “Refusals Reasons”)). The present motion arises from 10 refusals in which TTC claims litigation privilege over approximately 1,600 documents created with respect to its review of the Red Book (the “Review Documents”).

[10] As set out in the Refusals Reasons, I was unable to determine the validity of TTC’s litigation privilege claims because TTC had not identified or reviewed any of the Review Documents. TTC was ordered to review all documents relevant to its privilege claims and produce a Supplementary Affidavit of Documents with fully particularized Schedules. TTC subsequently listed approximately 2,700 documents on Schedule “B” over which it claimed privilege.

[11] On May 3 and June 24, 2019, another motion arising from the Refusals Reasons proceeded before me. On that motion, WCC sought production of an unredacted copy of the Spadina Subway Extension Project Assessment Report dated February 5, 2015 (the “Bechtel Report”) prepared by Bechtel Canada Co. (“Bechtel”) over which TTC also claimed litigation privilege. In my Reasons For Endorsement dated September 24, 2019 (Walsh Construction Company Canada v. Toronto Transit Commission, 2019 ONSC 5537)(the “Bechtel Reasons”), I ordered TTC to produce an unredacted copy of the Bechtel Report.

[12] The parties were unable to resolve all of the disputed issues with respect to the Review Documents. Accordingly, as set out in my Telephone Case Conference Endorsement dated July 30, 2019, this motion was scheduled for October 30, 2019 and the parties agreed to a timetable. TTC delivered its Responding Motion Record which included the Affidavit of Tony Baik sworn September 21, 2019 (the “Baik Affidavit”). Another telephone case conference was held on October 7, 2019 during which counsel advised that the number of Review Documents in dispute had been reduced to approximately 1,600 allocated into 10-15 categories in addition to approximately 40 documents arising from productions made on undertakings (the “Undertaking Documents”).

[13] At the October 7 case conference, TTC advised that it wished to file a document subject to solicitor-client privilege under seal (the “Sealed Document”) in support of its litigation privilege claims over some of the Review Documents. TTC also advised that it wished to file additional affidavit evidence. On October 9, 2019, TTC delivered the Affidavit of John Pipilas sworn October 9, 2019 (the “Pipilas Affidavit”). WCC cross-examined Mr. Baik and Mr. Piplas on October 16 and 17, 2019, respectively.

[14] As set out in my Interim Endorsement dated October 31, 2019 (the “Interim Endorsement”), the October 30, 2019 attendance proceeded largely as a case management conference during which 23 document categories established by TTC were reviewed to determine what documents had been or could be resolved. TTC also advised during the October 30 attendance that it might seek leave to file additional evidence in support of its privilege claims over the Review Documents. WCC opposed the filing of any additional evidence submitting that TTC already received an indulgence when it filed the Pipilas Affidavit. I was of the view that a separate motion with full submissions would be required if the parties could not otherwise agree.

[15] Pursuant to the Interim Endorsement, the motion was adjourned to December 10, 2019 and the parties were directed to review and discuss the document categories. Further, TTC was ordered to advise WCC by November 6, 2019 if it was bringing a motion for leave to file additional evidence (the “Evidence Motion”) and a telephone case conference was scheduled for November 7, 2019 to speak to scheduling and timetabling. With respect to the Sealed Document, TTC served and filed a Factum and Book of Authorities but at my direction the Sealed Document was not filed and the parties were directed to discuss its use and provide an update at the November 7 case conference.

[16] During the November 7 case conference TTC confirmed that it was proceeding with the Evidence Motion. The Evidence Motion was heard on November 28, 2019 and dismissed by Reasons For Endorsement dated December 4, 2019 (Walsh Construction Company Canada v. Toronto Transit Commission, 2019 ONSC 7041).

III. The Law and Analysis

Generally

[17] The only issue on this motion is whether litigation privilege applies to the Review Documents and most of the Undertaking Documents, and if solicitor-client privilege applies to the balance of the Undertaking Documents. For the reasons that follow, I have concluded that the appropriate approach is to review the law and evidentiary record to draw some general conclusions and apply them to an inspection of the Review Documents.

[18] The Supreme Court described litigation privilege in Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52 at para. 53:

“In my opinion, litigation privilege is a class privilege. Once the conditions for its application are met, that is, once there is a document created for "the dominant purpose of litigation" ( Blank, at para. 59) and the litigation in question or related litigation is pending "or may reasonably be apprehended" (para. 38), there is a " prima facie presumption of inadmissibility" in the sense intended by Lamer C.J. in R. v. Gruenke, [1991] 3 S.C.R. 263:

The parties have tended to distinguish between two categories: a "blanket", prima facie, common law, or "class" privilege on the one hand, and a "case-by-case" privilege on the other. The first four terms are used to refer to a privilege which was recognized at common law and one for which there is a prima facie presumption of inadmissibility (once it has been established that the relationship fits within the class) unless the party urging admission can show why the communications should not be privileged (i.e., why they should be admitted into evidence as an exception to the general rule). [Emphasis deleted; p. 286]”

[19] G.P. DiTomaso J. summarized the test for litigation privilege in Sky Solar (Canada) Ltd. v. Economical Mutual Insurance Co., 2015 ONSC 4714 at para. 80:

“ As for litigation privilege, once again, the onus rests on the party seeking litigation privilege. That party is required to establish two elements: (a) that litigation was contemplated; and (b) that the documents for which privilege is sought were created for the dominant purpose of litigation. This is a conjunctive test. As such, courts have refused to accept the claim of litigation privilege over the documents prepared after the time of litigation was contemplated, where there was no evidence that the subject documents were prepared for the dominant purpose of litigation .”

[20] Litigation privilege is a fundamental principle of the administration of justice which serves an overriding public interest to ensure the efficacy of the adversarial process by protecting communications and documents created for the dominant purpose of use in, or advice concerning, actual, anticipated or contemplated litigation (Blank v. Canada (Minister of Justice), 2006 SCC 39 at paras. 4 and 27-28; Barclays Bank PLC v. Devonshire Trust (Trustee of), 2010 ONSC 5519 at para. 8). Consistent with this purpose, parties to litigation must be left to prepare their contending positions in private without adversarial interference or fear of premature disclosure by creating a “zone of privacy”, a protected area to facilitate investigation and preparation of their case for trial ( Blank at paras. 27-28, 34 and 40; Barclays at para. 8). Litigation privilege is a limited exception to the principle of full disclosure which is narrower than solicitor-client privilege, the boundaries of which are limited to the purpose for which the exception is granted ( Blank at paras. 40, 60-61). The court must employ a purposive approach in determining if litigation privilege applies (Kaymar Rehabilitation Inc. v. Champlain Community Care Access Centre, 2013 ONSC 3530 at para. 52).

[21] WCC does not dispute that the Review Documents and the Undertaking Documents were created in contemplation of litigation. The issue in dispute is whether they were created for the dominant purpose of litigation.

[22] It is not necessary for the party asserting litigation privilege to establish that documents or communications were created for the sole purpose of pending or apprehended litigation. There can be more than purpose. In Mamaca (Litigation Guardian of) v. Coseco Insurance Co., [2007] O.J. No. 4899, J. MacDonald J. held as follows at para. 6:

“ If an investigation and the reports about it have a dual purpose, one of which is to assist in anticipated litigation, the duality of purpose does not mean that litigation privilege cannot exist. A document may be prepared for a multitude of purposes and, if the dominant purpose is to assist in anticipated litigation, then litigation privilege applies to the document: Waugh v. British Railways Board [1979] 2 AII E.R. 1169 (H.L.) at pp. 1173-74. ”

[23] TTC bears the onus of establishing an evidentiary basis or foundation for its privilege claims on a balance of probabilities ( Sky Solar at para. 73). Master Dash explained this evidentiary burden in Mamaca (Litigation Guardian of) v. Coseco Insurance Co., [2007] O.J. No. 1190 at para. 15; reversed on other grounds, Mamaca (Litigation Guardian of) v. Coseco Insurance Co., [2007] O.J. No. 4899; leave to appeal to Div. Ct. denied, Mamaca (Litigation Guardian of) v. Coseco Insurance Co., [2008] O.J. 2508 (Div. Ct.):

“ The onus is on the party claiming litigation privilege to lay an evidentiary foundation for that privilege. The best evidence would be an affidavit from the claims handler as to when she reasonably anticipated that litigation was likely and why and that her ongoing investigation and document creation was to assist in the defence of that litigation. It would however not be sufficient evidence for the adjuster to make general assertions that all documents created after litigation was reasonably anticipated were prepared for purposes of that litigation. The evidence must be specific and speak to the content of each document. The court could also look to the circumstances and the chronology of events to help in determining the dominant purpose for creation of the documents. It may also "inspect the document for the purpose of determining ... the validity of a claim of privilege" pursuant to rule 30.06(d).”

[24] Blanket claims and bald assertions of litigation privilege or merely asserting that privilege attaches are insufficient especially in the absence of firsthand evidence of a dominant litigation purpose from the creator of the documents in question ( SkySolar at paras. 73-75). Evidence from an uninformed witness swearing what they believe an assertion made by someone else is of little to no probative value (Glassjam Investments Ltd. v. Freedman, 2014 ONSC 3878 at para. 33). However, there may be circumstances where senior managers under whose supervision or authority the document over which privilege is claimed was sent are as well or better placed than the document’s author to provide evidence of dominant purpose ( Ansell Canada Inc. v. Ions World Corp., 1998 CarswellOnt 4673 at para. 14).

[25] In McNally International Inc. v. Toronto Transit Commission, [2005] O.J. No. 1011 Master Dash considered litigation privilege in circumstances which are similar to the present case, including a TTC contractual claims process with a DRB:

“5 None of the items in the group were refused on the basis of relevance. It is therefore first necessary to determine when litigation was reasonably contemplated, and secondly whether communication was made or documents were created for the dominant purpose of assisting the Defendant in defence of that litigation, as opposed for example for the purpose of investigating and assessing the Plaintiff's claim for extras. With respect to the first question it is not necessary that litigation be certain, or even probable, but rather whether there was a reasonable prospect of litigation. This must be more than a mere suspicion or speculative possibility.

6 In my view there could be no reality to the reasonable prospect of litigation on March 30, 1998 when the Plaintiff advised it would be making a claim for excess costs or even March 23, 1999 when the Plaintiff's formal detailed and documented claim was made. Actions taken from then until May 20, 1999 when the claim was denied in my view were for the dominant purpose of investigating the claim for extras and determining whether to accept it, although possibly with a secondary purpose of considering that a claim, if denied, may have to be defended. Claims for extras are a regular part of most construction projects and it could not be said that each time a claim is presented there is a reasonable prospect of litigation.

9 In my view there was a reasonable prospect of litigation on May 25, 1999 when the dispute as to the Engineer's decision was made and the DRB hearing requested. There is a divergence of jurisprudence on whether commencement of a mandatory mediation process, such as to FSCO for accident benefits, provides a date for the reasonable prospect of litigation and clearly it is dependent on the facts or circumstances of the case. In any event the DRB hearing is quite different from the FSCO mediation. It appears both parties treated the DRB hearing seriously and presented documentary evidence and argument over two days. The DRB provisions of the Contract provide a right to be heard and present evidence and there are detailed provisions for the conduct of the hearing. At the conclusion the Board makes non-binding Recommendations to help resolve the dispute.

10 I note that the claim advanced by the Plaintiff before the DRB is virtually identical to the Claim advanced in this litigation. The types of strategies and decisions in preparation for and at the DRB are akin to a form of litigation. It would be most unfair if the Plaintiff could access the Defendant's notes and documentation made in preparation for the DRB hearing, which essentially deals with the same claims as advanced in this action, under the guise of preceding the reasonable contemplation of litigation. In my view, even though there was no certainty litigation would follow an unfavourable Board recommendation, there was a reasonable prospect of litigation from the time the DRB hearing was requested.

11 Therefore all documents requested and questions asked dealing with events prior to May 25, 1999 will be produced. Documents from after that date need not be produced if they were made for the dominant purpose of defending the claims advanced herein (including at the DRB). Since I do not have the detailed Schedule B or the documents themselves, no decisions can be made on individual post May 25, 1999 documents. If, after a detailed Schedule B is provided, issues remain whether any specifics document was created for the dominant purpose of litigation, this can be addressed at a future motion.”

[26] Litigation privilege will also attach to a document where it is prepared for the dominant purpose of an adversarial, adjudicative process where the zone of privacy for investigation and preparation is as important as a court proceeding ( Kaymar at para. 53).

[27] At its core, determining whether the Review Documents are subject to litigation privilege requires a consideration of whether they were created the dominant purpose of investigating, preparing for and/or defending WCC’s claims in this litigation. It is possible for any of the Review Documents to have been created for more than one purpose, including the review of the Contract Claims in the Red Book to determine their validity as required by the Contract together with preparation for litigation. However, litigation must be the dominant purpose for litigation privilege to attach.

TTC’s Position

[28] TTC submits that its review of the Red Book was undertaken for, and by extension the Review Documents were created for, the dominant purpose of preparing for and responding to WCC’s claims in this litigation which it reasonably contemplated that WCC would and did commence.

[29] Underlying TTC’s assertion of privilege is its position that the Red Book cannot reasonably be characterized as a Contract Claim. TTC submits that the Red Book, advancing claims substantially similar to those in this litigation and at 282 pages over 6 volumes including voluminous supporting documentation, is significantly broader than a Contract Claim. Under GC 31, WCC was required to submit an NOIC within 10 days after it ought to have reasonably known that a claim condition existed. However, only a limited portion of the Red Book comprising $7,110,947 in value, listed as “Unresolved Contract Changes”, relates to claims arising from NOICs submitted by WCC. As such, TTC claims that the Red Book was an early presentation or preview of WCC’s claims in this litigation given that WCC could not commence proceedings until it delivered its final invoice.

[30] In the Baik Affidavit, Mr. Baik, TTC’s Deputy Chief Project Manager, states that beginning in 2013 and by late August 2014, TTC was concerned about ongoing and anticipated litigation, including by WCC and its subcontractors and for the TYSSE as a whole. Among other proceedings involving TTC, on May 6, 2013, WCC cross-claimed against TTC in an action by one of WCC’s subcontractors. On the day before WCC delivered the Red Book, WCC advised TTC of its intention to add TTC as a Third Party to another action commenced by the same subcontractor. TTC was added by court order dated May 12, 2015. By late August 2014, WCC and TTC had exchanged significant correspondence and had significant discussions through in-house and external counsel regarding WCC’s claims in the Red Book and continued to do so after its delivery. On December 2, 2015 and April 19, 2016, WCC brought third party claims against TTC in other actions arising from the Project. Mr. Baik did not review the Red Book, but as part of Project management, was kept apprised of the review. He did not author any of the Review Documents.

[31] Initially, the Red Book was reviewed by Mr. Pipilas, TTC’s Deputy Construction Site Manager for SW together with TTC’s claims personnel. In the Pipilas Affidavit, Mr. Pipilas states that as TTC began to review the Red Book, it became clear that its scope was significantly broader than a usual claim and that TTC anticipated that WCC would commence litigation based on the allegations in the Red Book. In April 2015, TTC transferred primary responsibility for reviewing the Red Book to a team of claims personnel provided by Bechtel and Navigant Consulting Inc. (“Navigant”) supported by Mr. Pipilas, TTC’s in house legal counsel and other TTC claims personnel (the “Claims Team”). Mr. Pipilas’ evidence is that he was very involved in the review of the Red Book, not every day, but “not sparingly”. Mr. Pipilas states in the Pipilas Affidavit that the Red Book “signaled to TTC that Walsh intended to sue TTC based on the allegations in the Red Book once permitted”. TTC also submits that its efforts after April 2015 in reviewing the Red Book demonstrate that TTC had concluded that WCC’s claims could no longer be managed at the Project level given that litigation was inevitable. Ultimately, TTC takes the position that as of April 2015 at the latest, all Review Documents were created for the dominant purpose of litigation.

[32] TTC claims that Mr. Baik, as a member of upper management, has direct, higher organizational knowledge than members of the Claims Team. TTC also points out that Mr. Pipilas, also a member of upper management, is the only TTC staff member who was involved in the review of the Red Book from start to finish for the entire period at issue. TTC submits that it was not reasonable or proportionate to track down members of the Claims Team to provide evidence for this motion as many of them live in the U.S. and others are no longer TTC employees.

[33] TTC submits that its position regarding dominant purpose is corroborated by the Sealed Document which is an email dated June 5, 2015 from Michael Atlas, Senior TTC Legal Counsel, over which TTC claims solicitor-client privilege. After discussions regarding the Sealed Document during case conferences and the Interim Motion, WCC was given an opportunity to review it so that submissions could be made during this motion. Without revealing the contents of the Sealed Document, it addresses the management of documents, specifically reports generated by the Claims Team given the April 2015 retainer of Bechtel and the potential for litigation. The Sealed Document was filed by way of Affidavit from Mr. Baik. There is no evidence from Mr. Atlas regarding its purpose or contents.

[34] TTC also submits that the retainer of Bechtel and Navigant support its assertion that the Review Documents were generated for the dominant purpose of litigation. Specifically, TTC claims that the purpose of retaining Bechtel and Navigant was to obtain their assistance to prepare for litigation by WCC. Bechtel was retained pursuant to the Placement of Personnel Agreement dated April 13, 2015 (the “Bechtel Agreement”). Navigant was retained pursuant to a Professional Services Agreement dated September 1, 2015 (the “Navigant Agreement”). There was also a similar agreement between Navigant and Bechtel dated April 15, 2015.

[35] The Bechtel Agreement provided for the loan of Bechtel personnel to assist TTC with various tasks including:

“Procure a cadre of claims analysts supported by independent forensic schedulers to manage the claims resolution process. In doing so personnel will analyze the merit of contractor claims, recommend amounts to be set aside to resolve the outstanding claims, participate in DRB proceedings and negotiate claims settlements with the contractors approved by TTC. Acting as a part of the TTC, the Loaned Personnel are aligned to the TTC objective of obtaining the best value for the Project.”

[36] Although there is no reference to litigation, Mr. Baik characterized the Bechtel Agreement as follows on cross-examination:

“122 Q. Okay. A. It’s more in preparation of getting ready for litigations. Yeah, I’ll take a step back. The document says what it says. But if you – at the time of when this was all happening, there was a great apprehension in the TTC organization that this project will be facing a multitude of big litigations, and that was our biggest concern.

123 Q. Okay. A. So we do not – TTC inherently – although we do not have legal department, but we do have the skill set that’s required to provide the support to the litigation. And part of retaining the Bechtel was with that in mind, as a – underlying focus, especially when we talk about claims, even the document says the claims in claims, and we did not – it does not say it’s a litigation. All our language – standard language in our contract documents says it’s retained. But the reason behind all this purpose is really to prepare for the litigation.”

[37] The Scope of the Navigant Agreement is defined as follows:

“ Scope. CONTRACTOR shall perform the following services: In support of TTC consultant to provide analysis of contractor claims as they relate to schedule with assessment of validity of claim, entitlement to schedule extension, mitigation efforts that should have (sic) taken, assessment of contractor actions subsequent to claim event.”

[38] Mr. Baik initially stated on cross-examination that the Navigant Agreement was negotiated by TTC’s legal department because the purpose was for Navigant to provide litigation support and information required by TTC’s legal department. However, he later admitted that he had no knowledge of who actually negotiated the Navigant Agreement. He added:

“…..even though you mentioned about terms of the contract where the contractor is not permitted to start litigation, legal action until after the final payment has been paid, yet Walsh has during the course of the contract initiated action against TTC. Some of them are flow-through claims or action from their subs, IEI and C-Ore Metal. So in light of all that, TTC was in – I don’t want to say panic mode, but it – we had a very, very high level of concern and risk averse at the time to make sure we protect TTC public’s money in terms of upcoming litigation. Everything was pointing towards litigation. That was our mindset, based on all the interactions we had with a number of contractors, Walsh in particular, on this particular contract. The relationship between Walsh and TTC had deteriorated to the point where anybody who just comes into the meetings, you could tell this is heading towards litigation. It’s not – it was not a good working relationship.”(Question 160)

[39] In reviewing the Red Book and generating the Review Documents, TTC: analyzed the scheduling impact of changes, WCC’s Time Impact Analysis and other related allegations; the potential costs or valuation of changes and claims; analyzed and evaluated specific issues in the Red Book including those related to backfill (NOIC 21 – “Subway Stations Material Declared Unsuitable by TTC”, per diem, manpower/personnel and tieback (NOIC 5 – “De-stressing Tiebacks”); reviewed Project drawings related to claims in the Red Book; and analyzed subcontractor claims flowed through to TTC by WCC. Some of these form the basis for the document categories set out below.

[40] In the Baik Affidavit, Mr. Baik, as advised by Miguel Amaya, a Bechtel employee who managed the Claims Team, states that subsequent additional analysis of the Red Book was undertaken for the purposes of analyzing and responding to the allegations in the Red Book, TYSSE contractor claims more broadly and to prepare for anticipated litigation by WCC and its subcontractors.

WCC’s Position

[41] WCC submits that TTC has not met its evidentiary burden to establish dominant purpose for many of the same reasons set out in the Bechtel Reasons and is making bald, unsupported privilege claims. While many of the same legal principles apply and the Bechtel Reasons involved the same parties and the same Project, the present motion proceeds on different evidence and perhaps most importantly, engages the Claims Process. This raises fundamentally different considerations, namely, the assertion of Contract Claims under the Claims Process at a time when similar litigation claims were reasonably contemplated. The present motion also involves approximately 1,600 documents as contrasted with limited redacted portions of a single report as in the Bechtel Reasons.

[42] WCC argues that TTC has failed to file the best evidence, namely specific evidence from the authors of the Review Documents which speaks to the content of each document. WCC points out that Mr. Baik did not author any of the Review Documents, Mr. Pipilas authored only 4 and that neither of them fully reviewed all of the Review Documents. WCC submits that TTC should have filed evidence from the authors of the Review Documents, especially Mr. Amaya who authored approximately 800. There is no direct evidence from Mr. Amaya and no information as to the basis for his advice to Mr. Baik regarding the review of the Red Book. WCC also submits that TTC could have filed evidence from members of the Claims Team (some of whom TTC intends to call as witnesses at trial) including Bechtel and Navigant personnel.

[43] WCC further submits that Mr. Baik was not involved in reviewing the Red Book and that he does not state that TTC’s legal department was involved in reviewing it even though he spoke with Mr. Atlas for the purpose of swearing the Baik Affidavit. Mr. Pipilas testified that TTC’s legal department was involved as he was copied on occasional emails by Samantha Ambrozy, one of TTC’s in-house counsel, though there is no evidence that he spoke with her before swearing the Pipilas Affidavit.

[44] WCC also submits that contemporaneous evidence supports its position and contradicts TTC’s assertion that as of April 2015 all Review Documents were created for the dominant purpose of litigation. Specifically, WCC submits that the Bechtel Report, the Staff Action Report by Andy Byford, TTC’s Chief Executive Officer, dated March 26, 2015 (the “Staff Action Report”) and the Bechtel Agreement, none of which refer to litigation, all support the conclusion that Bechtel was retained to assist with claims review, analysis and resolution and Project completion. WCC notes that the Bechtel Report, dated February 2015, recommended that, as a result of the filing of formal claims and NOICs, a team of specialists be mobilized to ascertain and negotiate settlement of claims with contractors. In the Staff Action Report, Mr. Byford accepted Bechtel’s recommendations with respect to a Project reset and advised that TTC believed it would require until the end of 2015 to review contractor claims to a reasonable degree to provide an estimate of their expected value. To facilitate this reset, Bechtel was retained on April 13, 2015 pursuant to the Bechtel Agreement which provided for the assignment of Bechtel personnel with the objective of meeting a December 31, 2017 delivery date for the Project. The Bechtel Agreement also provided for assigning claims analysts to analyze the merits of claims, recommend amounts for resolution and negotiate claim settlements. Mr. Baik did not speak to Mr. Byford, who negotiated and executed the Bechtel Agreement.

[45] Similarly, WCC submits that the scope of the Navigant Agreement at best demonstrates a dual purpose of assessing the validity of contract claims and the subsequent assessment of contractor actions. WCC also notes that there is no evidence to support Mr. Pipilas’ statement that Navigant and Bechtel were involved with TTC’s legal department while Mr. Baik admitted he has no knowledge of who negotiated the Navigant Agreement. Mr. Baik, who spoke to Mr. Atlas, admits he did not speak to him about the Bechtel Agreement or the Navigant Agreement. WCC further submits that the Sealed Document does not make any reference to the Review Documents and at best demonstrates a dual purpose of claims review and litigation.

[46] WCC further argues that TTC’s position that the Red Book is not a Contract Claim is undermined by contemporaneous representations it made in correspondence to WCC and internally:

i.) in a letter dated September 2, 2014, Mr. Pipilas advised WCC that TTC would commence its review of the Red Book and respond “in accordance with the Contract requirements”;

ii.) Mr. Pipilas advised in an internal email message dated September 30, 2014 that TTC was required to provide an interim response to the Red Book within 60 days;

iii.) by letter dated October 29, 2014, Mr. Pipilas advised WCC that due to the composition of the Red Book including over 40 NOICs, TTC’s review would require substantially more time than the 60 days prescribed in GC31, that it may set up a claims workshop throughout its review and would endeavor to produce sequential preliminary responses giving TTC’s opinions with respect to the validity of WCC’s claims;

iv.) by letter dated November 10, 2014, Mr. Pipilas advised WCC that as the Red Book amalgamated numerous NOICs into one large scale, comprehensive claim, it would inevitably require more time to review and respond than 60 days;

v.) by letter dated July 2, 2015, Mr. Pipilas advised that “resolution of the Walsh Construction Company Canada’s (WCCC) August 29, 2014 claim submission is still in progress”, also noting that full payment for CD30 was dependent on “the outcome of the claim.”

[47] At no time until this motion did TTC ever advise WCC that it took the position that the Red Book was not a Contract Claim. However, TTC takes the position that it fully complied with the Contract even though it did not ultimately deliver a formal response regarding the validity of the Contract Claims in the Red Book.

[48] While WCC was required under GC 31.1 to file a Contract Claim or lose its right to do so, there was no prescribed form. GC 31.4 states:

“Within thirty (30) calendar days of submitting its intention to claim, or such other period as may be agreed by the Commission’s Representative in writing, the Contractor shall submit a written statement of claim which shall contain a sufficient description of the facts and circumstances of the occurrence that is the subject of the claim to enable the Commission’s Representative to determine whether or not the claim is justified. For claims regarding an extension to the Contract Schedule, the Contractor must provide documentation to demonstrate how the work of any claim impacts its detailed Construction Schedule, whether a critical path or bar chart schedule. Further, the Contractor shall supply such additional information and documentation to justify its claim as the Commission’s Representative may request from time to time.”

[49] It is important to note that WCC not only asserts claims for compensation in the Red Book but makes requests for schedule extensions. Further, GC 31.1 is also subject to the notice provisions in GC 17 (Delay by TTC) which provided an alternate way to submit delay claims against TTC.

[50] However, at the same time, although the Red Book is comprised of 45 NOICs, there is not a corresponding NOIC for each claim in the Red Book. On cross-examination, Mr. Pipilas described the Red Book as follows:

“97 Q. Did you ever advise Walsh that the Red Book claim was not a contract claim? A. There was no notice ever provided for it. It was just an amalgamation of a mass amount of claims together with an extensive delay back analysis with thousands of documents.

98 Q. So your position sitting here today, despite all the correspondence that we’ve reviewed is that the Red Book was not a contract claim? A. That’s not what I said.

99 Q. So it is a contract claim? A. It just wasn’t submitted typical – as would expect to produce GC31. There was no notice.

100 Q. You didn’t advise Walsh that there was any issue with its submission? A. No, we did like we should do. We acknowledge timelines. Like any claim, you have got to establish and confirm and document the timelines.

101 Q. Right. And you acknowledged to Walsh that you’d review and you’d respond to the claim in accordance with the contract requirements, correct? We looked at the letter. A. Initially. But like I said, as time passed in the initial few moments we realized that this claim wasn’t going to be able to be responded to in accordance with GC31.”

Timing, Contextual Analysis, Shifting Purpose and Document Review

[51] While timing is central to when and if litigation was reasonably contemplated, temporal considerations are also helpful in determining whether the Review Documents were created for the dominant purpose of litigation. In my view, it is apparent that there were multiple purposes at different times and for various Review Documents. These purposes include the review, analysis and resolution of Contract Claims under the Claims Process; potential litigation; Project completion; and budget management. In the context of a significant claim on a large unfinished Project with a Claims Process and litigation reasonably contemplated, it is likely that the dominant purpose shifted during TTC’s review of the Red Book. This calls for the kind of contextual analysis explained by Howden J. in Green Estate v. Ontario Rugby Football Union, [2001] O.J. No. 1460:

“From this, I accept as perhaps the most helpful and realistic approach the view expressed in Hamalainen (Committee of) v. Sippola (1991), 3 C.P.C. (3d) 297 at page 307 regarding the shifting focus of efforts after a loss as a continuum. Wood J.A. stated:

"At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for anticipated litigation. In other words, there is a continuum, which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case." ( Green Estate at para. 6).

[52] The British Columbia Court of Appeal, citing the excerpt from Hamalainen above, provided further guidance regarding this approach to dominant purpose:

“…A finding of dominant purpose involves an individualized inquiry as to whether, and if so when, the focus of the investigation/inquiry shifted to litigation. This is a factual determination to be made based on all of the circumstances and the context in which the document was produced.” (Raj v. Khosravi, 2015 BCCA 49 at para.17.)

[53] While drawing some general conclusions is helpful, given the voluminous number of Review Documents, the number and complexity of the Contract Claims set out in the Red Book and this litigation; the timing of TTC’s review, the creation of the Review Documents and the litigation; the ongoing completion of the Project; and the number of contractors and individuals involved, I am unable to make blanket determinations of dominant purpose. In order to properly make these determinations, it is necessary to inspect the Review Documents.

[54] WCC submits that since TTC has failed to establish a sufficient evidentiary basis for its privilege claims, it is not necessary for me to inspect the Review Documents and they oppose my doing so. TTC’s position is that while it is unnecessary for me to inspect the Review Documents, they do not oppose.

[55] In my view, it is appropriate, necessary and consistent with the case law to inspect the Review Documents as provided in Rule 30.06(d). (Guelph (City) v. Super Blue Box Recycling Corp., [2004] O.J. No. 4468; University of Guelph Central Student Assn. v. University of Guelph, 2016 ONSC 3189; Whitty v. Wells, 2016 ONSC 7716; Atomic Energy of Canada Ltd. v. Allianz Global Risks US Insurance Co., [2019] O.J. No. 453; Ansell at para. 20). Most importantly, whether privilege is validly asserted may be ascertained from the review of a document itself ( PSC Industrial Services Canada Inc. v. Thunder Bay (City), 2006 CarswellOnt 1392 at para. 20; Mamaca at para. 15).

[56] I echo the comments of Master MacLeod (as he then was) where, faced with 6,000 documents, he held that the court should not be called on to review thousands of documents and that new, preferably, collaborative approaches must be adopted including the inspection of select documents from various categories, such as the categories used by TTC on this motion (L’Abbe v. Allen-Vanguard Corp., 2011 ONSC 7575 at paras. 21-22 and 92). I also adopt the approach of Master Sproat (as she then was) where, in reviewing documents, if she had any doubt as to the applicability of privilege or the extent thereof, she found that privilege had not been established while ordering redactions where appropriate ( PSC at para. 21).

[57] To the extent to which there is an absence of evidence and I rely on my review of a document, WCC submits that I must be able conclude on the face of the document that privilege attaches. WCC also submits that the categories established by TTC were created by counsel and do not constitute evidence. While I generally accept these propositions, it is acceptable and appropriate where there are a large number of documents for documents to be submitted on the basis of categories based on common factors (Thomson v. Berkshire Investment Group Inc., 2007 BCSC 50 at paras. 69-70). Listing and describing documents individually is also not always a useful exercise and is of questionable utility when dealing with a large number of electronic documents, as is the case here (Rekowski v. Renfrew (County), 2019 ONSC 2852 at para. 58). It also bears repeating that WCC has been aware of the use of categories by TTC since the first case conference for this motion and as set out in my Endorsement dated October 7, 2019 was explicitly provided with an opportunity to review the categories and advise TTC, to the extent possible, of any documents which it believed should be reviewed individually. WCC has not opposed the use of categories. Most importantly, organizing and reviewing documents based on common categories is consistent with the most cost effective and expeditious disposition of this motion pursuant to Rule 1.04(1).

General Conclusions

[58] Based on the above, I draw the following conclusions which I have considered and applied to my inspection of the Review Documents.

[59] 1. TTC’s Evidentiary Burden – In arguing that TTC is required to provide the best evidence for each document, WCC overstates TTC’s evidentiary burden. TTC is required to provide sufficient evidence on a balance of probabilities where direct evidence from the author of the document is in many cases preferred or helpful. Having said that, generally speaking, TTC has not provided the most direct evidence in support of its claim that the Review Documents were created for the dominant purpose of litigation. Mr. Baik and Mr. Pipilas, while holding key management positions, and, in the case of Mr. Pipilas, involved in the review of the Red Book, are not, in many cases, best placed to provide evidence regarding dominant purpose. They authored only 4 of approximately 1,600 Review Documents and conducted what can best be described as a cursory review of the documents. Meanwhile, there is no direct evidence from individuals such as Mr. Amaya who authored approximately 800 or half of the Review Documents, any member of TTC’s legal department or Mr. Byford, who negotiated some of the material agreements. While this is not fatal to all of TTC’s privilege claims, which still require an inspection and consideration of timing and other factors, and Mr. Baik and Mr. Pipilas have helpful institutional knowledge and perspective, it does not generally assist TTC’s position. In my view, their broader, corporate insight often speaks more to TTC’s reasonable contemplation of litigation than dominant purpose. There are also instances where contemporaneous documents, including TTC’s correspondence and agreements such as the Bechtel Report, the Bechtel Agreement, the Staff Action Report and the Navigant Agreement, provide better evidence which in some cases directly contradicts TTC’s positions. This is most pronounced where, notwithstanding TTC’s written representations to WCC on numerous occasions that it was continuing to review the Red Book for determination as a Contract Claim pursuant to the Contract, it now submits that it was reviewing the Red Book for the dominant purpose of litigation.

[60] 2. Characterization of the Red Book – I agree with both parties that it is unnecessary for me to determine whether or not the Red Book constitutes a Contract Claim. However, the contents of the Red Book and how it was filed and reviewed is relevant to my privilege determinations. Simply put, the more that the parties treated it like a Contract Claim, the more it suggests that the Review Documents were not created for the dominant purpose of litigation or that if litigation was one purpose it was not the dominant one. While WCC does not appear to have strictly complied with the Claims Process with respect to the delivery of NOICs for all claims later advanced in the Red Book, there was no prescribed form for advancing Contract Claims. GC31.4 required WCC to provide a statement of its claims with a sufficient description and supporting documentation for TTC to determine if its claim was justified. There was no limit on the size or substance of WCC’s Contract Claims. Therefore, given that WCC was advancing a significant Contract Claim of approximately $137.9 million, it is understandable that WCC would file a substantial, comprehensive description with voluminous supporting documentation to put its best foot forward. Even accepting TTC’s view that the Red Book was not typical of a Contract Claim, the size of the claim and the wording of GC31.4 does not, in my view, automatically lead to the conclusion that the Red Book as filed could not be and was not reviewed as a Contract Claim. This is particularly true given the juxtaposition of TTC’s position that it did not consider the Red Book a Contract Claim with its own written representations such as the Staff Action Report, which confirm that it was still considering the Red Book for acceptance as a Contract Claim until at least the end of 2015 and likely later. This is in addition to the Bechtel Agreement and the Navigant Agreement which generally support the conclusion that the purpose of the Claims Team, subject to a consideration of timing, was engaged to review, analyze and resolve contract claims across the TYSSE.

[61] 3. Timing and Shift of Purpose – Some of the Review Documents were created for multiple purposes, including Contract Claims review; potential litigation; Project completion and/or budget impact. I note here that discussions regarding the resolution and/or settlement of Contract Claims is another potential purpose related to TTC’s review of the Red Book under the Claims Process. In this regard, TTC did not formally argue settlement privilege before me but rather included settlement discussions related to the litigation with its litigation privilege submissions. It is also possible that, contingent on numerous factors and circumstances, including the activities of the Claims Team, discussions between the parties, the involvement of TTC’s legal personnel and the effect of specific agreements or correspondence, the dominant purpose for specific document categories shifted to litigation. For example, it is possible that within a certain category, earlier Review Documents were created for the dominant purpose of reviewing the Red Book as a Contract Claim, however, as TTC continued its review and analysis and came to better understand the substance and scope of WCC’s Contract Claims, the dominant purpose shifted to litigation, Project completion and/or budget impact. This timing consideration is distinct from when litigation could reasonably have been contemplated which is not in dispute. There are some sign posts such as TTC’s representations regarding its ongoing review of the Red Book for determination as a Contract Claim until at least the end of 2015. However, I am unable to establish any bright lines for such a shift in purpose which apply to all Review Documents or categories. Accordingly, my conclusions must be drawn within the context of my inspection of the Review Documents.

[62] 4. Balancing and Fairness – There are competing interests and notions of fairness at issue which involve a balancing of WCC’s rights as a contractor claimant and TTC as an owner administering a contractual claims process. Specifically, should a contractor who files a claim in a contractually mandated claims process, where litigation is reasonably contemplated, be able to file a contract claim which is substantially similar to claims advanced in subsequent litigation, gain access to the owner’s communications created in reviewing the contract claims? Put another way, to what extent is this an incursion into any “zone of privacy” to which TTC may be entitled? On the other hand, the Contract largely reflected TTC’s standard terms, did not prescribe a form for Contract Claims, required statement, description and supporting documentation for a claim of $137.9 million and prevented WCC from commencing litigation until its final invoice was rendered thereby providing TTC with a preview of its claims in the litigation. In McNally, Master Dash held that it would be unfair if the plaintiff could access TTC’s notes and documentation made in preparation for a DRB hearing where the claim before the DRB was virtually identical to the claim advanced in the litigation, noting that the strategies and decisions in preparation for and at the DRB are akin to a form of litigation. In my view, McNally is distinguishable from the present case where the Review Documents were created at a time when the parties were largely advancing, assessing, discussing and attempting to resolve Contract Claims under the Claims Process not preparing for a DRB hearing. In McNally, Master Dash established a bright line concluding that documents related to claims for extras prior to TTC’s denial of the plaintiff’s claim were not created for the dominant purpose of litigation while documents related to DRB preparations created after TTC denied the plaintiff’s claim and referred it to the DRB met the dominant purpose test. Even then, as TTC had not prepared a detailed Schedule “B” or filed the documents for inspection, the issue of dominant purpose after denial of the claim was left open for reconsideration. The Claims Process here never advanced past the period which Master Dash refers to as claims for extras. TTC did not deny WCC’s Contract Claim, provide its opinion as to validity within 60 days or at all as required under the Contract, nor was the matter referred to the DRB. In addition, substantial submissions on dominant purpose have been made and the Review Documents have been filed for inspection. In my view, protecting TTC’s zone of privacy with respect to any litigation strategizing or related discussions separate and apart from the Claims Process can be sufficiently considered and/or addressed in my inspection of the Review Documents. Another important consideration is that both WCC and TTC are large, sophisticated parties performing the Contract to construct a large public infrastructure project involving billions of dollars with claims in the hundreds of millions advised by teams of in-house and external counsel. Accordingly, there must be a certain level of assumption that parties such as these are able to obtain timely and effective legal advice and to protect their rights in negotiating and carrying out the Contract and the Claims Process.

[63] 5. Document Inspection – Given my conclusion that inspection is necessary to make proper determinations of dominant purpose, I have reviewed all of the Review Documents. While a significant number of Review Documents remain in dispute, and I agree that court reviews of documents should not be standard, the process has been simplified somewhat by case management and the efforts of counsel in reducing the number of Review Documents at issue from 2,600 to 1,600 and now to approximately 1,508 (plus 40 Undertakings Documents) and the nature of many documents (such as repetitive e-mail chains, charts and spreadsheets). The fact that the Review Documents have been divided into categories based on common issues, subjects and claims is also helpful for the purposes of expediting my review.

Inspection of Documents and Document Categories

[64] The parties have resolved all Review Documents in the following document categories: Dispute Resolution Board (Category 9); Drawings (Category 10); Individual Claim Analysis – Contemporaneous (Category 11); Internal TTC Communications Regarding WCC Correspondence (Category 13); Meeting Scheduling (Category 14); Navigant Final Reports/Memos (Category 16); Not Relevant (Category 17); Solicitor-Client Privilege (Category 20): Tieback Claim (Category 22); and Without Prejudice Workshops (Category 23). That leaves 13 categories at issue.

[65] Backfill (Category 1) – This category is comprised of approximately 73 Review Documents described by TTC as related to the assessment or estimation of WCC’s backfill claim set out in NOIC 21 – “Subway Station Material Declared Unsuitable by TTC”, undertaken for the purpose of analyzing and responding to the allegations in the Red Book and Blue Book. Specifically, WCC’s claim relates to the dispute over the cost and quality of new dirt post-excavation. Having reviewed these documents, I am satisfied that only one, PRIV1230 was created for the dominant purpose of litigation, which is discernible on the face of the document. The balance of these Review Documents are for the purpose of reviewing, assessing, discussing and resolving the NOIC 21 claims as Contract Claims through the Claims Process and for budget management. The timing of the documents also supports production. Accordingly, the balance of the documents shall be produced. However, Review Documents to be produced may be redacted to remove specific references to TYSSE stations other than SW, including any dollar or other amounts specific to the other 5 stations. References to the TYSSE as a whole including any corresponding numbers and totals for the TYSSE shall not be redacted. In my view, specific references to the other 5 stations are not relevant and may raise issues beyond the scope of the motion before me. Given the number of documents and the amount of time and effort it will take to make such significant redactions, I leave it to TTC’s discretion if they wish to redact some or all of this information in the Review Documents to be produced. I may be spoken to if further directions are required.

[66] Below the Line Items (“BLI”)(Category 2) – This category includes approximately 58 Review Documents described by TTC as related to the assessment or estimation of Red Book and Blue Book claims concerned with site overhead which TTC requested be addressed separately from site overhead under Requests For Quotes (“RFQs”), set out in the Blue Book, undertaken for the purpose of analyzing and responding to the allegations contained in the Blue Book. These claims were raised by WCC after the Red Book was delivered and submitted with the Blue Book, however, they are included on this motion because the review and analysis by TTC giving rise to the Review Documents was conducted prior to the submission of the Blue Book. Having inspected these Review Documents, I conclude that all but 7 shall be produced. The Review Documents in this category are largely related to the review, analysis and discussion with respect to the assessment and potential resolution of WCC’s BLI Claims (in some cases overlapping with the claims of its subcontractors) as Contract Claims for the purpose of the Claims Process, including for the purpose of time extension requests and budgetary impact. I have concluded that the following 7 Review Documents were created for the dominant purpose of litigation based on the face of the documents, the timing of creation and limited support for some from the Sealed Document and shall not be produced: PRIV 1704, 1947, 1964, 1982, 1983, 1984 and 1985. The same terms as above apply to the redaction of information regarding the other 5 TYSSE stations.

[67] Budget Analysis (Category 3) – This category consists of 36 documents described by TTC as created for the analysis of TTC’s potential financial exposure for claims brought by contractors across the TYSSE undertaken for the purposes of litigation planning and budget management, which includes analysis of exposure from specific and overall claims, assessments of claim merits and payment ratios in comparison with other TYSSE contractors. These Review Documents were created after WCC filed both Books and are not specific to SW but rather relate to the TYSSE as a whole for the purpose of analyzing contractor claims across the TYSSE. In my view, there are at least 4 purposes for the Review Documents in this category: assessment, analysis and resolution of Contractor Claims including specific NOICs issued by WCC; potential litigation; budgetary considerations; and Project completion. Having reviewed these documents, I am unable to conclude that any of them were created for the dominant purpose of litigation. At best, litigation is one of multiple purposes. All of these Review Documents shall be produced subject to the same terms set out above regarding redactions related to the other 5 TYSSE stations.

[68] Claims Analysis – Costing/Valuation (Category 4) – This category contains approximately 80 Review Documents described by TTC as related to the assessment and estimation of potential costs or valuation of changes or claims contained in the Books, undertaken for the purpose of analyzing and responding to allegations in the Books and preparing for future litigation with WCC and/or its subcontractors. TTC specifies that these are not documents created in the ordinary course of reviewing and analyzing changes to the Contract. As set out in the Baik Affidavit, TTC issued changes throughout the Project by way of both Contract Change and Change Directive with supporting documentation for the amounts awarded for changes and a summary of the changes set out in attached documents entitled “Purchase Order Amendment Authority” (“POAAs”). TTC has produced all 604 POAAs issued on the Project. With the exception of 4 documents, I conclude that none of these Review Documents were created for the dominant purpose of litigation. There are multiple purposes for these documents, namely the review, assessment and resolution of WCC’s Contract Claims as set out in NOICs and the Red Book, including claims for time extensions and WCC subcontractor claims; potential litigation; and impact on the Project reset budget. At best, there are some documents which have the dual purpose of claims review and litigation. All of these Review Documents shall be produced except PRIV 0084, 0085, 0847 and 0848 which I conclude were created for the dominant purpose of litigation and shall not be produced, as supported by, among other things, the Sealed Document. Review Documents to be produced may be redacted on the same terms set out above.

[69] Claims Analysis – Red Book General (Category 5) – This category is comprised of approximately 323 Review Documents which TTC describes as related to the analysis of claims in the Red Book not specific to any issue, undertaken for the purposes of analyzing and responding to the allegations in the Red Book and preparing for future litigation with WCC and/or its subcontractors. Having reviewed these documents, I conclude that other than 17 documents, the Review Documents in this category were not created for the dominant purpose of litigation. These Review Documents mostly reflect the review, analysis and attempts to resolve specific NOICs and Contract Claims as set out in the Red Book and claims by WCC’s subcontractors. At best, it can be concluded that some of the Review Documents other than these 17 demonstrate a dual purpose of claims review and litigation, in some cases, with additional purposes of Project completion and budget management. I am satisfied that the following 17 documents were created for the dominant purpose of litigation and shall not be produced: PRIV 0333, 0605, 0611, 1042, 2539, 2540, 3602, 3662, 3663, 3717, 3742, 3772, 4035, 4115, 4242, 4243 and 4244. I conclude this based on the face of the documents, timing and/or in limited cases, the Sealed Document. As above, the same terms apply with respect to redactions related to the other 5 stations.

[70] Claims Logs (Category 6) - This category contains approximately 108 Review Documents described by TTC as the claims logs for the entire TYSSE together with related documents and correspondence, commentary and analysis, assessing the merits of particular claims, negotiation strategies, actions taken, status and assessment of financial exposure, which TTC says were created for the purpose of analyzing claims across the TYSSE and assessing TTC’s potential exposure in any litigation brought by contractors. Having reviewed these documents, I am satisfied that with the exception of 17 Review Documents, all of these shall be produced. Most of these Review Documents are charts or spread sheets setting out information for contract claims across all 6 stations of the TYSSE. There are 3 purposes for these Review Documents, including review, analysis and resolution of contract claims; potential litigation and budget impact. The following Review Documents were prepared for the dominant purpose of litigation, as reflected on the face of the documents and timing and shall not be produced: PRIV 2153, 2240, 2316, 2422, 2455, 2520, 2553, 2607, 2643, 2684, 4286, 4288, 4290, 4291, 4292, 4293 and 4294. The documents to be produced may be redacted on the same terms as above with respect to the other 5 stations.

[71] Claims Settlement (Category 7) - This category consists of approximately 109 Review Documents described by TTC as discussing or analyzing specific settlement or potential settlement of claims in the Red Book and/or Blue Book. I am satisfied that the majority of these Review Documents shall be produced. These documents have 3 purposes: assessment and resolution of WCC’s Contract Claims as set out in the Red Book with respect to specific claims and NOICs; global settlement of all issues in this litigation; and to a lesser extent, budget analysis and impact. In many cases there is a dual purpose of resolving the Contract Claims and resolution as potential litigation or where resolving specific Contract Claims and/or NOICs is the dominant purpose. The following 41 Review Documents were created for the dominant purpose of litigation as reflected by, among other things, the face of the documents and timing and shall not be produced: PRIV 0048, 0116, 0138, 0284, 1465, 1538, 1570, 1571, 1576, 1578, 1581, 1582, 1593, 1594, 1595, 1596, 1597, 1600, 1602, 1661, 1668, 1672, 1680, 1690, 1862, 2481, 2521, 2665, 3759, 3762, 3873, 3874, 4013, 4015, 4025, 4026, 4095, 4096, 4155, 4157 and 4358. Review Documents to be produced may be redacted on the same terms as above with respect to the other 5 TYSSE stations.

[72] Delay/Schedule/Critical Path Analysis (Category 8) – This category contains approximately 316 Review Documents which TTC describes as analyzing the scheduling impact of changes, including the Time Impact Analysis contained in the Red Book and the Blue Book for the purposes of analyzing the allegations contained therein and preparing for future litigation with WCC and/or its subcontractors. TTC states that documents related to its contemporaneous analysis have already been produced and these Review Documents relate to approximately $77.7 million claimed by WCC in the Red Book with respect to delay and scheduling issues for which no NOICs were submitted. TTC submits that these Review Documents relate to a separate, after the fact analysis for the dominant purpose of litigation. Based on my inspection, I am satisfied that all but 54 of these Review Documents shall be produced. Most of the documents have been created for the purpose of Project completion and analysis of Contract Claims. The following 54 Review Documents were created for the dominant purpose of litigation as evidenced by timing, the face of the document and in limited cases, the Sealed Document and shall not be produced: PRIV0085, 0058, 0075, 0316, 0867, 0956, 0958, 0969, 0970, 0973, 1006, 1203, 1214, 1223, 1225, 1234, 1235, 1412, 1413, 1609, 1610, 1770, 1799, 1800, 1805, 1807, 1809, 1810, 1811, 1812, 1813, 1814, 1816, 1838, 1814, 1816, 1838, 1858, 1946, 3879, 3880, 3909, 3910, 3911, 3912, 3913, 3915, 3916, 3917, 3953, 3960, 3961, 4008 and 4030. Where applicable, the Review Documents to be produced may be redacted on the same terms as above with respect to the other 5 TYSSE stations.

[73] Individual Claim Analysis – Red Book (Category 12) - This category is comprised of approximately 30 Review Documents which TTC describes as analyzing specific, individual claims in the Red Book undertaken for the purpose of analyzing and responding to the allegations in the Red Book and preparing for future litigation with WCC and/or its subcontractors. Again, TTC submits that all contemporaneous review documents have been produced. Having inspected these Review Documents, I cannot conclude that any of them were created for the dominant purpose of litigation. All factors, including timing and face of these Review Documents reflect that they were created for the dominant purpose of reviewing, analyzing and resolving specific Contract Claims as set out in the Red Book or by WCC’s subcontractors. These Review Documents shall be produced. As above, they may be redacted with respect to the other 5 stations.

[74] Navigant Work (Category 15) – This category consists of approximately 122 Review Documents which TTC describes as related to the nature and scope of Navigant’s role on the Project, including weekly updates or related correspondence from Navigant on claims analysis at various TYSSE stations, proposals or to do lists for upcoming work including analysis of Contract Claims in the Books and correspondence regarding billings. TTC has produced Navigant’s final reports (the “Navigant Reports”) during the course of these proceedings and generally characterizes these Review Documents as the work product related to the Navigant Reports. It appeared in the lead up to this motion that WCC was taking the position that since TTC produced the Navigant Reports that it had waived privilege over Navigant’s work product. However, WCC confirmed during oral submissions that is not claiming waiver, but asserting that if the Navigant Reports are not subject to litigation privilege then the work product cannot be privileged. In any event, production of a document does not automatically lead to waiver of privilege over the balance of documents and work product from the same file or on the same subject matter (Elgner v. Freedman, 2014 ONSC 1989 at para. 25; Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co., 1995 CarswellOnt 1461 at para.41). Based on my review, I am satisfied that substantially all of these Review Documents should be produced. With some exceptions, these Review Documents were not created for the dominant purpose of litigation, rather they reflect specific tasks performed by Navigant consistent with the scope of its mandate under the Navigant Agreement unrelated to litigation namely, the review, analysis and resolution of contractual claims for all TYSSE stations; schedule analysis; Project completion and budget impact. The following 7 Review Documents were created for the dominant purpose of litigation, as reflected on the face of the document, timing and in some cases, the Sealed Document and shall not be produced: PRIV 0822, 0832, 1153, 1443, 1447, 1490 and 2680. As above, the Review Documents to be produced may be redacted on the same terms with respect to other TYSSE stations.

[75] Per Diem (Category 18) – This category includes approximately 92 Review Documents which TTC describes as related to its assessment of the indirect costs of delay and schedule extension, excluding costs of materials or actual work, in the context of Red Book and Blue Book claims undertaken for the purpose of analyzing and responding to the allegations in the Books. Having inspected these Review Documents, I conclude that only 1 document, PRIV0015, was created for the dominant purpose of litigation and shall not be produced. Substantially all of these Review Documents were created for the purpose of budget impact; review, analysis and resolution of Contract Claims advanced in the Books; and scheduling and Project completion. While some of the Review Documents may have litigation as a purpose, it cannot be characterized as the dominant one. As above, the Review Documents being produced may be redacted with respect to the other 5 TYSSE stations.

[76] Personnel/Manpower (Category 19) – This category contains approximately 132 Review Documents which TTC describes as created for the assessment or estimation of claims in the Books related to “staff thickening” or increasing personnel as a result of schedule extensions, additional personnel to complete extra work, undertaken for the purpose of analyzing and responding to the allegations contained in the Books. Most of these Review Documents were created for the purpose of reviewing, analyzing and settling the Contract Claims in the Red Book and budgetary impact. To the extent to which litigation is a purpose of any of these Review Documents, it is limited, co-exists with the other purposes and is only the dominant purpose with respect to 7 Review Documents which I conclude on the face of the documents, timing and the Sealed Document shall not be produced: PRIV1863, 3904, 3935, 3936, 3944, 4160 and 4203. As above, the Review Documents to be produced may be redacted with respect to the other TYSSE stations.

[77] Subcontractor Claims (Category 21). – This category includes 29 Review Documents which TTC describes as related to the analysis of specific claims by WCC’s subcontractors being flowed through by WCC to TTC as part of the Red Book, in some cases claims for which litigation had already been commenced. Based on my inspection, I conclude that most of these documents were not created for the dominant purpose of litigation and shall be produced. The purpose of most of these Review Documents is to review, assess and resolve Contract Claims in the Red Book, sometimes coupled with the dual purpose of litigation. Due largely to timing and on the face of some documents, I am satisfied that the following 12 Review Documents were created for the dominant purpose of litigation: PRIV0343, 0344, 0345, 0356, 1739, 1917, 1918, 1929, 1932, 1936, 1940 and 1968. As above, the documents may be redacted for information regarding other TYSSE stations.

[78] Undertaking Documents – This category contains approximately 40 documents related to 14 questions arising from other productions by TTC. TTC has divided these questions into 3 groups. One question has been resolved reducing the total to 13.

[79] The first group contains 5 questions which relate to additional documents arising from TTC’s review of the Red Book over which TTC claims litigation privilege. They include redacted portions of notes made by Mr. Pipilas when he reviewed the Red Book (Question 903); TTC’s analysis of its procurement files as they relate to per diems and its analysis of WCC’s acceleration claim (Questions 2648, 4702 and 4711); and TTC’s entire electronic claims folder, to the extent not already produced (Question 7269). I have reviewed Mr. Pipilas’ notes and I cannot conclude that any of them were created for the dominant purpose of litigation. Based on the content and timing of his notes, they were created largely for the purpose of reviewing, analyzing and resolving Contract Claims and NOICs as set out in the Red Book and Project completion. While some notes may have some utility for litigation, at best, it was one of multiple purposes, not a dominant one. The notes shall be produced. With respect to TTC’s review of its procurement files and WCC’s acceleration claims, there is insufficient evidence to support TTC’s claims that they were created for the dominant purpose of litigation. I repeat many of my comments above regarding TTC’s evidence. These documents shall be produced. With respect to TTC’s entire electronic claims file, I am not prepared to consider WCC’s request for this on the current record. This is an extremely broad request which inevitably overlaps with many of the Review Documents and categories which I have considered on this motion and there is insufficient evidence for me to distinguish it from WCC’s other requests. If, with the assistance of these Reasons, the parties cannot resolve this issue, it may be spoken to at a future attendance.

[80] The second group contains 6 questions and approximately 34 documents over which TTC claims solicitor-client privilege. I have reviewed these documents and conclude that all but 4 are subject to solicitor-client privilege. Namely, it is apparent on the face of the documents that the bulk are confidential communications created for the purpose of obtaining legal advice from TTC’s in-house counsel and the gathering of information, notes and/or the product of the legal advice obtained (Alofs v. Blake, Cassels & Graydon LLP, 2016 ONSC 6907 at para. 12). The following 4 documents are not subject to solicitor-client privilege and shall be produced: PRIV4370, 4391, 4395 and 4403.

[81] The third group contains 2 questions related to 2 documents over which TTC claims litigation privilege. Specifically, WCC seeks the notes and records of TTC related to its review of Direct Cost Claim No. 83 (related to NOIC 224)(Question 7038) and to produce all documentation related to TTC’s review of the quantum of each NOIC listed in WCC’s Scott Schedule (Question 7400). Consistent with my conclusions above, I am satisfied that notes and records regarding TTC’s review of Direct Cost Claim No. 83 should be produced, as there is insufficient evidence to conclude that they were created for the dominant purpose of litigation. Rather, it supports the conclusion that they were created to review and analyze WCC’s Contract Claims, the Red Book and NOIC 224 pursuant to the Claims Process. However, I am not prepared to order the production of all documentation related to TTC’s review of the quantum of every NOIC listed in WCC’s Scott Schedule. Similar to my conclusions above regarding TTC’s electronic claims file, this is a broad request which inevitably overlaps with my consideration of the issues and inspection of Review Documents set out above. The parties shall have further discussions as a result of the release of these Reasons and may speak to this request further if necessary.

IV. Disposition and Costs

[82] Order to go directing TTC to produce the documents set out above on timelines to be agreed upon by counsel. Given the suspension of regular court operations due to the COVID-19 pandemic, this Order is effective forthwith without the requirement for the filing and entry of a form of order. The parties may schedule a telephone case conference with me if they wish to speak to the terms of these Reasons and my orders and directions.

[83] On January 14, 2020, I convened a telephone case conference at WCC’s request regarding costs arising from all motions heard by me in these proceedings. At that time, I rejected WCC’s request that the parties be permitted to make costs submissions on all motions completed up to that date. I directed that this issue be spoken to further during the attendances on this motion and ultimately concluded that I would address it in these Reasons.

[84] During a telephone case conference on May 28, 2020, counsel advised that there will likely be additional, more limited motions with respect to refusals arising from re-attendances on examinations for discovery. Depending on the timing and length of these additional motions, it may be more efficient and proportionate to await the resolution or determination of any additional motions so that the parties can file one set of costs submissions for all motions. Therefore, I will consider this issue further once the timing and scope of the additional motions become clearer.

Reasons Released: June 11, 2020

Master M.P. McGraw