OSHAWA COURT FILE NO.: CV-20-921 DATE: 20230323 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Canadian Flight Academy Ltd. Plaintiff (Moving Party) – and – Corporation of the City of Oshawa Defendant (Respondent)

Counsel: R. Huang and R. Zita, for the Plaintiff (Moving Party) G. Ackerley, K. Chaytor, C. Steven, and C. Chaloux, for the Defendant (Respondent)

HEARD: September 22, October 14 and November 24, 2022

Ruling on CFA Motion Re: Production of Documents and Refusals

DAWE J.:

I. Overview

A. Litigation background

[1] The plaintiff, Canadian Flight Academy Ltd. (“CFA”), operates an aircraft pilot training school through a related company, Toronto Airways Inc. (“TAI”). Since 1998 it has leased business space at the Oshawa Executive Airport from the Corporation of the City of Oshawa (“the City”). CFA uses the airport for training flights, during which trainee pilots often practice takeoffs, landings and approaches. The City maintains that this flight activity has led to noise complaints by local residents, but CFA disputes that its training flights are a significant contributing cause of airport noise.

[2] CFA’s original 1998 lease of its premises at the airport ran until the end of 2019. In around 2008 CFA and the City began discussing a possible extension, and in 2010 the City drafted a new 20-year lease and submitted it to CFA. However, CFA did not sign the new lease until two years later, at which point the City took the position that the lease had “expired” and was now “null and void”.

[3] In May 2020 the City began taking steps to evict CFA from its leased premises at the airport, on the basis that the 1998 lease was still in force, and that it had expired at the end of 2019. In response, CFA brought an application seeking various forms of relief. My late colleague Mr. Justice Salmers issued an injunction that essentially preserved the status quo while the litigation proceeded.

[4] In March 2022 my colleague Justice Bird directed that CFA’s application be converted to an action under rule 38.10 of the Rules of Civil Procedure, and in April 2022 the parties exchanged pleadings.

B. The disputed facts and issues in the litigation

1. CFA’s position

[5] In summary, CFA’s Statement of Claim asserts that the parties entered into a binding contract in 2010 that replaced the original 1998 lease with a new 20-year lease, which has not yet expired.

[6] In the alternative, CFA relies on the equitable doctrine of proprietary estoppel, arguing that it was induced to make substantial capital investments to its leased building by the City’s representations that the lease would be extended.

[7] CFA also contends that the City “breached the duty of good faith” in various ways. One of CFA’s complaints is that:

The City acted in bad faith by making unfounded allegations, for an extended period of time, to the public that CFA’s flight training caused increased noise complaints by the community.

[8] According to CFA, any problems with airport noise are due mainly to the City having permitted residential development too close to the airport, in areas where the “Noise Exposure Forecast” (“NEF”) – a numerical measure of anticipated noise from an airport – exceeds the value of 30. I will discuss the dispute between the parties on this latter issue in more detail later.

2. The City’s position

[9] In its Statement of Defence, the City asserts that CFA’s lease was never extended. Although the City offered to extend the lease in 2010, CFA never accepted this offer because it was contemplating moving its operations to a different airport. The City then withdrew its extension offer in 2012, before CFA accepted it.

[10] The City also denies that it made any representations that induced CFA to spend money on improvements to the leased premises, and denies that it acted in bad faith. I will discuss the City’s position on the airport noise issue in more detail later in my reasons.

II. The CFA’s motion and its procedural history

[11] The converted action was pre-tried by my colleague Justice McKelvey in April 2022. He set a schedule with the goal of having the matter ready for trial by the November 2022 sittings. Among other things, he ordered that the existing affidavits that had previously been filed by the parties, and the cross-examinations on these affidavits, would be treated as discovery transcripts. McKelvey J. also directed that any additional discovery would be completed by the end of July 2022; that answers to undertakings be provided by the end of August 2022; and that any motion arising out of the discoveries “be scheduled to be heard prior to September 30, 2022”.

[12] On July 18, 2022, counsel for CFA conducted an examination for discovery of Tom Goodeve, who is the City’s Director of Planning Services. Mr. Goodeve had previously sworn affidavits and been cross-examined on them, and pursuant to McKelvey J.’s order this previous evidence is deemed to form part of his discovery in the converted action.

[13] During Mr. Goodeve’s July 18, 2022 examination, counsel for the City took 93 questions under advisement.

[14] In mid-September 2022 CFA brought a motion, returnable as a short motion on September 22, 2022, in which it sought an order requiring the City to:

i) deliver a further and better affidavit of documents; ii) produce another better-informed City employee for discovery, or alternatively produce Mr. Goodeve for further discovery; and iii) answer the questions that had been taken under advisement.

[15] I should note that there is considerable overlap between the first and third forms of relief requested, since many of the questions the City took under advisement were framed as requests by CFA that Mr. Goodeve produce the same documents that CFA now seeks to have the City include in a further and better affidavit of documents.

[16] The City has refused to produce some of the documents CFA requests on the grounds that they are privileged. These documents are listed in Schedule B of the City’s affidavit of documents.

[17] CFA’s motion came before me on September 22, 2022 on a short motion list, which is supposed to be limited to matters that will take no more than one hour to hear. It was apparent from the outset that there was no realistic prospect of arguing all three aspects of CFA’s motion in a single hour, or even in a half-day. Moreover, CFA had only very recently indicated that it meant to challenge the City’s privilege claims, and the City had not yet filed responding materials on this issue.

[18] Accordingly, when the motion first came before me on September 22, 2022, I directed that it would be divided by issue and heard on three different days. I then heard argument about the CFA requests for documentary production and answers to questions taken under advisement that do not involve privilege claims by the City. At the conclusion of this hearing I reserved my decision.

[19] On October 14, 2022, I then heard argument with respect to CFA’s request for an order directing the City to either produce a different City employee for discovery, or alternatively produce Mr. Goodeve for further discovery.

[20] It emerged during the October 14, 2022 hearing that the City had no objection to CFA conducting a further discovery of Mr. Goodeve. Indeed, the City acknowledged that it will be obliged to produce Mr. Goodeve to answer follow-up questions arising out of the City’s answers to questions taken under advisement at the original examination, and that he can also properly be questioned about any Schedule B documents that it will be required to produce if any of its privilege claims are not upheld. The City’s counsel advised that the City would also have no objection to CFA’s counsel questioning Mr. Goodeve more broadly. He also agreed that it would also make sense for Mr. Goodeve to make reasonable efforts to inform himself beforehand about matters that were within the knowledge of the airport manager, Stephen Wilcox.

[21] Counsel on both sides agreed that any further examination of Mr. Goodeve could not occur until I had given my ruling on the matters argued before me on September 22, 2022, and had also heard and decided the privilege issue. Counsel for CFA also agreed that CFA would not be able to decide whether to continue pursuing its request to examine a different City employee for discovery until after the further examination of Mr. Goodeve had been conducted. Accordingly, this aspect of CFA’s motion was ultimately adjourned sine die.

[22] Since the earliest date on which the Schedule B documents privilege motion could be heard was not until late November 2022, it was clear that there was no longer any realistic prospect of this matter being tried in the fall 2022 sittings. I accordingly amended McKelvey J.’s previous order and removed this matter from the fall 2022 trial list.

[23] On November 24, 2022 I heard argument on the Schedule B privilege motion and reserved my decision. I advised that I would give omnibus reasons addressing the issues in CFA’s motion that had been argued before me in both September and November 2022.

[24] These are those reasons.

III. Issue 1: Non-privileged documents and questions taken under advisement by the City

[25] By the time CFA’s motion came before me in September, the City had already answered 56 of the 93 questions under advisement to CFA’s satisfaction. [1]

[26] While most of CFA’s documentary production requests relate to documents that it asked for during Mr. Goodeve’s examination for discovery, in questions that the City took under advisement, CFA also makes two requests for documents that it did not ask for during Mr. Goodeve’s examination.

[27] These outstanding questions and requests for documents can be divided into four main groups: [2]

i) Questions and documents relating to the issue of airport noise complaints (Issues 5, 9-14, 77-93); ii) Documents relating to the issue of whether CFA had a parcel of land known as “Part 42” added to its leasehold by the City as compensation for losing it rights over other land that the City took to build a new airport taxiway, or whether these two transactions were separate; iii) Questions and documents relating to a claim by the City that it offered in 2011 to sell land to CFA, as an alternative to extending CFA’s lease; and iv) Documents over which the City is claiming privilege and has listed in Schedule B of its affidavit of documents (Issues 15, 19, 20, 24, 26-28, 30-31, 63, 64).

[28] As I have already noted, at the September 22, 2022 hearing counsel agreed that the issues arising out of the City’s privilege claims would be addressed later, in a separate hearing that eventually took place on November 24, 2022. Both counsel also focused their argument at the September 22, 2022 hearing primarily on the noise complaints issue.

1. Documents and information relating to airport noise complaints

a) Factual background

[29] Some explanation is necessary to put into context the dispute between the parties over public complaints about airport noise, and the potential relevance of the documents and information CFA seeks.

[30] As I have already noted, the main question in dispute in the litigation is over whether CFA’s lease was extended by the City in 2010 for a further twenty years.

[31] The City’s position is that the original lease remained in force. In 2019, before the original lease’s expiry date, the City offered to extend CFA’s lease for one more year, but only if CFA agreed to limit the number of training flights that its associated company TAI would conduct. The City justified these proposed flight limits on the basis that local residents who live near the airport had been making noise complaints.

[32] CFA disputes that its flights are a significant contributor to any airport noise problem. In the alternative, CFA takes the position that any airport noise issues are the City’s fault, because many years ago it permitted houses to be built too close to the airport runway.

[33] The expected noise near an airport can be quantified using a measure known as the “Noise Exposure Forecast” (“NEF”). Various provincial and federal rules and guidelines prohibit or discourage residential construction in areas with NEF values higher than either 30 or 35.

[34] After citing these rules and guidelines, CFA states at para. 58 of its Statement of Claim:

Contrary to the above well-known guidelines, the City allowed residential houses within and above the NEF-30 contours in the vicinity of the airport.

[35] CFA goes on to assert further, at para. 60, that:

… for political expediency and without merit, the City alleged that the noise complaints were caused by CFA’s flight training business. It was convenient for the City to use CFA as a scapegoat.

[36] In its Statement of Defence, at para. 55, the City disputes CFA’s claim that it permitted residential development too close to the airport, stating:

Contrary to paragraph 58 of the Statement of Claim, the City did not allow new residential development in areas surrounding the Airport that contradict the guidelines of Transport Canada, the Ontario government, or the Canadian Mortgage and Housing Corporation. The houses located in the areas around the Airport that have an NEF/NEP value greater than 30 were built before the guidelines referenced in the Statement of Claim were issued and/or published.

[37] In response to a question taken under advisement during Mr. Goodeve’s examination, the City has advised that it was specifically referring in paragraph 55 of its pleadings to a CMHC publication titled “New Housing and Airport Noise”, which was first published in 1976.

[38] The City has also produced a document that shows the NEF 25, 30 and 35 contours overlaid on a map of the streets to the south and east of the Oshawa airport, along with a spreadsheet listing the residential addresses of the properties that fall into the various contours. This is the only part of the area surrounding the airport where there are residences that are built on lots that fall into the NEF 30 and 35 contours. These documents show that there are approximately 250 such houses, and the map shows their locations.

[39] The City has also disclosed that permits to build these houses would only have been issued after the subdivision plans were registered, and has advised that the subdivision plans for the properties at issue were registered between 1950 and 1976. There are also five lots that were created by severance registered in March 1993.

[40] However, the City has refused to provide information about the specific dates when these houses were built. In an affidavit the City has included in its responding motion record, Mr. Goodeve explains that determining the actual building dates would require someone to locate copies of the original building permits that have been stored on microfiche, which would be a time-consuming task.

[41] Some of the questions taken under advisement by counsel for the City during Mr. Goodeve’s examination for discovery were directed at obtaining information and documentation about the building dates of the houses in the NEF 30 and 35 zones. These are the questions referred to in CFA’s Chart of Advisements as Issues 5 and 9-11.

[42] During her examination of Mr. Goodeve, counsel for CFA also asked multiple questions that were directed at obtaining information and documentation about the identities and addresses of the people who have made complaints about airport noise. Information about these noise complaints has already been provided by the City, but the City has redacted the names and addresses of the complainants, citing the Municipal Freedom of Information and Privacy Act, R.S.O. 1990, c. M.56.

[43] CFA seeks to have these redactions lifted. The related questions and refusals are listed as Issues 77-93 in CFA’s Chart of Advisements.

b) Legal principles

[44] Rule 25.06(1) of the Rules of Civil Procedure requires a party’s pleadings to “contain a concise statement of the material facts on which the party relies for the claim or defence”. As Low J. observed in Lysko v. Braley, at para. 64, aff’d :

The purpose of pleadings is to define the issues for the parties and for the court. The pleadings govern the trial and the interlocutory proceedings. A case properly pleaded permits an efficient use of judicial resources and the parties’ resources. … If a matter is pleaded, it may be discovered upon.

[45] Documentary discovery and production is governed by rule 30 of the Rules of Civil Procedure. In general, a party is required to disclose the existence of “[e]very document relevant to any matter in issue in an action” that is or was in its possession or control (rule 30.02(1)), and must permit other parties to inspect any such document that is not privileged and is still within the disclosing party’s possession or control (rule 30.04).

[46] In Sycor Technology Incorporated v. Kiaer, 2012 ONSC 5285, at para. 23, Morawetz J. (as he then was) noted that:

Relevance is determined by reference to the pleadings. A document is “relevant” if it is logically connected to and tending to prove or disprove a matter in issue.

[47] In R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 108, Martin J. explained further (dissenting in part, but writing for the Court on this issue):

Relevance involves an inquiry into the logical relationship between the proposed evidence and the fact that it is tendered to establish. The threshold is not high and evidence is relevant if it has “some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence”: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 36, quoting D. M. Paciocco and L. Stuesser, The Law of Evidence (5th ed. 2008), at p. 31. In other words, the question is whether a piece of evidence makes a fact more or less likely to be true. Relevance does not require a “minimum probative value”: R. v. Arp, [1998] 3 S.C.R. 339, at para. 38.

[48] However, the scope of disclosure under the Rules of Civil Procedure is constrained by rule 29.2.03, which applies to both documentary discovery under rule 30 and oral discovery under rule 31. Rule 29.2.03 provides:

29.2.03 (1) In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,

(a) the time required for the party or other person to answer the question or produce the document would be unreasonable; (b) the expense associated with answering the question or producing the document would be unjustified; (c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice; (d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and (e) the information or the document is readily available to the party requesting it from another source.

c) The relevance of the documents and information at issue

[49] I accept that the documents and information the CFA seeks meet the low threshold requirement of relevance. It is important to bear in mind that to establish relevance, CFA does not have to demonstrate in advance that the documents or information it seeks will support its position. A document will be relevant if it “makes a fact more or less likely to be true”: Calnen, para. 108.

[50] Both parties’ pleadings make express or implicit factual assertions about the houses near the airport that are located on properties in the NEF 30 and 35 zones.

[51] At para. 58 of its Statement of Claim, CFA asserts both the City “allowed residential houses within and above the NEF-30 contours in the vicinity of the Airport”, and that it did so “contrary to the … well-known guidelines”. It is implicit in this assertion that the “well-known guidelines” must have existed at the time that the City gave permission for the houses to be constructed, since the City cannot sensibly be said to have “allowed” construction “contrary to the … well-known guidelines” if these guidelines did not yet exist when the City authorized the construction.

[52] In response, the City expressly acknowledges CFA’s implied factual assertion and disputes it, stating at para. 55 of its Statement of Defence that these houses “were built before the guidelines … were issued and/or published”. The City has since clarified that it was referring to the publication of the CMHC guidelines in 1976.

[53] I should note that while CFA’s assertion that the City “allowed” the construction of the houses in the NEF 30 and 35 zones can be understood as referring to the dates that building permits for these houses were issued by the City, in para. 55 of its pleadings the City refers instead to the dates when the houses at issue “were built”, which were presumably later than the dates when building permits for these houses were issued.

[54] CFA seeks documents that would potentially resolve this factual dispute by establishing exactly when building permits for the houses in question were issued. I agree that this information is relevant to this disputed factual issue. If building permits for some of the houses were not issued until after 1976, this will contradict para. 55 of the City’s pleadings. On the other hand, if the building permits were all issued before 1976, this will show that the claim CFA makes in para. 58 of its pleadings is incorrect. [3]

[55] The CFA also seeks unredacted copies of the documents that the City has produced in redacted form concerning noise complaints made by local residents. Specifically, CFA wants the redactions lifted so that it can identify the complainants’ home addresses to see if they live in houses that are in the NEF 30 or 35 contours.

[56] I agree that this latter information meets the low threshold requirement of relevance. Specifically, it has at least some potential bearing on CFA’s claim at para. 60 of its Statement of Claim that the City “for political expediency and without merit… alleged that the noise complaints were caused by CFA’s flight training business”, without first:

… conducting due diligence to ascertain the validity of the concerns and the main causes for the concerns (e.g. whether the complaining residents’ houses were built contrary to the well-known guidelines for residential houses around airports, or whether it was because of the growth of the Airport’s business as a result of the Airport Business Plan for 2015-2019) …

[57] If it turns out that noise complaints have been made disproportionately by people living in houses that fall within the NEF 30 and 35 zones, this will provide at least some evidential support for the CFA’s claim that this was something the City ought to have taken into account before publicly criticizing CFA.

d) Proportionality and third party privacy interests

[58] Even when questions and documents meet the low threshold standard of relevance, requiring them be answered or produced by the opposing party may still be disproportionate within the meaning of rule 29.2.03.

[59] As Perell J. noted in Ontario v. Rothmans Inc., 2011 ONSC 2504, at para. 160, “[p]roportionality is a parsimonious principle”. Requiring a party to answer a question or produce a document will be disproportionate when the cost or effort the party would have to expend outweighs any potential benefit to the opposing party of having the information.

[60] Requiring a party to disclose information or produce documents can in some circumstances also unduly affect the privacy interests of third parties. As I will discuss later in these reasons, I have concluded that the Rules of Civil Procedure permit me to take third party privacy interests into account when deciding whether to order the City to produce otherwise relevant documents under rule 30.04(5).

e) Analysis

[61] Determining whether the City should be made to produce the documents and/or provide the information CFA seeks requires me to assess three main factors:

i) The potential value of the documents to CFA, when the information they may contain is considered in the overall context of the litigation; ii) In the case of the building permits, the expense to the City of having to search for these documents on microfiche; iii) In the case of the documents regarding public noise complaints, the impact on the complainants’ privacy of having their names and addresses disclosed to CFA.

(1) The potential value of the documents to CFA

[62] In my view, even though I agree that the documents CFA seeks are relevant to factual issues that have been pleaded, I think the information these documents contain will likely have no more than marginal importance in the litigation.

[63] I reach this latter conclusion for three main reasons.

[64] First, the question of when the houses in the NEF 30 and 35 zones were either approved by the City or actually built, and the related issue of whether the people who live in these houses are now disproportionately complaining about airport noise, have no discernible bearing on the dispute between the parties over whether CFA’s lease was extended in 2010, which I see as the main focus of this litigation. These disputed factual issues are only relevant to CFA’s bad faith and proprietary estoppel arguments, which I view as secondary issues.

[65] Second, the CFA does not necessarily need the information in the disputed documents to support its position on the underlying factual issues.

[66] The City does not appear to have any affirmative evidence that supports its pleaded claim that the houses in the NEF 30 and 35 zones were all approved and built before the CMHC guidelines were published in 1976. To the contrary, the City has now revealed that the associated subdivision plans for these properties were registered between 1950 and December 9, 1976, and that five of these properties were created by severance registered in March 1993. It can be inferred from this that at least some of the houses at issue must have been built later than 1976.

[67] Moreover, even though CFA may not know exactly how many noise complaints have been made by people who live in the NEF 30 and 35 zones, or how the rate of complaints from these residents compares to the rate from people living in lower NEF zones, CFA will still be able to ask the trial court to infer, as a matter of common sense, that the people living closest to the airport are probably the most affected by noise from low-flying aircraft.

[68] Third, establishing either of these disputed facts would in my view do little or nothing to advance CFA’s legal arguments with respect to bad faith and proprietary estoppel.

[69] CFA’s claim that the City acted in “bad faith” by “us[ing] CFA as a scapegoat” for airport noise complaints seems to rest on the underlying premise that if the City is to blame for having allowed residential construction too close to the airport, this precludes the City from now taking area residents’ noise complaints seriously. In my view, this premise is unsound. Even if the City is to some extent responsible for creating the airport noise problem, I do not think this bars the City from now trying to ameliorate the problem by reducing airport flight traffic, or that it means that any such steps the City takes are in “bad faith”.

[70] CFA’s proprietary estoppel claim is based on its contention that in 2016 the City induced CFA to have its affiliate company TAI relocate to Oshawa from Buttonville airport, and to then spend money on leasehold improvements, by leading CFA to believe that its lease would be extended.

[71] If CFA can establish the essential requirements for proprietary estoppel at trial (see Cowper‑Smith v. Morgan, 2017 SCC 61, [2017] 2 S.C.R. 754, at paras. 15-22), I agree that the trial judge will have “considerable discretion in crafting a remedy that suits the circumstances”: Cowper-Smith, at para. 46. However, the remedial analysis will necessarily be forward looking, and I have difficulty seeing how the question of whether the City should be faulted for permitting housing construction too close to the airport many years earlier will be a significant factor.

[72] For all of these reasons, I think the documents at issue, while relevant, are of only marginal importance.

(2) Proportionality with respect to the building permits

[73] On the other side of the ledger, while the City’s affidavit evidence about exactly how much effort would be required to find the building permits on microfiche is somewhat speculative, I accept that the search is likely to be quite time-consuming and labour-intensive.

[74] On balance, I am persuaded that the potential value of the building permits to CFA is sufficiently low that it would be disproportionate to order the City to search for and produce these documents.

(3) The noise complainants’ privacy interests

[75] The question of whether the City should be required to produce unredacted copies of the noise complaints that reveal the complainants’ names and addresses turns on different considerations. Unlike the building permits, the City has already has these documents in hand, so requiring it to produce them in unredacted form would not be disproportionately burdensome.

[76] The City takes the position that s. 32 of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.M.56 prevents the disclosure of the complainants’ “personal information”. However, s. 32(e) specifically permits the disclosure of personal information when it is “permitted or required by law”. I am accordingly satisfied that the MFIPPA does not bar me from ordering the City to produce unredacted copies of the complaint records to CFA for inspection under rule 30.04(5): see Gargari v. Toronto Catholic District School Board, 2020 ONSC 6903, at para. 18.

[77] Moreover, while I agree with the City that there will be situations where it will be appropriate to direct that irrelevant personal information be redacted from documents that are ordered produced for inspection (see, e.g., Howard v. London (City), 2015 ONSC 156, at paras. 80-82), the address information in the complaint records meets the low threshold standard for relevance, as I have already discussed.

[78] In my view, the question I must consider is whether ordering the production of the unredacted complaint records is justified, when CFA’s interest in having this relevant information is balanced against the noise complainants’ competing privacy interests.

[79] As a starting point, I am satisfied that the Rules of Civil Procedure allow me to take the third party noise complainants’ privacy interests into account when deciding whether to order production of documents to CFA containing their personal information.

[80] If CFA counsel had simply asked for complainants’ names and addresses directly during Mr. Goodeve’s examination for discovery, rather than asking for production of documents that contain this same information, the question would have been governed by rule 31.06(2), which provides that:

A party may on an examination for discovery obtain disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action, unless the court orders otherwise.

As Master Graham (now Associate Judge Graham) noted in Gargari, at para. 34, “[t]his language confers discretion on the court to order or refuse to order disclosure based on a consideration of all the circumstances”. In my view, the privacy interests of the persons whose names and addresses are being sought is one of the circumstances a court may consider, although it will not be determinative.

[81] Rule 30.04(5), which governs the production of documents for inspection, is also framed in permissive rather than mandatory terms: it says that the court “may” order a party to produce documents that are not privileged, not that such documents shall be ordered produced. I think that the Rules of Civil Procedure should be interpreted coherently, and that rule 30.04(5), like rule 31.06(2), should also be understood as giving courts the ability to take third party privacy interests into account when deciding whether to order production of documents.

[82] In the circumstances here, I find that the balance of interests weighs in favour of protecting the noise complainants’ privacy interest.

[83] As I have already discussed, even if the unredacted complainant records were to show that people living in the NEF 30 and 35 zones are now disproportionately complaining about airport noise, this would in my view only marginally advance CFA’s legal claims against the City. The question of whether the people who live closest to the airport are being disproportionately disturbed by noise from low-flying aircraft is only tangentially related to the legal issues in dispute between the parties, and even without supporting documentation, CFA will still be free to argue that this inference can be drawn as a matter of common sense. Indeed, it would be quite surprising if the people who live in the noisiest zones near the airport were not disproportionately complaining about noise.

[84] On the other side of the ledger, I think it is reasonable to expect that local residents who submitted complaints about airport noise would not have expected their names and addresses to be divulged to a private litigant unless there was a good reason for doing so.

[85] In summary, if I were satisfied that CFA really needed to know the noise complainants’ identities and addresses in order to adequately advance its claims against the City, I would agree that the noise complainants’ privacy interests would have to give way to the goal of fairly and accurately adjudicating the dispute between the parties. However, while I agree that this information meets the low threshold standard of relevance, I find that in the overall context of the litigation its value to CFA is so marginal that the balance tips in favour of preserving the noise complainants’ privacy.

(4) Conclusions

[86] In summary, I am not prepared to order the City to produce either the building permits for the houses in the NEF 30 and 35 zones, or unredacted copies of the noise complaints that include the complainants’ names and addresses.

[87] I should add that this does not mean that CFA will now be exposed to “trial by ambush”, since if any of the documents at issue favour the City’s position, rule 30.08(1)(a) will prevent the City from relying on them at trial without leave of the court.

2. Documents relating to Part 42 and the City’s offer to sell land to CFA

[88] Again, some background facts are required to put CFA’s requests for documents relating to Part 42 of the airport property into context.

[89] It is common ground that in 2008, the City took back a portion of CFA’s leased land at the airport in order to build a new taxiway.

[90] At some point CFA began keeping aircraft on a different section of the airport land known as “Part 42”. Exactly when this happened, and the extent of CFA’s use of Part 42, are both in dispute.

[91] The draft lease that the City prepared and sent to CFA in 2010 described the leased lands as including Part 42. CFA pleads that since 2010 it has “occupied, and continues to occupy, the leased land as delineated by the 2010 Lease” – that is, including Part 42 (Statement of Claim, para. 83(b)).

[92] The City disputes this. At para. 14 of its Statement of Defence, it contends that it gave CFA additional tie-down space on Part 42 several years before construction of the new taxiway began in 2008, but that:

CFA used the tie-down spots on Part 42 on an occasional basis. CFA did not have exclusive use of Part 42.

[93] The City asserts further at para. 25 of its pleadings that:

Contrary to the allegations in the Statement of Claim and as admitted and confirmed by CFA’s representative, John Davis (“Mr. Davis”), CFA has never had exclusive possession of the Proposed 2010 Leased Lands. Rather, at all material times, the City has had control over Part 42 as shown on Registered Plan 40R-25332 (which is land included in the Proposed 2010 Leased Lands) and, among other things, uses that land as a parking area for itinerant aircraft that are visiting the Airport.

[94] The City pleads further at para. 33 that after it submitted the 2010 lease to CFA, which CFA did not sign:

Among the things CFA was considering in early 2011 was purchasing the land described in the revised 2010 Proposed Lease (Parts 16, 17 and 42 as shown on Registered Plan 40R-25332) rather than signing the revised 2010 Proposed Lease. In fact, the City prepared a proposed purchase and sale agreement and provided it to CFA. CFA ultimately declined to purchase the land, but also continued to refuse to sign the revised 2010 Proposed Lease.

[95] During Mr. Goodeve’s examination for discovery, CFA’s counsel quoted from para. 14 of the City’s Statement of Defence and asked Mr. Goodeve to:

… identify in your production, any documents by which the city … provided CFA with Part 42 before construction of the taxiway began in 2008.

In response, Mr. Goodeve referred to the City’s 2011 offer to sell land to CFA, explaining:

The offer of purchase and sale included Part 42 to recognize what was actually happening.

[96] This led to a further exchange between counsel that concluded with counsel for the City undertaking to “identify the entirety of the documentary evidence the city relies on to support … the second sentence of paragraph 14 of the city’s Statement of Defence”.

[97] CFA now seeks an order requiring the City “to search for and produce all internal and external documents relevant to the Defence of Part 42, and answer related questions”. CFA argues further in its factum:

The City has not produced any contemporaneous internal documents that the City’s Council, committee, the Commissioner or City Solicitor had approved the alleged “proposed purchase and sale agreement” or that the City gave the proposed agreement to CFA as an offer.

[98] I would note that the City has disclosed that some of the documents it has listed in Schedule B of its affidavit of documents, over which it is asserting solicitor-client privilege, are identifiable by their titles as relating to a 2008 proposal by the City to sell land at the airport to CFA. I will address these documents later in my reasons.

[99] I agree that if any additional non-privileged documents relating to the proposed land sale exist, they would be relevant to the disputed issues in the litigation.

[100] The questions of when CFA began using Part 42, and the extent of its usage, plainly have a direct connection to the dispute between the parties over whether the City’s proposed 2010 lease extension was treated by both sides as if it was in force, even though CFA never signed it.

[101] Likewise, documents relating to the City’s apparent offers to sell land that included Part 42 could shed some light on when CFA first began using this land, and the extent of its use. Indeed, when Mr. Goodeve was asked to identify documents that supported the City’s contention that CFA had been using Part 42 since before 2008, he cited the 2011 offer of purchase and sale, which included Part 42 among the lands that the City was proposing to sell to CFA. The proposed inference is that Part 42 was included because CFA was already using it.

[102] Indeed, the City does not dispute that the documents CFA seeks would be relevant, if they existed. However, the City takes the position that there are no relevant documents that have not already been disclosed and produced, other than those over which the City is claiming privilege.

[103] The City supports its position with affidavit evidence from Mr. Goodeve about the City’s document retention policy. Among other things, he explains that documents relating to unexecuted draft agreements are considered to be “Transitory Records”, which may be destroyed “once the record is no longer meaningful or useful to business activities”. There is also no requirement that any log be made when a Transitory Record is destroyed or erased.

[104] I accept that the City probably did at one time have a more extensive collection of “contemporaneous internal documents” relating to the proposed land sales than it has listed in its affidavit of documents. However, before a party can be ordered to produce a further and better affidavit of documents under rule 30.06, the court must be “satisfied by any evidence that a relevant document in a party’s possession, control or power may have been omitted”.

[105] In this case, there is no evidence contradicting the City’s assertion that its affidavit of documents is complete. To the contrary, it seems sensible to expect that much of the City’s contemporaneous documentation about the proposed land sales many years ago would not have been retained once it became clear that the sales would not be proceeding. The City’s document retention policy permitted documents to be destroyed once they were “no longer meaningful or useful to business activities”. It is not unreasonable that City employees would have concluded that records relating to a proposed land sale years ago, that the parties are no longer pursuing, need not be preserved.

[106] In summary, I am not persuaded that there is any good reason to believe that the City’s disclosure and production of documents relating to either the Part 42 or the land sale issues is incomplete, subject to its claims of privilege.

[107] Again, CFA will be protected from trial by ambush by rule 30.08(1)(a), since if the City later finds additional documents that favour its position, it will be barred from using the documents at trial without leave of the court.

IV. Issue 3: The City’s privilege claims

[108] Schedule B of the City’s affidavit of documents lists 62 documents or collections of documents over which the City is asserting privilege. The first 61 listed documents are described as either emails or email chains that were exchanged between 2008 and 2019. Many of these emails have other documents that were appended as attachments. The City is claiming solicitor-client privilege over the emails themselves, and over some, but not all, of the attachments.

[109] The final collection of documents listed as item 62 in Schedule B consists of a series of eight “closed reports” that were written by City employees between 2019 and 2022 and which were addressed either to City Council or to certain committees, including Council sitting as a “Committee of the Whole”. The City is asserting solicitor-client privilege and/or litigation privilege over these latter documents.

1. The scope of solicitor-client privilege and litigation privilege

a) Solicitor-client privilege

[110] The Supreme Court of Canada has adopted the following explanation of solicitor-client privilege from Wigmore on Evidence:

Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived.

See, e.g., Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, at p. 872; R. v. Shirose and Campbell, [1999] 1 S.C.R. 565, at para. 49.

[111] Communications between an in-house government lawyer and other government employees will be privileged as long as the lawyer is engaged in giving legal advice. As Binnie J. explained in Shirose and Campbell, at para. 50:

It is, of course, not everything done by a government (or other) lawyer that attracts solicitor-client privilege. While some of what government lawyers do is indistinguishable from the work of private practitioners, they may and frequently do have multiple responsibilities including, for example, participation in various operating committees of their respective departments. Government lawyers who have spent years with a particular client department may be called upon to offer policy advice that has nothing to do with their legal training or expertise, but draws on departmental know-how. Advice given by lawyers on matters outside the solicitor-client relationship is not protected.

[112] In this case, most of the emails and email chains over which the City has asserted solicitor-client privilege are multiparty communications in which at least one party was a lawyer employed by the City’s in-house legal department, and most of the other participants were City employees.

[113] However, all of the emails at issue also included at least one person who was not a City employee. The Oshawa airport manager, Stephen Wilcox, was either the sender, the recipient, or someone who was copied on every email. Mr. Wilcox works for a private company, T.A.A.S. Inc., that operates the airport under contract. Another T.A.A.S. employee named Dan Riddle also participated in some of the email exchanges.

[114] In addition, a few of the emails at issue were exchanged between Mr. Wilcox and City employees who are not themselves lawyers, and did not include any lawyers as participants.

[115] In General Accident Assurance Company v. Chrusz, 1999 CarswellOnt 2898, the Ontario Court of Appeal discussed and explained the circumstances when “client-solicitor privilege can extend to communications between a solicitor or a client and a third party” (at para. 104). Doherty J.A. dissented in part in the result, but wrote for the unanimous Court on this issue. He explained at paras. 121-22:

Client-solicitor privilege is designed to facilitate the seeking and giving of legal advice. If a client authorizes a third party to direct a solicitor to act on behalf of the client, or if the client authorizes the third party to seek legal advice from the solicitor on behalf of the client, the third party is performing a function which is central to the client-solicitor relationship. In such circumstances, the third party should be seen as standing in the shoes of the client for the purpose of communications referable to those parts of the third party’s retainer.

If the third party is authorized only to gather information from outside sources and pass it on to the solicitor so that the solicitor might advise the client, or if the third party is retained to act on legal instructions from the solicitor (presumably given after the client has instructed the solicitor), the third party’s function is not essential to the maintenance or operation of the client-solicitor relationship and should not be protected.

[116] At para. 111, Doherty J.A. also observed further that:

The privilege also extends to communications and circumstances where the third party employs an expertise in assembling information provided by the client and in explaining that information to the solicitor. In doing so, the third party makes the information relevant to the legal issues on which the solicitor’s advice is sought.

[117] The City relies on Glustein J.’s observation in Wintercorn v. Global Learning Group Inc., 2022 ONSC 4576, at para. 150, that:

Courts have … extended solicitor-client privilege to third parties who are part of a team working hand-in-hand with counsel as part of counsel’s mandate to provide legal advice.

[118] The City argues that since Mr. Wilcox was part of the City’s “team” that dealt with legal issues involving the airport and that sought legal advice about these issues, his participation in these email chains does not weigh against the conclusion that the emails are solicitor-client privileged, even though he is not himself a City employee.

b) Litigation privilege

[119] Litigation privilege is separate and distinct from solicitor-client privilege. In his majority reasons in Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319, 2006 SCC 39, at paras. 27-28, Fish J. explained:

Litigation privilege …. is not directed at, still less, restricted to, communications between solicitor and client. It contemplates, as well, communications between a solicitor and third parties or, in the case of an unrepresented litigant, between the litigant and third parties. Its object is to ensure the efficacy of the adversarial process and not to promote the solicitor-client relationship. And to achieve this purpose, parties to litigation, represented or not, must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.

R. J. Sharpe (now Sharpe J.A.) has explained particularly well the differences between litigation privilege and solicitor-client privilege:

It is crucially important to distinguish litigation privilege from solicitor-client privilege. There are, I suggest, at least three important differences between the two. First, solicitor-client privilege applies only to confidential communications between the client and his solicitor. Litigation privilege, on the other hand, applies to communications of a non-confidential nature between the solicitor and third parties and even includes material of a non-communicative nature. Secondly, solicitor-client privilege exists any time a client seeks legal advice from his solicitor whether or not litigation is involved. Litigation privilege, on the other hand, applies only in the context of litigation itself. Thirdly, and most important, the rationale for solicitor-client privilege is very different from that which underlies litigation privilege. This difference merits close attention. The interest which underlies the protection accorded communications between a client and a solicitor from disclosure is the interest of all citizens to have full and ready access to legal advice. If an individual cannot confide in a solicitor knowing that what is said will not be revealed, it will be difficult, if not impossible, for that individual to obtain proper candid legal advice.

Litigation privilege, on the other hand, is geared directly to the process of litigation. Its purpose is not explained adequately by the protection afforded lawyer-client communications deemed necessary to allow clients to obtain legal advice, the interest protected by solicitor-client privilege. Its purpose is more particularly related to the needs of the adversarial trial process. Litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate. In other words, litigation privilege aims to facilitate a process (namely, the adversary process), while solicitor-client privilege aims to protect a relationship (namely, the confidential relationship between a lawyer and a client).

(“Claiming Privilege in the Discovery Process”, in Special Lectures of the Law Society of Upper Canada (1984), 163, at pp. 164-65).

[120] Fish J. held further that for litigation privilege to attach to documents, they must have been created for the “dominant purpose” of the litigation: Blank, at paras. 59-61.

2. The emails and email chains at issue

[121] I agree with the City that under the “functional approach” in Chrusz, Mr. Wilcox’s participation in an email exchange or chain does not necessarily remove the emails, or any attachments to them, from the umbrella of solicitor-client privilege. Equally, however, Mr. Wilcox’s role as a member of the City’s “team” dealing with airport-related issues does not automatically mean that any communication he had with a lawyer, or in which he and City employees discussed the possibility of obtaining legal advice, necessarily becomes solicitor-client privileged.

[122] In my view, the question of whether particular emails or email chains are solicitor-client privileged is one that must be assessed contextually, on a case-by-case basis. I agree with CFA’s observation in its factum that “it is necessary to determine Mr. Wilcox’s function in each document to determine whether the document is privileged”. Proper attention must be paid to the nature and apparent purpose of the communications, any inferences that can be drawn about the reason why Mr. Wilcox participated in them, and any inferences that can be drawn about whether he and the other participants intended their communications to be confidential, particularly in relation to CFA and its officers and employees.

[123] However, I do not agree with CFA’s further submission that much of any significance can be gleaned about Mr. Wilcox’s functional role by examining the legal contract between the City and his employer, T.A.A.S. In my view, the “functional approach” requires me to examine and consider the working arrangements between Mr. Wilcox and City employees as they existed in practice, and the functions he actually performed, whether or not these functions were specifically assigned to him by T.A.A.S.’s airport operation and management contract with the City.

a) The June 2008 emails regarding the proposed land sale to CFA (Schedule B, Rows 1 to 8)

[124] The first eight emails and email strings were all exchanged in June 2008. All relate to a proposal the City was considering making to sell CFA some land at the airport.

[125] I should note that the subject-matter of these emails is already clear from some of their subject lines and from the filenames of certain attached documents, which the City has already disclosed. Moreover, it is apparent from one of the emails, sent by Mr. Wilcox to a City lawyer named Lon Knox on June 26, 2008 (Schedule B, Row 7) that Mr. Wilcox had discussed the proposed land sale with John Davis, CFA’s president, and had showed him a draft of the proposed agreement of purchase and sale and solicited his comments about it. Accordingly, no privilege attaches to the mere fact that the City was contemplating making such an offer to CFA, since the City evidently did not intend to keep this confidential from CFA.

[126] I am satisfied that solicitor-client privilege properly attaches to all but one of these emails, and to all of the disputed attachments.

[127] The emails were all evidently exchanged as part of the process by which City employees sought and obtained legal advice from Mr. Knox regarding the terms of the proposed purchase and sale agreement, and arranged for him to draft an appropriately-worded contract that the City could offer to CFA.

[128] It is also clear from the contents of certain emails that Mr. Wilcox was involved in this process because Mr. Knox and the other City officials involved in the project wanted his input on various issues, including questions about how the proposed sale terms would affect airport operations. To this end, Mr. Wilcox was asked to review the draft contracts that Mr. Knox was preparing. His opinions and concerns were sometimes passed on to Mr. Knox by other City employees, and sometimes he communicated with Mr. Knox directly, and instructed Mr. Knox to make revisions.

[129] I am satisfied that throughout this process Mr. Wilcox was “performing a function which [was] central to the client-solicitor relationship” (Chrusz, at para. 121), and that his communications with Mr. Knox are accordingly solicitor-client privileged.

[130] I am further satisfied that solicitor-client privilege attaches to the various email attachments, which are mostly drafts of the agreement of purchase and sale that Mr. Knox was revising according to the instructions he received from Mr. Wilcox and the City employees who provided their comments. One email has a series of other attachments that appear to be both solicitor-client privileged and irrelevant to this litigation, since they relate to legal advice the City was seeking from Mr. Knox about matters not involving CFA.

[131] I appreciate that the final draft of the agreement of purchase and sale that the City presented to CFA is not privileged, since the City never intended to keep it confidential from CFA. Indeed, Mr. Wilcox seems to have showed the final draft to Mr. Davis on June 26, 2008. However, privilege still attaches to the earlier drafts, since they would potentially reveal legal advice the City was receiving from Mr. Knox. As Binnie J. noted in Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36 [2006] 2 SCR 189, at para. 53, “[a] privileged document, for example, could be a lawyer’s letter to his or her own client simply enclosing a draft contract in terms virtually the same as a contract subsequently executed and publicly available.”

[132] I am not persuaded that solicitor-client privilege attaches to the first email in this group, which was sent by Mr. Wilcox to the City’s Real Estate Manager, Rick Schatz on June 6, 2008 (Schedule B, Row 1). Neither Mr. Wilcox nor Mr. Schatz are lawyers, and no privilege would ordinarily attach to their own communications. Moreover, there is nothing in the body of the email – a brief covering note advising that Mr. Wilcox is attaching a revised draft of the purchase and sale agreement – that reveals any legal advice that Mr. Wilcox or Mr. Schatz had either already received from Mr. Knox, or that they intended to seek in the future.

[133] However, I draw a different conclusion with respect to the attachments to this email, which are the revised agreement draft that Mr. Wilcox mentioned in the body of his email, and a related memo. Mr. Wilcox explains in his affidavit that he sent these documents to Mr. Schatz “for the purpose of creating the initial draft agreement of purchase and sale so that the draft could be sent to the City’s in-house lawyer for legal advice”. It is clear from the later emails that he and Mr. Schatz proceeded to seek legal advice about the terms of the purchase and sale agreement from the City’s counsel, Mr. Knox.

[134] As Myers J. explained in Whitty v. Wells, 2016 ONSC 7716, at para. 37, aff’d 2017 ONSC 3682, at para. 29 (Div. Ct.):

Where the client is not a person but is a body – such as a corporation or a department of government – there will always be more than one person with a need to know the confidential privileged information of the body. As long as confidentiality is not lost by overbroad dissemination of privileged information, the fact that the client body is composed of a number of individuals does not limit privilege. … Discussions among the client’s personnel of the legal advice sought or received, or formulation of questions or facts to convey to counsel in order to obtain legal advice fall within the broad scope of solicitor-client privilege. The fact that someone is conveying privileged communication to others is no different in principle than if all had been together on a conference call with counsel at which the advice or information was sought or conveyed. [Citations removed; emphasis added.]

[135] In my view, solicitor-client privilege properly attaches to the documents Mr. Wilcox prepared and sent to Mr. Schatz with a view to obtaining legal advice from Mr. Knox. Among other things, comparing the final version of the agreement of purchase and sale that was eventually given to CFA against the original version that was drafted by Mr. Wilcox could potentially reveal legal advice Mr. Wilcox and other City employees received from Mr. Knox during the revision process.

[136] In summary, I find that the email sent by Mr. Wilcox to Mr. Schatz on June 6, 2008 (Row 1) is not privileged, but that the attachments to this email are solicitor-client privileged. The remaining emails and attachments in this group (Rows 2-8) are all solicitor-client privileged.

b) The June and July 2010 emails regarding the CFA Lease (Schedule B, Rows 9 to 17)

[137] The next group of emails – nine emails and email strings exchanged between June 30 and July 26, 2010 (Schedule B, Rows 9-17) – all relate to the City’s proposed extension of CFA’s lease.

[138] In the first two emails, sent on June 30, 2010 (Rows 9 and 10) a City lawyer named Kelly Gravelle circulated drafts of the lease to Mr. Wilcox and two other City employees. Two days later, on July 2, 2010, Mr. Wilcox responded with some comments and suggested revisions, and forwarded the draft to Dan Riddle, another T.A.A.S. employee who is identified in later emails as the Airport Operations Manager.

[139] A few days later, on July 5, 2010 (Row 13), Ms. Gravelle then sent a revised draft of the lease to Mr. Wilcox and the three City employees, indicating that she still has some outstanding questions. Over the next week, the two City employees and Mr. Riddle responded, indicating in their emails that they have made further changes to the draft lease and/or located documents to append to it (Rows 14-16).

[140] I am satisfied that these emails are all properly viewed as solicitor-client privileged, and that Mr. Wilcox and Mr. Riddle, despite not being City employees, were both “performing a function which [was] central to the client-solicitor relationship” between the City and its counsel, Ms. Gravelle, when they reviewed the lease drafts she had prepared and suggested revisions.

[141] I am also satisfied that the lease drafts that were appended to these emails are also privileged. As with the 2008 agreement of purchase and sale documents, the City obviously did not intend the final version of the proposed lease extension to be confidential as far as CFA was concerned. However, the preliminary drafts are still privileged, since the revisions made to these drafts could reveal Ms. Gravelle’s legal advice.

[142] However, I draw a different conclusion with respect to the attachment to the email at Row 16 of Schedule B, a document titled “CFA Land Parcels.pdf”.

[143] The email string at Row 16 begins with a series of emails exchanged between Ms. Gravelle, Mr. Wilcox, and a City employee named Darren Nagy in which they discuss proposed changes to the draft lease. Ms. Symons-Milroy is copied on the original email from Ms. Gravelle on June 30, 2010, and in his reply sent on July 2, 2010 Mr. Wilcox adds his colleague Mr. Riddle to the chain. However, Ms. Symons-Milroy and Mr. Riddle do not contribute to the discussion about amendments to the lease. I agree that these emails are solicitor-client privileged, and conclude that Mr. Riddle was included in the email chain because Mr. Wilcox was about to leave for his summer holidays, and Mr. Riddle would be covering for him in his absence and assuming Mr. Wilcox’s functional role.

[144] In the final email in the chain, Mr. Riddle wrote to Ms. Symons-Milroy and attached the “CFA Land Parcels.pdf” document. He referred in his email to a conversation they had had, and asked her to confirm if the document he has attached was “the right one”. Although Ms. Gravelle seems to have been copied on this email, Mr. Riddle does not solicit any comments from her about the attached document. There is also no explanation in the preceding emails about why Ms. Symons-Milroy asked Mr. Riddle to send this document to her, nor is there any indication that she ever sought any legal advice about this document from Ms. Gravelle.

[145] A non-privileged document does not become solicitor-client privileged merely because it is shared with a lawyer. The fact that a lawyer has been shown a particular document can itself be privileged, if this indirectly reveals the legal advice that was sought or received by the client. In this case, however, there is no indication that either Ms. Symons-Milroy or Mr. Riddle ever sought legal advice from Ms. Gravelle about the “CFA Land Parcels.pdf” document. I am not satisfied that the fact that Mr. Riddle seems to have sent it to Ms. Symons-Milroy by hitting “reply all” on an earlier solicitor-client privileged email chain causes his email to Ms. Symons-Milroy, or the attached document, to become solicitor-client privileged.

[146] I am also not satisfied that solicitor-client privilege attaches to the final email chain in this group, at Row 17 of Schedule B.

[147] The originating email in this chain, which was sent on July 23, 2010, was sent from Mr. Riddle to CFA’s president John Davis, indicating that the new draft lease was attached. There is then a further exchange of emails in which Mr. Davis raises various concerns about some of the proposed terms. These emails are obviously not privileged, since they were never intended to be confidential vis-à-vis CFA, which was a party to the electronic conversation.

[148] Mr. Riddle then forwards the string of earlier emails to a City employee named Cindy Symons-Milroy with a covering email stating: “Here are some of the issues John is having”. Mr. Wilcox, who is copied on this email, then sends a further email which leads to an exchange in which he and Ms. Symons-Milroy discuss what they should do. She suggests that “the best way to handle this is for John to review the lease and let us know what his concerns are and then we can discuss them with legal and come up with a resolution.” Notably, neither Ms. Gravelle or any other City lawyer are copied on any of these emails.

[149] In my view, Ms. Symons-Milroy’s suggestion that the team working on the CFA lease extension should perhaps seek legal advice in the future, once they learned from Mr. Davis what concerns he had, does not cause solicitor-client privilege to attach to this email string.

[150] I accept that communications between Ms. Symons-Milroy and Mr. Wilcox would be privileged if they “transmit or comment on privileged communications” with City lawyers: Mutual Life Assurance Co. of Canada v. Canada, 1988 CarswellOnt 423, at para. 12 (H.C.). I also agree that preliminary discussions between them about seeking legal advice could in some circumstances be privileged, if the content of their discussions might reveal the legal advice they later sought or obtained: see Whitty v. Wells, at para. 37.

[151] In my view, however, Ms. Symons-Milroy’s suggestion in her email that she and Mr. Wilcox might discuss CFA’s concerns “with legal” once John Davis told them what these concerns were is too far-removed from the actual seeking or obtaining of legal advice to attract solicitor-client privilege. Ms. Symons-Milroy was not “formulat[ing] … questions or facts to convey to counsel in order to obtain legal advice”: Whitty v. Wells, at para. 37. Indeed, she could not have done so, because she did not yet know what Mr. Davis’s concerns were, and it was these concerns about which she intended to perhaps seek legal advice. Disclosing her contingent intention to possibly seek legal advice in the future, once she and Mr. Wilcox learned what it was that they might need to obtain legal advice about, would not reveal the nature or type of any legal advice that they later actually sought or received.

[152] In summary, I find that the first seven emails and attachments (Rows 9-15) are solicitor-client privileged. The eighth email string (Row 16) is solicitor-client privileged up to the final exchange between Mr. Riddle and Ms. Symons-Milroy, but that email and the attached file are not privileged. The ninth email string (Row 17) is also not privileged.

c) Further emails about the lease extension and proposed sale (Schedule B, Rows 18-35)

[153] The next group of emails that I will consider are a series of emails and email strings that were exchanged between November 2010 and February 2011 relating to the City’s alternative proposals to either extend CFA’s lease or sell it land at the airport (Schedule B, Rows 18-35).

[154] The first email, sent by Mr. Wilcox to Ms. Gravelle and copied to Ms. Symons-Milroy on November 11, 2010 (Row 18), forwarded an email sent by Mr. Riddle stating that the CFA lease and corresponding schedules are attached, and raised various questions about the proposed new lease, which Mr. Wilcox explained had been put to him by a representative of Toronto Airways named Derik Sifton.

[155] Since CFA and Toronto Airways are related companies, I do not think there was ever any expectation by anyone that Mr. Sifton’s concerns about the lease would be kept confidential from CFA. However, I am satisfied that in his email Mr. Wilcox was seeking legal advice about these concerns from Ms. Gravelle on behalf of the City, and that the email is accordingly solicitor-client privileged. [4] I note that the City is not asserting privilege over the attachments to this email, which have all already been disclosed in the litigation.

[156] In the next six email strings, sent between November 12 and December 17, 2010 (Schedule B, Rows 19-24), Mr. Wilcox seeks Ms. Gravelle’s advice about various other matters, some of which involve CFA, they discuss the timetable for her to provide this advice, and she eventually sends a revised draft of the lease. I am satisfied that Mr. Wilcox can properly be viewed as having sought this legal advice on behalf of the City, and that these emails are properly viewed as “communications relating to that purpose”, such that solicitor-client privilege attaches to them, as well as to the revised draft lease that is attached to the final email from Ms. Gravelle (Row 24).

[157] A further series of emails then follow, sent between January 10 and 12, 2011 (Rows 25-28) in which Ms. Gravelle sends a draft document to Mr. Wilcox, Ms. Symons-Milroy and another City employee named Darren Nagy and seeks their comments and approval. I am satisfied that solicitor-client privilege properly attaches to these emails and to the draft documents that are attached to the emails at Rows 25-27.

[158] I would note that the City is not asserting that solicitor-client privilege attaches to the other two documents that are attached to the final email in the Row 27 string, which was sent from Mr. Nagy to Mr. Wilcox. I agree that Mr. Nagy seems to have sent these documents to Mr. Wilcox for reasons unrelated to the discussion of the terms of the new lease, and that he did not intend to seek legal advice about them from Ms. Gravelle even though she was copied on his email. However, I also agree with the City that these documents have no discernible relevance to the issues in this litigation.

[159] I draw a different conclusion with respect to the next two emails that were exchanged between Mr. Wilcox and Ms. Gravelle on January 13 and 14, 2011 (Rows 29-30).

[160] In the first email, Mr. Wilcox asks Ms. Gravelle to “provide a PDF of the lease for me to provide to CFA”. She then replies the next day and attaches a PDF copy of the lease.

[161] In my view, neither of these emails, nor the PDF copy of the lease that was attached by Ms. Gravelle in the second email, are privileged, although I agree that privilege does attach to the earlier emails in the string that were included in Mr. Wilcox’s January 13, 2011 email to Ms. Gravelle.

[162] Since Mr. Wilcox was expressly requesting that Ms. Gravelle send him a copy of the lease that he could give to CFA, I find that there was never any expectation that on his part that these communications, or the copy of the lease that Ms. Gravelle provided, would be confidential in relation to CFA. Moreover, while this email can be seen as the culmination of the process by which Mr. Wilcox sought legal advice from Ms. Gravelle on behalf of the City, I do not think that it is properly characterized as part of the “continuum of communications” by which this advice was sought and obtained. Rather, by the time of this email exchange the process of seeking and obtaining this advice was complete, and the draft lease was in a form that the City intended to disclose to CFA.

[163] However, I would note that Mr. Wilcox’s email at Row 29 includes the earlier email string that also appears at Row 28, which I agree is privileged. My conclusion that the Row 29 email is not privileged only applies to the final email in the string.

[164] I am also satisfied that the next email, which was sent by Mr. Wilcox to Mr. Nagy on January 14, 2011 (Row 31), is not solicitor-client privileged, even though Ms. Gravelle is copied on it. In this email, which Mr. Wilcox sent as a reply to the email string at Row 27, Mr. Wilcox tells Mr. Nagy that he will “have CFA address the insurance issue as noted”. He is evidently responding to the part of Mr. Nagy’s email that raised issues about insurance coverage unrelated to the proposed lease extension, and there is no indication that he was seeking any legal advice from Ms. Gravelle about this issue. However, the earlier emails in the Row 27 string remain privileged, as I have already discussed. Moreover, while the final email in the Row 31 string is not privileged, it also does not appear to be relevant to any material issues in this litigation.

[165] The next four emails, exchanged between Mr. Wilcox and Ms. Gravelle on January 14 February 11, and February 14, 2011 (Rows 32-35), are in my view privileged, as are the attachments. In the first email, that has the subject line “Re Draft CFA APS”, Mr. Wilcox makes comments about the draft purchase agreement. Ms. Gravelle then sends a revised draft, and Mr. Wilcox replies by suggesting a further amendment. She then sends a further revised draft a few days later. I am satisfied that these are all communications for the purpose of obtaining legal advice, and that Mr. Wilcox was acting on behalf of the City in obtaining this advice.

[166] My conclusions about the emails and email strings in this group, Rows 18-35 of Schedule B, can be summarized as follows:

i) The emails and email strings in Rows 18-28 and 32-35 are solicitor-client privileged; ii) The top emails in the emails strings at Rows 29-31 are not privileged, although the earlier exchanges of emails in these strings, which also appear at Rows 27 and 28, are privileged; iii) Solicitor-client privilege attaches to the attachments to the emails in this group, except for: the attachments to the emails in Row 18; the two attachments to the email in Row 27 discussed above that are not privileged but seemingly irrelevant; and the attachment to the email in Row 30.

d) Emails between Mr. Wilcox, Ms. Symons-Milroy and Tom Hodgins on March 8, 2012 (Schedule B, Rows 36 and 37)

[167] The next two emails (Rows 36-37) were exchanged on March 8, 2012 between Mr. Wilcox, Ms. Symons-Milroy and a third City employee named Tom Hodgins.

[168] In his first email, sent to Ms. Symons-Milroy, Mr. Wilcox explains that he is giving her a heads-up that “Tom” has asked him to provide “a summary and copy of all CFA agreements”, and briefly summarizes the reason why. In his affidavit, Mr. Wilcox explains that “Tom” was Tom Hodgins, who was the City’s Commissioner of Development Services, and states:

Mr. Hodgins requested that I provide the information so that he could obtain legal advice on behalf of the City.

[169] In the next email, sent to Mr. Hodgins and copied to Ms. Symons-Milroy (Row 37), Mr. Wilcox attaches six documents. Five of these attachments have already been produced in the litigation, but the City asserts privilege over the sixth document, titled “Memo dated April 14, 2011 – Confidential”, which Mr. Wilcox describes in his email as a memo that he prepared for Mr. Hodgins a year earlier.

[170] Neither email is copied to a lawyer, nor do either of them expressly discuss obtaining legal advice. However, in his email to Mr. Hodgins (Row 37), Mr. Wilcox summarizes legal advice he received from Ms. Gravelle.

[171] Although Mr. Wilcox states in his affidavit that Mr. Hodgins told him that he wanted this information so that he could obtain legal advice on behalf of the City, there is no evidence that Mr. Hodgins actually did proceed to seek legal advice.

[172] On the record before me, I am not satisfied that solicitor-client privilege attaches to either of these two emails, with the exception of the line in the Row 37 email where Mr. Wilcox summarizes legal advice he received previously from Ms. Gravelle. I am also not satisfied that any privilege attaches to the April 14, 2011 memo that Mr. Wilcox attached to his email to Mr. Hodgins at Row 37.

[173] Regarding the emails themselves, I accept that solicitor-client privilege can sometimes attach to discussions between employees or agents of a corporate client who are not themselves lawyers, if these discussions are directed at the “formulation of questions or facts to convey to counsel in order to obtain legal advice”: Whitty v. Wells, at para. 37. However, I am not satisfied that Mr. Wilcox’s emails to either Ms. Symons-Milroy or Mr. Hodgins are sufficiently closely linked to the obtaining of legal advice to attract solicitor-client privilege.

[174] In his initial email to Ms. Symons-Milroy, Mr. Wilcox indicated that he was sending it to “give [her] a heads up in advance of [his] email to Tom”. There is no indication that either of them were contemplating obtaining legal advice, or that Mr. Wilcox meant to use Ms. Symons-Milroy as a conduit for obtaining legal advice from legal counsel. Rather, he seems to have sent this email to her so that she would not be surprised when he then copied her on the email he was about to send to Mr. Hodgins. I am not satisfied that his email to Ms. Symons-Milroy can properly be characterized as part of the “continuum of communications” by which legal advice was sought or obtained.

[175] With respect to Mr. Wilcox’s second email to Mr. Hodgins, I accept Mr. Wilcox’s evidence that he sent it believing that Mr. Hodgins meant to seek legal advice on behalf of the City. However, I am not persuaded that his holding this belief is sufficient to bring his email within the cloak of solicitor-client privilege, whether or not Mr. Hodgins ultimately did proceed to seek any legal advice. In any event, there is also no evidence that Mr. Hodgins did go on to seek legal advice.

[176] The first part of Mr. Wilcox’s email briefly summarizes the chronology of the CFA’s time at the Oshawa airport and explains the significance of the first five attached documents, all of which have already been produced in the litigation. By providing this information to Mr. Hodgins, I am not persuaded that Mr. Wilcox can properly be characterized as having done anything that shaped or influenced any advice Mr. Hodgins might have then gone on to seek from counsel. Nothing about the content of any such advice, if any was sought, can be inferred from Mr. Wilcox’s email.

[177] Moreover, I think the absence of any evidence that Mr. Hodgins did go on to seek or obtain legal advice is fatal to the City’s solicitor-client privilege claim in any event. While I accept that there can be situations where discussions between City employees and agents in preparation for their obtaining legal advice on behalf of the City can be brought within the ambit of the ensuing solicitor-client privileged communication, I am not persuaded that solicitor-client privilege attaches to a preparatory discussion that does not lead to any actual communication with a lawyer by anyone.

[178] It follows that I disagree with the City’s argument in its factum that these emails were:

…a “necessary step” in the process of the City receiving legal advice and, if produced, could tend to reveal that advice.

In my view, neither of the two emails can properly be characterized as a “necessary step” in obtaining legal advice, particularly in the absence of any evidence that legal advice was actually obtained. Moreover, even if Mr. Hodgins did go on to seek legal advice, I am not persuaded that producing these emails could reveal what advice he might have received.

[179] That said, I find that solicitor-client privilege does attach to two sentences that follow the line: “A couple notes on the original/current agreement relating to our chat”, since in these sentences Mr. Wilcox summarizes legal advice that he and Ms. Symons-Milroy had received previously from Ms. Gravelle. I am satisfied that Mr. Wilcox received this advice on behalf of the City, and that privilege was not lost over this advice when he shared it with another City official, Mr. Hodgins.

[180] Turning to Mr. Wilcox’s April 14, 2011 memo that was the sixth attachment to his email, I am not persuaded that there is any legitimate basis for characterizing this memo as solicitor-client privileged.

[181] In his email, Mr. Wilcox describes the memo as one that he prepared for Mr. Hodgins “back in April 2010”. However, the memo itself is dated April 14, 2011.

[182] Critically, there is no evidence that Mr. Hodgins was contemplating obtaining legal advice when Mr. Wilcox wrote the memo, regardless of whether Mr. Wilcox actually wrote it in 2010 or 2011, nor is there any evidence that Mr. Wilcox wrote the memo with a view to obtaining legal advice himself on behalf of the City.

[183] While I agree that any subsequent communications between Mr. Hodgins and counsel in which Mr. Hodgins sought legal advice about the memo could potentially be solicitor-client privileged, there is no evidence that Mr. Hodgins ever sought any such legal advice. Moreover, even if he did so, this would not cause the memo itself to retroactively become solicitor-client privileged. At most, the fact that it was shared with the lawyer would be privileged.

[184] In summary, with the exception of the two sentences in the second email (Row 37) that summarize legal advice received from Ms. Gravelle, I find that neither of the two emails or the memo attached to the second email (Rows 36 and 37) are solicitor-client privileged.

e) Emails from July to October, 2012 regarding the mayor’s letter to CFA (Schedule B, Rows 38-47)

[185] The next ten emails and e-mail strings (Rows 38-47) all relate to efforts by Mr. Wilcox and City employees, including in-house legal counsel, to draft a reply for the Oshawa mayor’s signature to a letter that John Davis of CFA had sent to the mayor in May 2012 discussing Toronto Airways Ltd.’s planned relocation from Buttonville airport to Oshawa.

[186] In the first three emails, sent on July 23 and 25, 2012 (Rows 38-40), Mr. Wilcox sent a draft reply he had written to Ms. Gravelle and Mr. Hodgins, and asked for their comments. He also attached a copy of Mr. Davis’s letter to the mayor, which the City acknowledges is not privileged and which has already been produced in the litigation.

[187] On August 15, 2012, Mr. Wilcox then sent a revised draft to Ms. Gravelle and Ms. Symons-Milroy and asked them to review it (Row 41). Later that day he sent two further revised drafts to them and to Mr. Hodgins (Rows 41-43). The following day Ms. Gravelle sent back a draft with her revisions, which Mr. Wilcox forwards to Ms. Symons-Milroy to solicit her comments (Rows 44-46).

[188] I am satisfied that all of these emails and the attached draft letters are privileged. Read in context, I am satisfied that Mr. Wilcox was seeking legal advice from Ms. Gravelle on behalf of the City, with a view to preparing a letter that would, once finalized, be sent from the mayor’s office to CFA. While the final version of this letter that was actually sent to CFA is obviously not privileged, since it was plainly not intended to be confidential vis-à-vis CFA, I am satisfied that the drafts, and comments about them to and from counsel, are privileged, insofar as revealing the drafts and comments might directly or indirectly reveal Ms. Gravelle’s legal advice.

[189] However, I am not persuaded that most of the final email string in this series is privileged (Row 47).

[190] This email string begins with a series of emails sent between October 5 and October 9, 2012, in which Mr. Wilcox tries and eventually succeeds in obtaining a copy of the final version of the mayor’s letter to CFA, which he describes as having been sent to CFA on August 9, 2012. I see no conceivable basis on which any of these emails could be viewed as solicitor-client privileged.

[191] Mr. Wilcox then discusses the letter sent by the mayor with Ms. Symons-Milroy in a series of five further emails that they exchange between October 9 and 11, 2012. Their emails indicate that they are considering preparing a response to a further letter that by this time had been sent by John Davis of CFA. In the penultimate email, Ms. Symons-Milroy indicates that she wants to “check with legal services” before replying to Mr. Davis’s letter, and Mr. Wilcox then agrees with her suggestion.

[192] I am not satisfied that the mere fact that this email string reveals that Ms. Symons-Milroy was considering obtaining legal advice in the future makes this communication solicitor-client privileged. There is no indication that she actually followed through and sought any legal advice. Mr. Wilcox does not state in his affidavit that any legal advice was ever actually sought by either of them. Indeed, the next emails listed in Schedule B were not sent until more than three years later, in December 2015, suggesting that no legal advice was ever sought by either of them, at least by email.

[193] In any event, merely knowing that Ms. Symons-Milroy at one point thought about obtaining legal advice does not in and of itself reveal anything about the substance of any such advice she might have later obtained.

[194] In summary, I find that the emails in Rows 38-46 are solicitor-client privileged, as are the various appended drafts of the letter that the writers of these emails were preparing for the mayor’s signature and/or reviewing. However, the email string in Row 47 is not privileged.

f) Emails from December 2015 to January 2016 regarding draft correspondence to CFA (Schedule B, Rows 48-51)

[195] The next four emails or email strings listed in Schedule B are a series of emails relating to Toronto Airways’ planned move to the Oshawa airport. In the first email, which Mr. Wilcox sent on December 14, 2015 to two City employees named Paul Ralph and Rhonda Keenan, and a City in-house lawyer named David Potts (Row 48), he proposed a meeting to discuss the issue. In the second email string, dated December 21, 2015 (Row 49), Mr. Potts confirms that he is able to attend the planned meeting that day.

[196] I am not satisfied that any of these emails are properly viewed as solicitor-client privileged. Although Mr. Potts was a City lawyer, there is no indication in these emails that Mr. Wilcox wanted him to attend the proposed meeting so that he could provide legal advice, as opposed to policy advice: see Shirose and Campbell, at para. 50. To the contrary, in his first email Mr. Wilcox explained the purpose of the meeting as to “discuss this within the context of the business plan and the current lease with CFA”. In my view, this tends to suggest that the meeting was meant to focus on matters of policy.

[197] However, I draw a different conclusion with respect to the third and fourth email chains in this group (Rows 50-51), which includes emails sent between December 21, 2015 and January 11, 2016. The first email chain begins with Mr. Wilcox forwarding an email he had received from a Toronto Airways official named David Labretski on December 11, 2015 in which Mr. Labretski requested:

… a letter from Oshawa airport that understands, and approves the move of Toronto Airways Inc. to Oshawa Airport. Also that this move means that Canadian Flight Academy Ltd., and Toronto Airways Inc. will be operating as one flight school at Oshawa Airport.

[198] Mr. Wilcox also sent a response that he had drafted, and sought comments on his draft letter from Mr. Potts, Mr. Ralph and Ms. Keenan. The discussions about how to frame the responding letter continue in the Row 51 email chain.

[199] I am satisfied that during these latter discussions Mr. Potts was providing legal rather than policy advice. I am also satisfied that even though the end goal seems to have been to produce a letter that Mr. Wilcox could send out over his own signature, on behalf of the Oshawa Airport rather than on behalf of the City itself, Mr. Wilcox was effectively seeking legal advice on behalf of the City, as the airport’s owner. I accordingly agree that these two email chains are privileged.

[200] In summary, I find that the email and emails chains at Rows 48 and 49 are not privileged, but that solicitor-client privilege attaches to the email chains at Rows 50 and 51.

g) Email from Mr. Wilcox to Mr. Potts dated April 21, 2016 (Schedule B, Row 52)

[201] The next listed email was sent by Mr. Wilcox to Mr. Potts on April 21, 2016 (Row 52), and involves Mr. Wilcox expressly seeking legal advice from one of the City’s in-house counsel, Mr. Potts. [5] I am satisfied that given Mr. Wilcox’s role and the nature of the legal issue on which he is seeking advice, he can be properly characterized as having sought this advice on behalf of the City, as the airport’s owner. I am accordingly satisfied that this email is properly viewed as solicitor-client privileged.

h) June 2016 emails regarding CFA’s building permit (Schedule B, Row 53)

[202] The next entry in Schedule B is an email chain extending from April 21 to May 11, 2016 that culminates in a City employee named Volkert van Beusekom seeking legal advice from a City lawyer named Visha Sukdeo. A number of other City employees are brought into the email chain as the recipient list expands over time, as is Mr. Wilcox.

[203] I am satisfied that the emails at the end of this chain, starting with the email sent by Paul Ralph on May 10, 2016 at 1:50 p.m., are solicitor-client privileged. These emails result in Mr. van Beusekom asking for and receiving legal advice from Ms. Sukdeo, and in my view all fall squarely within the ambit of solicitor-client privilege. I am also satisfied that the fact that this legal advice was shared with Mr. Wilcox does not affect the privileged nature of the communications under the functional approach in Chrusz.

[204] However, I am also satisfied that none of the earlier emails in this chain are privileged. Until Mr. Ralph sent his May 10, 2016 email, none of the participants in the email exchange seem to have contemplated obtaining legal advice. Moreover, I am satisfied that this not a situation where producing the discussions between the non-lawyer participants that led up to Mr. van Beusekom seeking legal advice would indirectly shed light on the substance of the legal advice he received.

[205] In summary, the first thirteen emails in this string, up to and including Mr. Van Beuskom’s May 10, 2016 email sent at 10:07 a.m. are not solicitor-client privileged. However, solicitor-client privilege attaches to the subsequent four emails in the chain.

i) Emails from December 2019 regarding the proposed draft lease extension (Schedule B, Rows 54-61)

[206] The final group of emails relate to the City’s proposed lease extension in December 2019 (Rows 54-61).

[207] The first two email chains (Rows 54-55) consist of a series of emails exchanged on December 17, 2019 between Tom Goodeve, another City employee named Laura Brown, and Stephen Wilcox, in which they review and comment on a proposed draft lease. The draft lease identifies Ms. Brown as its author.

[208] The first two emails in both chains are the same, but the two chains then diverge. It is not until the fourth email in each chain that one of the City’s in-house lawyers, Matthew Brinkle, is first added to the email recipient list.

[209] Communications between non-lawyer City employees, and between non-lawyer employees and third parties like Mr. Wilcox, are not presumptively solicitor-client privileged. However, in the circumstances here I think it can be reasonably inferred that Mr. Goodeve, Ms. Brown and Mr. Wilcox all probably understood that they were revising the draft lease that Ms. Brown had written with a view to obtaining legal advice about its contents, which they then proceeded to do later that same day.

[210] In this situation, I think that the original draft lease prepared by Ms. Brown, as well as the preliminary discussions about its contents that occurred between her, Mr. Goodeve and Mr. Wilcox, can both properly be treated as necessary and integral parts of the process of obtaining legal advice, even though the City’s lawyer, Mr. Brinkle, only became involved later in the day. See, e.g., Cusson v. Quan, at paras. 14-16.

[211] Indeed, if the original draft lease and the comments about it in the emails that were exchanged by the non-lawyers were ordered produced, comparing these documents with the final draft that was eventually sent to CFA would potentially permit inferences to be drawn about the legal advice that was ultimately provided about the lease by Mr. Brinkle and another City in-house counsel, Sam Yoon.

[212] I would add that the copy of the draft lease that is attached to the Row 54 email chain is a Word document in which Ms. Brown and Mr. Brinkle used the “comment” feature to request and provide legal advice.

[213] The status of the subsequent emails is in my view even clearer, since by this time legal counsel were actively involved in the revision process. The next three listed documents in Schedule B, at Rows 56 to 58, are further email chains in which Mr. Brinkle, Mr. Wilcox, Mr. Goodeve and Ms. Brown discuss further revisions to the draft lease. I am satisfied that Mr. Wilcox participated in this process because he was part of the City’s team working on the lease extension, and had de facto authority to instruct counsel on the City’s behalf about some aspects of the terms of the lease.

[214] In the final three documents in this group, at Rows 59 to 61, Ms. Brown, Mr. Goodeve and Mr. Wilcox go through a similar process of seeking legal advice from Mr. Brinkle, now in relation to a draft cover letter that was to accompany the final version of the lease when it was sent to CFA. In these email chains, all from December 19, 2019, Ms. Brown sought and obtained legal advice about the draft letter from Mr. Brinkle, copying another City lawyer, Mr. Yoon. Mr. Goodeve, who was also copied on this email correspondence, then forwarded it to Mr. Wilcox. I am satisfied that solicitor-client privilege properly attaches to all of these communications and to the drafts of the cover letter that are attached.

[215] In summary, I am satisfied that the email chains in this group, and the attached draft documents, all properly fall under the umbrella of solicitor-client privilege.

3. The “closed reports”

[216] The final listed item in the City’s Schedule B, at Row 62, is a collection of seven “closed reports”. These reports are dated between December 2019 and September 2022 and are addressed either to the City’s Development Services Committee, the “Council in Committee of the Whole”, or in one case, to City Council. Three of these reports were written by the Commissioner of the Development Services Department, Warren Munro, and four were written by Mr. Yoon, one of the City’s in-house lawyers.

[217] Although during Mr. Goodeve’s cross-examination on his affidavits counsel for the City indicated that there were eight reports, one of these reports was included twice in error.

[218] The City has refused to produce these documents on three alternative bases, namely: (i) solicitor-client privilege; (ii) litigation privilege; and (iii) confidentiality under s. 239(2) of the Municipal Act, 2001.

[219] I would observe at the outset that s. 239(2) of the Municipal Act, 2001 does not itself create any form of privilege. Rather, it permits municipal councils and committees to meet in closed sessions for various reasons, including when “the subject matter being considered” is “litigation or potential litigation” (s. 239(2)(e)), or “advice that is subject to solicitor-client privilege, including communications necessary for that privilege” (s. 239(2)(f)).

[220] The fact that the seven reports at Row 62 of Schedule B have all been marked “closed” is consistent with the possibility that their contents may be subject to solicitor-client or litigation privilege. However, this labelling does not in my view create any presumption that the reports are privileged. This is something that can only be determined by examining their contents, and the surrounding context in which they were written and presented to the municipal body that received them.

[221] I will address the seven reports in chronological order.

a) The December 6, 2019 report to the Development Services Committee

[222] The first report, dated December 6, 2019, is addressed to the Development Services Committee and signed by both Mr. Munro, the listed author, and by Mr. Goodeve. It discusses various issues relating to the upcoming expiry of CFA’s original lease. The report itself is 19 pages long, and has various attachments that bring its total length up to 54 pages.

[223] When Mr. Goodeve was asked in cross-examination which parts of this report reflected privileged advice from counsel, his evidence was that only seven of the report’s 54 pages “contain[ed] legal advice.” [6] The City nevertheless contends that:

… the entire report is subject to solicitor-client privilege at it forms part of the “continuum of communications” in which a lawyer provides legal advice.

[224] As I have already discussed, I accept that when an employee or officer of a corporate client has obtained privileged legal advice on behalf of the corporation, he or she can then convey that legal advice to other employees or officers under the cloak of solicitor-client privilege. However, the mere fact that an employee or officer has obtained legal advice at some point does not cause all of his or her subsequent communications with other employees or officers to automatically become solicitor-client privileged.

[225] I am not satisfied that the December 6, 2019 report can properly be viewed as solicitor-client privileged in its entirety. To the contrary, I find that with the exception of a single isolated paragraph, it is not privileged.

[226] In this regard, I consider it to be of some significance that the authors of the report did not themselves cite solicitor-client privilege as a ground for the Committee considering the report in closed session. Rather, the only “closed meeting authority” they cite is s. 239(2)(c) of the Municipal Act, 2001, which permits closed sessions when the subject being addressed is “a proposed or pending acquisition of disposition of land”.

[227] I accept that Mr. Munro and/or Mr. Goodeve may have received legal advice in the course of preparing their report; indeed, they state at p. 3 that they “consulted … [the] City Solicitor”. However, there is only one occasion in their report where they expressly convey to the Committee the legal advice that they received.

[228] Much of their report is factual in nature: it summarizes matters such as the history of CFA’s tenure at the airport; the details of its leasehold; CFA’s request for a lease extension and the demands it had made; and various City Council resolutions and decisions regarding the future of the airport. Even if Mr. Munro and Mr. Goodeve received some legal advice that touched on these factual matters, privilege “does not extend to facts which may be referred to in those communications if they are otherwise discoverable and relevant”: Chrusz, at para. 90.

[229] The rest of the report is concerned with laying out policy options for the Committee to consider, ranging from doing nothing and allowing CFA’s lease to expire at the end of 2019 (“Option 1”), to extending it for a further 13 years (“Option 4”). The report also sets out various options for the Committee to consider if the CFA’s lease were extended, concerning matters such as the CFA’s hours of operations and its leasehold improvements.

[230] I am not persuaded that the City becomes entitled to assert solicitor-client privilege over the entire report merely because its authors’ views about the policy options they were presenting to the Committee could have been influenced in some way by their consultation with legal counsel. In my view, solicitor-client privilege only attaches to those parts of the report where its authors either expressly conveyed some legal advice they received to the Committee, or where they said something that reveals by necessary implication what legal advice they must have received.

[231] Having reviewed the report, I have found only one instance where the authors expressly convey legal advice they received to the Committee: namely, at p. 9 of the report, in the final paragraph under heading 5.6. I am satisfied that the City can properly assert solicitor-client privilege over this paragraph.

[232] However, I am not satisfied that any of the other pages that Mr. Goodeve identified in cross-examination as “containing legal advice” actually reveal, either expressly or by implication, any legal advice that he or Mr. Munro received. To the contrary, Mr. Goodeve appears to have merely performed a word search and identified all of the pages in the report where the word “solicitor” appears, without turning his mind to the surrounding substance and context, most of which reveal that the references to “solicitor” have nothing at all to with any legal advice that he or Mr. Munro received.

[233] Accordingly, I find that this report must be produced, subject to redacting the single paragraph on page 9 that I have identified as solicitor-client privileged.

[234] I would add that this report has five attachments, three of which have already been produced in the litigation. The City does not assert privilege over the other two attachments but takes the position that they are irrelevant, and I am inclined to agree with this assessment.

b) The February 26, 2020 report to the Development Services Committee

[235] This closed report, dated February 26, 2020, is addressed to the Council in Committee of the Whole, and signed by its listed author, Samuel Yoon, and by his colleague Adam Kosnick. Both are lawyers with the City’s Legal Services department. The report states that it is to be considered in closed session because it is both litigation privileged and solicitor-client privileged.

[236] The City asserts both privileges, and I am satisfied that both claims are proper. The subject-matter of the report is directly related to contemplated litigation with CFA, and Mr. Yoon and Mr. Kosnick, who are both lawyers, are explicitly providing legal advice to City Council, sitting as a “Committee of the Whole”.

[237] The City’s privilege claims over this report are upheld.

[238] This report has eleven attachments, ten of which have already been produced in the litigation. The City asserts solicitor-client privilege over the remaining attachment. While this document is not privileged in and of itself, I am satisfied that its status as an attachment to this report could potentially reveal the privileged information in the report itself. Accordingly, the City is not required to produce this attachment or identify its nature.

c) The May 20, 2020 report to the Council in Committee of the Whole

[239] This closed report, dated May 20, 2020, is addressed to the Council in Committee of the Whole, and signed by its listed author, Samuel Yoon, and by his colleague Adam Kosnick. Both are lawyers with the City’s Legal Services department. The report states that it is to be considered in closed session because it is both litigation privileged and solicitor-client privileged.

[240] The City asserts both privileges, and I am satisfied that both claims are proper. The subject-matter of the report, which was written a few days after CFA commenced its application against the City, is directly related to the litigation. Mr. Yoon and Mr. Kosnick, who are both lawyers, are also explicitly providing legal advice to City Council, sitting as a “Committee of the Whole”, as well as summarizing previously-provided legal advice.

[241] The City’s privilege claims over this report are upheld.

[242] The City also asserts privilege over one of the attachments to this report, the other attachments having previously been produced in the litigation.

[243] While I am not satisfied that this attachment is privileged in and of itself, I agree that identifying it as having been appended to this report could shed some light on the nature of the legal advice that was being provided in the report, such that the City can properly assert solicitor-client privilege over this document.

d) The June 17, 2020 report to City Council

[244] This closed report, dated June 17, 2020, is addressed to City Council and signed by its listed author, Mr. Yoon, and by his colleague Mr. Kosnick, who are both lawyers. The report states that it is to be considered in closed session because it is both litigation privileged and solicitor-client privileged.

[245] The City asserts both forms of privilege, and I agree that both claims are justified. The subject-matter of the report directly concerns the ongoing litigation between CFA and the City. I am satisfied that the report was prepared for the dominant purpose of advising City Council, the collective directing mind of the City, about an issue directly relating to the litigation. Moreover, Mr. Yoon and Mr. Kosnick are both lawyers employed by the City, and their report can fairly be characterized as a legal opinion in which they were giving legal advice to Council.

[246] I am also satisfied that the City has properly asserted solicitor-client privilege over the first attachment to this report. The other attachments have either been produced in the litigation or consist of correspondence between the parties.

[247] The City’s privilege claims over this report are upheld.

e) The September 23, 2020 report to the Council in Committee of the Whole

[248] This closed report, dated September 23, 2020, is addressed to the Council in Committee of the Whole, and signed by its listed author, Mr. Yoon, and by his colleague Mr. Kosnick, who are both lawyers employed by the City. The report indicates that it is to be considered in closed session because it is both litigation privileged and solicitor-client privileged.

[249] The City asserts both forms of privilege over this report, and I am satisfied that both claims are proper. The report is directly related to ongoing litigation, and Mr. Yoon and Mr. Kosnick are plainly engaged in giving legal advice to Council in order to obtain instructions from their client.

[250] I am also satisfied that the first attachment to this report is both solicitor-client privileged and litigation privileged.

[251] The City’s privilege claims over this report are upheld.

f) The September 30, 2020 report to the Development Services Committee

[252] This closed report, dated September 30, 2020, is addressed to the Development Services Committee, and signed by its listed author, Mr. Munro, and by Mr. Goodeve. The report indicates that it is to be considered in closed session because it is both litigation privileged and solicitor-client privileged.

[253] The City asserts both forms of privilege over this report. However, I am not satisfied that either privilege claim is justified in relation to most of the report.

[254] Litigation privilege attaches to documents that are created for the “dominant purpose” of litigation: Blank v. Canada (Minister of Justice), at para. 59.

[255] The main subject-matter of the September 30, 2020 report concerns an issue that was not directly related to the ongoing litigation between CFA and the City, namely, whether the City should exercise its option under the 1998 lease to purchase CFA’s leasehold improvements.

[256] This issue is plainly affected by the ongoing litigation. If CFA’s position that its lease was extended in 2010 ultimately prevails, the City’s option to purchase the leasehold improvements will not yet have vested. Moreover, an injunction is presently in place that preserves the status quo between the parties until the litigation is concluded, which permits CFA to continue to occupy the leased premises.

[257] However, I am not satisfied that this report was prepared for the “dominant purpose” of the ongoing litigation. The question of whether the City should exercise its purchase option would have had to be addressed even if CFA had not started this litigation. Moreover, the report makes only passing mention of the litigation, noting that the City’s internal and outside counsel “continue to be in communication regarding related court proceedings”.

[258] I am also not satisfied that solicitor-client privilege attaches to most of the report. Mr. Munro and Mr. Goodeve are not lawyers themselves, and they do not at any point in their report convey to the Committee any legal advice they received from counsel. While the authors of the report noted that they had had “communication” with counsel “regarding related court proceedings”, they do not reveal anything about any legal advice they might have received.

[259] However, I think that one part of the September 30, 2020 report does attract both forms of privilege. In the final paragraph at page 1, which continues onto the top of page 2, the report refers to and summarizes the May 20, 2020 report to City Council by the City’s legal staff, and the recommendation Council arrived at after considering this report. Since I have found the May 20, 2020 report to be both litigation privileged and solicitor-client privileged, I think both forms of privilege also attach to the summary of this report contained in the September 30, 2020 report.

[260] The City’s privilege claims over this report are accordingly not upheld, with the exception of the summary of the May 20, 2020 report and Council’s consideration of this report at pages 1-2.

[261] The City has not asserted privilege over any of the attachments to this report.

g) May 18, 2022 report to the Council in Committee of the Whole

[262] This closed report, dated May 18, 2022, is addressed to the Council in Committee of the Whole, and signed by its listed author, Mr. Munro, and by Mr. Goodeve. The report indicates that it is to be considered in closed session because it is both litigation privileged and solicitor-client privilege.

[263] The City asserts both forms of privilege over this report, and I am satisfied that both claims are proper. The overall subject-matter of the report is directly related to the ongoing litigation between the City and CFA. Moreover, while Mr. Munro and Mr. Goodeve are not themselves lawyers, they indicate in the report that they consulted with the City’s internal and external counsel, and I am satisfied that substantial parts of the contents of the report implicitly reveal the legal advice they received.

[264] The City’s privilege claims over this report are upheld. The City does not assert privilege over any of the attachments.

V. Disposition

[265] The CFA’s motion is accordingly granted in part, on the basis set out above.

[266] If the parties are unable to agree on costs, they may serve and file brief written submissions of no more than two pages, along with their bills of costs.

[267] There has been divided success on the motion, but on balance I find that the City has been the more successful party. I will accordingly direct the City to file its costs materials first, within four weeks of the date of the release of these reasons. CFA will then have a further four weeks to file its responding materials.

[268] All materials may be served and filed electronically, and copies should also be sent to my judicial assistant.

The Honourable J. Dawe Date: March 23, 2023

[1] Some of the questions at issue were multi-part questions that were recorded in the discovery transcript under a single question number. In its Chart of Advisements, CFA has broken up these questions into their constituent parts. I am taking the same approach.

[2] CFA’s Chart of Advisements indicates that CFA was seeking a ruling on two additional questions that the City refused to answer on the basis that they were irrelevant (Issues 67 and 76). However, CFA did not address these refusals in its factum or in oral argument.

[3] I would note that if the documents show permits for some houses being issued in 1976 itself, these documents would appear to be inconclusive on the existing record, since it does not seem to have been established exactly when during 1976 the CMHC guidelines were issued.

[4] I should note that although Mr. Wilcox addresses his email to “Cindy”, which is Ms. Symons-Milroy’s first name, the email was sent to Ms. Gravelle as the main recipient, and in the body of the email Mr. Wilcox refers to something that he and “Cindy” had done together. I am accordingly satisfied that Mr. Wilcox simply made a mistake and used the wrong name in his salutation, and that this email was meant to be directed to Ms. Gravelle as the primary recipient.

[5] During cross-examination, Mr. Wilcox incorrectly stated that the email chain at Row 52 contained 18 separate emails. He appears to have erroneously conflated Rows 52 and 53. Although the originating emails in both chains were sent on the same day, April 21, 2016, they are entirely separate email chains with different participants addressing different subjects, with the Row 52 entry consisting of a single email, and the Row 53 entry including seventeen emails.

[6] Mr. Goodeve testified that he had identified “legal advice” at pp. 1, 3, 11, 12, 16 and 17 of the report. Surprisingly, he did not mention p. 9, which is the only place where the report expressly discloses legal advice the authors had received.