Court File and Parties
COURT FILE NO.: CV-21-76781-00CP DATE: 20240313
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Gregory Toombs, George ka Vallis, Norm Ryder, Patrick Jardine, David Hamilton, Christopher Summers, Glen Greig, Terry Fedorak, Rodny Barrett, Jennifer Baker, Bruce Junker, Blaine Gilbertson, Blaine Gilberston, Blair Kreitzer, Ken Grysiuk, Richard Last, Darren Schlamb, Christopher Lawson, Sarah Lawson, Eugene Laho, Norman Traversy, David Curtis, Giuseppe Marcellino, James Rollo, George Harding, Karen Perreault, David Lawson, Robert Drinna, Joe Knipfel, Andre Martin, Armand Durelle, Gilles Martin, Gordon Skinner, Cheryl Amuir, and Paul Taylor.
For a list of self-represented Plaintiffs in attendance on the motion, see Attached Schedule “A”, for the Plaintiffs, responding Parties on motion
Plaintiffs
- and -
WorkSafeBC, aka Workers Compensation Board of British Columbia; Workers' Compensation Appeal Tribunal of BC - CATBC; Workers Compensation Board of Albe1ta -AWCB; Appeals Commission of Alberta -AAC; Saskatchewan Workers Compensation Board-SWCB; Saskatchewan Board Appeal Tribunal -SBA T; Workers Compensation Board of Manitoba - WCBM; The Appeal Commission of Manitoba-ACM; Workplace Safety & Insurance Board – WSIB, aka Workers Compensation Board of Ontario; Workplace Safety & Insurance Appeals Tribunal – WSIAT, aka Workers Compensation Appeals Tribunal of Ontario; Commission des normes, de l'equite, de la sante et de la securite du travail - CNESST; WorkSafeNB, aka Workers Compensation Board of New Brunswick; New Brunswick Workers' Compensation Appeals Tribunal -NBWCAT; Workers Compensation Board of PEI - CBPEI; Workers' Compensation Appeal Tribunal of PEI-WCATPEI; Workers' Compensation Board of Nova Scotia-WCBNS; Workers' Compensation Appeal Tribunal of Nova Scotia - WCATNS; Workplace Health, Safety and Compensation Commission- WHSCC, aka Workers Compensation Board of Newfoundland & Labrador; Workplace Health, Safety & Compensation Review Division - WHSCRD; Yukon Workers' Compensation Health and Safety Board - YWCHSB, aka Workers Compensation Board of Yukon Territory; Yukon Workers' Compensation Appeal Tribunal-YWCAT; Northwest Territories Workers' Safety and Compensation Commission - NWTWSCC, aka Workers Compensation Board of Northwest & Nunavut Territories; AND the NWT and Nunavut Workers' Compensation Appeals Tribunal NWTNWCAT
Eric Wagner, Counsel for the Attorney General for Ontario, Moving Party on Motion
Defendants
HEARD: February 9th, 2024
DECISION ON MOTION
The Honourable Justice M.J. Valente
Introduction
[1] The Attorney General for Ontario (“A.G”), on behalf of the non-parties, Monte McNaughton (“McNaughton”) and Margaret Townsend (“Townsend”) (sometimes collectively referred to as the “Non-Parties”), brings this motion to quash the two summonses to witness, dated January 30, 2023, issued without leave, and served on each of McNaughton and Townsend. The motion is opposed by the Plaintiffs, all of whom are self-represented.
[2] Pursuant to my timetabling endorsement, dated September 15, 2023, I ordered that any responding materials to this motion be served, filed and uploaded to CaseLines on or before noon on October 6, 2023. Only the Plaintiff, Joe Knipfel, met this deadline.
[3] I am advised by counsel for the A.G. that shortly after the October 6, 2023 date, he was served with written submissions together with a responding motion record and factum on behalf of the Plaintiffs, Paul Taylor, along with submissions from each of the Plaintiffs, Christopher Lawson, and Roy Barrett (collectively, the “Late Submissions”). With the consent of counsel for the A.G., I have accepted for filing on this motion, and considered in my determination of the motion, the Late Submissions.
Background Facts
[4] This proceeding is a proposed class action initiated by injured workers against the named Defendants, all which administer the workplace compensation regimes across Canada. The Plaintiffs advance a number of claims, including a declaration that the present workers compensation schemes are unconstitutional and that these schemes ought to be converted to a no-fault system.
[5] None of the Plaintiffs are represented by counsel. The Plaintiff, Paul Taylor, is one of the lead Plaintiffs.
[6] Mr. Taylor issued the summons to the Non-Parties.
[7] The Defendants have brought a motion to dismiss the Plaintiffs’ action for failure to comply with Rule 15 of Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rule 15 Motion”). Rule 15 provides that a party who acts in a representative capacity, such as a lead Plaintiff in a class action, be represented by a lawyer. The Plaintiffs have stated in various case conferences in response to the Rule 15 Motion, that they intend to seek leave to act as self-represented representatives for the class, or in the alternative, to bring a motion to compel the Office of the Worker Advisors (“OWA”) to provide legal representation for the Plaintiff class representatives.
[8] The evidence is that the OWA is an independent agency of the Ontario Ministry of Labour, Immigration, Training and Skills Development. The OWA was established in 1985 and provides, among other services, free legal representation to non-unionized employees involved in workplace insurance disputes and health and safety reprisals. The two summonses issued to the Non-Parties are incident to the Rule 15 Motion and are in support of the Plaintiffs’ proposed motion to compel the OWA to provide free legal representation in these proceedings.
[9] At the time of the issuance of the summonses in January, 2023, McNaughton was the Ontario Minister of Labour, Immigration, Training and Skills Development. McNaughton resigned from politics in the fall of 2023 and is currently a private citizen. Townsend was in January 2023, and remains today, the Director of OWA.
[10] The A.G. submits that the two summons should be quashed because neither McNaughton nor Townsend has evidence relevant to the Rule 15 Motion, and furthermore, the Plaintiffs have not satisfied their onus of proving that the Non-Parties likely have relevant evidence. The A.G. further submits that Townsend is immune from being summonsed pursuant s. 180 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, Schedule A (“WSIA”).
[11] For his part, Mr. Taylor submits, in reliance upon the Supreme Court of Canada decision in Smallwood v. Sparling (“Smallwood”), that as a former minister of the Crown, McNaughton does not have blanket immunity to give oral testimony or produce documents. In addition, it is the position of Mr. Taylor that each of the Non-Parties have evidence relevant to the Rule 15 Motion, and specifically, with respect to OWA’s obligation to provide free legal representation to the Plaintiffs in this proceeding.
[12] Mr. Taylor’s position was supported by each of Messer Lawson, Barrett, Kavallis, and Knipfel in their submissions to the Court.
Guiding Principles
[13] The test for leave to examine a non-party at the hearing of a motion and the test on a motion to quash a summons are substantially identical. The Court will grant leave to examine a non-party pursuant to Rule 39.03(4) where (i) the non-party’s evidence is relevant and (ii) the examination does not constitute an abuse of process (see: Pastway v. Pastway at paras 27-28). Similarly, a proposed witness may move to quash a summons by reason that (i) the evidence sought is irrelevant or (ii) the examination is an abuse of process (see: Airport Taxi Cab (Pearson Airport) Assn. v. Toronto at para 27).
[14] On either motion, the party seeking to conduct the examination has the onus of establishing that the proposed witness has evidence relevant to the motion (see: Pastway, at paras 27-28 and Airport Taxi Cab, at para 26). In order to discharge its onus, the party seeking to conduct the examination must offer into evidence sworn testimony that the proposed witness is likely to have relevant evidence; it is insufficient that the proposed witness may have relevant evidence (see: Steeler Farms Inc. v. Ontario, 2017 ONSC 4756, at para.52). The Court of Appeal has stated in R v. Harris, [1994] O.J. No1875 at para 27:
… when a subpoena or the right to call a witness is challenged as here, it is not sufficient for the party proposing to call the witness to merely allege that the witness can give material evidence; but rather the onus is on the accused in this case to establish that it is likely that Brian Johnston can give material evidence.
Analysis
[15] I agree with Mr. Taylor that the Supreme Court’s decision in Smallwood dispels any notion that McNaughton enjoys absolute immunity from being examined as a former minister of the Crown.
[16] The issues to be determined on this motion is, however, whether the Non-Parties have relevant evidence with respect to the pending Rule 15 Motion? Mr. Taylor attests in his affidavit, sworn October 15, 2023, that each of McNaughton and Townsend have been summoned to testify with respect to a variety of issues and topics, the most significant of which include:
i) government policies, directives and communications regarding the fundraising of the OWA; ii) the distinct nature of the workers compensation system from all other legal systems in Canada; iii) the failure of the provincial and territorial legislatures to adhere to the intent and purpose of workers’ compensation legislation; iv) the failure of the workers compensation administration to work at arm’s length of the legislatures; v) the negative treatment of injured workers by the workers compensation administration; and vi) a fulsome explanation of the OWA’s emails of August 9 and 16, 2023 delivered in response to enquiries of the representative Plaintiffs.
[17] Firstly, I fail to understand how any of the stated purposes of the proposed examination of the Non-Parties are in any way relevant to the Plaintiffs’ response to the Rule 15 Motions. Whether this Court orders the OWA to provide free legal representation to the representative Plaintiffs is a function of this Court’s interpretation of the OWA mandate as stipulated by the prevailing legislation, and in particular, the WSIA. I view the evidence sought from the Non-Parties as being of little to no assistance in determining the prescribed mandate of the OWA. Otherwise, the voluminous budgetary and funding information sought by the Plaintiffs as enumerated in the two summonses are irrelevant. I reach this conclusion because the budgeting processes of cabinet and its funding decisions are not the subject of review or oversight by this Court (see: Bowman et al v. Her Majesty the Queen, 2019 ONSC 106 at para 40; Hamilton Wentworth (Regional Municipality) v. Ontario (Minister of Transportation), [1991] O.J. No. 439 (ONSC) at para 42-49; Metropolitan General Hospital and Minister of Health, at paras 10, 13).
[18] If, however, I am incorrect in my assessment that the evidence sought to be proffered from the non-parties is irrelevant to the pending Rule 15 Motion, then I also find that the representative Plaintiffs have not discharged their onus of establishing that the non-parties likely have the evidence that they seek. In order to satisfy that onus, it is insufficient for the Plaintiffs to merely allege, as they have, that the non-parties have material knowledge and information. These conclusionary statements are wholly unsatisfactory in my view to meet the Plaintiffs’ burden of establishing that the proposed witnesses have relevant evidence.
[19] In this respect, I would also point out that non-witnesses are only to be examined with respect to their knowledge. There is no party obligation on non-parties witnesses to inform themselves prior to the examination by making inquiries of others on through alternative means to obtain the information being sought by the proposed examining party.
[20] Furthermore, I am of the opinion that the examination of the Non-Parties constitutes an abuse of process because much of the non-privileged government documentation being sought is already available to the Plaintiffs (see: Derenzis v. Scoburgh, 2021 ONSC 3286, at para 49).
[21] Specifically, in his submissions, Mr. Taylor acknowledged that he is already in possession of the OWA budgets and other information is available by means of the prevailing provincial freedom of information processes should the Plaintiffs choose to make the required applications.
[22] Finally, in the case of Townsend, I find that as the Director of OWA, she is immune from being summonsed or from being compelled to produce documents by operation of s. 180 (1) and (2) of the WSIA.
Disposition
[23] For all the above reasons, the summonses dated January 30, 2023, and issued to McNaughton and Townsend are quashed.
[24] I also order that the Plaintiffs shall not issue further summons with respect to the pending Rule 15 Motion without further order of this Court (see: Farm Credit Canada v. 1047535 Ontario Limited, 2021 ONSC 541).
Costs
[25] The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum two pages double-spaced plus a bill of costs) by email to my judicial assistant at Suhana.kanungo@ontario.ca and to Hamilton.scjja@ontario.ca. The party(ies) seeking costs may have 14 days from the release of this decision to provide submissions, with a copy to the responding party(ies); the responding party(ies) will have a further 14 days to respond; and the party(ies) seeking costs a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received any response or reply submissions within the specified timeframes after the initial submissions, I will consider that the parties do not wish to make further submissions, and will decide on the basis of the material that I have received.
Rule 15 Motion Case Conference
[26] I invite the parties to contact the trial co-ordinator to arrange a case conference to discuss the scheduling of the Rule 15 Motion and ancillary timetabling issues.
Justice M.J. Valente
Released: March 13, 2024
Schedule “A”
List of self represented Plaintiffs in attendance on motion
Gregory Toombs George Kavallis Norm Ryder Patrick Jardine Glen Greig Rodny Barrett Bruce Junker Richard Last Darren Schlamb Christopher Lawson Joe Knipfee Wayne Skinner Paul Taylor