CITATION: Temelini v. Wright, 2010 ONCA 354

DATE: May 13, 2010

DOCKET: C51332

COURT OF APPEAL FOR ONTARIO

Cronk, MacFarland and Karakatsanis JJ.A.

BETWEEN

Paul Temelini, Bendalam Incorporated, Tramont Investments Ltd. and Welladay Developments Inc.

Plaintiffs (Appellants)

and

Betty J. Wright, Jack Kruger, Michael Black, Murray Wood, Leonard Dean, Kornelei Theodore Kereluk, The Attorney General of Canada and Andrew T. Adam Von Rhedey also known as Tibor Adam

Defendants (Respondents in Appeal)

Howard J. Wolch, for the appellants

Linda J. Wall and Talitha A. Nabbali, for the respondents

Heard and released orally: May 10, 2010

On appeal from the order of Justice Denis J. Power of the Superior Court of Justice, dated October 20, 2009.

ENDORSEMENT

[1] The appellants appeal from the order of Power J. of the Superior Court of Justice dated October 20, 2009, upholding: (i) the decision of Master Beaudoin, dated January 2, 2009, concerning documentary production, the discovery of non-parties and related pleadings relief; and (ii) the master’s costs award dated March 5, 2009.

[2] In our view, the appeal must be dismissed. For the following reasons, we see no error by the appeal judge that justifies the intervention of this court.

(1) Failure to Appeal Master’s Prior Order

[3] One of the two motions before Master Beaudoin relevant to this appeal was a motion by the respondents concerning an earlier order by Master Beaudoin dated June 21, 2007, which related, in part, to a production order made by Master Schreider in 1997. The appellants maintain that the respondents’ attempt to revisit the June 21, 2007 order, in effect, was an impermissible motion to vary. They submit that the issues raised on the motion should have formed the basis of an appeal from the June 21, 2007 order.

[4] This argument was advanced before the master. He rejected it, holding:

[15] The Plaintiffs argue that the RCMP are prohibited from redacting information because my order of June 21, 2007 specifically ordered all documents produced “without redactions”. In their view, the RCMP ought to have appealed the June 21, 2007 decision and they are now out of time.

[16] The Plaintiffs have taken a narrow view of my decision. I contemplated that there might be witness and informer concerns that may require protection. My order was made before all of the new documents had been collected and reviewed for privilege and I conclude that [it] was open to the Defendants to seek a variation of my order in the light of the fresh evidence they have filed.

[5] The appeal judge also considered and rejected this argument. He held that the respondents “were not pursuing a back door appeal” of the June 21, 2007 order. Rather, they were seeking to have the master resolve “serious issues concerning difficulties regarding the documentation” to be produced by the respondents in light of the master’s ruling that protection of the privacy interests of witnesses and informants might be required with respect to the respondents’ productions. In other words, the master’s June 21, 2007 order contemplated that some changes to the production otherwise ordered might be required to protect the interests of affected individuals.

[6] The respondents were not seeking to overturn the master’s June 21, 2007 order. Instead, they sought to have that order implemented in accordance with any protective terms – including terms permitting redactions to certain of the respondents’ documentary productions – that the master considered necessary and appropriate. The potential inclusion of protective terms was expressly contemplated by the master’s reasons in support of his original order.

[7] In these circumstances, we agree with the respondents’ submission that an appeal from the June 21, 2007 order was neither warranted nor necessary. The master did not err by entertaining the respondents’ motion.

(2) Fresh Evidence

[8] The appellants rely on fresh evidence in the form of an affidavit sworn by Paul Temelini to argue that informant privilege cannot be made out in this case since the individual alleged to be the police informant has denied any knowledge of the RCMP investigation of Mr. Temelini. The appellants submit that, as a result, this individual, whose identity is known to them, cannot have been a police informant. Accordingly, any redactions to the respondents’ productions made to protect his identity are not properly the subject of informant privilege.

[9] In our view, even assuming that the fresh evidence tendered by the appellants meets the test for admission on appeal, it does not assist the appellants.

[10] The record indicates that the RCMP, by its documentary redactions, sought to protect the identities of more than one informant. We did not understand the appellants to dispute this claim.

[11] Moreover, informant privilege applies to both the Crown and the informant: waiver of the privilege by one does not constitute waiver by the other: see Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 252, at para. 25. There is no evidence on this record that any of the informants protected under the master’s order have waived their right to privilege.

[12] In any event, the fresh evidence is at best equivocal as to the relevant individual’s status as an informant. In our view, contrary to the appellants’ submission, the fresh evidence does not contain a clear admission that the individual in question was not a police informant. Further, the applicable fresh evidence from this individual is not under oath.

[13] We therefore reject this ground of appeal.

(3) Master’s Costs Award

[14] Nor do we see any basis on which to interfere with the master’s discretionary costs award, which fixed the costs of the two motions in the global amount of $40,000, “payable in the cause”. The results on the two motions before the master were mixed. Nothing in these reasons changes that outcome.

(4) Other Grounds of Appeal

[15] Although the appellants raised various other grounds of appeal in their Notice of Appeal and factum, these additional grounds were not pursued in oral argument.

(5) Disposition

[16] Accordingly, for the reasons given, the appeal is dismissed. The respondents are entitled to their costs of the appeal, fixed in the amount of $10,000, inclusive of disbursements and GST.

“E.A. Cronk J.A.”

“J. MacFarland J.A.”

“A. Karakatsanis J.A. ”