COURT OF APPEAL FOR ONTARIO

CITATION: Stein v. Windsor Police Services Board, 2013 ONCA 323

DATE: 20130514

DOCKET: C56376

Rosenberg, Rouleau and Pepall JJ.A.

BETWEEN

Deborah Stein, Rodger Stein and Jessica Angel Stein, a minor, by her Litigation Guardian, Rodger Stein

Plaintiffs/Respondent in Appeal

and

Windsor Police Services Board, the Corporation of the City of Windsor, Bruce Douglas Murray, Tony Garro, Jane Doe(s) 1 and John Doe(s) 1, RVJJ Enterprises Inc. (formerly known as Pierascenzi Construction Limited) and John Doe(s) 2

Defendants

and

The Special Investigation Unit

Non-Party Appellant

Sara Blake and Nadia Laeeque, for the appellant

Dina Mejalli, for the respondent

Heard and released orally: May 8, 2013

On appeal from the decision of Justice Terrence L. J. Patterson of the Superior Court of Justice, dated November 5, 2012.

ENDORSEMENT

[1] The parties agreed that the standard of review for the issue of relevance on this appeal was correctness.

[2] An order against a non-party for production for inspection of a document under rule 30.10(1) of the Rules of Civil Procedure may be made if:

(1) the document is not privileged;

(2) the document is relevant to a material issue in the action; and

(3) it would be unfair to require the moving party to proceed to trial without having discovery of the document.

[3] The motion judge ordered production of an unedited copy of the Special Investigation Unit’s (“SIU”) investigation file, including the SIU’s Director’s Report to the Attorney General.

[4] The only issue before us is whether the SIU Director’s Report should be produced by the SIU, a non-party to the action.

[5] The Director’s Report, a statutory requirement, is a summary of evidence and the legal analysis of that evidence with a view to whether a criminal prosecution should be commenced.

[6] Having reviewed the Director’s Report, we are satisfied that the motion judge erred in determining that it was relevant. The information in the Report is derivative of other sources of information in the investigation file with the exception of the Director’s legal analysis and the lead investigator’s assessment of the case, neither of which is relevant to any material issue in the action.

[7] Given our conclusion, it is unnecessary to address the additional requirements relating to the absence of privilege and unfairness.

[8] The appeal is allowed and the order of November 5, 2012 is set aside. There will be no order as to costs.

“M. Rosenberg J.A.”

“Paul Rouleau J.A.”

“S.E. Pepall J.A.”