COURT FILE NO.: 8/06
DATE: 20070130
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BROCKENSHIRE, E. MACDONALD AND CAMERON JJ.
B E T W E E N:
YORK REGION DISTRICT SCHOOL BOARD
Applicant
- and -
DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS, ONTARIO COLLEGE OF TEACHERS and DAVID SHEPSTONE BERTRAM
Respondents
J. Paul R. Howard and Byrdena M. McNeil, for the Applicant
David Matheson, for the Respondent David Shepstone Bertram
HEARD: September 15, 2006
OVERVIEW
[1] In this application for judicial review, the issue is one of solicitor-client privilege and inadvertent disclosure of documents. The Applicant, York Region District School Board (the “Board”) applies for judicial review of the decision dated December 8, 2005 (the “Decision”) of the panel of the Discipline Committee of the Ontario College of Teachers (the “Discipline Committee”) constituted to hear a discipline proceeding against David Shepstone Bertram (the “Teacher”).
[2] In its Decision, the Discipline Committee ordered production to the Teacher of 10 documents, being letters and an internal memorandum from the Board’s legal counsel (“Shibley Righton”) to the Board dated April 29 to July 22, 2004. The documents were prepared by Shibley Righton for use in giving confidential legal advice to the Board with respect to the Teacher.
[3] The documents were inadvertently disclosed by a secretary employed by the Board in response to a request by an investigator for the Ontario College of Teachers (the “College”).
FACTS
[4] Allegations of sexual misconduct were made against the Teacher, who was employed by the Board. The Board ultimately dismissed the Teacher. The Teacher grieved his dismissal. His grievance arbitration hearing has not yet commenced.
[5] In early April 2004 the Board began to keep a file of documents respecting the Teacher. The Board deposited all documents concerning the Teacher into a binder kept for the purpose.
[6] On April 20, 2004 Mr. Thurston, Coordinating Superintendent of Education – Staff and Community Relations for the Board, wrote a letter to the College about the Teacher informing the College of the criminal charges, his employment status and an April 29, 2004 Board meeting called to refer the matter to the College.
[7] By letter dated April 27, 2004 the Manager, Investigations and Hearings Department of the College responded to Mr. Thurston seeking production from the Board of documents relating to the Teacher. On June 15, 2004 a member of the investigations department called Mr. Thurston seeking production of the Teacher’s file.
[8] On June 18, 2004 a secretary to Mr. Thurston sent to the College a complete package of documents, including 5 of the privileged documents. She did not obtain prior approval of Mr. Thurston before sending it. She did not appreciate the documents were confidential and privileged. She felt that the letter of April 27 and the June 15 oral request required that she send all the documents in the file.
[9] On July 15, 2004 the College investigator again called Mr. Thurston requesting further documents, including “lawyer notes and report of interview”. Again, without knowledge or approval of Mr. Thurston, the secretary sent further documents including 5 more privileged documents concerning allegations of the Teacher’s misconduct and a legal opinion.
[10] The secretary had no authority to waive the privilege and did not know or understand that solicitor-client privilege attached to the documents. These circumstances make this case a clear one of inadvertent disclosure of privileged documents.
[11] On March 31, 2005 Shibley Righton called and wrote to McCarthy Tétrault, counsel for the College, claiming privilege on behalf of the Board, asking that the documents not be produced to anyone and that it was “imperative” that they be returned “forthwith”.
[12] On April 1, 2005 McCarthy Tétrault advised that the Investigation Committee would not turn the documents over to the Discipline Committee except with the consent of the Board or if ordered by the Discipline Committee.
[13] On November 1, 2005 the Discipline Committee heard the production motion.
[14] On December 8, 2005 the Discipline Committee issued its decision, finding:
a) the documents were subject to solicitor-client privilege;
b) the secretary did not know the documents were privileged;
c) the secretary did not have authority to waive the privilege;
d) the documents should be produced because the Teacher was a “significant third party”, the Board “could gain an advantage over the Teacher in its prosecution of the allegations”, retention would constitute a perceived unfairness to the Teacher and it was necessary to “ensure both actual and perceived fairness in its own processes”.
Analysis of Legal Issues
[15] The question posed in this application is one of law on which the expertise of this court is greater than the Discipline Committee. Accordingly, the standard of review is “correctness”: Kalin v. Ontario College of Teachers (2005), 2005 18286 (ON SCDC), 75 O.R. (3d) 523 (Div. Ct.); Cressman v. Ontario College of Teachers, 2005 1406 (ON SCDC), [2005] O.J. No. 565 (Div. Ct.).
[16] Rule 7.01 of the Rules of Procedure of the Discipline Committee provides for disclosure. It is subject to Rule 7.01(4) that “does not authorize the making of an order requiring disclosure of privileged information”. Section 5.4(2) of the Statutory Powers Procedure Act makes an order for disclosure subject to the same exception for privileged information. It reads as follows:
Exception, privileged information
Subsection (1) does not authorize the making of an order requiring disclosure of privileged information.
[17] Where the decision-maker lacks the authority, the disclosure does not waive the privilege in the documents: Philip Services Corp. (Receiver of) v. Ontario Securities Commission (2005), 2005 30328 (ON SCDC), 77 O.R. (3d) 209 (Div. Ct.).
[18] Solicitor-client privilege is a fundamental and substantive rule of law. It belongs to the client and can only be waived by the client. It should be set aside only when absolutely necessary. It does not involve a balancing of interests. It should only be set aside where core issues going to the guilt or innocence of the accused are involved, there is a genuine risk of a wrongful conviction and disclosure is required that could raise a reasonable doubt as to guilt. Only if there is such a risk should the court then examine the privileged information to determine whether disclosure will likely raise a reasonable doubt as to that guilt: R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445; Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31; Giorno v. Pappas, [1997] O.J. No. 4748.
[19] R. v. Bottineau, 2005 63780 (ON SC), [2005] O.J. No. 4034 was also a case of disclosure obligations of information in the hands of the Crown. That requires that something that has a reasonable possibility of being useful or relevant to the defence ought to be disclosed. However, it is qualified by “unless the non-disclosure is justified by the law of privilege”.
[20] There was no evidence to suggest Shibley Righton had delayed in acting to assert the Applicant’s privilege following discovery of the inadvertent disclosure.
[21] There is no evidence to suggest any more than it “could” gain an advantage over the Teacher. This was not sufficient. It must first look at the evidence to determine whether it was relevant, otherwise unknown and helpful.
[22] The Discipline Committee’s ability to assess the facts relevant to the issues in the within proceeding was not prejudiced by non-disclosure of the documents. The prosecution was not prejudiced by the non-disclosure of the documents since it will be calling other evidence relevant to the charges of professional misconduct, and all facts found within the content of the documents are available otherwise. Finally, the Teacher was not prejudiced by non-disclosure of the documents in issue since all facts relied on by the prosecution for the purposes of professional misconduct charges are available otherwise. Indeed, non-disclosure settles any problems involving the Teacher’s inability to test the evidence found within the documents at issue or to cross-examine on that evidence in the event that they were used for some improper purpose before the Discipline Committee.
[23] Section 32(4) of the Ontario College of Teachers Act, 1996
Members of the Discipline Committee … holding a hearing shall not have taken part before the hearing in any investigation of the subject-matter of the hearing other than as a member of the Council or Executive Committee considering the referral of the matter to the Discipline Committee … and shall not communicate directly or indirectly about the subject-matter of the hearing with any person or with any party or representative of a party except on notice to and opportunity for all parties to participate.
[24] There is nothing to be criticized in Shibley Righton doing nothing further to enforce its right to seize the documents after receiving McCarthy Tétrault’s reply on April 1, 2005. When the Discipline Committee decided on December 8, 2005 to release the documents it brought this application for review with due dispatch.
[25] The only affidavit on behalf of the Board was from the secretary. There was none from Mr. Thurston. While raising some questions, it is not dispositive of any matter respecting the knowledge of Mr. Thurston or the right to assert the privilege.
CONCLUSION
[26] We grant the appeal and uphold the solicitor-client privilege in the documents.
[27] Because the documents were given to the prosecutor, but not to the Discipline Committee, the prosecutor must return the documents and all copies thereof to Shibley Righton. The prosecutorial function shall be reconstituted with a different prosecutor and different prosecution committee. The new prosecutor will decide whether or not to prosecute.
COSTS
[28] In view of the novelty of the issue there will be no costs.
BROCKENSHIRE J.
E. MACDONALD J.
CAMERON J.
Released: January 30, 2007
COURT FILE NO.: 8/06
DATE: 20070130
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
brockenshire, e. macdonald and cameron jj.
B E T W E E N:
YORK REGION DISTRICT SCHOOL BOARD
Applicant
- and -
DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS, ONTARIO COLLEGE OF TEACHERS and DAVID SHEPSTONE BERTRAM
Respondents
REASONS FOR JUDGMENT
CAMERON J.
Released: January 30, 2007