Court File and Parties

CITATION: RPR Environmental Inc. v. Saxe Law Office, 2022 ONSC 7040

DIVISIONAL COURT FILE NO.: 212/21

DATE: 2022-12-13

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: RPR ENVIRONMENTAL INC. v. SAXE LAW OFFICE and dianne saxe

BEFORE: D.L. Corbett J.

COUNSEL: Ray Di Gregorio, for the Appellant No one appearing for the Respondents

HEARD: September 9, 2021

REASONS FOR DECISION

[1] This is an appeal from the decision of Deputy Judge Daniel J. Fife of the Small Claims Court, dismissing an urgent motion by the moving party for a sealing order for the Small Claims Court file in this matter. The respondent filed no materials and took no position on the motion or on the appeal in this court.

[2] The Small Claims Court dismissed the motion for the following reasons (stated concisely in a one page, seven paragraph endorsement dated February 25, 2021:

(a) the claim of solicitor/client privilege had not been raised in these proceedings prior to judgment;

(b) any claim of solicitor/client privilege was waived as a result of the allegation of negligence against the solicitor and the disclosure of documents in the proceedings;

(c) the allegedly privileged documents had been in the public domain “for a considerable number of years”;

(d) it is not in the interests of justice to make a prospective sealing order since the documents had been in the public domain so long.

[3] The stated urgency for the motion below concerned other proceedings. The Appellant was engaged in proceedings involving the Attorney General of Canada in the Superior Court of Justice. Apparently, the Attorney General had obtained copies of allegedly privileged documents from the Small Claims Court file (a file that was open to the public, including the AG Canada). The AG Canada had expressed an intention to use these documents in the SCJ proceedings.

[4] In respect to this context, the Small Claims Court noted as follows:

(a) the moving party was not asking for a retroactive order finding documents used in the Small Claims Court proceeding to be subject to solicitor/client privilege (ie the moving party was not seeking an order nunc pro tunc); and

(b) the moving party was not seeking an order that would preclude use of the allegedly privileged documents in the SCJ proceeding.

The Deputy Judge concluded, on this point, “I am in complete agreement with the proposition that I cannot in any way tie the hands of the Judge or Master in the Superior Court proceedings with respect to the use of such documents by way of a sealing order in this court.”

[5] The Appellants argue that the Deputy Judge erred in finding that the Appellants had waived any solicitor/client privilege “vis-à-vis non-parties to the proceedings” by tendering them in their Small Claims Court proceedings against their former lawyer. They argue that they were self-represented in the Small Claims Court proceedings, and that they never intended to give up the solicitor/client privilege that would attach to their dealings with the respondents.

[6] Privilege is lost by disclosure. This is trite law. A privilege-holder may be excused of the consequences of disclosure of privileged material if the disclosure is not authorized or is inadvertent. “Inadvertence”, however, does not mean “ignorance of legal consequences”. The disclosure in this case was advertent but ostensibly in ignorance of the legal consequences. That does not provide a basis for finding that privilege has not been waived.

[7] The basis for a sealing order is set out in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41. The analysis begins with the general principle that court proceedings are open to the public. The “open court principle” is fundamental to the justice system, and only when the test in Sierra Club is met will the court abrogate from the open court principle to seal a document, let alone to seal an entire court file.

[8] The court has jurisdiction – both inherent and statutory – to seal portions of a court file: Fairview Donut Inc. v. The TDL Group Corp., 2010 ONSC 789 (SCJ); Courts of Justice Act, RSO 1990, c. J.1, s.137(2). While it is true that a sealing order may be made after a document is filed with the court, generally such orders are sought and made before a document is disclosed publicly by being placed in a public court file: Beiko v. Stone, 2019 ONSC 1703 (SCJ).

[9] Solicitor/client privilege is not the only basis on which a party may seek a sealing order. Such an order may be made (among other situations) to protect certain kinds of confidential information, privacy interests, and to protect vulnerable persons (be they parties, witnesses, or other persons involved in a court matter). “Disclosure” will not always vitiate the abses for these claims for sealing orders; that will depend on the circumstances. Solicitor/client privilege, however, differs from these other categories of potentially protected documents and information: the protection afforded to it may be lost, by operation of law, where the privilege holder waives the privilege.[^1]

[10] I accept, for the purposes of this appeal, that documents filed in the Small Claims Court proceedings were – before privilege was waived – subject to solicitor/client privilege. I also accept that, in some cases, where a litigant sues its former solicitor, the court may exercise its discretion to make a tailored order to seal privileged documents to facilitate that party’s access to justice. However, there is no automatic sealing order in such cases. Where a litigant is suing its former lawyer in a public court proceeding, the presumption is that the evidence will be made public, pursuant to the open court principle, and it is for the litigant to bring itself within the stringent test in Sierra Club to obtain a sealing order for any of the court file.

[11] In this case, the Appellants have done no more than establish that some of the documents may have been subject to solicitor/client privilege. Aside from asserting the general importance of this privilege, the Appellants have provided no basis to bring their request within the principles in Sierra Club. Further, the Appellants have not addressed the principle that privilege is lost by disclosure, and disclosure has, in fact, been made here. The Appellants have provided evidence that their disclosure was in ignorance of the consequences, but this is not a sufficient basis to find that the disclosure was “inadvertent”. Finally, although the Appellants were clear before the Deputy Judge that the question of whether the AG Canada could tender and rely upon documents obtained from the Small Claims Court file was a matter for decision in the SCJ proceedings, in their factum on appeal to this court they argue “that they would be substantially prejudiced if the said communications were to be used outside of the litigation in Small Claims Court.” It is clear that it was only when the Appellants understood that documents in the Small Claims Court file could be tendered in the SCJ proceedings that they brought the motion to the Deputy Judge below.

[12] On the record below, I conclude the Deputy Judge was correct in finding that any claim of privilege had been waived. That waiver has led to disclosure to strangers to the Small Claims Court litigation. That waiver persisted “for a considerable number of years”. The privilege having been lost by disclosure, no continuing basis existed for the claim of privilege, and the sealing order was rightly refused. The appeal is dismissed without costs.

D.L. Corbett J.

December 13, 2022

[^1]: Guelph (City) v. Super Blue Box Recycling Corp., 2004 34954, paras. 81-92 (SCJ).