Court File and Parties
CITATION: Ontario Civilian Police Commission v Moreira, 2024 ONSC 1872
DIVISIONAL COURT FILE NO.: 112/24
DATE: 20240328
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: ONTARIO CIVILIAN POLICE COMMISSION, Applicant
-and -
PETER MOREIRA in his capacity as CHIEF OF POLICE OF THE DURHAM REGIONAL POLICE SERVICE, Respondent
BEFORE: FL Myers J.
COUNSEL: Emtiaz Bala, for the Appellant
Alexander Boissonneau-Lehner, for the Respondent
HEARD at Toronto: March 28, 2024
ENDORSEMENT
[1] This is an application by way of stated case under s. 33 of the Public Inquiries Act, 2009, SO 2009, c 33, Sch 6.
[2] The applicant has delivered a subpoena seeking documents from the respondent. The respondent has claimed that a few of the documents sought are subject to lawyer client privilege. He therefore objects to producing them.
[3] Both counsel acknowledge that they seek simply a determination of whether the documents are producible or privileged. Although the subject matter of an application by way of a stated case under s. 33 can look like a motion for contempt of court, that is not what is sought in this case.
[4] With counsel’s concurrence the Associate Chief Justice of the Superior Court of Justice, as delegate of the Chief Justice of the Superior Court of Justice, has directed this proceeding to be heard by a single judge pursuant to her authority under s. 21 (2)(c) of the Courts of Justice Act, RSO 1990, c C.43.
[5] The applicant has delivered a substantial affidavit to establish the relevancy of the documents sought. The respondent has expressed concern that the affidavit contains allegations that are denied. He does not wish to be prejudiced by leaving allegations unchallenged.
[6] The judge who hears the application will be assisted by knowing the nature of the allegations. But they are just allegations at this stage. The judge will not be called upon to decide anything other than whether the documents at issue are subject to privilege as claimed.
[7] This proceeding is not to become a form of discovery for the ongoing investigation or inquiry. The respondent will need an affidavit to set out why the documents at issue are privileged. He will have to establish that the documents were communication for the purpose of seeking or receiving legal advice and that they were kept confidential so as not to waive privilege. To that end, it will be more than sufficient for the respondent to say simply that he or the police service denies the allegations raised by the applicant in its affidavit. It is the existence of the allegations, not their truth, that gives context to both the production requests and the claims for privilege.
[8] Cross-examinations, if any, are limited to issues related to the privilege claims. Except with leave of a judge to be obtained at a case conference, no cross-examination is to be undertaken concerning the merits of any allegations being investigated by the applicant even if referred to in its supporting affidavit in this proceeding.
[9] On consent, the respondents may deliver to the court copies of the documents over which they claim privilege. They will be contained in a separate record that is clearly labelled “CONFIDENTIAL application record of the Respondent”. The Confidential application record of the Respondent is hereby sealed and shall not form part of the public record pending a further order fo a judge.
[10] The parties shall make efforts to comply with the court’s guidelines for dealing with confidential and sealed materials concerning electronic filing and presentation.
[11] If possible the parties should agree on a mechanism for counsel for the applicant to see the documents over which privilege is claimed on a “counsel’s eyes only” basis. Perhaps outside counsel will need to be retained to give this efficacy. A judge at a case conference can be asked to assist the parties if they cannot agree on a process to arm the applicant’s counsel with sufficient information to fairly make submissions at the hearing of this proceeding.
[12] In my view this matter should be heard and resolved quickly. The applicant’s inquiry is ongoing in real time. If the parties were so inclined, they could readily find an arbitrator, an experienced litigator, or a judge, persona designata, to spend an hour looking at the documents and be done with this without spending months and thousands of dollars. If court proceedings are required then the following schedule applies and may not be amended except with leave of a judge:
a. The respondent’s evidence shall be delivered by April 30, 2024;
b. Cross-examinations, if any, will be completed by May 17, 2024;
c. The applicant’s factum will be delivered by May 27, 2024;
d. The respondent’s factum will be delivered by June 7, 2024.
[13] The Toronto Registrar of the Divisional Court is asked to provide the parties with a hearing date before a single judge of the Divisional Court (who is sitting on Divisional Court motions that week) for an estimated two hours on a date agreeable to both counsel in the last two sitting weeks of June (other than June 20, 25, and 26, 2024) and to advise the parties of the date as soon as practicable.
[14] The following directions apply to the hearing of the application in June:
The parties will receive an invitation to upload their materials to CaseLines.
The parties are to upload their materials to CaseLines promptly after service or as soon as practicable after the CaseLines link has been provided. All materials are to be uploaded at least four weeks before the hearing date.
Materials are to be uploaded in accordance with Part III.A of the current Consolidated Practice Direction for Divisional Court Proceedings. The parties are also required to file their materials with the Court electronically and pay filing fees in accordance with the Part I.D of the Consolidated Practice Direction:
Information about CaseLines is available on the Court’s website, including Tips for Counsel and Self-represented Parties, at:
The parties are reminded of the following:
• To hyperlink the indexes to all documents uploaded to CaseLines;
• To upload any agreement on costs or their costs outlines the week before the matter is scheduled to be heard; and
• During oral argument, the court expects them to refer to materials by CaseLines page numbers, and not by reference to the page number or tabs in the record.
Additional Resources:
https://www.ontariocourts.ca/scj/files/pubs/guide-div-ct-judicial-review-EN.pdf
ontariocourts.ca/scj/files/pubs/guide-div-ct-judicial-appeals-EN.pdf
FL Myers J.
Date: March 28, 2024