COURT FILE AND PARTIES

COURT FILE NO.: CV-09-1690-00
DATE: 20120301
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Automax, Plaintiff. Defendant by Counterclaim

AND:
GENERAL MOTORS ACCEPTANCE CORPORATION OF CANADA LIMITED (“GMAC”), Defendant, Plaintiff by Counterclaim

BEFORE: THE HON. MADAM JUSTICE M.P. EBERHARD

COUNSEL:
E. Bisceglia & A. Di Biase Counsel, for the Plaintiff. Defendant by Counterclaim

E. Hyer & K. Dawson Counsel, for the Defendant, Plaintiff by Counterclaim

HEARD: February 28, 2012

ENDORSEMENT

[ 1 ] The Plaintiff brought a Motion returnable October 18, 2012. It was several times adjourned on consent and came before me today with a Cross-motion.

[ 2 ] After argument of the Motion, the Cross-motion settled and the resolution was endorsed on that record.

[ 3 ] The Plaintiff described that it was basically a productions motion. Even as I write the parties are reviewing their positions in light of the submissions heard today but the Defendant was not able to access his client to obtain instructions to facilitate settlement. I indicated my ruling could be interrupted by notification of a resolution but that I would be commencing my determination immediately.

[ 4 ] I rule herein on several categories of documents requested but leave it to the parties to draft the specific terms of the order to accord with these reasons.

[ 5 ] The Plaintiff alleges breach of a 2007 central financing agreement between the parties and other breaches along the way. The Plaintiff asserts that the Defendant was motivated to these breaches by tension with GM dealers about the Defendant’s business relationship with the Plaintiff, a non-GM dealer and refusal of the Consillium agreement by the Plaintiff causing the Defendant to impose harsh repayment terms outside its standard repayment policies. The Plaintiff therefore seeks production of documentation relevant to its theory of the reasons for the Defendant’s conduct while the Defendant views it as a straight contract case to be determined by the terms of the contract and that the Plaintiff is on a “fishing expedition” which could prejudice the Defendant proprietary interests in its policies and operations.

[ 6 ] The Plaintiff seeks 4 categories of documents or relief:

Consillium Automotive Acceptance Corporation (“Consillium”)

[ 7 ] The Plaintiff was presented with new security documents in 2008 to replace the security arrangement with GMAC which principal William Cameron declined to sign. The Plaintiff has possession of the proposed documents but believes there is a series of documents leading up to the security agreement resulting from the outcry from GM dealers. The Defendant is mystified, asserting that Consillium was merely an effort to rebrand the GMAC business which didn't take off and was abandoned. This has resulted in the Defendant seeing the whole category as irrelevant. There is dispute whether there was anything different in the new security agreement being proposed to replace the 2007 security agreement with GMAC.

[ 8 ] I find there is relevance in GMAC documentation relating to the purpose of incorporating Consillium, approaches made to other non- GM dealers and consequences of the Plaintiff or others declining to sign.

[ 9 ] I decline to delay relief on this category because it is imprecisely requested in the motion. Litigation is too expensive to waste the argument today.

Records Of GM Dealers Meetings

[ 10 ] In accordance with the Plaintiff’s assertions that the Defendant was motivated to breach of contract by GM dealer complaints, anecdotal evidence of discussion at the CODA meetings is put forward. I am persuaded that this is relevant to a pleaded theory but not that the Defendant has control of the minutes of meetings or such other records as the association of dealers may retain.

[ 11 ] I require the Defendant to request minutes or documentation from the GM dealers association relating to discussion of the relationship between the Defendant and non-GM dealers, redacting other business, but I leave the onus on the Plaintiff to bring a 3 rd party records motion should the GM dealers refuse the request. By reason of this ruling the Defendant will not be in a position to oppose such motion.

Credit Policy

[ 12 ] The Plaintiff asserts that the Defendant departed from its standard practices in its treatment of the Plaintiff. The Defendant says it gave preferential terms to the Plaintiff and in any event the terms of the contract, whether driven by policy or not, will govern. Further, the Defendant asserts it has produced or disclosed all policy statements, in the form of 4 monthly bulletins that could be relevant to curtailment, that is, to the payment down of the indebtedness.

[ 13 ] The Plaintiff asserts there is a menu of bulletins and a separate menu of credit policies that can be accessed on internet by the Defendant.

[ 14 ] The 4 bulletins produced show a pattern of naming the topic, summarizing the policy and then providing discussion. The Defendant has chosen what the client thinks is relevant to curtailment (four bulletins) and redacted the policy summaries.

[ 15 ] This is not good enough. It does not honour the principle enunciated in Reis v. CIBC Mortgages Inc . 2011 ONSC 2309 , [2011] O.J.No. 1778 para 26

The description of documents in an affidavit of documents over which privilege is claimed must be sufficient “to enable a court to make a prima facie decision over whether the claim for privilege has been established” but “it is not necessary to go so far as to give an indirect discovery”: Grossman v. Toronto General Hospital (1983), 41 O.R. (2d) 457 (H.C.J ). It should be sufficient “to enable opposing counsel to appraise that claim [for privilege] and decide whether to accede to it or contest it” and the information necessary for that purpose is a description of the author of the document, a description of the document, the date of the document and the addressee: Barrett v. Vardy , [1989] O.J. No. 959 (ODC) , In Ian example of a sufficient description of the document was “a medical report of the examination of the plaintiff conducted on” a specified date. See also Shibish , supra, at para. 10.

[ 16 ] The principle is not diminished by the case cited by the Defendant Brampton Engineering Inc. v. Alros Products Ltd : 1986 Carswell 556 CPC (2d) 48 para 6:

There is also a query as to whether it was necessary to provide a complete list of all the documents for which privilege was claimed - that is whether it was necessary to set out the date, the name of the sender and the receiver of any letter passing between the solicitor and his client or between the solicitor and other persons from whom he was seeking information. There is no doubt that an affidavit in this much detail would certainly satisfy the rule insofar as setting out what the documents were, but I doubt that that much detail is required. The question of how much detail was required was gone into in Grossman v. Toronto Gen. Hos pital (1983), 41 O.R. (2d) 457, 35 C.P.C. 11, 146 D.L.R. (3d) 280 (Ont. H.C.). Reid J. canvassed many of the cases and comments of writers. At p. 465 [O.R.J he states:

It has equally always been the case that sufficient information must be given of documents for which privilege is claimed to enable a party opposed in interest to be able to identify them. It is not, however, necessary to go so far as to give an indirect discovery. Williston and Rolls continue, at p. 898:

Where privilege is claimed a description of the documents must be given sufficient to identify them and to enable an order for their production to be enforced if the claim of privilege is bad, but no details need to be given which would enable the opposite party to discover indirectly the contents of the documents.

[ 17 ] It is the same principle but states that the same detail may not always be required.

[ 18 ] In the present case, a menu of titles with possible relevance must be produced before it can be asserted that anyone – the court or an opponent – could discern whether privilege was appropriate. Titles hardly disclose policy that may be prejudicial.

[ 19 ] In addition to policies directly relating to curtailment, general policies may shape interpretation of the particular.

[ 20 ] These menus should be produced for 2007-2009 without prejudice to the Plaintiff to pursue further production based on the information suggested by the titles.

[ 21 ] Nor am I persuaded that the policy (or summary) itself should be redacted. The Defendant states the content is revealed in the discussion anyway. Irrelevant topics, as disclosed by the title, may be redacted entirely.

Privileged or Redacted Docs

[ 22 ] Based on the principals already stated, production of internal e-mails must contain sufficient detail for the claimed solicitor client privilege to be asserted.

[ 23 ] If a redaction is about obtaining legal advice it is benign and does not support redaction. If it is a statement of the legal advice it may be redacted.

[ 24 ] There is no privilege allowing redaction of the name of another non- GM dealer.

Summary

[ 25 ] The reasons disclose mixed success on the motion and cross-motion. If the parties wish to address costs they shall exchange written costs submissions of no more than 2 pages, together with bills of costs, by March 15 2012 and deliver them with any reply, of no more than 1 page, to the judicial secretary in Barrie by March 22, 2012.

EBERHARD J.

Date: March 1, 2012