SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 07-CV-40184
DATE: 2012/05/31

RE: Steve G. Hart & Attorney General of Canada et al

BEFORE: Master Calum MacLeod

COUNSEL:
Craig Stehr, for the Plaintiff, moving party

Anne M. Turley, for the Defendant, responding party

REASONS FOR DECISION

[ 1 ] This was a motion brought by the plaintiff for production of a document in the possession of the defendant. The circumstances are unusual. The document in question consists of notes taken by counsel for the defendant during an interview with the plaintiff at a time before this litigation was commenced. The plaintiff was interviewed approximately six years ago as a potential witness in a different law suit (“the Ault litigation”) but the central events in the Ault litigation are the same events giving rise to the plaintiff’s claim.

[ 2 ] These reasons consider how litigation privilege may protect notes taken by counsel under these circumstances, whether the litigation privilege survives the conclusion of the Ault litigation and limits on asserting litigation privilege over an interview as against the opposing party who was interviewed. In the final analysis I have concluded it is possible to distinguish between the record of the interview and notes about the interview. The former must be produced and the latter need not be.

BACKGROUND FACTS

[ 3 ] In mid 2000 a number of federal government employees left the Public Service to join a consulting firm called Loba Limited. At that time there was a Reciprocal Transfer Agreement (“RTA”) whereby it was supposed to be possible to transfer pension credits from the Public Service Superannuation Plan to the Loba pension plan. Subsequently it was discovered there were problems with the Loba pension plan and RTA so that the pension credits could not be transferred. Several of the former government employees felt aggrieved. They had surrendered their positions with the federal government on the basis of misleading information. It was apparent that one arm of the government knew about difficulties with the Loba plan at the same time that their employer had been advising them that the Loba plan qualified for a transfer. Consequently Mr. Ault and nine other plaintiffs commenced litigation claiming compensation for their loss of salary and pension. The Ault litigation was commenced in 2004. Several other actions were commenced over the ensuing three years.

[ 4 ] Ultimately Ault and eight related actions went to trial together in October of 2007. The trial concluded in January of 2008 with a finding that the federal government had erroneously held out the Loba RTA as a legitimate opportunity for departing public servants. Judgment was given in favour of seven of the eight plaintiffs. [1] That judgment was appealed to the Court of Appeal and upheld with a slight variation. [2] Leave to appeal to the Supreme Court of Canada was refused on October 20 th , 2011. [3] The Ault litigation is therefore concluded.

[ 5 ] The plaintiff was one of those former employees but he did not commence his own action until 2007 just prior to the expiry of the limitation period. Consequently this action was not ordered to trial with Ault but it is part of another group of seven actions which raise the same legal issues as the Ault actions and are based on the same background facts.

[ 6 ] In November of 2005 two years before he became a plaintiff in his own action, Mr. Hart had been contacted by counsel for the defendant who advised him that she wished to interview him to see what evidence he might have concerning the representations made to employees in connection with the Ault litigation. Mr. Hart was advised that if he declined to be interviewed voluntarily, the Crown might seek an order to discover him under Rule 31.10 of the Rules of civil procedure. Accordingly he agreed to be interviewed and the interview took place in early 2006. He was accompanied by a friend but was not represented by his own lawyer. There was no reporter present and the interview was neither audiotaped nor videotaped. The only record of the interview would be the notes taken by counsel for the defendant although it does not appear there would have been anything preventing the plaintiff or his friend from making notes had they wished to do so.

[ 7 ] To be clear, there was no transcript of the interview and the plaintiff did not sign a statement. He was asked to review documents in advance of the interviews. Then at the interview he was asked questions and counsel for the Attorney General made notes.

[ 8 ] Now that he is a plaintiff in his own litigation, Mr. Hart seeks disclosure of the notes taken by counsel. That interview took place over six years ago and much closer in time to the events which are central to the litigation. At the time there was no litigation between these parties though it should have been apparent that Mr. Hart in common with Mr. Ault had a potential claim. As noted earlier, the plaintiff started his own action at the end of 2007 just as the Ault actions were going to trial.

Analysis

[ 9 ] Litigation privilege is a feature of the adversarial system of litigation. It exists to afford counsel a zone of privacy in preparing for litigation and will protect documents prepared for the dominant purpose of litigation. [4] In particular documents prepared, gathered or annotated by counsel and which might reveal impressions, strategies, legal theories or draft questions are protected. Documents, records, witness statements and expert reports or other documents prepared for the purpose of litigation would also ordinarily be covered by the privilege. [5] This is of course subject to specific disclosure requirements set out in the Rules of Civil Procedure.

[ 10 ] In Ontario Rule 30 requires privileged documents to be listed in Schedule B to the affidavit of documents. Rule 31.06 (2) requires disclosure of the identity of all potential witnesses and, according to the caselaw a summary of their evidence. Rule 31.06 (3) requires disclosure of expert opinions in most circumstances. Our rules require parties to disclose information which may occasionally originate in privileged sources but that does not always constitute waiver of the privilege or require production of the source document subject to that privilege. The law in that regard is concisely summarized by Master Dash at paragraph 20 of Reis v. CIBC Mortgages Inc. [6] It is therefore clear that under the Ontario Rules of Civil Procedure even if Mr. Hart was not a party, the information obtained from the interview in question would have to be disclosed on discovery but in the case of a non party witness the document created by or for counsel which contained the information would remain privileged.

[ 11 ] In The Law of Privilege in Canada [7] the authors set out the elements required to claim litigation privilege over documents or communications as follows:

• the documents of communications must be prepared, gathered or annotated by counsel or persons under counsel’s direction;

• the preparation, gathering or annotating must be done in anticipation of litigation;

• the documents or communications must meet the dominant purpose test;

• the document, or the facts contained in the documents, need not be disclosed under the legal rules governing the proceedings; and,

• the documents or facts have not been disclosed to the opposing party or to the court.

[ 12 ] There is of course no difficulty in meeting the first three of these elements. I accept the argument of counsel for the defendant that litigation privilege may survive the specific litigation and apply to related litigation. See Blank v. Canada 2006 SCC 39, [2006] 2 S.C.R. 319 (SCC) at para. 38. There can be no doubt that the Hart litigation is based on the same factual nexus as the Ault litigation and raises the same legal questions. In my view material collected for the Ault litigation that might also be useful in the Hart litigation would continue to be privileged.

[ 13 ] Here however we are dealing with information obtained from the opposing party. Though interviewed before this action was commenced, Mr. Hart is now a plaintiff. The information fails to meet the last two tests for two reasons. As observed above, Rule 31.06 (2) requires disclosure of the identity of witnesses known to the adverse party and the substance of their evidence in any event. More importantly, evidence obtained from the plaintiff cannot be confidential from the plaintiff. The questions asked of the plaintiff and the answers given by the plaintiff were obviously apparent to him at the time so there can be no privilege in relation to what questions counsel chose to ask. The courts of British Columbia have dealt with this issue and have consistently held that information taken from the opposing party cannot be privileged. An example is the decision in Flock v. Pacific Press Ltd. [8] referred to in the factum. Thus a statement taken from a party and recorded in a document, unlike a statement from a non party witness, will not be privileged as against that party.

[ 14 ] I should note that counsel for the Attorney General also attempts to assert solicitor client privilege. No doubt one purpose of the interview besides developing litigation strategy was to provide the client with legal advice in connection with the litigation but there is no suggestion that the document itself contains legal advice or communication with the client. In any event the claim of privilege over the statement taken from the plaintiff founders on the same issue of confidentiality. It cannot be reasonably argued that an interview with Mr. Hart is confidential with respect to him. He was a participant in the interview and he was permitted to have an observer present. So the interview and the information provided by Mr. Hart is not privileged and if the B.C. authorities are accepted a record of the interview would not be privileged against him once he became a plaintiff.

[ 15 ] The distinction between information, facts and documents is important of course. I was referred to the recent decision of Marocco J. in R. v. Dunn [9]. This is a high profile ruling in relation to the trial of several former executives of the ill fated Nortel. In Dunn several lawyers had been ordered to testify concerning their recollection of an interview of Mr. Dunn and other defendants. Notes had been taken by those counsel during the interview. The question arose whether the notes taken by counsel were privileged and whether they could be used by the barrister witnesses to refresh their memories without waiving that privilege. In the specific context of the Dunn criminal prosecution, the court answered both of these questions in the affirmative. Indeed the barrister witnesses were ordered to review the notes. The important point however is the observation in paragraph 76 of the judgment. Though the court held that the notes “with which these reasons were concerned are privileged, the interview which they purport, however imperfectly, to record is not”. So Dunn is clear authority that the interview and the factual information obtained during the interview are not privileged. It is the document created by counsel which is.

[ 16 ] Dunn does not answer the question posed by the case before me however. Firstly, as noted in paragraph 44 Dunn is a criminal proceeding in which there are assymetrical disclosure obligations whereas by contrast in civil proceedings there is a “legislated disclosure regime”. Secondly the order that the lawyers testify is itself extraordinary and is based on the specific facts of Dunn. Most importantly however, the notes in question were not notes taken by counsel for the Crown. They were notes taken by counsel representing Mr. Dunn. To be analogous with the case at bar it would have to be the Crown seeking notes taken by counsel for Mr. Hart had Mr. Hart been accompanied by counsel. In the case at bar, the notes were taken by counsel for the opposing party. But the distinction between privileged notes and the information obtained during the interview is still important. Counsel may have written various things in those notes other than simply recording the questions and answers. The statement taken from Mr. Hart is not privileged but observations about his answers or the importance of that evidence or how to respond to it, for example, would be as that is the work product of counsel.

[ 17 ] The facts in this case are almost identical to the facts in Mancoro v. Casino [10]. This was a 1977 decision in which Steele J. ordered production of similar notes with redactions if appropriate. In Mancoro the plaintiff’s solicitor had interviewed the defendant prior to commencing the action and the defendant’s solicitor sought production of the notes of the interview. Master Davidson had ruled that a signed witness statement would have been subject to production but not the solicitor’s notes. Steele J. overruled the master and directed that the notes be produced. He allowed however that if the notes contained observations such as comments on credibility those should not be disclosed. He therefore directed that the notes could be redacted and only “whatever was recorded of the statement itself” need be produced.

[ 18 ] This appears to be the appropriate way to deal with the motion before me. Ordinarily I would simply give a direction that counsel review the notes and produce the record of the statement taken from the plaintiff redacting other privileged information. In this case however I have the actual document.

[ 19 ] Counsel for the Attorney General produced the document for inspection by the court in a sealed envelope. I have now reviewed the document. It appears to consist primarily of the evidence of the plaintiff though it is impossible to determine if it is verbatim, summarized or paraphrased. There are no self evident annotations, editorial comments or other remarks by counsel. There is also a memorandum to file which appears to be a typed verbatim copy of the handwritten notes. The latter is in my view a privileged document which need not be produced. The handwriting is perfectly legible and the memo to file is not necessary to decipher it.

[ 20 ] It is possible that upon review of the handwritten document, counsel for the Attorney General might believe that there are markings on the document such as underlining or highlighting or that some portion of the document is a comment by counsel as opposed to a record of the plaintiff’s evidence. Nothing of the sort was apparent to me from my inspection except for one note at the top of the first page which appears to be an innocuous reminder to send something to Mr. Hart. I will however entertain any reasonable proposal for redaction if counsel can demonstrate that the document contains privileged information other than a record of the evidence.

[ 21 ] In summary, unless a proposal for redaction is approved by the court prior to June 30 th , 2012, the Attorney General is directed to produce the handwritten notes recording the interview with the plaintiff dated February 21 st , 2006 as contained in the sealed envelope filed on the motion. Production is to be provided by July 15 th , 2012.

[ 22 ] I invite the parties to reach agreement on the disposition of costs. If that is not possible, the plaintiff may make written submissions of no more than two pages and the defendant may respond with similar brevity. The submissions of the plaintiff are to be sent by July 15 th , 2012 and the submissions of the defendant by July 30 th , 2012.

[ 23 ] Those submissions are to be sent electronically to mastersofficeottawa@ontario.ca. The reference line in the e-mail should show the court file number and the document shall be named “plaintiffcosts” and “defendantcosts” as the case may be.

Master Calum MacLeod

DATE: June 15 th , 2012

[1] [2008] O.J. No. 5863 ; 2008 CarswellOnt 9415 (S.C.J.)

[2] 2011 ONCA 147 (C.A.)

[3] [2011] S.C.C.A. No. 206 (S.C.C.)

[4] General Accident Assurance Co. v. Chrusz (1999) , 45 O.R. (3d) 321 (C.A.)

[5] See Hubbard, Magotiaux, Duncan, The Law of Privilege in Canada, Canada Law Book, @ p. 12-3

[6] 2011 ONSC 2309 ; [2011] O.J. No. 1778 (S.C.J. Master)

[7] Supra @ note 4

[8] (1970) , 14 D.L.R. (3d) 334 (B.C.C.A.)

[9] 2012 ONSC 2748 ; [2012] O.J. No. 1988 (S.C.J.)

[10] (1977) , 17 O.R. (2d) 458 (H.C.J.)