ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C-387-09
DATE: 2014-03-07
BETWEEN:
Todd Payzant
Plaintiff
– and –
Bank of Nova Scotia
Defendant
Patrick J. Poupore, for the Plaintiff
William M. LeMay and Carolyn L. McKenna, for the Defendant
HEARD: February 21, 2014
RULING ON MOTION
Gauthier J.:
OVERVIEW
[1] The Plaintiff was employed by the Defendant on the basis of a contract of indefinite duration for fourteen years until he was terminated on May 19, 2009, ostensibly for cause. He was employed as a Mortgage Development Manager.
[2] The Plaintiff’s termination resulted from a complaint made to the Office of the President of the bank on a mortgage file for the customers Nickolas J. Crepeau and Sarah Crepeau.
[3] A Statement of Claim was issued on November 30, 2009. A Statement of Defence was delivered on June 1, 2010.
[4] Examination of Tracey Greenspoon, the Defendant’s representative and former supervisor of the Plaintiff, was conducted on June 28, 2011 and on May 10, 2012.
[5] The Defendant terminated Tracey Greenspoon’s employment on May 31, 2012.
[6] The Plaintiff requested the details of the termination. The request was denied.
[7] On May 27, 2011, I signed a Consent Order that the contents of the mortgage file for Nickolas J. Crepeau and Sarah Crepeau, Mortgage # 1828652, be produced to the Plaintiff.
[8] The Defendant provided the Plaintiff with an unredacted copy of the Crepeau mortgage file in accordance with the Order of May 27, 2011. In addition, the Defendant provided the Plaintiff with a separate file prepared by the Office of the President, which contained redacted passages. In the covering letter accompanying the file, the Defendant indicated that the redacted passages related to “ongoing legal advice relating to issues with respect to that file…”.
[9] At Examination for Discovery, the Defendant suggested that it might be relying on the mortgage files of bank customers Fellsman and Filiatraut in relation to its position that the Plaintiff was terminated for cause. The Plaintiff requested production of those files. That request was denied.
THE MOTION
[10] The Plaintiff’s motion is for the following relief:
(1) An Order for a further and better Affidavit of Documents that is to include any and all documents relating to the termination of the Defendant’s representative, Tracey Greenspoon;
(2) An Order that the Defendant produce an unredacted copy of the file from the Office of the President; and
(3) An Order that the Defendant produce the complete files in respect of both Fellsman and Filiatraut.
THE PLAINTIFF’S POSITION
1. Greenspoon’s Termination:
[11] A significant part of the Plaintiff’s claim has been and continues to be that Tracey Greenspoon, the Plaintiff’s supervisor, knew of and condoned all the behaviour that the Defendant relies upon as cause for the Plaintiff’s termination.
[12] At the Examination for Discovery of Tracey Greenspoon, it became clear, according to the Plaintiff, that Greenspoon had to have known and condoned the behaviour for which the Defendant is relying on for cause.
[13] Tracey Greenspoon was terminated from the Defendant’s employment three weeks after the Examination for Discovery.
[14] If Tracey Greenspoon was terminated for having condoned the behaviour for which the Plaintiff was terminated, that fact increases the probability that she did condone the Plaintiff’s conduct.
[15] Documentation related to the Greenspoon termination is relevant to the action, and should be produced.
2. Office of the President File:
[16] The solicitor-client privilege claimed by the Defendant is not properly claimed.
[17] The document was never listed in any schedule to the Defendant’s Affidavit of Documents, nor was it produced prior to Discovery. The Plaintiff did not have the opportunity to explore the claim of privilege.
[18] The document was not intended to be confidential, nor does it appear that parts of it relate to requesting or seeking legal advice.
[19] The Plaintiff suspects that “advice” is not contained in the file and that the content of the file does not form part of what is covered by solicitor-client privilege.
3. The Fellsman and Filiatraut Files:
[20] As it is possible that the Defendant will rely on the contents of those files in support of its defence, the files are relevant and producible.
THE DEFENDANT’S POSITION
1. Greenspoon’s Termination:
[21] Tracey Greenspoon’s employment ceased approximately three years after the Plaintiff’s employment was terminated, and is not relevant to the case.
2. Office of the President’s File:
[22] The file does not relate to the finances of Nickolas Crepeau or Sarah Crepeau, but rather, involves a complaint made by Kathleen Crepeau, the mother of Nickolas Crepeau. The passages redacted were redacted on the basis of solicitor-client privilege.
3. The Fellsman and Filiatraut Files:
[23] These mortgage files contain private and confidential information regarding other clients of the bank.
APPLICABLE RULES
[24] Rule 30.01(1)
Every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10 whether or not privilege is claimed in respect of the document.
Rule 30.02(2)
Every document relevant to any matter in issue in an action that is in the possession, control or power of a party to the action shall be produced for inspection if requested, as provided in rules 30.03 to 30.10.
Rule 29.2.03
In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,
(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;
(b) the expense associated with answering the question or producing the document would be unjustified;
(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;
(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and
(e) the information or the document is readily available to the party requesting it from another source. O. Reg. 438/08, s. 25
Rule 30.1.01(3)
All parties and their lawyers are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was obtained.
Rule 30.04(5)
The court may at any time order production for inspection of documents that are not privileged and that are in the possession, control or power of a party.
Rule 30.04(6)
Where privilege is claimed for a document, the court may inspect the document to determine the validity of the claim.
ANALYSIS
1. The Greenspoon Termination:
[25] I conclude that the documents relating to the termination of Tracey Greenspoon by the Defendant within three weeks of the Examination for Discovery are relevant and fall squarely within the provisions of Rule 30.02(2).
[26] The Plaintiff has always maintained that his supervisor was aware of and condoned the conduct for which he was terminated by the Defendant.
[27] The fact that Tracey Greenspoon was aware of and condoned the conduct would have become clear to the Defendant at the Examination for Discovery.
[28] The Greenspoon termination, so close in time to the Examination for Discovery, suggests a possibility, if not a likelihood, that the termination was related in some manner to the Plaintiff’s claim that his behaviour was condoned by his supervisor.
[29] If that is the case, then the reason for the termination would be relevant.
[30] There appears to be a nexus or connection between the Plaintiff’s claim, the Examination for Discovery, and the Defendant’s termination of Greenspoon. As such, the facts surrounding the termination and the reason for it are relevant.
[31] I have considered the provisions of Rule 29.2.03 in determining that the documents relating to the Greenspoon termination are relevant and therefore to be produced.
2. Office of the President’s File:
[32] I was invited by counsel to review the unredacted file, pursuant to Rule 30.04(6), to determine the validity of the claim that the redacted portions of the file are subject to solicitor-client privilege.
[33] The file in question was created as a result of a complaint by Kathleen Crepeau, the mother of Nickolas Crepeau, to the President’s Office. Kathleen Crepeau complained that the Plaintiff had encouraged her son to obtain a “gift letter” from her, despite that Kathleen Crepeau was providing the money as a loan and not as a gift.
[34] This complaint caused the investigation leading to the Plaintiff’s termination. There was, as well, a threat of a lawsuit against the Defendant by Kathleen Crepeau’s spouse.
[35] I have reviewed, pursuant to Rule 30.04(6), the two documents that constitute the Office of the President’s File, in order to determine whether the redacted portions are protected by privilege. The Defendant claims that the redacted portions relate to “ongoing legal advice relating to issues with respect to that file,” and are therefore privileged under the doctrine of solicitor-client privilege.
[36] To be privileged, a communication must be made in the course of seeking legal advice and with the intention that the communication be confidential: Descôteaux v. Mierzwinski, 1982 22 (SCC), [1982] 1 S.C.R. 860.
[37] In R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, the Supreme Court of Canada noted that “solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance” (para. 35). The court established that communications made in confidence between a lawyer and a client will be privileged under the doctrine of solicitor-client privilege if those communications were for the purpose of seeking lawful legal advice (para. 36).
[38] I conclude that the redacted portions of the document in the Office of the President’s File are privileged since they are confidential communications between employees of the Defendant and In-House Counsel, where the former was seeking legal advice with respect to on-going and contemplated litigation.
[39] Accordingly, the Plaintiff’s request that the Defendant produce an unredacted copy of the file from the Office of the President is denied.
3. The Fellsman and Filiatraut Files:
[40] As early as September, 2012, the Defendant indicated that it was prepared to produce these files to the Plaintiff, but only pursuant to a court order.
[41] It is clear from the material that it is possible that the Defendant will rely on the Filiatraut file, and it is likely that the Defendant will rely on the Fellsman file. That being the case, these files are producible and were producible without the necessity of a court order.
[42] Once again, these files fall squarely within the purview of Rule 30.02(1).
[43] Any concerns that the Defendant has with regard to privacy are addressed under the deemed undertaking rule.
[44] As well, Section 7(3)(c) of the Personal Information Protection and Electronic Documents Act provides that a party can disclose personal information without the knowledge or consent of an individual if the disclosure is required to comply with an order or to comply with rules of the court relating to production.
[45] The Plaintiff is entitled to the documents relating to Greenspoon’s termination and to the Fellsman and Filiatraut files.
[46] It is ordered that:
The Defendant produce any and all documents relating to the termination of Tracey Greenspoon, within 15 days of this Order.
The Defendant shall produce to the Plaintiff the complete files in respect of the clients Filiatraut and Fellsman, within 15 days of this Order.
The request that the Defendant produce an unredacted copy of the file from the Office of the President is denied.
[47] If counsel are unable to agree on costs, they are to communicate with the Trial Coordinator within 20 days of the date of this Order, in order to secure a date and time to argue costs by way of teleconference call. I already have both counsel’s Costs Outline.
[48] Failing communication with the Trial Coordinator as set out above, there shall be no Order as to costs.
The Honourable Madam Justice Louise L. Gauthier
Released: March 7, 2014
COURT FILE NO.: C-387-09
DATE: 2014-03-07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Todd Payzant
Plaintiff
– and –
Bank of Nova Scotia
Defendant
RULING ON MOTION
Gauthier J.
Released: March 7, 2014