ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-5283
DATE: 20140526

B E T W E E N:

CARRIE WHITE

Patrick J. Poupore, Counsel for the Plaintiff

Plaintiff

• and -

123627 CANADA INC., carrying on business as ALGONQUIN PETRO CANADA, BREAULT INC., and PINE CREEK ENTERPRISES INC.

Avi Cole, Counsel for the Defendants 123627 Canada Inc., carrying on business as Algonquin Petro Canada, and Breault Inc.

Defendants

HEARD: April 24, 2014

Ellies J.

REASONS FOR DECISION

INTRODUCTION

[1] The inadvertent disclosure of a privileged document by one side of a legal dispute to another is not unlike the transmission of an infection: the more quickly it is contained, the easier it may be to eradicate its harmful effect.

[2] Where nothing is done to deal with the problem, however, the prejudicial effect of the inadvertent disclosure of a privileged document on the adjudication of the dispute between the parties, in particular, and the integrity of the legal system, in general, can spread to the point where there is no alternative but to isolate the affected party, as I have reluctantly concluded I must do in this case.

FACTS

[3] The plaintiff commenced an action in 2011 for damages she allegedly suffered in a fall which occurred in November 2010 at a service station in North Bay. During the documentary discovery process, counsel for 123627 Canada Inc. and Breault Inc. (collectively, “Algonquin”) inadvertently sent plaintiff’s counsel a copy of a transcribed interview (which the parties refer to as a “statement”) between Tony Breault, the principal of Breault Inc., and an adjuster acting on behalf of his insurer, over which Algonquin claimed litigation privilege and which had been listed in Schedule B of Algonquin’s affidavit of documents.

[4] Algonquin’s counsel did not become aware of the inadvertent disclosure until the examination for discovery of Breault in October of 2012, when plaintiff’s counsel (not counsel appearing on this motion) confronted the witness with what he alleged was an inconsistency between the witness’s discovery evidence and the statement. When Algonquin’s counsel became aware of the error, she immediately requested that the document be returned and refused to allow the witness to answer any questions related to it. Plaintiff’s counsel refused to return the document at the time and continued to refuse repeated requests to do so until January of this year.

[5] In this motion, Algonquin asks for a number of orders relating to the inadvertent disclosure of the statement and the refusal of plaintiff’s counsel to return it in a timely way, including the removal of Wallbridge, Wallbridge (“Wallbridge”) as counsel for the plaintiff. The plaintiff opposes the request that Wallbridge be removed. On her behalf, counsel argues that Algonquin could suffer no prejudice as a result of the inadvertent disclosure of the document and the use to which plaintiff’s counsel put it because the contents of the statement are discoverable. Therefore, she brings her own motion requesting a summary of the statement and of any other witness statements in Breault Inc.’s possession. In addition to disputing the validity of the plaintiff’s argument, Algonquin objects to the motion being brought on the basis that the plaintiff set the action down for trial.

ISSUES

[6] There is no issue between the parties that the statement is subject to litigation privilege, that disclosure of the statement was inadvertent, and that there was no waiver of the privilege by virtue of the inadvertent disclosure. Further, no objection is taken by the plaintiff to the orders being requested which are directed to preserving the privileged nature of the statement and to preventing further use of it.

[7] Therefore, the issues are:

(1) Should the plaintiff be granted leave to bring her motion and, if so, should production of summaries of the evidence of the witnesses, including a summary of the statement at issue, be ordered?

(2) Should Wallbridge be removed as counsel?

Should The Plaintiff be Granted Leave?

[8] Rule 48.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, precludes a party who has set an action down for trial and any party who has consented to the action being placed on a trial list from initiating or continuing any motion or form of discovery without leave of the court. This action was set down for trial by the plaintiff. Therefore, she requires leave to bring her motion for production of the witness’s statements.

[9] In order to obtain leave, the plaintiff must demonstrate that there has been a significant or unexpected change in circumstances such that a refusal to allow the motion under Rule 48.04 would be manifestly unjust: Hill v. Ortho Pharmaceutical (Can.) Ltd. (1992), 11 C.P.C. (3d) 236 (Ont. Ct. (Gen. Div.)), at para. 10. It was not seriously urged upon me by counsel for the plaintiff in the motion that either of these things has occurred. Indeed, the only evidence of any change since the action was set down for trial is the bringing of Algonquin’s motion, to which the plaintiff’s motion appears to be a tactical response. This is not the type of change contemplated in Hill. Leave, therefore, is denied.

Should Wallbridge be Removed as Counsel?

[10] Our law has long protected documents created for the purpose of litigation from disclosure to opposing parties during the course of that litigation. Litigation privilege is based upon the need for a “protected area” within which to facilitate investigation in the preparation of a case for trial by the advocate, free from adversarial interference and without fear of premature disclosure: Blank v. Canada (Department of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, at paras. 27-28, adopting the academic writings of Sharpe J.A. in “Claiming Privilege in the Discovery Process,” Special Lectures of the Law Society of Upper Canada (1984), 163, at pp. 164-65.

[11] Allowing a litigant to fully investigate the facts surrounding a matter free from fear that the results will be disclosed unnecessarily benefits our adversarial system of justice in a number of ways. Among them is the early resolution of claims which, once fully investigated, may not warrant a trial. Where matters are not resolved, the truth-finding function of the trial is facilitated by the degree to which the parties have been free to prepare within the protected area of litigation privilege.

[12] Where a privileged document finds its way to an opposing party, unfairness is often the result. The shield behind which the information contained in the document came into being may be turned into a sword in the hands of an opponent. The more often that is allowed to occur without court intervention, the more often the incentive will arise not to properly investigate a matter, or to improperly hide the results of it. For that reason, courts should not easily sweep away the protection afforded by litigation privilege and should, where necessary, take steps to enforce it, including removing opposing counsel who have inadvertently been granted access to privileged documents.

[13] Where inadvertent disclosure has occurred, as it has in this case, there arises a tension between the need to fortify the protection granted to documents prepared for the purpose of litigation and the right of the “innocent” party to counsel of choice. In Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, [2006] 2 S.C.R. 189, a case in which solicitor-client privileged documents fell into the wrong hands, Binnie J. highlighted (at para. 56) the right of a plaintiff to continue to be represented by counsel of choice as an important element of our adversarial system of litigation, holding “that if a remedy short of removing the … solicitors will cure the problem, it should be considered.” Binnie J. set out a number of factors to be considered in determining whether counsel should be removed as a result of a breach of solicitor-client privilege (para. 59). These factors include:

(1) the manner in which the documents came into possession of the party or its counsel;

(2) what the party and his counsel did upon recognition that the documents were potentially privileged;

(3) the extent of any review made of the privileged material;

(4) the contents of the privileged documents and the degree to which they are prejudicial;

(5) the stage to which the litigation has progressed; and

(6) the potential effectiveness of precautionary steps taken to avoid the effect of the breach of the privilege.

[14] I believe that these factors are just as applicable in a case where litigation privilege is breached as they are in a case where the breach relates to solicitor-client privilege. Although the basis for the two classes of privilege differs, where the privileged document relates to ongoing litigation, the potential harm is usually the same. For this reason, I propose to analyze these factors as they relate to the facts of this case.

(1) How the Documents Came into the Possession of Plaintiff’s Counsel

[15] Wallbridge played no part in the disclosure of the document. However, the conduct of plaintiff’s counsel after that disclosure falls significantly short of what was expected.

(2) The Conduct of Counsel after Recognizing the Privileged Nature of the Statement

[16] The duty of counsel upon discovering that documents inadvertently provided to him are the subject of a claim of privilege by an opposing party is clear. He is obliged to advise opposing counsel of the mistake, return the documents without keeping any copies of them or, if he reasonably believes that there is an issue as to the propriety of the claim of privilege, the document should be sealed and a court ruling on the issue obtained immediately: Aviaco International Leasing Inc. v. Boeing Canada Inc., 2000 22777 (ON SC), [2000] O.J. No. 2420, 48 C.P.C. (4th) 44 (Ont. S.C.), at para. 11; Chan v. Dynasty Executive Suite Ltd., [2006] O.J. No. 2877, 30 C.P.C. (6th) 270 (Ont. S.C.), at para 74; 2054476 Ontario Inc. v. 514052 Ontario Ltd., [2006] O.J. No. 4383, 152 A.C.W.S. (3d) 781 (Ont. S.C.), at para. 39; Heasley v. Labelle, 2013 ONSC 7606, at para. 8.

[17] In this case, plaintiff’s counsel testified during cross-examination on his affidavit that, although he was aware that the statement had been listed in Schedule B of the defendant’s affidavit of documents, he believed that it had been intentionally produced. Schedule B begins with the words, “Documents … that I object to producing on the grounds of privilege.” Plaintiff’s counsel did nothing to investigate the obvious discrepancy between the claim of privilege and the production of the document. Instead, he attempted to use the privileged document for the purpose of cross-examining the witness during his examination for discovery. Not only did he fail to immediately return the document without copying or using it, he refused repeated requests to do so.

[18] Counsel should be presumed to know the proper course to follow when provided with a document over which privilege has been claimed and concerning which no express waiver has been given. While an order removing counsel is not to be issued as an instrument by which to penalize counsel for failing to follow the proper course (Celanese, at para. 54), where counsel proceeds otherwise, he assumes the risk that such an order will be made (Heasley, at para. 8).

(3) The Extent of the Review of the Privileged Document

[19] The statement at issue here was extensively reviewed. It was used for the purposes of cross-examining the witness at his examination for discovery. It was also referred to in the textual portion of the plaintiff’s pre-trial conference memorandum and a copy of the statement was appended to it. Clearly, it became part of the plaintiff’s litigation strategy.

(4) Contents of the Statement and Prejudice

[20] The prejudice which arises from a breach of solicitor-client privilege is presumed: Celanese, at para. 42; 2054476 Ontario Inc. v. 514052 Ontario Ltd., [2006] O.J. No. 4383, 152 A.C.W.S. (3d) 781 (Ont. S.C.), at paras. 47-48. In my view, it makes good sense to adopt a similar rule with respect to a breach of litigation privilege. Through reliance on the existence of the privilege and the expectation that it will be respected, litigants are encouraged to fully explore the facts of a case, even though they may find facts favouring an opposing party in the course of doing so. Thus, unlike solicitor-client communications, which need not be relevant to the litigation to enjoy the robust protection from disclosure afforded to them in law (Blank, at para. 24), documents created for the dominant purpose of litigation will usually be relevant to the dispute and contain information that is of use to an opposing party, one way or another. Requiring the party claiming privilege to prove prejudice will frequently only compound the harmful effects of disclosure of such a document. For this reason, although the presumption of prejudice may be rebutted, only clear and convincing evidence will serve to do so: Celanese, at para. 42.

[21] The plaintiff argues that no prejudice can arise because the contents of the statement are discoverable. I am unable to accept that assertion as a general proposition when it comes to privileged statements obtained from a party to the litigation. In my view, this submission confuses the distinction between the contents of the statement and the subject matter. The latter is discoverable, the former are not. It also confuses the law regarding the discoverability of the contents of statements obtained from parties to the litigation with that governing the discoverability of the contents of statements obtained from non-parties.

(a) Statements from Parties

[22] The discoverability of the contents of a statement obtained from a party to the litigation was dealt with by Ducharme J. in Kennedy v. McKenzie, 17 C.P.C. (6th) 229, 139 A.C.W.S. (3d) 843 (Ont. S.C.). In Kennedy, it was plaintiff’s counsel who had inadvertently disclosed a statement given to his insurer in a case in which the plaintiff also faced liability as a defendant. Unlike this case, however, opposing counsel, although disputing the claim of litigation privilege, did not review the document, did not make any copies of it, sealed the document, and did not discuss the contents or provide any information about it to anyone after learning of the claim.

[23] The plaintiff in Kennedy appealed the decision of a Master who had rejected the claim of litigation privilege. The Master had ordered the statement to be produced on the basis that it was not protected by litigation privilege and on the alternative basis that the statement appeared to be the “only record of the plaintiff’s recollection reasonably contemporaneous with the events” (para. 13). Ducharme J. allowed the appeal. He reviewed the jurisprudence in which courts have sought to strike a balance between the need to prepare for litigation without fear of disclosure, on one hand, and the need for full discoverability in the truth-finding process of a trial, on the other. He held that the statement in question was protected by litigation privilege and that the contents of the statement were not discoverable. In the course of doing so, he recognized (at para. 47) that “the fact that the statement itself is protected by litigation privilege only precludes questions about the contents of the statement, it does not preclude questions about the factual circumstances discussed in the statement.” There is, therefore, a distinction to be drawn between the facts and events forming the subject matter of a statement obtained from a party, which are discoverable, and the contents of the statement, which are not.

[24] To overcome a claim of litigation privilege over a statement given by a party to the litigation, Ducharme J. held (at para. 47) that:

…the party challenging the litigation privilege must demonstrate that the materials being sought are relevant to the proof of an issue important to the outcome of the case and that there is no reasonable alternative form of evidence that can serve the same purpose.

[25] Because a party to the litigation may be examined for discovery under the Rules of Civil Procedure, it will usually be difficult for the party challenging the privilege to demonstrate that there is no other reasonable way to obtain the evidence than to get at the contents of a statement protected by litigation privilege.

[26] This reasoning was followed in Sangaralingam v. Sinnathurai, 2011 ONSC 1618, 105 O.R. (3d) 714 (Div. Ct.), in which the court restored a Master’s decision to deny production of a statement, and the information therein, given by a witness to his insurer. Pointing out that the moving party had availed itself of the opportunity to examine the witness for discovery, Herman J. noted on behalf of the court that there was no suggestion that the witness had difficulty remembering what had occurred. As to the suggestion that the contents of the statement were discoverable, he wrote (at para. 25):

The motion judge distinguished Kennedy on the basis that in Kennedy, the judge was dealing with challenges to privilege while in the case before her, the respondent did not dispute that the statement itself was protected by privilege. I am unable to see a distinction between providing the contents of the statement and providing the statement itself. In both cases, the opposing party wanted to find out what the witness told the insurer. In both cases, there was an opportunity for the opposing party to question the witness about the matters in issue.

[27] The plaintiff in this case seeks to distinguish Sangaralingam on the basis that Mr. Breault did suffer from a “poor memory” during his examination for discovery. However, this is not borne out by the transcript. Mr. Breault admitted that the statement was “possibly” more accurate than his memory at the time of the discovery, but I have not been taken to any portions of the transcript in which he demonstrated difficulty remembering the events.

[28] The plaintiff also relies upon the decision in Tiller (Litigation Guardian of) v. St. Andrews’ College, 2009 32274 (ON SC), [2009] O.J. No. 2634, 178 A.C.W.S. (3d) 330 (Ont. S.C.), in which production of a summary of a privileged statement was ordered even though the maker of the statement had been examined for discovery and where there was no suggestion that the witness had memory difficulties. In my view, Tiller is distinguishable because the motion judge in that case found that the summary of the statement was not sought solely for the purpose of impugning the witness’ credibility (para. 12). In the present case, the plaintiff has already discovered Breault with respect to the facts and events forming the subject matter of the statement. What the plaintiff now wants to know is not Breault’s evidence with respect to the facts and events that are the subject of the statement, but what Breault told his insurance adjuster about those facts and events. That is not permitted under the rules relating to discovery: Rule 31.06(1)(b); Greco v. Thornhill (1993), 40 A.C.W.S. (3d) 1092, 65 O.A.C. 71 (Div. Ct.), at para. 3.

[29] To the extent that Tiller stands for the proposition that the contents of a statement protected by litigation privilege are discoverable simply because the statement was taken more closely in time to the events in issue, I respectfully decline to follow it. A fading memory is not sufficient to overcome litigation privilege unless, for example, a witness’s recollection is so poor that the privileged statement becomes the witness’s past recollection recorded. In such a case, it would not be possible to obtain the witness’ evidence in any other way. That is not the situation here. The contents of the statement are not discoverable in this case.

[30] Despite the fact that the contents of the statement are not discoverable, counsel for Algonquin undertook during Breault’s discovery to review the statement and to advise whether there were any differences between what Breault told the adjuster and the evidence he had given during the examination. This undertaking was given prior to counsel for Algonquin learning about the inadvertent disclosure and it could not be said, therefore, that it was given as a result of that disclosure. In effect, this was an undertaking to disclose the contents of the statement. The undertaking need not have been given, in my view. The fact that it was given may illustrate the difficulty in distinguishing between the discoverability of the contents of a statement obtained from a party as opposed to a non-party, a subject to which I now turn.

(b) Statements from Non-parties

[31] The contents of statements obtained from non-parties, while also protected by litigation privilege, are discoverable. The difference in treatment of such statements from those obtained from parties arises from the Rules of Civil Procedure.

[32] In Kennedy, Ducharme J. canvassed the various ways in which a claim of litigation privilege may be set aside. Among them was the possibility of changes to the Rules of Civil Procedure. At para. 45 of his decision, he quoted from the decision of Carthy J.A. in General Accident Assurance Co. v. Chrusz (1999), 1999 7320 (ON CA), 45 O.R. (3d) 321 (Ont. C.A.), at p. 331, where he wrote about litigation privilege:

The modern trend is in the direction of complete discovery and there is no apparent reason to inhibit that trend so long as counsel is left with sufficient flexibility to adequately serve the litigation client. In effect, litigation privilege is the area of privacy left to a solicitor after the current demands of discoverability have been met.

Our modern rules certainly have truncated what would previously have been protected from disclosure.

In a very real sense, litigation privilege is being defined by the rules as they are amended from time to time. Judicial decisions should be consonant with those changes and should be driven more by the modern realities of the conduct of litigation and perceptions of discoverability than by historic precedents born in a very different context.

[33] One such judicial decision was that of Borins, J. (as he then was) in Sacrey v. Berdan (1986), 10 C.P.C. (2d) 15, [1986] O.J. No. 2575, in which he was called upon to determine whether the new Rules required a defendant to disclose the observations made of a plaintiff during surveillance. In deciding that they did, he wrote (at paras. 9-10, O.J.):

…I agree with the submissions of counsel for the plaintiff that r. 31.06(1) has effected a change in the law pertaining to examinations for discovery.

Subrules 31.06(1) to (3) have significantly broadened the scope of examination for discovery. Information which prior to the introduction of the Rules of Civil Procedure parties were permitted to withhold must now be disclosed. As Mr. Justice Morden has pointed out in his article, An Overview of the Rules of Civil Procedure of Ontario (1984-5), Advocates' Q. 257-330 at p. 260, the general interpretation policy of the Rules of Civil Procedure set forth in r. 1.04(1):

"probably finds its most extensive application in the discovery rules (Rule 30 to 33) and in the offer to settle rule (Rule 49) and involves, at many places, compromises between, on the one hand, providing effective mechanisms for ascertaining the truth and, on the other, not making litigation too cumbersome or expensive."

[34] In the subsequent case of Dionisopoulos v. Provias (1990), 1990 6642 (ON SC), 71 O.R. (2d) 547, Granger J. reviewed the relevant authorities, including Sacrey, and articulated the following rule (at para. 16, O.J.):

To summarize, a party being examined for discovery is required under rule 31.06 to provide the names and addresses of persons who might reasonably be expected to have knowledge of the matters in issue, but are (sic) not required to provide a list of trial witnesses. A summary of the substance of the evidence of those persons who might reasonably be expected to have knowledge of the matters in issue, must be provided if requested. Rule 31.06(1) requires a person being examined to answer "any proper question relating to any matter in issue" or "any matter made discoverable by subrules (2) to (4)" and questions may not be objected to on the ground that "the information sought is evidence". If the "names and addresses of persons having knowledge'' is discoverable, then it would seem to me that a proper question relating to that is "what is the substance of their knowledge?" This is so even if the information to be disclosed is evidence.

[35] Therefore, a party may be required to disclose the “contents” of a statement taken from a witness that would otherwise be protected from disclosure by litigation privilege. It may be difficult to reconcile this requirement with the principle that the contents of a statement obtained from a party for the dominant purpose of litigation are not discoverable. However, it is not impossible.

[36] It helps to remember that a party may be examined for discovery; however, absent a court order, a witness may not. While there is no property in a witness and, therefore, nothing preventing an opposing party from obtaining a statement from a witness outside of the formal discovery process, there is also no obligation on a witness to cooperate. In a case where witnesses may be aligned with one side of a dispute - for example, where they are employees of a party - they may well refuse to provide such information to an opposing party. The rule articulated in Dionisopoulos, therefore, overcomes the litigation privilege that protects the contents of a statement obtained from a witness where there may be “no reasonable alternative form of evidence,” to borrow the words of Ducharme J. in Kennedy.

[37] I return now to the undertaking given in this case. The plaintiff does not rely on this undertaking to demonstrate any waiver of privilege over the statement. Nonetheless, the fulfillment of the undertaking brings into question the issue of precisely how much prejudice was caused by the initial inadvertent disclosure of the statement, as opposed to the fulfillment of the undertaking.

[38] In answer to the undertaking, counsel for the defendant advised that the statement is “consistent” with Breault’s discovery evidence, with one exception, namely that Breault elected to draw an inference in the statement as to where the plaintiff fell, whereas he was not prepared to do so during the examination. Plaintiff’s counsel alleges in his affidavit that there is, in fact, an inconsistency between the statement and the witness’ discovery evidence. He alleges that Breault testified that the plaintiff fell in an area that was sanded and salted, whereas he told the adjuster that the area in which she fell was not.

[39] The problem is that plaintiff’s counsel is only able to make this argument because of the advantage he took of the inadvertent disclosure of the statement, and not because of the fulfillment of the undertaking. It is only because he had the statement that plaintiff’s counsel is in a position to dispute the interpretation given by counsel for Algonquin. For that reason, I find that the fulfillment of the undertaking has not nullified the prejudice caused by the inadvertent disclosure of the statement.

[40] In my view, Wallbridge has failed to rebut the presumption of prejudice that arises from the inadvertent disclosure of the statement. Moreover, the evidence in this case discloses actual prejudice. The statement was used for the purposes of cross-examining the witness at his examination for discovery. It has also formed part of the plaintiff’s litigation strategy inasmuch as it was referred to in the textual portion of the plaintiff’s pre-trial conference memorandum and a copy of the statement was appended to it.

(5) The Stage of the Litigation

[41] A trial date has been set in this case for November of this year. If the plaintiff is required to retain new counsel, that date is at risk. However, it must be borne in mind that counsel for Algonquin had originally scheduled this motion for October 21, 2013, before the matter was set down for trial by the plaintiff, who must be taken to have known of the potential that new counsel might be necessary.

(6) Steps Taken to Avoid the Effect of the Breach of the Privilege

[42] The plaintiff has introduced no evidence in this motion concerning the degree to which the prejudicial effect of the production has been contained. There is no evidence in the affidavit of plaintiff’s counsel identifying the extent to which the document was disseminated or relied upon by other members of his firm or what steps have been taken to prevent the further dissemination and use of it. The only information provided by him in this respect is that his firm has not kept any copies of the privileged documents.

[43] In the presence of evidence as to the significant degree to which plaintiff’s counsel has already utilized the privileged document, and absent evidence that the prejudicial effect of inadvertent disclosure of the privileged document has been contained, there can be no alternative but to remove the Wallbridge firm from the record, in my view.

CONCLUSION

[44] Leave to bring the plaintiff’s motion is denied. Algonquin’s motion is granted. However, the information advertently provided by counsel for Algonquin must also be reflected in the scope of any order made regarding the information inadvertently disclosed. Therefore, an order shall issue as follows:

(1) The documents listed as documents number 1 and 2 of Schedule “B” to the affidavit of documents of 123627 Canada Inc. are hereby declared to be subject to litigation privilege;

(2) Wallbridge, Wallbridge shall be removed as the lawyers of record for the plaintiff;

(3) Wallbridge, Wallbridge shall destroy all copies of the privileged documents, whether hard copy or electronic copy and shall retrieve the same from any other persons to whom they have provided copies of the said documents and destroy the same forthwith;

(4) Wallbridge, Wallbridge shall destroy forthwith any and all work product which may have been generated in any way related to the information contained in the privileged documents, except to the extent that the information has been advertently disclosed by counsel for 123627 Canada Inc.;

(5) Wallbridge, Wallbridge and the plaintiff are hereby enjoined from discussing with anyone else the contents of the privileged documents or in any fashion communicating the contents of those documents to others, except to the extent that they have been advertently disclosed by counsel for 123627 Canada Inc.;

(6) Wallbridge, Wallbridge and the plaintiff are hereby enjoined from making any use of the privileged documents or any information contained or derived from the said documents in the trial of this action or in any proceeding related to this action, except to the extent that they have been advertently disclosed by counsel for 123627 Canada Inc.;

(7) The transcript of the examination for discovery of Anthony Breault, held on the 17th day of October, 2012 shall be amended by expunging question 429, commencing from the words, “MR. DENTON: O.K. ‘Cause I’m just looking at the transcript…” to the end of that question; and

(8) Wallbridge, Wallbridge shall confirm in writing to this court that the steps required above have been undertaken by them.

[45] If the parties are unable to agree on the issue of costs, written submissions may be made with respect that issue as follows:

(1) Algonquin shall have 30 days from the date of the release of these reasons to deliver written submissions, restricted to five pages, excluding attachments;

(2) Wallbridge, Wallbridge shall have 20 days following receipt of Algonquin’s submissions within which to do likewise; and

(3) Algonquin shall have 10 days following receipt of Wallbridge, Wallbridge’s submissions within which to deliver any reply.

Ellies J.

Released: 20140526

COURT FILE NO.: CV-11-5283
DATE: 20140526

ONTARIO
SUPERIOR COURT OF JUSTICE

CARRIE WHITE
– and –
123627 CANADA INC., carrying on business as ALGONQUIN PETRO CANADA, BREAULT INC., and PINE CREEK ENTERPRISES INC.

REASONS FOR DECISION

Ellies J.

Released: 20140526