Bradley v. Eastern Platinum Ltd., 2015 ONSC 108

COURT FILE NO.: 4521/11-CP

DATE: 2015/01/16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Brian Bradley (Applicant)

• and -

Eastern Platinum Ltd., Ian Rozier, John Andrews and John Hawkrigg (Respondents)

BEFORE: Justice H. A. Rady

COUNSEL: Alex Dimson and Daniel Bach, for the Applicant

Daniel S. Murdoch, for the Respondents

HEARD: December 18, 2014

ENDORSEMENT

Introduction

[1] The applicant brings this motion to compel answers to questions refused at the cross-examinations of several individuals who swore affidavits in response to the applicant’s pending motion seeking leave to commence an action under Part XXIII.1 of the Ontario Securities Act as required by section 138.8.

[2] To their credit, the parties were able to settle with respect to many of the questions to which answers were sought. However, a few matters of contention remained that required argument.

Background

[3] It is necessary to set out the background to the litigation in order to give some context to the relief being sought and the disposition of the motion.

[4] As already noted, the applicant seeks leave to commence an action under Part XXIII.1 of the Ontario Securities Act. The claim concerns platinum mining operations at the Crocodile River Mine (CRM) in South Africa. The CRM is owned by the respondent Eastern Platinum Ltd. (Eastern) and it represented all or substantially all of Eastern’s business. The mine has now shut down.

[5] Eastern is a public company with its head office in Vancouver, British Columbia. It trades on the Toronto Stock Exchange, the Alternative Investment Market of the London Stock Exchange and the Johannesburg Stock Exchange.

[6] After the close of trading on Friday, April 15, 2011, Eastern issued a press release announcing production results for the quarter ended March 31, 2011 (Q1/2011) at the CRM. The April 15 press release disclosed that production had declined in Q1/2011 as compared to the prior quarter and the first quarter of 2010. In particular, the news release stated as follows:

Early in the quarter, a comprehensive internal safety review was conducted in line with new DMR (South African Department of Mineral Resources) general safety recommendations on roof support requirements. Following this review, support methods at CRM have been modified. This review has also accelerated the previously planned progressive introduction of cement grout support packs into working panels as mining operations at CRM get deeper and where support requirements are projected to increase. These measures should further enhance safety standards at CRM. This increase in support standards necessitated the retraining of underground personnel with a consequent temporary reduction in the number of working panels during the quarter that impacted on mine production.

The traditional slow start in January combined with the introduction of revised support methods resulted in a significant decrease in production for the quarter…”, stated Ian Rozier. [Eastern’s CEO]

[7] Following the April 2011 news release, Eastern’s stock price fell from $1.30 to $1.10 on the TSX by the close of the next trading day.

[8] On June 28, 2011, the applicant issued a notice of application for leave to commence an action pursuant to Part XXIII.1 of the Act. The applicant alleged that Eastern failed to disclose a complete or partial shutdown of operations at the CRM in Q1/2011, which resulted in a reduction in production.

[9] By letter dated September 30, 2011, respondents’ counsel advised applicant’s counsel that no complete or partial shutdown of operations had occurred at the CRM in Q1/2011 as alleged, and provided information to rebut the allegations made in the proposed statement of claim.

[10] On June 18, 2012, the applicant served an amended notice of application with a revised proposed statement of claim. In the second proposed claim, the applicant alleged that the reduction in production in Q1/2011 was the result of a change in mine roof support methods and in particular, the introduction of “cement grout pack supports”. The applicant alleges that the introduction of cement grout pack supports at the CRM in Q1/2011 was a “material change” as defined in the Act and comparable provincial securities legislation, which ought to have been disclosed by Eastern prior to the April 15 press release.

[11] The applicant alleges that the respondents’ failure to disclose the change caused Eastern’s stock to trade at artificially inflated prices during the proposed class period and, as a result, the applicant and other Eastern shareholders sustained damages by buying Eastern securities at inflated prices.

[12] The application is scheduled to be heard on September 8-11, 2015.

[13] The timing of the introduction of cement grout pack supports is the significant contentious issue between the parties in this proceeding. The respondents assert that cement grout packs were not used at the CRM in Q1/2011. The applicant takes a different view.

[14] The applicant alleges that in early 2011, Eastern undertook a comprehensive internal safety review at the CRM. Following the safety review, Eastern accelerated a change to how the roof of the CRM was supported to a technology known as cement grout support packs. The applicant alleges that in doing so, Eastern deviated from a planned progressive introduction of the technology. The changes included:

• increasing the time to complete a cycle of operations at a given working panel (defined as “an underground compartment of a mine in which the mining face is accessed, separated from other compartments by a large pillar”) and the aggregate time taken to complete cycles of operation in the working panels of the Mareobult and Zanfontein sections of the CRM;

• diverting underground personnel from their regular activities in order to be retrained on how to use the technology;

• decreasing the number of working panels; and

• the complete or partial shutdown or reduction in platinum extraction operations at the CRM.

[15] Three support technologies are at issue in this case:

• pre-stressed elongates – 20cm thick timber poles that contain a “prestressing” unit which helps to maximize the support each elongate provides. This is the support methodology that was primarily used in the CRM prior to 2011.

• C-packs – a series of interlocking 10cm thick layers of timber that extend from the floor to the roof of the mine. They are placed around every other elongate and staggered between adjacent rows.

• cement grout packs – pre-fabricated bags, internally supported by wire formers, that surround an elongate. Cement-based grout is pumped into the bags, after they are set up in the mine.

[16] Apparently, the type of support methodology used in the mine can have a significant impact on the mining production process. The applicant’s expert, Alastair MacFarlane has deposed that the installation of a line of twelve elongates can take approximately three hours, while the installation of a line of grout packs can take approximately seven hours. Because the difference can reduce mine productivity, the implementation of a new support methodology requires a new mining plan in order to maintain production. A change between support methodologies also requires mine workers to be retrained, which also can impede production until training is complete.

[17] The applicant relies on evidence from the public domain that he says suggests that cement grout packs were implemented at the CRM sometime in Q1/2011, including:

(i) the statement in the April 15, 2011 news release that, after an internal safety review, Eastern “accelerated the previously planned progressive introduction of cement grout support packs into working panels as mining operations” and “this increase in support standards necessitated the retraining of underground personnel with a consequent temporary reduction in the number of working panels during the quarter that impacted on mine production”;

(ii) transcripts from conference calls between Eastern and analysts during which Mr. Rozier is said to have acknowledged that the company accelerated a change in support during the first quarter of 2011 and that it “was probably a bit more costly than we thought with respect to the loss of panels.” In a subsequent call, Mr. Rozier said that had Eastern made “the changes in roof support” “in our own time, as we were planning to do anyway--business as usual”.

(iii) a Credit Suisse Analyst Report dated April 17, 2011 which reads in part:

[Eastern] reported Q1/11 production results from its Crocodile River Mine. Ounces produced during the quarter totaled 25,387, 10% below our estimate, with all of the miss due to lower than forecasted mill throughput. While [Eastern] had noted on the year-end conference call that production in January was impacted due to the traditional slow start to the year, the impact of introducing revised mining support methods was unexpected and resulted in a 12% greater reduction in throughput than we had anticipated.

(iv) A JPMorgan Analyst Report dated April 18, 2011 which reads in part:

[Eastern] reported depressed production for the March quarter, apparently impacted by an accelerated change of stope support standards, and a ‘slow’ restart after the Christmas/New Year break. The slow start is a feature across the industry but the production loss due to a change in support standards is unusual. While management did not allude to it, we suspect its only existing operation, Crocodile River Mine (CRM), might have suffered some DMR enforced ‘section 54’ stoppages…

(v) other Eastern disclosures that are said to acknowledge that the “increase in support standards necessitated the retraining of underground personnel, which temporarily decreased the number of working panels during the quarter and impacted production”.

[18] The applicant also relies on Mr. MacFarlane’s evidence. He was asked to examine the layout, mining operations and support conditions at the CRM. He concluded that there was an accelerated change to the support methodology used in the CRM in Q1/2011, which “would have had a material impact on output unless sufficient contingency face length and substitute labour was immediately available”. Mr. Macfarlane also concluded that the support change “ought to have been foreseen, and should have required a re-planning exercise,” resulting in “a modification to the original mine plan, in consequence of the changes in the output that should have been foreseen as a result of the accelerated changeover to the new support system.”

[19] The respondents say that C-packs rather than cement grout packs were installed in Q1/2011 and their installation did not have an impact on productivity at the CRM. They have filed an affidavit from Jacobus Bosman who deposed to the use of C-packs during Q1/2011 as opposed to cement grout packs. A number of other affidavits have also been filed on the issue.

Examination rights on section 138.8 motions

[20] Section 138.8 of the Act provides as follows:

Leave to proceed

138.8(1) No action may be commenced under section 138.3 without leave of the court granted upon motion with notice to each defendant. The court shall grant leave only where it is satisfied that,

(a) the action is being brought in good faith; and

(b) there is a reasonable possibility that the action will be resolved at trial in favour of the applicant.

Same

(3) The maker of such an affidavit may be examined on it in accordance with the rules of court.

[21] It has been observed that “[t]he statutory leave provision is designed to prevent an abuse of the court’s process through the commencement of actions that have no real foundation, actions that are based on speculation or suspicion rather than evidence”: Silver v. Imax Corp., 2009 72342 (ON SC), [2009] O.J. No. 5573 (S.C.J.); leave to appeal refused 2011 ONSC 1035, [2011] O.J. 656 (Div. Ct.)

[22] Put another way, the purpose of the leave motion is to prevent strike suits, namely “coercive and unmeritorious claims which are aimed at pressuring a defendant into settlement in order to avoid costly litigation”: Ainslie v. C.V. Technologies Inc., 2008 63217 (ON SC), [2008] O.J. No. 4891 (S.C.J.)

[23] As a result, the examination rights of moving parties in section 138.8 motions are narrower than those afforded on examinations for discovery. In Sharma v. Timminco Ltd., 2010 ONSC 790, [2010] O.J. No. 469 (S.C.J.) Perell J. observed that “…the purpose of precluding discovery before the leave motion is to preclude the putative applicant from fishing for facts that would support … a speculative lawsuit of the strike suit type.”

[24] A similar sentiment was expressed by Belobaba J. in Mask v. Silvercorp Metals Inc., 2014 ONSC 5727; leave to appeal refused, 2014 ONSC 7381 (Div. Ct.) where he noted that a proposed applicant on a leave motion is not permitted to “engage in a discovery-like ‘rummage’ through the defendant’s corporate files ‘in the hope of uncovering something helpful to her case.’”

[25] He also stated that “the legislature intended that section 138.8(3) be read restrictively to prevent the moving party from compelling oral and documentary evidence from the respondent affiants in an effort to make his or her case from the evidence. And, wisely, the courts have done so.”

[26] In Silver v. Imax Corp., Justice Van Rensberg, on a refusals motion, commented as follows:

This is not a discovery process, in the sense that the parties are not compelled to produce affidavits of documents disclosing all relevant documents within their power or control, and they are not subject to examination on everything having a semblance of relevance to the action, including the common law claims. In deciding this motion the court must take a hard look at what facts are potentially relevant and material to the statutory claim and defences, as presented in the draft pleading and in the respondents’ affidavits. Any question which is clearly not tethered to this inquiry in the sense that it is pursuing other potential wrongdoing or practices of Imax, would have no semblance of relevance. However, a question that is potentially relevant to the facts alleged in respect to the statutory claims set out in the proposed statement of claim and in the defences raised in the responding affidavits must be answered even if it might also reveal some other potential issues or wrongdoing not currently contemplated by the statutory claim.

[27] With that foundation, I turn to the questions that remain in dispute.

The Questions, the Parties’ Positions, Analysis and Disposition

Question No.

Line and

Page No.

Specific Question

Issue & Relationship to pleadings or affidavit

Current Status

Richard Skinner

35:21

Whether Mr. Skinner understood that there had been a change in the pace of the planning progress regarding the introduction of cement grout support packs

This question goes to the factual dispute at the heart of this application – whether there was an acceleration of the implementation of cement grout packs that caused a decline in productivity at the mine in Q1/2011.

Refused: No foundation was established for this question. Mr. Skinner’s evidence is that the implementation of mine support is not his area of “expertise or knowledge”.

[28] Mr. Skinner has been the chief surveyor at the CRM since April 2010. He is responsible for the preparation of annual and monthly mine plans for future production.

[29] The applicant submits that this question goes to the heart of the factual dispute in this application. Mr. Skinner testified on his cross-examination that a change in mine support would be something he would consider during the planning process.

[30] The respondents submit that the implementation of mine support is not his area of expertise or within his knowledge. They say that Mr. Skinner answered the question in any event when he testified that:

I heard it mentioned but again not specifically, I wasn’t involved in any of those meetings because it’s not my area. So I would have heard talk about it but I can’t recall any specific decisions, just general talk that I can recall.

[31] In my view, the question should be answered. It is clearly relevant to the factual dispute between the parties, namely whether cement grout packs were introduced in Q1/2011. Mr. Skinner has said that a change in mine support would be relevant to the planning process, in which he is involved. I do not read Mr. Skinner’s answer as responsive to the question, which is what he understood about a change in the pace respecting the introduction of cement grout packs. As a result, he must answer the question and those that logically flow from it.

Question No.

Line and Page No.

Specific Question

Issue & Relationship to pleadings or affidavit

Current Status

36:2

Any questions regarding Mr. Skinner’s interpretation of the April 15, 2011 press release.

The April 15, 2011 press release is the key disclosure in this case and the applicant alleges that it revealed the truth behind the issues at the CRM. As the official planner of the CRM who was responsible for the mining statistics used in Eastern’s press releases, Mr. Skinner is well situated to provide information on the April 15, 2011 press release.

Refused: A fact witness’ “interpretation” of a document he did not draft is irrelevant.

[32] I agree with the respondents that Mr. Skinner’s interpretation of the press release is not relevant. I would have thought that the press release speaks for itself.

Question No.

Line and Page No.

Specific Question

Issue & Relationship to pleadings or affidavit

Current Status

Jacobus Bosman

4:6 4:9

Whether Mr. Bosman is in possession of any copies of the draft versions to his affidavit sworn March 7, 2013.

Provide copies of any draft versions of the affidavit.

Mr. Bosman is a hybrid witness who provides both fact and opinion on the allegations in this case. The draft affidavits of such witnesses are producible as they form part of the process by which they form an opinion.

Refused: Litigation privilege. No implied waiver of privilege has been established.

[33] Mr. Bosman was the CRM’s principal rock engineer from February to September 2011. While at the CRM, Mr. Bosman was employed by Open House Management Solution (OHMS), which was retained by Eastern to address rock engineering issues. In his affidavit, Mr. Bosman addresses the support systems at the CRM prior to 2011 and decisions undertaken by Eastern to change the support system used in the CRM in 2011.

[34] The respondents submit that Mr. Bosman is a fact witness and he is not required to produce drafts of his affidavits.

[35] The applicant submits that Mr. Bosman is a “hybrid” witness who provides both fact and opinion evidence. By way of example, he highlights a paragraph in Mr. Bosman’s affidavit which he says alternates between opinion and fact.

[36] He relies on Mask v. Silvercorp Metals Inc., supra, in which Justice Belobaba ordered the production of the draft affidavits of a hybrid witness. Justice Belobaba cited the decision of Master Macleod in Andersen v. St. Jude Medical Inc., [2007] O.J. No. 5383 in which it was noted that “the world of witnesses is not so neatly divided and there are many situations in which an expert is also a fact witness. Indeed, it is common to find situations in which professional opinions formed at relevant times by one of the proposed experts form part of the factual nexus itself and that ‘when litigation ensues, these professionals may be hybrid witnesses who will testify about what actually happened and what decisions or advice they gave and may also be retained as experts for the purpose of trial”.

[37] The respondents submit that drafts of Mr. Bosman’s affidavits are protected by litigation privilege. They say that he is not a hybrid witness but rather he addresses what supports were in use at the relevant time. To the extent that he expresses an opinion, it is limited, for background purposes, are uncontentious and do not go to key issues.

[38] In any event, the respondents take issue with the applicant’s assertion that drafts of expert reports are produced as a matter of course.

[39] It is well established that litigation privilege applies to communications between an expert and counsel and draft expert reports. One case on the issue is Caputo v. Imperial Tobacco Ltd., [2002] O.J. No. 3767 (Master) in which the following observation was made:

The plaintiffs demand to see earlier drafts of the expert reports. The drafts would be useful tool for cross examination if they existed as they might contain other relevant opinions eliminated from the final draft or even a preliminary opinion different from that contained in the affidavit itself. It is obvious why counsel would want access to drafts and on the test of semblance of relevance they might have to be produced. The real question is whether or not drafts are privileged. Expert reports which are not used and communication between counsel and the expert for the purpose of obtaining a report, would normally be covered by litigation privilege. I am not prepared to conclude that draft reports must be produced. I agree with the excerpt from Sopinka & Lederman reproduced in paragraph 107 of the Imperial Tobacco factum:

No doubt the witness should be subject to cross-examination on the factual basis of the opinion. But since an expert usually gives an opinion on the basis of hypothetical facts and is not generally offering the facts as proof thereof, there would seem to be little reason for compelling disclosure of the source of those facts if that source is otherwise a privileged communication or document. As to the expert’s credibility, caution should be exercised before this becomes the basis for the wide-ranging disclosure of all solicitor-expert communications and drafts of reports. Certainly, confidential communications which are not the foundation of the expert opinion are not waived. In any event, it might just lead to a general practice among solicitors of destroying drafts after they are no longer needed just to avoid the problem…

The expert may be asked if opinions were expressed in an earlier draft which were eliminated from the final draft. He may also be asked what facts he was asked to assume or what questions he was asked to address. He may be asked what documents or other evidence he consulted or what research he carried out to form his opinion. He may be asked if other information or other facts would change his opinion and he may be asked if he was told to disregard certain facts or evidence which he might normally have considered important. None of these questions in and of themselves result in automatic waiving of privilege and the need to produce draft reports.

[40] The following discussion in Sopinka, Lederman and Bryant, The Law of Evidence in Canada 4th ed. (LexisNexis 2014) is helpful in tracing the evolution of the extent of waiver of litigation privilege:

§14.227 In the ongoing debate as to the extent of waiver of litigation privileged documents located in an expert’s file when it is intended to call that expert as a witness at trial, it is readily acknowledged that the facts and documents on which the expert relies should be disclosed. The controversial issue is whether everything else need be produced, such as confidential communications that did not form a basis for the expert’s opinion. Some commentators feel that with the ever-increasing restrictions on the scope of litigation privilege, as illustrated by the General Accident Assurance Co. v. Chrusz decision, there will be less and less protection for documentation in the expert’s file. But some argue that limits should be drawn. One commentator has advocated:

The facts upon which [the expert’s] opinion is based and the validity of that opinion are proper subjects for cross-examination. But the process by which the opinion was developed, and their communications with the client and instructing the solicitor, should remain subject to litigation privilege. Maintaining the privilege over expert’s files to this extent in no way compromises the objective of having all relevant information available for trial. [footnotes omitted]

[41] In Browne (Litigation Guardian of) v. Lavery (2002), 2002 49411 (ON SC), 58 O.R. (3d) 49 (S.C.J.), Justice Ferguson favoured full disclosure pursuant to Rule 31.06(3). However, in Conceicao Farms Inc. v. Zeneca (2006), 2006 31976 (ON CA), 83 O.R. (3d) 792 (C.A.), the court stated:

There is an area of debate concerning the scope of information that may be obtained pursuant to this rule. It clearly encompasses not only the expert’s opinion but the facts on which the opinion is based, the instructions upon which the expert proceeded, the expert’s name and address. How far beyond this the right to obtain foundational information (as our colleague called it) extends, need not be determined here. Suffice it to say that we are of the view that it does not yet extend as far as is tentatively suggested in Browne (Litigation Guardian of) v. Lavery (2002), 2002 49411 (ON SC), 58 O.R. (3d) 49. We simply proceed on the basis that the rule entitles the appellant to obtain on discovery the foundational information for Dr. Grafius’ final opinion.

[42] This is the current state of the law in Ontario. See Ebrahim v. Contintental Precious Minerals Inc., 2012 ONSC 1123 and Thermapan Structural Insulated Panels Inc. v. City of Ottawa et al 2014 SC 2365 (Master).

[43] In the latter case, Master Muir summarized the law as follows:

…the evolution of the role of the expert has not yet reached the point where this court should automatically require full disclosure of an expert’s entire file as a matter of course […] [i]n my view, the principle that the implied waiver should be narrowly construed remains the law in Ontario.

[44] I am not persuaded that that Mr. Bosman is a hybrid witness. The applicant cites one paragraph in which Mr. Bosman gives the opinion that the CRM would not have been able to use cement grout packs without building a grout plant. Aside from some background about rock engineering based on Mr. Bosman’s expertise, his affidavit is largely a chronology of events. His affidavit is not like the one considered in Mask where “significant portions of the…affidavit combine factual and expert opinion” and those opinions were relevant to the issues raised by the application.

[45] Even if he were a hybrid witness, I am not persuaded that draft versions of his affidavit are producible for reasons expressed in Caputo and the other decisions cited. I was not directed to any questions put to Mr. Bosman that suggest that he was told to disregard certain facts or evidence that he might otherwise consider important.

[46] The questions are properly refused.

Question No.

Line and Page No

Specific Question

Issue & Relationship to pleadings or affidavit

Current Status

9:12

Provide copies of any e-mails correspondence between Mr. Bosman and OHMS employees in relation to grout packs at CRM.

Mr. Bosman and his company OHMS were heavily involved in support issues at the CRM for most of Q1/2011. Mr. Bosman indicated that he and OHMS would have communicated about support issues via email. This correspondence is relevant to the application because whether grout packs were used in Q1-2011 is a significant contentious factual issue between the parties. The production of correspondence would not be onerous because only Mr. Bosman and two other OHMS employees worked at the CRM.

Refused: Overbroad. The applicant is fishing for facts to ground his claim. This question requires discovery-like production of documents and is improper at the pre-leave stage.

[47] In my view, this is the sort of documentary production of which Justice Belobaba disapproved in the Mask decision. It is a discovery- like production of documents from a non-party to the litigation. Moreover, the request is not temporally limited. Finally, it is not clear to me that the documents are within the “power, possession or control” of a party to the litigation. It is also difficult to know whether the production would be onerous or not. The question was properly refused.

38:5

Why Mr. Van Niekerk (who was the vice president of operations at the CRM) left the mine.

Mr. Van Niekerk was an important source of information in Mr. Bosman’s affidavit and he supplied key facts about support issues at the CRM. Mr. Bosman indicated that he “worked closely” with Mr. Van Niekerk. Mr. Van Niekerk left the CRM around July 2011, just a few months after the release of the April 5, 2011 news release.

Refused: Irrelevant. Mr. Van Niekerk’s employment history is in no way relevant to the leave motion.

[48] The applicant says he is entitled to determine whether Mr. Van Niekerk’s departure was related in some manner to the issues raised in this lawsuit. I do not agree. I am not satisfied that Mr. Van Niekerk’s departure from the CRM is relevant to the pending leave motion. In any event, if the applicant wished to do so, he could obtain that information directly from Mr. Van Niekerk.

Question No.

Line and Page No.

Specific Question

Issue & Relationship to pleadings or affidavit

Current Status

Lukas Berrange

32.14 32:24 33.7

If the company maintains records reflecting the retraining of underground personnel with regards to safety or support.

Provide all training materials relating to the training or retraining of underground personnel on safety issues at the CRM in Q1/2011.

Provide all work schedules or documents evidencing the retraining of underground personnel during Q1/2011.

The proposed statement of claim specifically alleges that underground personnel at the mine were diverted from their regular activities to be retrained. As a result, evidence demonstrating that retraining occurred is relevant to this application.

Refused: Overbroad – the applicant is fishing for facts. The applicant’s claim does not allege general “safety” or “support” issues. Further, no foundation was established for this question. Mr. Berrange’s evidence is that his job does not include managing the training of mine workers or managing stope support issues.

[49] Mr. Berrange has been the Safety, Health, Environment Risk and Quality manager at the CRM since 2006. His responsibilities included the potential risk of a rock fall from the roof of a mine. He attended the CRM meetings in Q1/2011 when factors affecting mine production were discussed.

[50] Again, this is the kind of broad documentary discovery that is not permissible on a leave application. The questions are properly refused.

Question No.

Line and Page No.

Specific Question

Issue & Relationship to pleadings or affidavit

Current Status

Wayne Robinson

153:19

Produce a colour copy of the bound document which includes Mr. Robinson’s affidavit and exhibits showing Mr. Robinson’s notes and highlights.

Mr. Robinson brought to his cross-examination a volume containing notes and highlighting of his affidavit and exhibits. It has been held that a witness waives privilege over their notes if they were made for the purpose of refreshing their memory.

Refused: Litigation privilege. For a witness' notes to be producible, the witness must have admitted to using those notes to refresh his memory.

[51] Mr. Robinson is the former managing director of the CRM between 2006 and December 2011 and oversaw the mines’ operations.

[52] Mr. Robinson had a copy of his affidavit with him at his cross-examination. He was frequently referred by counsel to a paragraph of his affidavit before being asked a question. He also had other affidavits and some highlighting and notes. The applicant wants a copy of the compilation of materials taking the position that it was an aide memoire.

[53] The law relating to the production of notes was recently summarized in R. v. Sachkiw, 2014 ONCJ 287:

…it is a general principle of law that when a witness refreshes their memory from notes and testifies having done so that opposing party is entitled to see those notes. This is an implied waiver of litigation privilege. The reliability of the witness’ evidence is one of the considerations the court must take into account. The opposing party is entitled to test that reliability through cross examination, and where the witness has refreshed their memory from notes, to explore the impact of those notes on the witnesses recall.

[54] In that decision, the court reviewed the relevant authorities including R. v. Mugford, [1990] N. J. No. 210 (Nfld. C.A.) and R. v. Monfils et al, [1971] O.J. No. 1725 (C.A.).

[55] In the Mugford case, the court summarized the relevant principles as follows:

Where a witness uses a memorandum to refresh his or her memory, opposing counsel has the right to look at it when cross-examining. Where that memorandum is written by a third-party real questions arise as to whether a witness ought to be allowed to refresh his or her memory from another’s notes (see McWilliams: Canadian Criminal Evidence, second edition, pp. 1004-1005).

In this case the transcript does not establish whether the document was in fact used to refresh the witness’s memory for the purpose of the evidence which he gave at trial. Had it done so the trial judge, in my view, should have ordered the production of the report to allow the defense counsel to review the relevant portions.

[56] In this case, a review of the transcript does not demonstrate that Mr. Robinson used the affidavit and accompanying material to refresh his memory. This is a necessary prerequisite to an order for its production.

[57] The question is properly refused.

[58] If the parties cannot agree, I will receive brief written submissions on costs by February 20, 2015.

“Justice H. A. Rady”

Justice H. A. Rady

Released: January 16, 2015