CITATION: Seelster v. HMTQ and OLG, 2015 ONSC 3529
COURT FILE NO.: 272/14
DATE: 2015 06 04
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SEELSTER FARMS INC. WINBAK FARM OF CANADA, INC, STONEBRIDGE FARM, 774440 ONTARIO INC., NORTHFIELDS FARM INC., JOHN MCKNIGHT, TARA HILLS STUD LTD., TWINBROOK LTD., EMERALD RIDGE FARM, CENTURY SPRING FARMS, HARRY RUTHERFORD, DIANE INGHAM, BURGESS FARMS INC., ROBERT BURGESS, 453997 ONTARIO LTD., TERRY DEVOS, SONIA DEVOS, GLENN BECHTEL, GARTH BECHTEL, 496268 NEW YORK INC., HAMSTAN FARM INC., ROBERT HAMATHER, ESTATE OF JAMES CARR, deceased, by its executor Darlene Carr, GUY POLILLO, DAVID GOODROW, TIMPANO GAMING INC., CRAIG TURNER, ROBERT MCINTOSH STABLES INC., GLENGATE HOLDINGS INC., KENDAL HILLS STUD FARM LTD., ANY KLEMENCIC, TIM KLEMENCIC, STAN KLEMENCIC, JEFF RUCH, BRETT ANDERSON, DR. BRETT C. ANDERSON PROFESSIONAL VETERINARY CORPORATION, KILLEAN ACRES INC., DECISION THEORY INC., 296268 ONTARIO LTD., DOUGLAS MURRAY MCCONNELL, QUINTET FARMS INC., KARIN BURGESS, BLAIR BURGESS, ST. LAD’S LTD., WINDSUN FARM INC., SKYHAVEN FARMS, HIGH STAKES INC., 1806112 ONTARIO INC., GLASSFORD EQUI-CARE, JOHN GLASSFORD, GLORIA ROBINSON and KEITH ROBINSON
v.
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and ONTARIO LOTTERY AND GAMING CORPORATION
BEFORE: EMERY J.
COUNSEL: Jonathan C. Lisus and Ian C. Matthews, for the Plaintiffs
Robert Ratcliffe, for the Defendant, Her Majesty The Queen
H. Michael Rosenberg and Dharshini K. Sinnadurai, for the Defendant, Ontario Lottery and Gaming Corporation
HEARD: May 19, 2015
ENDORSEMENT
[1] The plaintiffs and the defendant Ontario Lottery and Gaming Corporation (“OLG”) bring motions within the plaintiffs’ action against OLG and the Province of Ontario for $60 million in damages because of the cancellation of the Slots at Racetrack Program (“SARP”) without adequate notice to them. The two motions before the court are purpose driven to move the discovery process forward in ways to overcome perceived impediments.
[2] The plaintiffs’ motion seeks an order against OLG to enforce OLG’s duty to disclose relevant documents in an affidavit of documents under Rule 30.03, enhanced by the search terms imposed by my Order dated February 9, 2015 (together, the “OLG disclosure obligations”). OLG brings a motion for an order to compel each plaintiff to answers questions put forward in a detailed questionnaire prior to oral examinations for discovery. OLG takes the position that this advance discovery is necessary because each of the 45 plaintiffs is a standard bred horse breeder who has joined his or her claim into one amended statement of claim alleging negligence, negligent misrepresentation, breach of contract, waiver of tort and unjust enrichment. OLG also seeks the advance form of discovery because of the manner in which my Order dated December 5, 2014 allowed the plaintiffs to make disclosure in their respective affidavits of documents.
[3] Her Majesty the Queen supported the motion of OLG for an advanced form of discovery, but did not file material or take an active part on that motion, or on the motion of the plaintiffs.
The Plaintiffs’ Motion
[4] In the course of receiving disclosure from OLG pursuant to the OLG disclosure obligations, counsel for the plaintiffs detected various emails sent, received or copied at material times to this action by OLG employees to personal or non-OLG email addresses. This detection was fortuitous as the plaintiffs would likely not have otherwise known about the use of personal or non-OLG email accounts that OLG employees were using for OLG business relevant to the matters at issue. These OLG related emails included an author or recipient who used his or her OLG email address and whose records were searched by OLG in the course of satisfying its disclosure obligations to the plaintiffs.
[5] The employees who used personal or non-OLG email addresses to communicate between themselves and others with respect to OLG business include key OLG employees who have been identified as custodians of documents. The former employees at the highest levels of OLG at the time using non-OLG email addresses include Paul Godfrey, employed in 2011 by OLG as Chairman of the Board, and Robert Moore, employed by OLG in 2011 as its Senior Vice-president, Marketing Communications and Stakeholder Relations. Current employees who are considered custodians of documents and other information relevant to the action include Larry Flynn, employed in 2011 by OLG as its Senior Vice-President, Gaming; Beth Webster, employed in 2011 as its Senior Vice-President Marketing Communications and Stakeholder Relations; William Hill, employed by OLG in 2011 as its Executive Director Transportation and Communications; Leslie Byrne, employed in 2011 by OLG as its Executive Director Strategic Communications; Sunita Stokes, employed in 2011 by OLG as its Director Development and New Projects; Elizabeth Tsai, employed by OLG in 2013 as its Director, Government and Stakeholder Relations; and Amanda Barnett, employed by OLG as a Regulatory Standards Analysis, Gaming Programs.
[6] As a result of detecting OLG related email traffic to or from non-OLG addresses, counsel for the plaintiffs wrote their letter dated March 27, 2015 to counsel for OLG requesting that all documents sent and received to and from personal or non-OLG email addresses be produced pursuant to the OLG disclosure obligations. Counsel for the plaintiffs also requested a copy of any email use and retention policy, directive or memorandum in effect at OLG between 2009 and 2012.
[7] In the letter dated March 27, 2015, counsel for the plaintiffs identified certain documents produced by OLG as part of its disclosure obligations and set out various documents as examples of emails sent by OLG employees to or from personal email addresses to conduct OLG business. The letter then requested that OLG confirm to counsel for the plaintiffs by April 3, 2105 as follows:
Please confirm by Friday, April 3 that OLG has obtained and preserved documents from these custodians non-OLG email addresses listed above, and that OLG will produce relevant documents from these sources, listed in a supplementary affidavit of documents, after running the court ordered search terms on documents obtained from these non-OLG email addresses.
[8] Counsel for OLG responded in a letter dated April 2, 2015. OLG’s position was summarized in the fourth paragraph of its letter as follows:
We will certainly consider any case law to which you might direct us, but absent same, we are unable to accede to your request. Indeed, it appears to us that OLG has no right to require its current or former employees to produce the entire contents of their personal email accounts for review by counsel. Rather, OLG takes the position that these documents are not within its possession, power, or control. Accordingly, if you wish to compel production of these documents for the purpose of running the court-ordered search terms, it may be necessary to bring a motion for third party production.
[9] In the same letter, counsel for OLG made their request for the production of documents, anticipating a similar spirit of cooperation. As a result of my Order dated December 5, 2014, the affidavit of documents to be served by an individual plaintiff was permitted to incorporate by reference the documents listed in the affidavit of documents of Walter Parkinson. As a result, counsel for OLG had been unable to determine which of the documentary representations pleaded in the amended statement of claim had ever been in the possession of any particular plaintiff. Counsel for OLG therefore asked counsel for the plaintiffs to advise, no later than April 15, 2015 which of the alleged documentary representations pleaded in the amended statement of claim was ever in the possession of each plaintiff.
[10] After a further exchange of lengthy and detailed letters, counsel for the plaintiffs wrote a further letter dated April 30, 2015 to counsel for OLG to provide notice of the following relief the plaintiffs would be seeking on a motion returnable on May 19, 2015 related to the use of personal email accounts by OLG custodians to do OLG business:
production of OLG’s policies and directives that govern the use of email by OLG employees and the retention of documents and records by OLG.
regarding current OLG employees, that OLG direct and require said employees to retrieve and disclose to it all records from personal email accounts that related to the matters in issue in this action, and that these documents be disclosed to the Plaintiffs and listed in OLG’s affidavit of documents.
regarding former OLG employees, that OLG write to and demand said former employees retrieve and disclose to it all records from personal email accounts that relate to the matters in issue in this action, and that these documents be disclosed to the Plaintiffs and listed in OLG’s affidavit of documents.
in respect of former OLG employees who do not reply and/or comply with OLG’s demand, that OLG support an Order for third party production from said employees.
[11] Counsel for OLG responded in a letter dated May 1, 2015 to confirm their understanding of the plaintiffs’ position in several respects, and to advise that there was nothing further OLG could do to address the issue of the external email use first raised in the letter of March 27, 2015. OLG took this position in view of the measures it had taken to produce relevant emails, or measures it had offered to take to comply with the OLG disclosure obligations. Those measures included a direction to current employees to provide OLG counsel with any relevant documents from their external email accounts, and to make a request to former employees to provide relevant documents from their external email accounts. Those emails would then be listed in a supplementary affidavit of documents from OLG, subject to any claims of privilege.
[12] The disagreement between counsel continued. In an email dated May 11, 2015, Mr. Matthews for the plaintiffs emailed Mr. Rosenberg for OLG recorded the current state of the union in the following terms:
My understanding of the May 4 case conference is that you advised Jonathan that you anticipated that all current OLG employees would be cooperating, and that no such confirmation was provided with respect to former OLG employees. Moreover, as we understand it, OLG is not prepared to provide (1) copies of its email use and document retention policies, and (2) copies of its instructions to current and former employees regarding the gathering of relevant documents and their corresponding responses. We also have no timeline from OLG as to when it would be in a position to provide a further and better affidavit of documents.
[13] Mr. Matthews consequently informed Mr. Rosenberg that the plaintiffs intended to proceed with their motion in the absence of OLG’s willingness to provide the relief requested by the plaintiffs.
[14] OLG responded to the plaintiffs’ motion with the affidavit of Dharshini Sinnadurai. Ms. Sinnadurai is an associate lawyer with McCarthy Tétrault LLP, counsel for OLG in this action.
[15] Ms. Sinnadurai described how OLG has produced approximately 1400 documents to date in this litigation. Ms. Sinnadurai also identifies two of the custodians to which reference was made in the letter from plaintiffs’ counsel dated March 27, 2015 as former employees of OLG. These two custodians are Paul Godfrey and Rob Moore.
[16] Ms. Sinnadurai deposes that OLG’s internal legal counsel contacted current employees on March 31, 2015 and April 7, 2015 and directed them to search their personal email accounts and to provide OLG’s internal counsel with copies of any potentially relevant documents. Ms. Sinnadurai deposes that all of the current employee custodians cooperated with this request. She reports that Amanda Barnett advised that she did not locate any responsive documents, and that Larry Flynn, Beth Webster, Will Hill, Leslie Byrne, Sunita Stokes and Beth Tsai provided internal counsel for OLG with potentially relevant emails for further review.
[17] OLG has advised that Jamie Yoon, its internal legal counsel contacted each of the current employees identified in the letter dated March 27, 2015 from counsel for the plaintiffs. OLG claims solicitor and client privilege and litigation privilege over the content of those communications with current employees. However, and without waiving that privilege, OLG is prepared to disclose for the purpose of the present motion that it has sought the production of any potentially relevant documents from the personal email accounts of those current employees, and that each of those custodians has cooperated fully.
[18] Ms. Sinnadurai also describes how internal counsel for OLG contacted former OLG employees to request copies of potentially relevant emails from external email accounts. On April 13, 2015, Tony Wong, Vice-President, Legal Services and Litigation at OLG contacted Mr. Godfrey with this request. On April 20, 2015, Mr. Godfrey provided copies of three potentially relevant emails to Mr. Wong that he could locate. Ms. Sinnadurai deposes that she has reviewed the three potentially relevant emails from Mr. Godfrey and has determined that none of them is relevant to the action. She also deposes that two of these three documents had previously been reviewed by counsel for OLG in the course of preparing OLG’s affidavit of documents.
[19] At the same time, Mr. Yoon, internal legal counsel for OLG, wrote to Mr. Moore on April 21, 2015 to make the same requests that Mr. Wong had made to Mr. Godfrey. Mr. Moore is OLG’s former Senior Vice-President of Marketing, Communications and Stakeholder Relations, who left OLG in 2011.
[20] On April 28, 2015, Mr. Moore advised Mr. Yoon that he had completed the request to searches and had no documents to provide in the following words:
Jamie, I have undertaken a search of all the personal e-mail accounts to which I currently have access as per your instructions. I have not found any relevant documents that would be relevant to the standard breeders’ claim litigation, as described in your email below.
[21] Ms. Sinnadurai states in her affidavit that she is currently in the process of reviewing the documents received from custodians who are current employees of OLG with respect to relevance and privilege. At the motion, Mr. Rosenberg handed up a draft supplementary affidavit of documents listing any relevant documents generated from this review.
[22] OLG also takes the position that the OLG information technology policy, including any email use and document retention policy, is confidential and is not available to the public. OLG states that some of the policies touch on highly sensitive topics, such as security measures OLG has put in place when communicating with third party digital domains. OLG objects to producing the OLG information technology policies in the absence of a clear rationale for their relevance.
[23] Instead of cross-examining Ms. Sinnadurai on her affidavit, McCarthy Tétrault LLP wrote a letter dated May 15, 2015 to Mr. Matthews to provide him with the evidence that she would have given had she been cross-examined on her affidavit. By agreement between counsel, none of the evidence provided in that letter constituted a waiver of any privilege that attaches to counsel’s communications with OLG employees. The letter containing evidence that would have been given on cross-examination disclosed the following:
Counsel employed the same search methodology for the seven current OLG employees identified as custodians in the letter from counsel for the plaintiffs dated March 27, 2015. The employees were given a detailed memorandum for a scope of reference setting out the claims pleaded by the plaintiffs and the defences pleaded by OLG and directed to conduct a search for relevant documents stored in their personal email accounts. Those employees were asked to review their personal email accounts and produce any potentially relevant documents, erring on the side of inclusion. They were also asked to consider any document referencing or relating to SARP, the Strategic Business Review, horse breeders or horse people to be potentially relevant.
On April 7, 2015, those employees were provided with a copy of the letter from counsel for the plaintiffs dated April 6, 2015 indicating an expanded request for searches of personal email accounts and told that OLG would prefer that they review their personal email accounts and provide counsel with all documents relating to OLG business on which counsel for OLG would run the court ordered search terms. As an alternative, the employees were given instructions for a two-part relevant search and to provide the results to counsel for OLG. In the first part of the relevant search, the employees were provided with a description of the litigation and asked to review their personal email accounts. In the second part of the search, the employees were asked to take the additional measure by searching the following terms: standard bred, “standard space bred”, breeder, breeding, SARP, “slots at racetrack”, “slots at the racetrack”, and “slots-at-racetrack”.
[24] The cross-examination letter states that an OLG articling student assisted those custodians with their searches and the collection of emails as needed.
[25] Ms. Sinnadurai states in the cross-examination letter that on the basis of her discussions with the OLG articling student and her review of the privileged internal OLG correspondence, the seven current OLG employees identified as custodians confirmed their cooperation with the nature and scope of OLG’s search request between March 31 and April 24, 2015.
[26] Ms. Sinnadurai completes the information she would have given as evidence at her cross-examination by stating that in view of the efforts described, OLG’s confidential policies regarding email use and document retention are immaterial and OLG is not prepared to disclose those policies.
Analysis
[27] At issue on the plaintiffs’ motion is the right to the disclosure of documents pursuant to the OLG disclosure obligations with respect to documents in its possession, control or power. This question underpins the plaintiffs’ motion for a further and better affidavit of documents from OLG.
[28] The plaintiffs move under Rule 30.06(b) for an order that OLG serve a further and better affidavit of documents. Rule 30.06 reads as follows:
WHERE AFFIDAVIT INCOMPLETE OR PRIVILEGE IMPROPERLY CLAIMED
30.06 Where the court is satisfied by any evidence that a relevant document in a party’s possession, control or power may have been omitted from the party’s affidavit of documents, or that a claim of privilege may have been improperly made, the court may,
(a) order cross-examination on the affidavit of documents;
(b) order service of a further and better affidavit of documents;
(c) order the disclosure or production for inspection of the document, or a part of the document, if it is not privileged; and
(d) inspect the document for the purpose of determining its relevance or the validity of a claim of privilege. R.R.O. 1990, Reg. 194, r. 30.06.
[29] In order to justify an order under Rule 30.06(b), the moving party must provide a sufficient evidentiary basis that such documents exist in the possession, control or power of the other party that should have been disclosed. The second question the moving party must answer is whether the missing documents are or should be produced to the moving party.
[30] The plaintiffs rely upon one email produced in the disclosure dragnet required by Rule 30.02 and my Order dated February 9, 2015 from Will Hill to Paul Godfrey, J. Stoddart, Beth Webster and T. Marinelli on March 14, 2011. This email is clearly relevant because it makes specific reference to the Slots At Racetracks Program. It discusses information gathered with respect to slot revenue that is being forwarded to the racetracks over the years since inception of the program through 2009, half of which went out in the form of increased purses. This email was sent to Paul Godfrey and J. Stoddart at their email addresses at Postmedia, and to Beth Webster at her Rogers.com account.
[31] This email and others establish that OLG business relevant to the matters at issue between the parties in this action were sent or received by non-OLG email accounts at non-OLG email addresses that are captured by the OLG disclosure obligations. As OLG declares that it has reviewed emails sent by Mr. Godfrey from his Postmedia account as to relevance and that it has screened emails and other documents produced by current employees from non-OLG email addresses, OLG takes the position that it has taken all necessary steps the law requires to determine if relevant documents are in its possession, control or power to retrieve those documents. Upon retrieval, it would then be required to sort those documents for disclosure under Schedule A of a further and better affidavit of documents, or to determine any claim for privilege to list them under Schedule B.
[32] In order to determine the extent to which OLG has an obligation to direct former and current employees to search and produce relevant documents for the appropriate review and sorting functions, the plaintiffs refer to the Memorandum of Understanding between the (Ontario) Ministry of Finance and OLG 2011. According to paragraph 4.3, this document remains in effect for a period of five years from the date it is executed by both of the parties to it. The Memorandum of Understanding is a public document obtained by counsel for the plaintiffs from the olg.ca website.
[33] The Memorandum of Understanding is a significant document that discloses the requirement of an OLG email use and document retention policy. It is clear that an email use and document retention policy exists because section 8.7 of the 2011 Memorandum of Understanding provides in part that:
With respect to the management of recorded information [OLG] will:
(a) ensure that management follow appropriately defined processes of retention and disposal consistent with the directives [including the Freedom of Information and Privacy Directive and the Management of Recorded Information Directive];
(b) ensure that managers and staff create full, accurate and reliable records that document and support significant business transactions, decisions, events, policies and programs;
(c) hold managers accountable for managing the recorded information that is under their custody and control;
(d) ensure that recorded information identified during retention scheduling as having archival value is safeguarded so as to protect its ongoing accessibility and integrity …
[34] Knowing that the Memorandum of Understanding contemplates these policies, it is necessary to determine if emails sent and received by non-OLG email addresses are within the control and power of OLG having regard to the requirement of the Memorandum of Understanding that OLG be accountable for all electronic data.
[35] The concepts of “control” and “power” are not defined terms under the Rules of Civil Procedure. The plaintiffs referred to the decision of the Supreme Court of Canada in Canada (Information Commissioner) v. Canada (Ministry of National Defence), 2011 SCC 25 to consider the concept of control within the context of the Federal Access to Information Act, which provides a right of access to “any record under the control of the government institution”. In determining whether records located within in the offices of the Prime Minister, the Minister of Defence and the Minister of Transport were under the control of Privy Council Office, the Department of National Defence and the Department of Transport, respectively, the Supreme Court applied a two-part test for ascertaining control:
55 Step one of the test acts as a useful screening device. It asks whether the record relates to a departmental matter. If it does not, that indeed ends the inquiry. The Commissioner agrees that the Access to Information Act is not intended to capture non-departmental matters in the possession of Ministers of the Crown. If the record requested relates to a departmental matter, the inquiry into control continues.
56 Under step two, all relevant factors must be considered in order to determine whether the government institution could reasonably expect to obtain a copy upon request. These factors include the substantive content of the record, the circumstances in which it was created, and the legal relationship between the government institution and the record holder. The Commissioner is correct in saying that any expectation to obtain a copy of the record cannot be based on "past practices and prevalent expectations" that bear no relationship on the nature and contents of the record, on the actual legal relationship between the government institution and the record holder, or on practices intended to avoid the application of the Access to Information Act (A.F., at para. 169). The reasonable expectation test is objective. If a senior official of the government institution, based on all relevant factors, reasonably should be able to obtain a copy of the record, the test is made out and the record must be disclosed, unless it is subject to any specific statutory exemption. In applying the test, the word "could" is to be understood accordingly.
[36] The Ontario Court of Appeal in Ontario (Criminal Code Review Board) v. Ontario (Inquiry Officer), found that backup tapes prepared by independent, third party court reporters were nevertheless under the control of the Ontario Criminal Code Review Board. The court placed weight on the fact that the sole purpose of creating the backup tapes was to fulfill the Board’s mandate to keep an accurate record. The court found that it was “reasonable to expect” that the Board would make arrangements to ensure that “any record of proceedings, backup records included, be used solely for the purposes of the Board”.
[37] The combined effect of the requirements set out in the Memorandum of Understanding and evidence that OLG related emails were sent or received by employees at non-OLG email addresses satisfies the departmental purpose part of the test. OLG related emails sent to or from non-OLG addresses was an activity that was contrary to the expectation set out in the Memorandum of Understanding.
[38] For an employee to send or receive an OLG related document relating to the matters at issue in this action on a non-OLG email address was similar to independent third party court reporters in Ontario (Attorney General) v. Ontario (Criminal Code Review Board). The requirement of the Memorandum of Understanding that OLG preserve an account for electronic data, provides the basis to draw a reasonable inference that relevant documents and electronic data exists outside of the OLG document retention system that gives rise to a duty to inquire and retrieve all such documents and data that exists outside of that system.
[39] The test to answer whether it was “reasonable to expect” OLG to make such arrangements, based on the Memorandum of Understanding and emails such as those demonstrated by the email from Will Hill to Paul Godfrey and others, raises a duty on the part of OLG to disclose its email use and document retention policies. These policies are not only significant as interpretive devices to determine what other documents are in OLG’s control or power, they are relevant documents in and of themselves. OLG’s obligation to produce documents in its possession, control or power will be informed by the email use and retention policies. Those policies may lead to other platforms for control such as contractual relationships with current and former employees to cooperate and return documents arising out of an employment relationship, terms of employment dictated by policy, code or frame of reference, and the email use and document retention policies themselves. The prospect of finding control involves a consideration of all aspects of the relationship between OLG and its current and former employees, and all of the above factors inform that relationship.
[40] The OLG obligation to disclose documents exists independent of, and survives any employment relationship.
[41] The plaintiffs also argue that OLG documents sent and received by non-OLG email addresses of current and former employees are within the power of OLG to produce. The plaintiffs rely upon FCMI Financial Corp. v. Curtis International Ltd, 2003 CarswellOnt 4582 (S.C.J.), in which this court held that “a document is deemed to be in a party’s power if that party is entitled to obtain the original document or a copy, and the other party is not so entitled.”
[42] The plaintiffs also rely upon OLG’s refusal to provide its email use and document retention policies to invite the court to draw the inference that those policies contain provisions that require all documents created for OLG’s benefit by OLG employees acting within the course of their duties to be OLG property and subject to OLG’s possession, control or power.
[43] The plaintiffs’ chief objective is to establish that OLG’s right to seek the cooperation of, and to perhaps compel current employees and former employees to retrieve and return all OLG related emails sent or received by non-OLG email addresses is consistent with its email use and retention policies of OLG employees. The underlying facts to prove OLG’s right, vis-à-vis those employees, relies upon establishing those emails are departmental documents, and that it would be reasonable to expect compliance by those employees. The plaintiffs argue that Ms. Sinnadurai has demonstrated in paragraph 5 of her affidavit affirmed on May 12, 2015 that OLG has in fact exercised this power to direct current and former employees in that regard.
[44] In response, Ms. Sinnadurai refers to paragraphs 8 and 9 of her affidavit that Mr. Godfrey and Mr. Moore, having received a request for documents from OLG, have complied to the fullest extent OLG could reasonably expect. OLG takes the position that these policies are not relevant in light of the cooperation it has provided to date.
[45] Counsel for OLG takes the position that OLG has met its disclosure obligations, including the further steps required by the plaintiffs to retrieve OLG related documents from employees for sorting and disclosure purposes. Alternatively, OLG takes the position that the plaintiffs have not provided a sufficient evidentiary foundation to ask the court for the order they seek.
[46] The plaintiffs seek a companion order requiring OLG to produce its information technology policies governing the sending and receipt of emails and the use of email accounts for OLG business for the period 2009 to 2012, and relating to OLG’s retention of records, including email records, during the same period.
[47] OLG has a duty under Rule 30 of the Rules of Civil Procedure to make full and continuous disclosure of all documents relevant to any matter at issue between the parties in this action, according to the scope of that disclosure determined by my Order dated February 9, 2015. These disclosure obligations extend and apply to relevant documents in the possession, control or power of OLG. The plaintiffs seek disclosure from OLG of relevant documents concerning OLG business in the form of emails or attachments sent or received by non-OLG email accounts by former and current employees. OLG argues that it has fully cooperated with the demands the plaintiffs have made for full compliance with the required disclosure obligations, and that those documents sent or received on non-OLG email accounts are beyond OLG’s power or control.
[48] The concepts of control and power were argued by analogy to Canada v. Ministry of National Defence with respect to the concept of control, and the FCMI Financial Corp. case with respect to the concept of power. I am satisfied by the evidentiary basis provided by the plaintiffs that some or all of the current employees may have relevant OLG emails stored on non-OLG email accounts. I do not know the quantity of the emails that would be revealed after a full search but where there may be smoke, there may be fire. I would think that OLG would want to provide the fullest extent of cooperation possible to show that it has nothing to hide.
[49] With respect to the former employees, I disagree with the approach taken by Mr. Wong and Mr. Yoon in their letters of request to Mr. Godfrey and to Mr. Moore. Despite the wording in Canada v. Ministry of National Defence, I see nothing improper or offensive about OLG writing to Mr. Godfrey and Mr. Moore to direct them to search their emails on non-OLG accounts and to produce all emails that could be remotely relevant without employing their own search terms or the eight search terms suggested by Mr. Yoon. It would be up to counsel for OLG upon receiving all relevant emails from each Mr. Godfrey and Mr. Moore to run all of the court ordered search terms on those emails, and to provide the results to the plaintiffs.
[50] It is not appropriate or acceptable to leave it to Mr. Godfrey or to Mr. Moore to determine what documents are actually relevant, or to search the depository of OLG related email on their respective non-OLG accounts using the search terms ordered. Those functions are particular to OLG and its counsel to meet the OLG disclosure obligations.
[51] In terms of current employees, the question of to what extent OLG is required to run the court ordered search terms on the non-OLG accounts that any employee used between 2009 and 2012 for OLG business related to the litigation is within OLG’s control to answer.
[52] The extent of OLG’s legal right to direct former and current employees to provide relevant documents from non-OLG email turns in large part on the OLG information technology policies, including any email use and document retention policies in place in 2009 to 2012, and at the present time. If the non-OLG email accounts hold relevant documents that must be produced, surely the policies that determine the extent of that disclosure must be relevant to the inquiry. Therefore, any document that measures where and what documents are in the possession, or control, or power of a party for production purposes is inherently relevant and should be produced.
[53] Therefore, I am adjourning this motion to July 13, 2015 when the parties are next scheduled before the court on the term that OLG produce its information technology policies, including its email use and document retention policies in place between 2009 and 2012 inclusive, as well as any policy in force for current employees. If there are sensitive parts of those policies, OLG may redact those parts provided that they bring an un-redacted copy of those policies with them on July 13, 2015. The plaintiffs shall be at liberty to bring a motion to seek un-redacted copies of those policies as a component of whatever redaction motion is before the court at that time.
OLG’s Motion For An Advance Form Of Discovery
[54] OLG seeks an order under Rule 31.02(1) that reads as follows:
31.02 (1) Subject to subrule (2), an examination for discovery may take the form of an oral examination or, at the option of the examining party, an examination by written questions and answers, but the examining party is not entitled to subject a person to both forms of examination except with leave of the court. R.R.O. 1990, Reg. 194, r. 31.02 (1).
[55] OLG seeks leave of the court to conduct a form of discovery in writing prior to oral examinations under Rules 31.02(1) because of the multiple claims made by the several plaintiffs in the amended statement of claim and the nature of those claims. OLG also seeks documentary disclosure before examinations because of my order made on December 5, 2014 that allowed each plaintiff to deliver an affidavit of documents incorporating by reference those documents mentioned in the affidavit of documents of Walter Parkinson.
[56] Counsel for OLG initially wrote a letter to counsel for the plaintiffs on March 14, 2014 to demand extensive particulars to the statement of claim initially served on OLG. The letter demanding those particulars resulted in the amended statement of claim on which the plaintiffs are now proceeding. I heard no evidence that any motion has ever been brought with respect to any failure of the plaintiffs to provide particulars, or the adequacy of the material facts pleaded in the amended statement of claim.
[57] I am informed that 56 documents are actually pleaded by the plaintiffs in the amended statement of claim. The plaintiffs state that some of the plaintiffs obtained certain documents from particular sources, while other plaintiffs obtained other documents elsewhere.
[58] The plaintiffs concede that the core of their claim is based on the pleading of a “continuing and sustained course of representations” by OLG in Ontario “through words and conduct regarding the nature of their commitment to [the SARP] revenue sharing partnership”. The plaintiffs allege that this “continuing, planned and sustained course of conduct” was directed to the plaintiffs and “was intended to and did convey OLG and Ontario’s long-term commitment to the revenue sharing partnership”.
Analysis
[59] The amended statement of claim is framed in negligent misrepresentation, in addition to breach of contract and a claim of unjust enrichment. In terms of negligent misrepresentation as a cause of action, the pleadings of the plaintiffs in the amended statement of claim expressly or by implication raise reliance as an essential element. As each plaintiff has joined in the amended statement of claim, there are essentially 45 different actions against the common defendants. Each plaintiff has the onus of proving its case on the law and the facts as to liability and damages. Therefore, the representations relied upon and the documents containing those representations are relevant to the disclosure requirements under the Rules of Civil Procedure and on the examination for discovery process.
[60] The plaintiffs do not suggest or deny that they do not have to answer questions about reliance on representations that OLG made or allegedly made at material times. In paragraph 84 of the plaintiffs’ factum in response to the OLG motion, the plaintiffs simply state that the appropriate time for an examination on issues of representation and reliance is at the oral examination for discovery of every plaintiff, which is the presumptive and ordinary approach.
[61] In view of OLG’s motion to seek an advance form of written discovery of each plaintiff before they conduct oral examinations for discovery, I make reference to Rule 35.01 and 35.02(1) and (2). Rule 35.01 states as follows:
35.01 An examination for discovery by written questions and answers shall be conducted by serving a list of the questions to be answered (Form 35A) on the person to be examined and every other party. R.R.O. 1990, Reg. 194, r. 35.01.
[62] Rule 35.02 provides how answers are to be given to those questions in writing:
35.02 (1) Written questions shall be answered by the affidavit (Form 35B) of the person being examined, served on the examining party within fifteen days after service of the list of questions. R.R.O. 1990, Reg. 194, r. 35.02 (1).
(2) The examining party shall serve the answers on every other party forthwith. R.R.O. 1990, Reg. 194, r. 35.02 (2).
[63] I also make reference to Rule 31.02(2), which provides that where more than one party is entitled to examine a person, the examination for discovery shall take the form of an oral examination, unless all the parties entitled to examine the person agree otherwise. I note that the plaintiffs in this action who have the right to re-examine their own witness under Rule 34.11, do not “agree otherwise” with respect to discovery by written questions, whether in advance of oral discoveries or at all.
[64] The defendant OLG relies upon the decision Justice Hambly of this court in City of Hamilton v. Canada (Attorney General), 2015 ONSC 1046, [2015] O.J. No. 853 for the proper application of Rule 31.02(1) in the circumstances before me. Counsel for OLG also relies upon Rule 1.04(1) that requires the court to adhere to the general principle that the Rules of Civil Procedure shall be liberally construed to secure just, most expeditious and least expensive determination of a case on its merits.
[65] In City of Hamilton v. Canada, the defendants brought a motion to examine the plaintiff, the City of Hamilton by both written and oral questions in February 2015 within an action that was commenced on April 1, 2004. Justice Hambly granted leave to the defendants to conduct the examinations for discovery of the City of Hamilton by both written interrogatories and oral examination, provided that those examinations be conducted without duplication and in a cost effective manner. Justice Hambly appears to have based his decision on the arguments made by the defendants that permitting oral and written discovery of the City would be more efficient, expeditious and less costly for both parties as combined discoveries would have the following effect:
a) to significantly shorten the time required for discovery if some of the discovery could be conducted by written interrogatories;
b) to significantly reduce costs to the public;
c) to expedite the completion of the discovery of the City; and,
d) to greatly simplify and expedite the presentation of the case at trial, for the benefit of the trial judge.
[66] These arguments align with the principles set out in Rule 1.04 in terms of providing a discovery process that was effective, efficient, expeditious and fair.
[67] It is worth noting that when Justice Hambly granted leave for two forms of discovery in Hamilton, the case that was at least ten years old and required an order to expedite the examination for discovery process. That alone distinguishes the Hamilton case from the case at hand.
[68] I am more concerned in the present case that OLG seeks an advance round of discovery by written questions based upon a questionnaire it proposes to have counsel for the plaintiffs send to each plaintiff and for those plaintiffs to complete and return. This proposed manner of discovery by written questions is contrary to how answers are to be provided. Under Rule 35.02(2), written questions shall be answered by the affidavit of the person being examined. OLG does not require an affidavit from each of the plaintiffs.
[69] I have already noted that the plaintiffs object to an advance form of discovery prior to examinations for discovery and that Rule 31.02(2) therefore precludes any other form of discovery than oral examinations for discovery in this action. I note that Rule 31.02(1) is subject to subrule (2), and that subrule 31.02(2) contains mandatory language that an examination for discovery shall take the form of an oral examination unless all the parties entitled to examine the person agree otherwise. Subrule 31.02(2) does not include a provision giving the court power to grant leave in the absence of an agreement between parties.
[70] I have nonetheless considered the questionnaire that OLG proposes each plaintiff complete and return. I recognize that OLG is entitled to know the case it has to meet, and its right to full and continuous disclosure of documents from each plaintiff. However, it seems to me that the questionnaire is more a list of particulars and documents it might seek at an oral examination for discovery. A demand for particulars is not restricted to particulars a party might require in order to plead: there is authority that particulars may be required to prepare for examinations for discovery. See Sleep Clinic London Inc. v. Merchea, 2012 ONSC 3004, with additional reasons at 2012 ONSC 5651, and [Six Nations of the Grand River Band v. Canada (Attorney General), 2000 26988 (ON SCDC), [2000] O.J. No. 1431, also at 48 O.R. (3d) 377 (Div. Ct.).
[71] I have no evidence on the current motions that OLG served a demand for particulars on each plaintiff after its letter dated March 14, 2014, let alone a request to inspect documents that may have been referred to in the amended statement of claim. In order to give OLG the opportunity to consider whether that step is more appropriate than seeking an advance round of discoveries in the form of circulating a questionnaire, I am adjourning OLG’s motion to July 13, 2015. The parties are each granted leave to file further affidavit evidence on the motion in this regard, and I may give such directions and make such procedural orders as are necessary under Rule 37.15(1.2) at that time.
[72] In view of the fact that both motions have been adjourned, I reserve the costs of the motions argued on May 19, 2015 to July 13, 2015.
Emery J
DATE: June 4, 2015
CITATION: Seelster v. HMTQ and OLG, 2015 ONSC 3529
COURT FILE NO.: 272/14
DATE: 2015 06 04
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SEELSTER FARMS INC. WINBAK FARM OF CANADA, INC, STONEBRIDGE FARM, 774440 ONTARIO INC., NORTHFIELDS FARM INC., JOHN MCKNIGHT, TARA HILLS STUD LTD., TWINBROOK LTD., EMERALD RIDGE FARM, CENTURY SPRING FARMS, HARRY RUTHERFORD, D10041NE INGHAM, BURGESS FARMS INC., ROBERT BURGESS, 453997 ONTARIO LTD., TERRY DEVOS, SONIA DEVOS, GLENN BECHTEL, GARTH BECHTEL, 496268 NEW YORK INC., HAMSTAN FARM INC., ROBERT HAMATHER, ESTATE OF JAMES CARR, deceased, by its executor Darlene Carr, GUY POLILLO, DAVID GOODROW, TIMPANO GAMING INC., CRAIG TURNER, ROBERT MCINTOSH STABLES INC., GLENGATE HOLDINGS INC., KENDAL HILLS STUD FARM LTD., ANY KLEMENCIC, TIM KLEMENCIC, STAN KLEMENCIC, JEFF RUCH, BRETT ANDERSON, DR. BRETT C. ANDERSON PROFESSIONAL VETERINARY CORPORATION, KILLEAN ACRES INC., DECISION THEORY INC., 296268 ONTARIO LTD., DOUGLAS MURRAY MCCONNELL, QUINTET FARMS INC., KARIN BURGESS, BLAIR BURGESS, ST. LAD’S LTD., WINDSUN FARM INC., SKYHAVEN FARMS, HIGH STAKES INC., 1806112 ONTARIO INC., GLASSFORD EQUI-CARE, JOHN GLASSFORD, GLORIA ROBINSON and KEITH ROBINSON
v.
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and ONTARIO LOTTERY AND GAMING CORPORATION
COUNSEL: Jonathan C. Lisus and Ian C. Matthews, for the Plaintiffs
Robert Ratcliffe, John Kelly and Sonal Gandhi, for the Defendant, Her Majesty The Queen
Awanish Sinha and H. Michael Rosenberg, for the Defendant, Ontario Lottery and Gaming Corporation
HEARD: May 19, 2015
ENDORSEMENT
EMERY J
DATE: June 4, 2015