Whitty v. Wells, 2016 ONSC 7716
CITATION: Whitty v. Wells 2016 ONSC 7716 Court File No. CV-11-442307 DATE: 20161213
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
PATRICK WHITTY, RPR ENVIRONMENTAL INC., 1049585 ONTARIO INC., and 876947 ONTARIO LIMITED
Plaintiffs
- and -
EDWARD N. WELLS, EDWARD G. WELLS, BRADLEY MAY,
RENZO BENOCCI, MARK VANDERLAAN, MANON
BOMBARDIER GORDON OWEN, and ATTORNEY
GENERAL OF CANADA
Defendants
BEFORE: F.L. Myers J.
COUNSEL: Vilko Zbogar, for the plaintiffs
Jacqueline Dais-Visca and Abigail Browne, for the defendants (other than Sandra Antoniani)
John Evans for the defendant Sandra Antoniani
HEARD: October 11 and 27, 2016
endorsement
[1] This Endorsement applies to motions in all of the cases among these parties under court file nos. CV-13-488119, CV-13-488748, and CV-13-488659.
[2] The plaintiffs sue the Crown and others for misfeasance in public office and defamation in relation to regulatory charges brought against the plaintiffs.
The Motions
[3] The plaintiffs move for further and better disclosure of a large number of documents and challenge claims of privilege advanced by the Crown. The Crown moves to claw back a number of documents that are subject to solicitor-client privilege that it says were released to the plaintiffs in error under the Access to Information Act, R.S.C. 1985, c. A-1. The Crown seeks to remove the plaintiffs’ counsel as a result of his seeing and using privileged documents. The plaintiffs move to quash that motion on the basis that the Court has no jurisdiction to police matters concerning access to information. The plaintiffs also seek to set aside orders made by Matlow J. and by me ordering the plaintiffs to pay costs and to post security for costs on the basis that the Crown obtained those orders through misrepresentations as to the completeness of their document production efforts.
[4] The defendant Antoniani was the lawyer retained to prosecute the charges that are the subject of this proceeding. She moves for an order determining either that all relevant communications between her and the Crown are privileged or that all ought to be available for her to rely upon to defend herself against the plaintiffs’ claims. She says that the partial disclosures erroneously made by the Crown under the Access to Information Act have prejudiced her position and that in order to respond fairly and fully in this litigation she needs to produce other documents over which the Crown continues to assert privilege.
The Outcome
[5] For the reasons that follow, the plaintiffs’ motions are dismissed. The Crown’s motion is granted to the extent that the plaintiffs are prohibited from using and are required to return to the Crown any documents erroneously produced by the Crown that are subject to solicitor-client privilege as set out below.
[6] At the request of all counsel, I have reviewed a very large number of documents over which the Crown’s claims of privilege are challenged by the plaintiffs. The results of that review are set out in the chart attached to this endorsement as Appendix A. In the main, the claims of solicitor-client privilege are upheld. A few cases of confidential informant privilege are noted. In several cases, I could not locate the document referred to or I was not able to discern what was being redacted or I had only a redacted version of the document and could not read the redacted portion. These documents may be resubmitted for review if counsel cannot agree on the outcome in light of the reasons that follow. The few documents submitted by Ms. Antoniani for review are all properly subject to solicitor-client privilege with two exceptions where the documents were irrelevant.
Important Overriding Fact – There are Few Relevant Documents despite the Volume Sought by the Plaintiffs
[7] It is important to emphasize at the outset of this endorsement that very few of the many documents I reviewed were at all relevant to the claims in issue. Overall, as discussed below, there has been much overkill and disproportionate document review and production in this litigation. The fundamental issues in the case involve whether the government’s investigators and its lawyer Ms. Antoniani deliberately violated the law in bringing repeated enforcement proceedings against the plaintiffs and wrongly publicizing the outcomes. There is a mass of documents relating to the government’s regulatory efforts as can be expected in any enforcement effort in a regulated industry. However, very few documents relate to any issues that could be considered relevant to claims of wrongdoing against Ms. Antoniani or the government officials.
The Plaintiffs’ Main Argument
[8] The Crown delivered its List of Documents on February 18, 2016. It contains 1,239 documents in Schedule “A”. It lists a further 135 documents in Schedule “B” as subject to claims of privilege.
[9] The plaintiffs have made more than 60 Access to Information requests and have obtained a very substantial number of documents as a result. The plaintiffs calculated that, in this litigation, the Crown has produced only approximately 45% to 64% of the documents produced by it under Access to Information. I accept that as a fact. In late September 2016, as a result of the plaintiffs’ requests for a further 51 categories of documents as part of these motions, the Crown produced a further 535 documents. In addition, Ms. Antoniani did not produce her Affidavit of Documents by the deadline and most of the documents listed in her Affidavit of Documents are not included in the Crown’s list. A fortiori, the plaintiffs’ argue that the Crown’s list is deficient. In addition, they argue that since the Crown was awarded costs and security for costs on the basis of its representation that it had made complete disclosure by the Court-ordered deadline, these awards ought to be set aside now that it is clear that its disclosure was deficient.
[10] The plaintiffs’ argument that the Crown’s disclosure is insufficient because it contains only a percentage of the documents produced in response to their 60-plus Access to Information requests is a non sequitor. The issues guiding production of documents in this litigation are relevancy and proportionality assessed against the issues in the pleadings. The fact that a larger mass of documents was sought and delivered under another regulatory process guided by different criteria does not provide any evidence that relevant documents have been withheld in this litigation. What the plaintiffs sought or obtained under Access to Information has no bearing upon the question of whether the Crown has produced what it is required to produce in this litigation unless the plaintiffs can show that they received documents in the former that are required to be produced but were not produced in the latter. The plaintiffs were not able to demonstrate that there are relevant, unproduced documents or that further efforts to disclose what they seek would be at all fruitful. I do not accept that spending any further time and effort on further document searches by the Crown is likely to yield any relevant documents especially when most of what I have seen so far has been of limited or no relevancy at all.
[11] The Crown’s evidence concerning its disclosure process is not contested. It made substantial efforts to organize documents and to minimize production of irrelevant and duplicative documents. For example, it made efforts to produce only one comprehensive email chain rather than producing numerous identical or incomplete versions of the same chain. It is not at all surprising that the Crown’s List of Documents contains but a fraction of the documents produced in response to the Plaintiffs’ multitudinous Access to Information requests. For the same reason, the Crown’s List of Documents does not contain many of the documents listed by Ms. Antoniani. The fact that the lawyers used different relevancy criteria is of no moment if the plaintiffs cannot point to relevant documents disclosed by Ms. Antoniani that are not disclosed by the Crown. Spending time demanding or searching for different versions of the same email, for example, is not a worthwhile effort. The Crown made significant efforts to limit its productions to relevant documents presented as efficiently as circumstances allowed.
The Plaintiffs Seek Disclosure of 51 Categories of “Missing Documents”
[12] In Appendix “A” to their notice of motion, the plaintiffs list 51 categories of “missing documents.” The Crown has responded to each without admitting that any is particularly relevant. The recent production of a further 500 documents by the Crown in response to this list is of little consequence for the same reasons discussed above. The Crown has made efforts to give the plaintiffs what they seek if readily accessible. That is not an admission of relevancy or of any misrepresentation. The Crown has sought to satisfy the plaintiffs’ requests by responding to the 51 categories with documents it previously determined to be irrelevant. For most of the plaintiffs’ 51 categories, the Crown says simply that it has produced what it has. Unless the plaintiffs have proof that the Crown has more and that they are relevant, that answer is, of necessity, sufficient.
[13] The plaintiffs take umbrage with the Crown’s suggestion that if the plaintiffs “expect” documents and none are disclosed, they are free to raise questions about why this is the case during oral examinations for discovery. This seems like the appropriate course to me. It has a higher likelihood of producing a useful result based on sworn evidence rather than hypothesizing as to whether there “ought” to be more documents and then casting aspersions on satisfaction of a self-fulfilling prophesy.
[14] Among the plaintiffs’ allegations is a claim that they were singled out for failing to produce proper export or import documentation. The plea is quite general and contains no particular comparator. It is no defence to a charge to say that others did the same thing and they were not charged. The plaintiffs say that they provided proper documents to the Canadian Border Services Agency when their trucks crossed into or out of the US and that the CBSA failed to forward the documents to the Crown regulator. They ask for production of all documentation provided by the CBSA to the Crown for all other border crossings by all other businesses in their field. The request offends virtually every subsection of Rule 29.2.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. One can readily ask the Crown or the CBSA if the latter failed to forward documents provided to border guards by truckers or if the former received documentation from the CBSA for the plaintiffs or for others at about the time of the charges against the plaintiffs. I see no purpose however in producing thousands upon thousands of border crossing manifests delivered by each trucker who took a regulated load over the border or even lists of same. It is an expensive make-work project that offers no enhancement to the probative value of a simple answer to the more general oral question.
[15] The plaintiffs also argue that the scope of production under Rule 29.2.03 differs from the scope of disclosure under Rule 30.02(1) so that the proportionality provisions of Rule 29.2.03 do not apply to their requests for mere disclosure of documents in the Crown’s List of Documents. However, Rule 30.04 (1) and (4) make clear that all documents disclosed must also be produced. There is no difference in the test or scope of relevancy as between production and disclosure.
[16] The plaintiffs also seek an order for the production of better copies of a group of documents that they refer to as “illegible and unmanageable.” The Crown has provided what it has and where technology is in issue, the Crown has offered to allow counsel for the plaintiffs to inspect the version of the documents displayed on the Crown’s computers where they can be readily reviewed. The plaintiffs’ counsel has moved for relief rather than simply arranging to attend at the Crown’s office with such assistance as he may need. I would not exercise my discretion to order the Crown to alter the formatting of documents for the plaintiffs at this stage.
[17] The plaintiffs complain that the Crown produced a number of documents that may be missing attachments. On the documents that I reviewed in the motion records and privately, it is apparent that the Crown has not systematically stripped attachments from emails. In a large database the fact that there are a few emails with no attachments and a few documents that do not have associated emails proves no wrongdoing. They may be drafts or copies or just emails where the author forgot to attach the attachment. I understand that counsel have cooperated to provide better association references on several of the documents where readily possible. No order is required on this issue in my view.
Solicitor-Client Privilege – The General Rules
[18] The Supreme Court of Canada has had a very recent opportunity to restate the basic outlines of the law of solicitor-client privilege. Although the decision in Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 was released after oral argument of the motions had concluded, it did not make an appreciable change in the basic legal principles that apply to this case and for which I cite it.
[19] At para. 34 of the majority decision, Côté J. wrote:
It is indisputable that solicitor-client privilege is fundamental to the proper functioning of our legal system and a cornerstone of access to justice (Blood Tribe, at para. 9). Lawyers have the unique role of providing advice to clients within a complex legal system (McClure, at para. 2). Without the assurance of confidentiality, people cannot be expected to speak honestly and candidly with their lawyers, which compromises the quality of the legal advice they receive (see Smith v. Jones, 1999 674 (SCC), [1999] 1 S.C.R. 455, at para. 46). It is therefore in the public interest to protect solicitor-client privilege. For this reason, “privilege is jealously guarded and should only be set aside in the most unusual circumstances” (Pritchard, at para. 17).
[20] At paras. 42 and 43, Justice Côté discussed the concept that solicitor-client privilege is not just an evidentiary rule governing how facts may be proven in court. It is also a rule of substantive law that applies equally to other areas in which people may want to look at communication between lawyers and their clients. The subject in issue in that case, and in the case at bar, is freedom of information requests. Justice Côté explained:
I find that the present case engages solicitor-client privilege in its substantive, rather than evidentiary, context. This case is not occupied with the tendering of privileged materials as evidence in a judicial proceeding. Rather, it deals with disclosure of documents pursuant to a statutorily established access to information regime, separate from a legal proceeding. While it is true that the person who applied for the information was initially seeking the information for use as evidence in separate litigation against the University, her lawsuit has since ended. In addition, the Privacy Commissioner is not seeking to review the solicitor-client privileged information as evidence in order to decide a legal dispute. The disclosure of the information in this context is therefore not related to the “evidentiary privilege”. Rather, disclosure in this case is more akin to the review of mail being delivered to prison inmates, which this Court addressed in Solosky. In that case, as it was described in Descôteaux, the Court “applied a standard that has nothing to do with the rule of evidence . . . since there was never any question of testimony before a tribunal or court” (p. 875). Equally, the absence of such a question here highlights the engagement of solicitor-client privilege in its substantive, rather than evidentiary, role.
This Court has repeatedly affirmed that, as a substantive rule, solicitor-client privilege must remain as close to absolute as possible and should not be interfered with unless absolutely necessary (Chambre des notaires, at para. 28, citing Lavallee, at paras. 36-37, McClure, at para. 35, R. v. Brown, 2002 SCC 32, [2002] 2 S.C.R. 185, at para. 27, and Goodis, at para. 15). Within the evidentiary context of criminal proceedings, for example, the substantive nature of solicitor-client privilege has been interpreted as meaning the privilege only yields in “certain clearly defined circumstances, and does not involve a balance of interests on a case-by-case basis” (McClure, at para. 35). These limited categories, which will only be satisfied in rare circumstances, include the accused’s right to make full answer and defence (McClure; Brown) and where public safety is at stake (Smith).
[21] While I agree with the plaintiffs that this Court does not police the Information Commissioner, it is nevertheless very much the function of the Court to assess claims of substantive and evidentiary privilege, to determine if privilege has been waived or violated, and to determine what, if any, use can be made of privileged documents both before this Court or otherwise.
[22] Recall as well, that privilege depends in part on the relationship of confidentiality between lawyer and client. The law recognizes and enforces confidentiality whether under the equitable cause of action, the well-known Wigmore factors, or privilege per se. Solosky v. The Queen, [1980] 1 S.C.R. 821, 1979 9 (SCC), Slavutych v. Baker et al., [1976] 1 S.C.R. 254, 1975 5 (SCC).
[23] In Mandeville v. Manufacturers Life Insurance Co., 2004 CarswellOnt 9988 (Ont. S.C.) Nordheimer J. discussed the assessment of privilege involving government lawyers at para. 4 as follows:
That basic principle, while easily stated, has proven not to be so easy to apply over the years particularly given the evolving roles that lawyers have come to play especially in large corporations and in government. This problem has been the subject of comment by the Supreme Court of Canada. For example, in R. v. Shirose, 1999 676 (SCC), [1999] 1 S.C.R. 565 (S.C.C.) [hereinafter R. v. Campbell], Mr. Justice Binnie said, at para. 50:
It is, of course, not everything done by a government (or other) lawyer that attracts solicitor-client privilege. While some of what government lawyers do is indistinguishable from the work of private practitioners, they may and frequently do have multiple responsibilities including, for example, participation in various operating committees of their respective departments. Government lawyers who have spent years with a particular client department may be called upon to offer policy advice that has nothing to do with their legal training or expertise, but draws on departmental know-how. Advice given by lawyers on matters outside the solicitor-client relationship is not protected. A comparable range of functions is exhibited by salaried corporate counsel employed by business organizations. Solicitor-client communications by corporate employees with in-house counsel enjoy the privilege, although (as in government) the corporate context creates special problems: [citation omitted]. In private practice some lawyers are valued as much (or more) for raw business sense as for legal acumen. No solicitor-client privilege attaches to advice on purely business matters even where it is provided by a lawyer.
And later in the same paragraph:
Whether or not solicitor-client privilege attaches in any of these situations depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered.
[24] Nordheimer J. then went on to list a number of factors that assist in assessing whether evidence may be privileged as follows at para. 6:
(i) a communication between solicitor and client which entails the seeking or giving of legal advice; and which is intended to be confidential by the parties is privileged — Solosky v. Canada, supra;
(ii) advice given by lawyers on matters outside the solicitor-client relationship is not protected — R. v. Campbell, supra;
(iii) whether solicitor-client privilege attaches depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered — R. v. Campbell, supra;
(iv) the privilege not only attaches to the advice itself, it may attach to materials that are incidental to the obtaining and giving of that advice if the production of such materials would tend to reveal the advice — Susan Hosiery Ltd. v. Minister of National Revenue, 1969 1540 (CA EXC), [1969] 2 Ex. C.R. 27 (Can. Ex. Ct.);
(v) the privilege attaches to the communications by which the advice is sought and given but it does not extend to facts that may be referred to in those communications if they are otherwise discoverable and relevant — General Accident Assurance Co. v. Chrusz (1999), 1999 7320 (ON CA), 45 O.R. (3d) 321 (Ont. C.A.);
(vi) if legal advice given in a document cannot be separated from other information contained in the document, then the entire document may be privileged — Canadian Pacific Ltd. v. Canada (Director of Investigation & Research), [1995] O.J. No. 4148 (Ont. Gen. Div. [Commercial List]);
(vii) the privilege extends to legal advice given whether that advice is given on the laws of Ontario or Canada or elsewhere — Mutual Life Assurance Co. of Canada v. Canada (Deputy Attorney General) (1988), 28 C.P.C. (2d) 101 (Ont. H.C.);
(viii) privilege may be waived if the legal advice over which the privilege attaches has not been kept confidential, for example, if it is widely disseminated to others — Toronto Dominion Bank v. Leigh Instruments Ltd. (Trustee of) (1997), 1997 12113 (ON SC), 32 O.R. (3d) 575 (Ont. Gen. Div. [Commercial List]);
(ix) communications that have the purpose of furthering unlawful conduct are not privileged — Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] S.C.J. No. 16 (S.C.C.)
[25] The plaintiffs object to the process adopted by the Crown to black out or redact privileged portions of otherwise non-privileged documents. This process has been explicitly allowed for both privileged material and irrelevant but sensitive material contained in otherwise relevant documents. McGee v. London Life Insurance Company Limited, 2010 ONSC 1408, 86 C.C.L.I (4th) 86; Guelph (City) v. Super Blue Box Recycling Corp., 2004 34954 (ON SC), at paras 19 – 22.
[26] The plaintiffs also object to the Crown having redacted information about third parties from its disclosures. The plaintiffs rightly argue that while many access to information regimes explicitly protect third party information, the disclosure rules applicable to lawsuits do not. The plaintiffs want to see all information about third parties in the Crown’s documents. However, as noted above, the Rules of Civil Procedure require production of documents that are relevant to the issues in the lawsuit in a proportional process. While deleting the information was unnecessary and not generally part of the process, there is no basis to require that irrelevant material be disclosed at this point.
The Privileged Documents Disclosed by the Crown
[27] There is a very particular and unusual issue in this case that deserves specific comment. Among the documents released by the Crown under the Access to Information process are some that refer to Ms. Antoniani having directed enforcement officers to obtain a search warrant and undertake a second search that is at the heart of the wrongdoing alleged against the Crown. The Crown says that these documents are privileged and were released in error. It is these documents to which Ms. Antoniani especially objects. She wants the documents clawed back or she asks for other documents to be released to enable her to explain the ones that were released.
[28] Normally when privilege is partly waived, the producing party produces the helpful part and is alleged to have improperly hidden the part that is harmful to its case. Here Ms. Antoniani says that the opposite has occurred. The Crown has released documents that may be inculpatory and she says that there are other documents that are exculpatory that the Crown will not produce as it still claims privilege over them.
[29] The plaintiffs argue that discussions of a Crown lawyer instructing a government investigator to obtain a search warrant and to conduct a search are not privileged. They record a tortious action or a fact that does not convey legal advice as between lawyer and client.
[30] That takes far too narrow a view of the relationships at play in this case in my view. In Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574, the Supreme Court of Canada explained that as long as the lawyer is acting in a legal capacity, as was always the case with Ms. Antoniani in this case, then privilege will attach to her communications and must be interpreted to be “as close to absolute as possible.” Specifically, at para. 10, the Court states:
While the solicitor-client privilege may have started life as a rule of evidence, it is now unquestionably a rule of substance applicable to all interactions between a client and his or her lawyer when the lawyer is engaged in providing legal advice or otherwise acting as a lawyer rather than as a business counsellor or in some other non-legal capacity: Solosky v. The Queen, 1979 9 (SCC), [1980] 1 S.C.R. 821, at p. 837; Descôteaux v. Mierzwinski, 1982 22 (SCC), [1982] 1 S.C.R. 860, at pp. 885-87; R. v. Gruenke, 1991 40 (SCC), [1991] 3 S.C.R. 263; Smith v. Jones, 1999 674 (SCC), [1999] 1 S.C.R. 455; Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc., [2004] 1 S.C.R. 456, 2004 SCC 18, at paras. 40-47; McClure, at paras. 23-27; Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319, 2006 SCC 39, at para. 26; Goodis v. Ontario (Ministry of Correctional Services), [2006] 2 S.C.R. 32, 2006 SCC 31; Celanese Canada Inc. v. Murray Demolition Corp., [2006] 2 S.C.R. 189, 2006 SCC 36; Juman v. Doucette, [2008] 1 S.C.R. 157, 2008 SCC 8. A rare exception, which has no application here, is that no privilege attaches to communications criminal in themselves or intended to further criminal purposes: Descôteaux, at p. 881; R. v. Campbell, 1999 676 (SCC), [1999] 1 S.C.R. 565. The extremely limited nature of the exception emphasizes, rather than dilutes, the paramountcy of the general rule whereby solicitor-client privilege is created and maintained “as close to absolute as possible to ensure public confidence and retain relevance” (McClure, at para. 35).
[31] The final point in this quotation adds a more recent gloss to point (ix) in Justice Nordheimer’s list of factors above. Privilege is no longer lost over discussions of unlawful activity. Any breach of contract or tort can be said to be unlawful. The exception is much narrower, “extremely limited” says the Court, so that privilege is lost only for conversations that are “criminal in themselves or intended to further criminal purposes.”
[32] Ms. Antoniani was retained by the Public Prosecution Service of Canada to undertake the prosecution of the plaintiffs. She worked closely with the regulatory department’s investigators as a Crown Attorney might work with the police. Her role was to prosecute which necessarily includes advising on all steps to be taken to fairly and properly conduct the prosecution. That required her to review, discuss, and give advice for supplementation of evidence with her superiors, the department, and the department’s investigators.
[33] If Ms. Antoniani told the investigators that she wanted them to obtain warrants and to conduct a search, she was implicitly and explicitly providing advice to the department and its officials on what was required for her to perform the legal tasks for which she was retained. In R. v. Rutigliano, 2015 ONCA 452, 126 O.R. (3d) 161, the police were found to have conducted unlawful wiretaps. The accused wanted access to communications between the police and the Crown to determine the Crown’s involvement in directing the illegal search or seizure. The facts are directly analogous to the facts in this case in which the plaintiffs say that Ms. Antoniani directed an unlawful search of their premises. The case turned on whether there had been a waiver of privileged information. The Court of Appeal found that the case turned on the issue of waiver of privilege because there was no question that the communications were themselves privileged.
[34] In my view, subject to the issue of waiver, discussed below, communication between Ms. Antoniani and the investigators about obtaining a warrant are privileged. They fall plainly within the scope of Ms. Antoniani’s retainer, communicate legal advice implicitly and explicitly, and the communications were neither criminal acts nor in furtherance of a criminal purpose.
Other Communications between Ms. Antoniani and the Investigators
[35] The plaintiffs argue that communications between Ms. Antoniani and the investigators are subject only to a narrow band of privilege claims. They point to the fact that the legal discretion to decide whether to lay charges rests with the investigators/enforcement officers and not the prosecutor. Other decisions, such as whether to accept a plea bargain, for example, fall within the discretion of the prosecutor. The plaintiffs argue that communication between investigators and the prosecutor on areas where one or the other has a unilateral discretion are not privileged because they do not involve communication of legal advice. Again this views the relationship at play far too narrowly. There is no rule of law that precludes legal advice where a party has a discretion to exercise. People with discretion are entitled to seek legal advice on whether or how the circumstances support the exercise of their discretion. In the quasi-criminal or criminal context, the issue is even clearer. While the police are not required to obtain advice before laying a charge or to follow any advice offered, R v Riley, 2008 36775, they can hardly be faulted for asking the prosecutor to advise on whether they have sufficient grounds at law to lay them or whether, if laid, charges have a realistic chance of leading to a conviction. Similarly, the fact that the prosecutor would consult with the charging officer prior to entering into a plea bargain to discuss the relative risks and benefits of proceeding with the case or settling is by no means extraordinary. These are completely appropriate examples of transparency and accountability among the various branches of the justice system. The prosecutor has ultimate decision-making authority in plea bargaining; but if she seeks input from the regulatory investigators – information to assist her in formulating her legal view –communications in those circumstances fall plainly within the scope of the regulatory department’s solicitor-client privilege. As noted previously, the privilege flows from the relationship between the lawyer and the person to whom the advice is being imparted and the confidential circumstances at play. Privilege does not arise or fall away simply due to the existence of discretion in one participant in a conversation at some particular stage of a process for which legal advice is sought or given.
Communications between Ms. Antoniani and the Public Prosecution Service of Canada
[36] The plaintiffs also seek disclosure of communications between Ms. Antoniani and the superiors to whom she reported at the Public Prosecution Service of Canada. The plaintiffs want the terms of her retainer. Moreover, they want to see what she told her bosses, if anything, about the issues. As the Public Prosecution Service of Canada is not the regulatory department enforcing the law, the plaintiffs say that it cannot be likened to Ms. Antoniani’s client. I agree. The better analogy is that the Public Prosecution Service of Canada functions as the law firm that employed the lawyer who acted on the regulatory charges. If she shared facts and issues with her superiors, either to assist her in providing advice to the regulatory department or for her bosses to supervise the quality of advice being given by Public Prosecution Service of Canada lawyers, the communications are privileged. Whether Ms. Antoniani was getting help or her opinions were being subjected to quality control, in either case, the communications involved conveying information in confidential circumstances for the purpose of the client obtaining and being given proper legal advice.
Communications concerning Legal Advice among Non-lawyers
[37] The plaintiffs object to claims for privilege made by the Crown over documents that evidence communications among members of the regulatory department that did not include a lawyer. Counsel argued that an employee explaining either a summary of the facts or the plan for prosecution to those with a need to know within the departments are not privileged. No case law was provided to support that narrow view. Where the client is not a person but is a body – such as a corporation or a department of government – there will always be more than one person with a need to know the confidential privileged information of the body. As long as confidentiality is not lost by overbroad dissemination of privileged information, the fact that the client body is composed of a number of individuals does not limit privilege. See R v Campbell, 1999 676 (SCC), [1999] 1 S.C.R. 565, at para. 67. Discussions among the client’s personnel of the legal advice sought or received, or formulation of questions or facts to convey to counsel in order to obtain legal advice fall within the broad scope of solicitor-client privilege. The fact that someone is conveying privileged communication to others is no different in principle than if all had been together on a conference call with counsel at which the advice or information was sought or conveyed.
Time Periods
[38] The plaintiffs sub-divide the time periods involved in order to argue that different privilege considerations apply at different times.
[39] The first search was conducted at the plaintiffs’ premises in August 2007. The prosecution that followed collapsed in December 2007. The plaintiffs argue that once the search was over, the evidence had been collected, so that there was no further reason for privileged communications to occur during this period. I have already dealt with this issue. The focus, in my view, is on the relationships at play in the communication and the content of the communication. Of course the investigators and department will be working closely with the prosecutor leading up to the trial.
[40] The plaintiffs then argue that the period from early 2008, when new charges were laid, until the end of March 2008, when the second search was conducted, forms a distinct period. The bulk of the documents that the Crown seeks to claw back originated during this period including the references to Ms. Antoniani allegedly directing the second search. I have already dealt with that issue as well previously. In my view, there is nothing that flows from the recognition of the specific time period at play that affects the assessment of privilege either on a principled or document-by-document basis.
[41] The plaintiffs also raise an issue as to whether privilege can lie for the post-prosecution period. The documents involved include communications between Ms. Antoniani and her superiors and issues underlying the allegations of defamation. Once again, I agree that communications that do not evidence requests for or provision of legal advice will not be privileged. Once the prosecutions are over, there cannot be legal advice about the prosecution of the charges per se. However there are any number of reasons for ongoing legal advice about the prosecutions – whether to de-brief for future cases or to prepare for this case. Similarly, the issues surrounding the alleged defamation are not affected by the timing of the prosecution. Whether privilege applies will depend on what is being discussed, by whom, and in what circumstances.
[42] I have approached the review of the impugned productions on the foregoing bases and noted the results in the chart set out in Appendix A to this endorsement.
Waiver of Privilege
[43] The Crown produced a number of privileged documents as a result of Access to Information requests. Privilege could have been asserted at the time had the Crown exercised better diligence. However, it is fair to note that the plaintiffs made over 60 Access to Information requests. They sought a large swath of documents with few limitations. The task facing the Crown was daunting and it is no surprise that some mistakes were made.
[44] This litigation commenced in 2011. In 2015, as part of the case management process, the plaintiffs produced particulars of their claims that expressly relied upon some of the privileged documents that the Crown now seeks to claw back. The plaintiffs had those documents for several years without the Crown noticing that they had released privileged material. In fact, even once they were expressly relied upon, the Crown took the better part of a year to move to prevent the plaintiffs from using them. There were earlier communications between the parties in which the Crown asserted its privilege however.
[45] The Crown has delivered explicit evidence as to who has the legal authority for waiving privilege in the relevant ministry, the efforts made to protect privilege and, most important, clear statements that the privileged documents were released by mistake and without the authority of the relevant officials. The plaintiffs did not cross-examine on any of this evidence and it stands unchallenged.
[46] The parties agree on the applicable principles. Privileged documents released by mistake generally retain their privilege because the client has not made an express and informed decision to waive privilege. However the Court has the discretion to refuse to enforce privilege in such circumstances where doing so is procedurally unfair or prejudicial to the innocent party.
[47] In R. v. Ward, 2016 ONCA 568, 351 O.A.C. 186 at para. 35, the Court of Appeal expressed the test as follows:
Inadvertent disclosure does not necessarily mean that privilege has been waived. While waiver of solicitor-client privilege can be express or implied, whether privilege has been waived by inadvertent disclosure is a fact-specific inquiry, which may include consideration of the following factors:
• The way in which the documents came to be released;
• Whether there was a prompt attempt to retrieve the documents after the disclosure was discovered;
• The timing of the discovery of the disclosure;
• The timing of the application;
• The number and nature of the third parties who have become aware of the documents;
• Whether maintenance of the privilege will create an actual or perceived unfairness to the opposing party; and
• The impact on the fairness, both actual or perceived, of the processes of the court.
See Airst v. Airst (1998), 1998 14647 (ON SC), 37 O.R. (3d) 654 (C.J. (Gen. Div.)), at pp. 659-60; and Chapelstone Developments Inc. v. Canada, 2005 NBCA 96, 191 C.C.C. (3d) 152, at para. 55, leave to appeal to SCC refused, [2005] S.C.C.A. No. 38.
[48] In this case, the documents were released as a result of inadvertence. There was no reason for the Crown to realize its mistake until the plaintiffs sought to rely on the released documents and brought to the Crown’s attention that it had them in 2015. From then, the Crown consistently asserted the privilege and demanded return of its privileged documents although, as noted above, a significant period of time elapsed prior to the motion being brought. One may question whether it is fair to recognize privilege now, once the plaintiffs have seen and used the documents. However, asking the question in that way presumes that the plaintiffs’ use of the documents was appropriate in the first place. In my view, upon receiving documents evidencing apparently privileged communications between a lawyer and people who worked for her client concerning legal proceedings and conversations among the client body concerning legal advice received, the plaintiffs’ counsel was duty-bound to notify the Crown’s counsel to ensure that the documents had been released, and that privilege had been waived, intentionally. The documents ought to have been set aside and not further reviewed or utilized until this was clarified. In the context of a major document review effort, it is well understood that mistakes happen and most counsel respond immediately and appropriately to avoid being perceived as taking advantage of a slip. By failing to alert the Crown’s lawyers to the issue, the plaintiffs and their counsel took upon themselves the risk that the documents might later be found to be privileged.
[49] This is not a new procedure or requirement. In 2001 Farley J. adopted the reasoning of Nordheimer J. in a case from the prior year that dealt with this very issue. In Nova Growth Corp. v. Kepinski, 2001 CarswellOnt 5814 (SC), Farley J. wrote at para. 13:
I think it fair to observe that cases where privileged documents have been inadvertently disclosed to the other side in a dispute are always fraught with difficulty. Part of that difficulty arises from the fact that the recipient is not expecting the material and therefore is caught off guard even after coming to the appreciation (after some review as there is no light blinking and horn sounding a warning on the "cover" that the contents are privileged, at least in the "usual" situation). After appreciating that the material is or may be privileged, then the recipient is required to do something - namely the right thing. (Emphasis added)
[50] He continued at para. 29 as follows:
I am in full accord with the views of Nordheimer J. in Aviaco International Leasing Inc. supra [Aviaco International Leasing Inc. v. Boeing Canada Inc., 2000 22777 (ON SC), [2000] O.J. No. 2420, 9 B.L.R. (3d) 99 (Ont. S.C.J.)] when he stated at para. 11:
Once plaintiff's counsel realized that the letters had been sent to them by mistake - something that ought to have been obvious to them as soon as they saw the letters - they were under a positive duty to advise both counsel of the mistake. They then should have returned the letters without keeping any copies of them or, if they reasonably thought that there was an issue as to whether they were entitled to retain the letters, then they ought to have taken immediate steps to seek a ruling from the court on that issue. (Underlined emphasis added by Farley J.; bold emphasis added)
See also Firemaster Oilfield Services Ltd. v. Safety Boss (Canada) (1993) Ltd., [2001] A.J. No. 1317 (Alta. C.A.) at paras. 4, 7-9. As discussed above, it does not make a meaningful difference that the material first "surfaces" with the client as opposed to the law firm.
[51] This is not to lose sight however of the underlying issue which is that all of this was caused by a lack of due care and attention being paid by the Crown to its privilege. While human error is inevitable at times, it is apparent that not enough effort was put into the document review process adopted under the Access to Information Act to ensure that the client’s privilege was assiduously protected. The lack of care and the passage of time weigh in favour of finding a waiver of privilege. To find that privilege still applies means that the plaintiffs will always feel that relevant information was hidden from them. While one can surmise this any time privilege is claimed, here the plaintiffs may feel especially aggrieved because they have seen privileged documents. Once again however, that too could have been avoided. Counsel for the plaintiffs could have taken the cautious approach to protect the documents until he was sure that he had a knowing waiver and thereby saved his clients an emotional roller coaster not to mention significant legal fees. But, at the end of the day, given the Supreme Court of Canada’s clear and repeated pronouncements on the fundamental importance of privilege and the need for truly exceptional circumstances to allow privilege to be undermined, I am not prepared to undermine it in this case. Both sides share some blame for where they are today. The Crown released the documents; the plaintiff held them and acted on them rather than confirming a waiver. The only exceptional aspect of the issue is the length of time that went by. But that lies principally at the plaintiffs’ feet. A recipient of apparently privileged documents cannot foist a waiver on the other party by withholding knowledge that there has been a release or by using the documents before clarifying their entitlement to do so.
Remedy
[52] At para. 39 in Ward, the Court of Appeal granted the following relief on finding inadvertent release of a privileged letter:
• Declaring that the Letter is protected by solicitor-client privilege;
• Prohibiting the Letter or its contents from being used in any way in the appellant’s appeal; and
• Requiring appeal counsel to return his copy of the Letter to the moving party immediately.
[53] That case was a criminal case that was not governed by the Rules of Civil Procedure. The injunction remedy is not limited to discovery under the Rules because what is being enforced is not just an evidentiary rule for a hearing. I am also not purporting to make any finding or ruling under the Access to Information Act. Rather, I am enforcing the Crown’s substantive legal rights to privilege and confidentiality. The remedy of injunction lies to require the return and destruction of solicitor-client privileged materials that have been released through inadvertence. Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36 at paras. 57 and 69 – 71. Accordingly, an order will issue prohibiting the plaintiffs from using any documents that I have found to be privileged in this Endorsement or over which the Crown has claimed privilege and the plaintiffs have not contested that claim on this motion (collectively, the “Privileged Documents”). In addition, the plaintiffs, their counsel, and all of their respective agents, and employees, and anyone with knowledge of this order, are required to return all copies of Privileged Documents to the lawyers for the Crown and to permanently destroy all electronic and paper copies of those documents forthwith.
[54] The Crown also asks for an order removing Mr. Zbogar from the record as counsel to the plaintiffs. Celanese Canada Inc., at para. 59. I am not prepared to do so at this time. Removing counsel who has spent so much time and effort on the file at this stage would risk rendering the litigation uneconomical. If the Crown is able to show at a future date that the injunctions granted do not provide sufficient protection for its privilege, then the matter can be revisited.
The Review of Prior Court Orders
Order dated April 4, 2016
[55] The plaintiffs object to the order dated April 4, 2016 in which the Court, among other things, ordered the plaintiffs to pay costs to the Crown to compensate it for overtime payments that it made in order to complete its List of Documents on time. The Court found that the plaintiffs did not advise the Crown that they would need an extension of time to complete their disclosure and thereby led the Crown to incur extra expense unnecessarily. For reasons set out in its endorsement, the Court also granted an extension of time to the plaintiffs to complete their disclosure on condition that they post security for the defendants’ potential entitlement to costs.
[56] The plaintiff says that the Court was misled by the Crown to find that “the government produced its list as required” when, in fact, its production at that time was “woefully inadequate and not compliant with the Rules.” The plaintiffs rely on Rule 59.06(2) and specifically claim that the Crown knowingly committed fraud in swearing to the completeness of its disclosure. I disagree. The plaintiffs continue to rely on their statistical comparison of the Crown’s List of Documents to the disclosures received under the Access to Information Act. I have already found that because the Access to Information process is not governed by relevancy and proportionality criteria in relation to the issues joined in the lawsuits, there is no comparison between the results of the two different procedures. Moreover, even if I known in April that the Crown would deliver a further 500 documents in response to the fishing expedition represented by the plaintiffs’ 51 classes of “missing documents,” this would not have altered my view at all. The plaintiffs have not demonstrated that the Crown’s List of Documents failed in any material way to meet the requirements of complete disclosure of the relevant documents in the Crown’s possession, power, or control after a proportional search and review process.
[57] As for Ms. Antoniani’s Affidavit of Documents, Mr. Evans was clear at the time that his ability to produce a sworn affidavit had to await finalization by the Crown of its List of Documents. The Crown was his client’s client and as such, demanded the right to vet Ms. Antoniani’s proposed disclosures for privilege. It was understood by all that Ms. Antoniani’s Affidavit of Documents necessarily had to follow delivery of the Crown’s List of Documents. No one was misled nor did anything turn on this at the time.
Order dated November 28, 2014
[58] Finally, the plaintiffs rely on the fraud ground under Rule 59.06(2) to ask the Court to set aside the order for costs made against them by Matlow J. on November 28, 2014.
[59] The motion first arose as a result of the Crown publishing allegedly defamatory information about the prosecution of the plaintiffs on its website in breach of a prior commitment not to do so. Initially, the plaintiffs brought an interlocutory injunction to restrain the Crown from continuing to republish the defamatory information.
[60] In order to prevent the problem from arising again, the Crown had its IT people permanently delete the archived files that had mistakenly been re-published. The plaintiffs feared that evidence was being destroyed. They demanded and then moved for an order that the Crown preserve and disclose its website analytics data files.
[61] The evolution of the injunction into a review of spoliation is discussed by Penny J. who stayed the injunction sought by the plaintiffs on January 14, 2014 in an endorsement reported at 2014 ONSC 276. Penny J. wrote:
[26] The circumstances of this case are highly unusual. Normally, a plaintiff on a motion for an interlocutory injunction is anxious to get the interim order as quickly as possible. Here, the plaintiffs appear to be far more focused on conducting a wide-ranging, generic inquiry into the who, how, when, and why.
[27] It is fair to say that the focus of the interlocutory injunction has shifted over the last 17 months from the presence of the enforcement notice on the Environment Canada website to how it came to be posted in the first place, how it came to be reposted in July 2012 and how it came to be that the website file history associated with the enforcement notice was deleted by Environment Canada staff.
[28] The publication of a false enforcement report on a government website is a very serious matter. Republication of that report, in face of an undertaking not to do so, is even more serious. I do not wish to be taken as detracting in any way from the importance and seriousness of the issues raised in the plaintiffs’ claim, therefore, when I say that, from a procedural perspective, this litigation has lost its way very badly.
[37] Finally, there is much to be said for the defendants’ argument that the procedural apparatus for the conduct of interlocutory motions is being used for an ulterior purpose, i.e., discovery on the plaintiffs’ multiple causes of action. Support for this argument can be derived from the transcript of the examination of Mr. Vanderlaan in the pending motion. Mr. Vanderlaan was examined for a full day. The transcript runs to some 268 pages. Questions to Mr. Vanderlaan dealing with the July 2012 republication of the enforcement report are limited to precisely two pages of the transcript, less than 1% of the examination. In addition, nothing in those two pages concerns the risk of further republication.
[38] The plaintiffs’ affidavit in response to the government’s motion [to dismiss the injunction motion] is further evidence of this tendency. That affidavit is almost exclusively devoted to the plaintiffs’ concern that, in purging the offending enforcement notice, the defendants have also destroyed the file histories associated with the notice as well. The destruction of relevant documents, inadvertent or otherwise, is a very serious matter. But it is not a matter relevant to the interlocutory injunction motion pending before the court for a mandatory order to prevent any republication. Here again, the plaintiffs are seeking to use the apparatus for taking evidence on interlocutory motions for the purpose of conducting discovery on their numerous claims.
[62] In November of that year, the plaintiffs’ motion to require disclosure of the Crown’s website analytics came before Matlow J. The Crown represented to the Court that it had produced the relevant website files to the plaintiffs. Matlow J. found that the plaintiffs had not persuaded him “that the defendants have anything relevant to the action that the plaintiffs do not already have.” Matlow J. therefore dismissed the motion and ordered the plaintiffs to pay costs.
[63] The plaintiffs argue that the Crown has now produced several hundred documents including much new material concerning the defamation issues and further information from the website analytics logs. Mr. Zbogar was not able to submit at the hearing whether any of the new information was actually relevant without consulting further with his client’s information technology expert.
[64] The Crown’s affiant swears that after the attendance before Matlow J. further searches were conducted for the purpose of preparing the Crown’s List of Documents. The Crown discovered further documents in those searches and disclosed them accordingly. Moreover, the Crown notes that the issue before Matlow J. was not completion of an affidavit of documents, but rather, spoliation. The Crown was working to satisfy the Court that no metadata or archived retrieval files would be lost so that the plaintiffs would be entitled to full and proper discovery. It was not at that time searching all the nooks and crannies of all of its file cabinets as is required for affidavit or list of documents purposes.
[65] The fact that new documents of unknown relevancy were discovered and delivered does not render anything said by the Crown before Matlow J. a misrepresentation. Prior to appearing before Matlow J., the Crown provided the log that discloses website analytics, which is the one key document, to the plaintiffs in redacted form. The log disclosed the information relevant to the publication of the notice concerning the plaintiffs. In its more recent production, the Crown has produced the document in unredacted form. It consists of more than 100 pages listing other website entries at other times that are not relevant to the publication of the enforcement notice on the website concerning the plaintiffs. The Crown let the plaintiffs see what they had previously determined was irrelevant and had redacted.
[66] I am not satisfied therefore that the Crown made any misrepresentation to Matlow J.
[67] For both motions, there is no evidence to support a finding of fraud or deliberate misrepresentation by the Crown or its lawyers in any event. There was no evidence of any deliberate misconduct or misrepresentation.
Result
[68] The Court makes the findings on privilege set out in Appendix A. The plaintiffs’ motions are otherwise dismissed. On the Crown’s motion, an order is to go prohibiting the plaintiffs from using the Privileged Documents and requiring the plaintiffs, their counsel, and all of their respective agents, and employees, and anyone with knowledge of this order to return all Privileged Documents to the lawyers for the Crown and to permanently destroy all electronic and paper copies of those documents forthwith. Finally, as a result of the foregoing, Ms. Antoniani’s motion is dismissed as moot.
[69] The defendants may make written submissions on costs of no more than 10 pages to be delivered by December 31, 2016. The plaintiffs may respond with submissions of no more than 10 pages by January 13, 2017. All parties shall deliver Costs Outlines with their submissions as well as copies of any offers to settle on which they rely. All documents shall be submitted as attachments to an email to my Assistant in searchable PDF format. No case law or statutory material is to be filed. Rather, case law and statutory materials, if any, are to be referenced by hyperlinks embedded in the costs submissions.
[70] Counsel are to arrange a case conference to schedule mediation and discovery to get this case back on the scheduling tracks set out in case management schedules discussed last year.
F.L. Myers J.
Date: December 13, 2016
Appendix A: Findings of Privilege
Crown Documents Challenged by the Plaintiffs:
(Note: Categorization is by the plaintiff)
1) “Third Party or Irrelevant” Documents
Document Nos.
Privileged/Not Privileged
Schedule A:
000085
Privileged
000175
Privileged
000176
Irrelevant
000177
Irrelevant
000214
Privileged
000225
Missing - not in the documents provided
000235
Missing - not in the documents provided
000247
Missing - not in the documents provided
000248
Missing - not in the documents provided
000251
Missing - not in the documents provided
000275
Missing - not in the documents provided
000276
Missing - not in the documents provided
000359
Missing - not in the documents provided
000361
Missing - not in the documents provided
000362
Missing - not in the documents provided
000480
Missing - not in the documents provided
000505
Missing - not in the documents provided
000600
Missing - not in the documents provided
000630
Missing - not in the documents provided
000785
Missing - not in the documents provided
000805
Missing - not in the documents provided
000806
Missing - not in the documents provided
000860
Missing - not in the documents provided
000878
Missing - not in the documents provided
000879
Missing - not in the documents provided
000886
Missing - not in the documents provided
000889
Missing - not in the documents provided
000892
Missing - not in the documents provided
000938
Missing - not in the documents provided
000941
Missing - not in the documents provided
000951
Missing - not in the documents provided
000952
Missing - not in the documents provided
000955
Missing - not in the documents provided
000956
Missing - not in the documents provided
000967
Missing - not in the documents provided
000980
Missing - not in the documents provided
000988
Missing - not in the documents provided
000991
Missing - not in the documents provided
001010
Missing - not in the documents provided
001021
Missing - not in the documents provided
001032
Missing - not in the documents provided
001033
Missing - not in the documents provided
001035
Missing - not in the documents provided
001042
Missing - not in the documents provided
001043
Missing - not in the documents provided
001079
Missing - not in the documents provided
001130
Missing - not in the documents provided
001166
Missing - not in the documents provided
001167
Missing - not in the documents provided
001168
Missing - not in the documents provided
001169
Missing - not in the documents provided
001170
Missing - not in the documents provided
001171
Missing - not in the documents provided
001182
Missing - not in the documents provided
001190
Missing - not in the documents provided
001191
Missing - not in the documents provided
000468 (Also listed in Non-Lawyer Communications)
Irrelevant
000469 (Also listed in Non-Lawyer Communications)
Irrelevant
000612 (Also listed in Non-Lawyer Communications)
Privileged
000821 (Also listed in Non-Lawyer Communications)
Not privileged
000915 (Also listed in Non-Lawyer Communications)
Not privileged
000942 (Also listed in Non-Lawyer Communications)
Privileged
001176 (Also listed in Non-Lawyer Communications)
Privileged
001188 (Also listed in Non-Lawyer Communications and Informer Privilege)
First redaction is privileged; second redaction is not privileged; and the third redaction is privileged
2) “Informer Privilege” Documents
Document Nos.
Privileged/Not Privileged
Schedule A:
000486
Missing - not in the documents provided
001188 (Also listed in Non-Lawyer Communications and Third Party/Irrelevant)
First redaction is privileged, second redaction is not privileged and the third redaction is privileged.
001200 (Also listed in Non-Lawyer Communications)
Privileged
000872 (Also listed in Non-Lawyer Communications)
Privileged
3) “Antoniani & EC Communications Phase 1” Documents
Document Nos.
Privileged/Not Privileged
Schedule B:
000005
Privileged
000010
Privileged
4) “Antoniani & EC Communications Phase 2” Documents
Document Nos.
Privileged/Not Privileged
Schedule A:
000514
Privileged
000556
Privileged
000605
Privileged
Schedule B:
000018
Privileged
000024
Privileged
000104
Privileged
000015
Privileged
000019
Privileged
000020
Privileged
000021
Privileged
000022
Privileged
000023
Privileged
5) “Antoniani & EC Communications Phase 3” Documents
Document Nos.
Privileged/Not Privileged
Schedule A:
000683
Privileged
000780
Not Privileged
000799
Privileged
000862
Not Privileged
000897
Privileged
000920
Privileged
000958
Not Privileged
000960
Privileged
Schedule B:
000030
The unredacted version of this document is missing.
000031
Privileged
000033
Privileged
000034
Privileged
000035
Privileged
000036
Privileged
000038
Privileged
000039
Privileged
000040
Privileged
000041
Privileged
000042
Privileged
000043
Privileged
000044
Privileged
000045
Privileged
000049
Privileged
000050
Privileged
000051
Privileged
000052
Privileged
000053
Privileged
000054
Privileged
000055
Privileged
000056
Privileged
000057
Privileged
000059
Privileged
000062
Privileged
000063
Privileged
000064
Privileged
000065
Privileged
000066
Privileged
000067
Privileged
000068
Privileged
000069
Privileged
000070
Privileged
000071
Privileged
000072
Privileged
000073
Privileged
000074
Privileged
000076
Privileged
000077
Privileged
000078
Privileged
000079
Only the handwritten notes are privileged.
000080
Privileged
000081
Privileged
000085
Privileged
000086
Privileged
000087
Privileged
000088
Privileged
000089
Privileged
000090
Privileged
000091
Privileged
000094
Privileged
000099
Privileged
000100
Privileged
000101
Privileged
000102
Privileged
000058 (Also listed in Directions by Crown Attorney)
Privileged
6) “Antoniani & EC Communications Phase 4” Documents
Document Nos.
Privileged/Not Privileged
Schedule A:
001049
Privileged
001055
Privileged
001061
First three redactions are privileged; fourth redaction is not privileged.
001062
Privileged
001063
Privileged
001073
Privileged
Schedule B:
000029
Privileged
000103
Privileged
000105
Privileged
000106
Not Privileged
000107
Privileged
000108
Privileged
000109
Privileged
000110
Privileged
000111
Privileged
000112
Privileged
000113
Privileged
000114
Privileged
000115
Privileged
000116
Privileged
000117
Privileged
000118
Privileged
000119
Privileged
000132
Privileged
7) “Directions By Crown Attorney” Documents
Document Nos.
Privileged/Not Privileged
Schedule A:
000523 (Also listed in Non-Lawyer Communications)
Privileged
000733 (Also listed in Non- communications)
The unredacted version of this document is missing.
000907 (Also listed in Non-Lawyer Communications)
Privileged
001145
Privileged
Schedule B:
000027 (Also listed in Requires Individual Review)
Privileged
000058 (Also listed in Phase 3)
Privileged
8) “Non-Lawyer Communications” Documents
Document Nos.
Privileged/Not Privileged
Schedule A:
000136
The unredacted version of this document is missing.
000310
The unredacted version of this document is missing.
000471
The unredacted version of this document is missing.
000487
Privileged
000488
Privileged
000492
Privileged
000524
Privileged
000533
Privileged
000549
Privileged
000567
Not privileged
000569
Privileged
000616
Privileged
000623
Privileged
000767
Privileged
000770
Not privileged
000772
Not privileged
000777
Not privileged
000779
Privileged
000820
Privileged
000828
Privileged
000829
Privileged
000842
Privileged
000843
Privileged
000848
Privileged
000851
Privileged
000853
Privileged
000855
Privileged
000910
Privileged
000927
Privileged
000929
Privileged
000931
Privileged
000937
Privileged
000953
Privileged
000962
Informant Privilege
000971
Privileged
000972
Privileged
000973
Not privileged
001015
Privileged
001056
Privileged
001082
Can’t find redactions in this document.
001083
Not privileged
001101
Informant Privilege
001142
Privileged
001175
First redaction is privileged. In the second redaction, only the name of the person is privileged/to be redacted.
001177
Not privileged
001183
Privileged
001185
Privileged
001213
Privileged
000468 (Also listed in Third Party/Irrelevant)
Irrelevant
000469 (Also listed in Third Party/Irrelevant)
Irrelevant
000612 (Also listed in Third Party/Irrelevant)
Privileged
000821 (Also listed in Third Party/Irrelevant)
Not privileged
000915 (Also listed in Third Party/Irrelevant)
Not privileged
000942 (Also listed in Third Party/Irrelevant)
Privileged
001176 (Also listed in Third Party/Irrelevant)
Privileged
001188 (Also listed in Third Party/Irrelevant)
First redaction is privileged, second redaction is not privileged, and the third redaction is privileged.
000523 (Also listed in Directions by Crown Attorney)
Privileged
000907 (Also listed in Directions by Crown Attorney)
Privileged
001145
Privileged
000872 (Also listed in Informer Privilege)
Privileged
001200 (Also listed in Informer Privilege)
Privileged
Schedule B:
000001
Privileged
000025
Privileged
000028
Not privileged
000046
Privileged
000047
Privileged
000075
Privileged
000083
Privileged
000084
All documents in this listing are privileged EXCEPT the email from Jack Saunders dated December 23, 2008, at 10:54 a.m.
000098
Privileged
000130
Privileged
000014
Privileged
9) “Third Party Communications” Documents
Document Nos.
Privileged/Not Privileged
Schedule A:
000558
Privileged
000873
Privileged
000918
Privileged
000935
Privileged
Schedule B:
000037
Privileged
000082
Not privileged
10) “Non-Communications” Documents
Document Nos.
Privileged/Not Privileged
Schedule A:
000103
Missing – not in the documents provided
000104
The unredacted version of this document is missing.
000376
The unredacted version of this document is missing.
000444
Privileged
000478
Privileged
000496
Privileged
000888
Privileged
000733 (Also listed in Directions by Crown Attorney)
The unredacted version of this document is missing.
Schedule B:
000002
Privileged
000003
Irrelevant
000004
Irrelevant
000006
Privileged
000007
Privileged
000008
Privileged
000009
Privileged
000011
Privileged
000016
Privileged
000032
The top 1/3 of this document, which is about a phone call from Diane Saxe, is not privileged. The rest of the document is privileged.
11) “Requires Individual Review” Documents
Document Nos.
Privileged/Not Privileged
Schedule A:
000495
First redaction is not privileged. Second redaction is privileged.
000500
First and third redactions are privileged. Second redaction is not privileged.
000507
First redaction is not privileged. Second and third redactions are privileged.
000513
The whole document is privileged, not just the redacted portions.
000975
Irrelevant
001105
Irrelevant
001121
To have the same redaction as in document 001123.
001123
Privileged
001124
To have the same redaction as in document 001123.
001126
To have the same redaction as in document 001123.
001127
To have the same redaction as in document 001123.
001132
Privileged
001141
Privileged
001207
Not privileged
001209
Privileged
001232
The whole document is privileged, not just the redacted portions.
Schedule B:
000012
Privileged
000013
Privileged
000017
Privileged
000026
Privileged
000048
Privileged
000060
Privileged
000061
Privileged
000092
Privileged
000093
Privileged
000095
Privileged
000096
Privileged
000097
Privileged
000120
Privileged
000121
To have the same redaction as in document 001123.
000122
Only the email from Linda Tingley to John Secaj dated June 17, 2009 is privileged.
000123
Privileged
000124
Linda Tingley’s email to Michael Bell, dated June 19, 2009, and Michael Bell’s email to Josee Frederick and Linda Tingley dated June 19, 2009 are privileged.
000125
The following emails in this set are privileged:
Linda Tingley to Josee Frederick, June 17, 2009
Josee Frederick to Michael Bell, June 18, 2009
Michael Bell to Josee Fredrick, June 18, 2009
Josee Frederick to Michael Bell, June 18, 2009
Denis Labossiere to Josee Frederick, June 18, 2009
Josee Frederick to Denis Labossiere, June 18, 2009
Denis Labossiere to Josee Frederick, June 18, 2009
Michael Bell to Denis Labossiere, June 19, 2009
Linda Tingley to Michael Bell June 19, 2009
000126
The email from Michael Bell to Josee Frederick on June 19, 2009 is privileged.
000127
Two emails from Michael Bell to Josee Frederick dated June 19, 2009 are privileged
000128
Two emails, one from Michael Bell to Linda Tingley dated July 13, 2009 and one from Linda Tingley to Michael Bell and John Sencaj dated July 14, 2009, are privileged.
000129
Privileged
000131
Privileged
000133
Privileged
000134
Privileged
000135
Privileged
000027 (Also listed in Directions by Crown Attorney)
Privileged
12) Remaining Schedule B Documents
The remaining documents in Schedule B to the Crown’s List of Documents that have not been reviewed in the categories above are:
Document Nos.
Privileged/Not Privileged
000005
Privileged
000010
Privileged
13) Sandra Antoniani’s Schedule B Documents
Document Nos.
Privileged/Not Privileged
1
Privileged
2
Privileged
3
Irrelevant
4
Privileged
5
Irrelevant
6
Privileged
7
Privileged