Court File and Parties

COURT FILE NO.: 20018/16 DATE: 2017-04-26

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JAMES WALLBRIDGE, ALMEDA WALLBRIDGE and WALLBRIDGE, WALLBRIDGE Plaintiffs – and – FAY BRUNNING and WILLIAMS-LITIGATION LAWYERS Defendants

Counsel: G. Adair, Q.C., Counsel for the Plaintiffs S. Secord, Counsel for the Defendant, Fay Brunning

HEARD: September 23, October 11, 13, 28, November 14, 2016 and March 1, 2017

Rasaiah J.

REASONS FOR DECISION

OVERVIEW

[1] The moving party/defendant, Fay Brunning (“Brunning”), sought an order temporarily staying the within action commenced against her by the Plaintiffs, namely James Wallbridge, Almeda Wallbridge and Wallbridge, Wallbridge (“plaintiff Wallbridge”), for damages in excess of 15 million dollars (“defamation action”).

[2] The plaintiffs asked that Brunning’s motion be dismissed with costs.

BACKGROUND

[3] Brunning sought to stay the defamation action, on grounds that included among other things, the avoidance of multiplicity of proceedings and possibility of inconsistent findings.

[4] At the time, the two proceedings in issue were the defamation action and an outstanding Request for Directions (“RFD”) of Brunning’s client, namely the Mushkegowuk Council (“Mushkegowuk Council RFD”). The Mushkegowuk Council RFD had been brought March 2, 2016, in a special process known as the Independent Assessment Process (“IAP”), which is part of the Indian Residential Schools Settlement Agreement (“IRSSA”).

[5] The Mushkegowuk Council RFD was brought before the court responsible for supervising and enforcing the IRSSA on behalf of St. Anne’s Indian Residential School survivors.

[6] The Mushkegowuk Council RFD advanced issues arising from and related to non-disclosure of numerous documents regarding sexual and physical abuse of the former students of St. Anne’s Indian Residential School in the IAP.

[7] The Mushkegowuk Council RFD included grounds/allegations related to the conduct of the participants in the IAP regarding the non-disclosure which included, among others, the Attorney General of Canada (“Canada”) and the plaintiffs (who had represented St. Anne’s former students prior to the IRSSA and thereafter in the IAP).

[8] In respect of the plaintiffs, the plaintiffs’ conduct and representation of IAP claimants in the IAP, and role in the non-disclosure were being questioned. The Mushkegowuk Council was in essence asking for these issues to be considered and determined by the court.

[9] The subject of the defamation action is communications made during and after the time period Brunning discovered and/or was addressing the issue of the non-disclosure in the IAP and what she believed took place. This was during the course of her representation of IAP claimants, including a specific former client of the plaintiffs. These communications included statements/comments directed specifically at the plaintiffs’ conduct and representation of its IAP clients and the plaintiffs’ perceived role in the non-disclosure.

[10] Brunning submitted that there were common facts and issues regarding the plaintiffs’ conduct and representation and role in the non-disclosure in the two proceedings to be determined.

[11] The Mushkegowuk Council RFD which was commenced prior to the defamation action. The defamation action was commenced in May of 2016.

[12] After the motion was initially argued September 23, 2016, but before a decision had been rendered, plaintiffs’ counsel wrote to inform me that he had learned that the Mushkegowuk Council, decided they did not wish to proceed with the Mushkegowuk Council RFD and were withdrawing it. He attached to his correspondence, a letter dated October 3, 2016 from legal counsel, Michael Swinwood, for Elders Without Borders, in which same was set out.

[13] This said correspondence stated that Mr. Edmund Metatawabin (“Metatawabin”), Elder, former Chief and a former student of St. Anne’s Indian Residential School himself, was seeking to proceed with the Mushkegowuk Council RFD personally, and on behalf of Peetabeck Keway Keykaywin Association (“PKKA”) (“Metatawabin / PKKA RFD”). However, this was if, and strictly conditional on whether or not Metatawabin was able to obtain immunity from costs and/or from being sued for defamation.

[14] As a result, plaintiffs’ counsel sought to make further submissions on this development (namely, that there was no longer an outstanding RFD that would draw multiplicity of proceedings considerations).

[15] Further appearances were had to address the change in circumstances, and it was agreed that further evidence would be filed and further written submissions be made, the last of which were received December 12, 2016.

[16] The new materials filed disclosed that the costs immunity issue/Metatawabin/PKKA RFD were returnable before Justice Perell December 14, 2016 (two days after final submissions were received by me).

[17] I was of the view that the status of the Metatawabin/PKKA RFD was information I should have to make my decision given it was post-December 14, 2016 at the time I was reviewing the material.

[18] I requested further information from counsel and at that time, was notified of more changes in circumstances and more developments.

[19] On consent, further material was provided to me for my consideration.

[20] The material included the reasons for decision of Justice Perell dated December 14, 2016, (made in the IAP) which outlined outstanding RFDs as follows: a. the Metatawabin/PKKA RFD, b. an RFD by IAP Claimant K-10106’s (“Claimant K-10106” and the “Claimant K-10106 RFD”), c. an RFD by C-14114 (“Claimant C-14114” and the “Claimant C-14114 RFD”), and d. the RFD of IAP Claimant E442-10-H-15109 (“Claimant H-15109” and the “Claimant H-15109 RFD”). Claimant H-15109 is a former IAP client of the plaintiffs.

[21] These RFDs and the materials filed in support of same claimed and sought various relief. They included allegations against various IAP participants (past and present), including the plaintiffs. Some of the allegations pertaining the plaintiff Wallbridge included: a. Wallbridge failed to request new/updated disclosure be filed and failed to bring an RFD in 2015; b. Wallbridge had all the subject evidence (disclosure) in its possession; c. St. Anne’s IRS claimants should not have been represented by Wallbridge if there was a pre-existing constraint on the firm not to force Canada to file the evidence in the IAP process and/or not file it themselves; d. That the court should investigate of conduct of counsel for possible breach of the IRSSA; e. That the court should provide directions for possible conflict of interest of Wallbridge & Wallbridge to IAP claimants; f. That IAP claimants have a right to an investigation of possible misconduct by legal counsel; g. That the claimants are entitled to damages as a result of the foregoing and a miscarriage of justice; and h. That the court provide directions on the process for seeking damages.

[22] The plaintiff James Wallbridge, plaintiff Wallbridge, and another law firm sought intervenor status which was not opposed.

[23] The motion for costs immunity order was granted in part subject to terms, inter alia, that the Claimant H-15109 RFD and the Claimant C-14114 RFD be adjourned sine die, and there be a hearing of the standing and jurisdiction motion in the other RFDs on March 24, 2017.

[24] On March 24, 2017, Justice Perell was to hear the following preliminary issues: a. Does Edmund Metatawabin have standing to bring the Metatawabin/PKKA RFD; b. Does Claimant K-10106 have stranding to bring the Claimant K-100106 RFD; and c. Does the court have jurisdiction to accept and implement any of the relief sought in the Fresh Amended RFD (paragraph 9)?

[25] Brunning’s position at that point was that even though the Mushkegowuk Council RFD was withdrawn, the issues of the outstanding RFDs and grounds were the same, and they reinforced and strengthened her argument for a stay of the defamation action, given the claims being made in the RFDs, the considerations, and the factual findings that would be required to be made in respect of them.

[26] Justice Perell heard the jurisdiction motion on March 24, 2017. He released his decision April 24, 2017, which was forwarded to me by plaintiffs’ counsel. In his decision dated April 24, 2017, he dismissed the Metatawabin/PKKA and Claimant K-100106 RFDs. He also dismissed the Claimant H-15109 RFD (which on February 7, 2017 was directed back on by way of written submissions on the issue on compliance with his January 14, 2014 order).

Summary of Materials Filed and Considered

[27] Given the events as set out above, a list of the materials filed and considered for clarity is set out at the end of this decision.

The Defamation Action

[28] The plaintiffs James Wallbridge and Almeida Wallbridge are partners in the firm of plaintiff Wallbridge, Wallbridge, a plaintiffs’ personal injury law firm.

[29] Brunning is a barrister and solicitor licenced to practice law in the Province of Ontario. She practices “in association with” the firm of Williams-Litigation Lawyers of Ottawa Ontario.

[30] Brunning began to act for a number of St. Anne’s Indian Residential School former students in or about 2012.

[31] The defamation action arises out of communications and comments made by Brunning September 8, 2015 to April 13, 2016.

[32] The allegations or actions of Brunning, which are described at paragraphs 14 to 18 of the statement of claim, include letters, and one email (collectively hereinafter referred to as “the correspondence”), authored by Brunning, and in particular, statements alleging negligence; professional misconduct; unethical conduct; and obstruction of justice committed by the plaintiffs (“Brunning allegations”).

[33] Details of the defamation are set out in paragraph 17 of the statement of claim.

[34] Paragraph 19 of the statement of claim provides that the Brunning allegations were sent to named lawyers, a member of parliament, former clients of the plaintiffs, the Mushkegowuk Council, former Chief and Elder Ed Metatawabin, Deputy Grand Chief Rebecca Friday, and a self-styled journalist. The plaintiffs further claim the Brunning allegations were re-published by the self-styled journalist, to unknown readers in unknown numbers via two email blogs on the internet.

Brunning’s Defence

[35] Brunning states her defence will be based on absolute privilege, qualified privilege and justification.

[36] The communications complained of in the defamation action took place during her legal representation of former students of St. Anne’s Indian Residential School and, in particular, addressing the non-disclosure she discovered; and the role, conduct and representation of IAP claimants in respect of that non-disclosure. Brunning’s communications she states also involved putting the plaintiffs on notice of a potential negligence claim.

[37] Claimant H-15109 made a complaint to the Law Society.

LAW AND AUTHORITIES

[38] A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just: section 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended.

[39] The burden rests on the party seeking the stay: Etco Financial Corp v. Royal Bank of Canada, para. 3.

[40] The party must show: (1) that continuation of the action would work an injustice because it would be oppressive, vexatious or an abuse of process; and, (2) that the stay would not cause an injustice to the responding party: Etco Financial Corp v. Royal Bank of Canada, para. 3.

[41] Although the court always has an inherent jurisdiction whenever it is just and convenient to do so, the power should be exercised sparingly: Etco Financial Corp v. Royal Bank of Canada, para. 3.

[42] The balance of convenience must weigh significantly in favour of granting a stay: Etco Financial Corp v. Royal Bank of Canada, para. 3.

[43] The court will be particularly reluctant to grant a stay if the result is to deny the respondent access to the courts or substantially delay the right to have the case heard: Etco Financial Corp v. Royal Bank of Canada, para. 4.

[44] The matter of granting a stay is one calling for the exercise of a discretion as to whether a stay should be ordered in a particular circumstances of the case and in the clearest of cases: Varnam v. Canada (Minister of National Health and Welfare), page 3.

[45] As a general principle, multiplicity of proceedings should be avoided: Etco Financial Corp v. Royal Bank of Canada, para. 5.

[46] In a case where common questions of law and fact are raised in two pending proceedings and the relief claimed in both proceedings arise out of the same transaction or occurrence, the court has discretion to either combine the proceedings in some manner or to stay one of the proceedings. Relevant considerations in determining which of the two proceedings should be stayed include which proceeding was commenced first, which is more comprehensive in scope, whether the issues in the subsequent decision can be resolved in the first proceeding and whether a multiplicity of proceedings will be prevented: Etco Financial Corp v. Royal Bank of Canada, para. 6.

[47] Regarding defamation, in Frank v. Legate, 2015 ONCA 631 the court wrote in paras. 39 and 40:

[39] In Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28, the Supreme Court of Canada held that a plaintiff must prove the following three elements in a defamation action: 1) the defendant made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; 2) the words in fact referred to the plaintiff; and 3) the words were communicated to at least one person other than the plaintiff.

[40] A reasonable person in this context is one who is reasonably thoughtful and informed, who would understand the difference between allegations and proof of guilt. Such a person would keep in mind that an accused person is presumed innocent until proven guilty: Guergis, at paras. 38 and 57; Miguna v. Toronto (City) Police Services Board, at paras. 4-6, aff’d .

[48] If all of the above defamation elements are proven, damages are presumed.

[49] The defence of justification for defamation is made out if it is established that the statements made are true or substantially true: Swan v. Durham Condominium Corp. No. 45, 2012 ONSC 4900 at para. 42.

[50] The defence of absolute privilege contains several basic elements: No action lies, whether against judges, counsel, jury, witnesses or parties, for words spoken in the ordinary course of any proceedings before any court or judicial tribunal recognised by law; the privilege extends to documents properly used and regularly prepared for use in the proceedings; and, a statement will not be protected if it is not uttered for the purposes of judicial proceedings by someone who has a duty to make statements in the course of the proceedings: Amato v. Welsh, 2013 ONCA 258, at para. 34.

[51] In Salasel v. Cuthbertson, 2015 ONCA 115, the court wrote:

[36] As noted by Cullity J. in Moseley-Williams v. Hansler Industries Ltd., 38 C.C.E.L. (3d) 111 (Ont. S.C.), aff’d , Ontario has adopted a broader application of the rule of absolute privilege to such pre-suit statements than jurisdictions such as British Columbia, Alberta and England. The scope of the Ontario rule was summarized comprehensively by the Divisional Court in 1522491 Ontario Inc. v. Steward, Esten Professional Corp., 2010 ONSC 727, 100 O.R. (3d) 596, at paras. 37 and 39 to 44:

[37] In Ontario, absolute privilege may extend to communications by a party's solicitor made before the actual commencement of proceedings.

[39] As Cullity J. points out in Moseley-Williams, the following statement from Fleming has been referred to with approval in Ontario decisions: The privilege is not confined to statements made in court, but extends to all preparatory steps taken with a view to judicial proceedings.... But the statement or document must be directly concerned with actual contemplated proceedings.

[40] However, Cullity J. also found that the authorities do not appear to support an extension of the privilege to all occasions when the possibility of litigation is contemplated, or even when a threat of litigation is made, or when a lawyer is endeavouring to assert and protect a client's rights.

[41] Thus, when a defendant in these circumstances moves to dismiss the claim on the ground of absolute privilege, the decision the court has to make is whether the communication was made “for the purpose of, or preparatory to, the commencement of [judicial] proceedings”.

[42] Something more than merely a contemplation of the possibility of litigation is required. The court must decide whether the occasion is “incidental” or “preparatory” or “intimately connected” to judicial proceedings and not one that is too remote.

[43] It is in this sense that Cullity J. accepted that “... some inquiry into the purpose of their publication would appear to be unavoidable”… That case dealt with a motion for judgment under rule 20. On a rule 21.01(1)(b) motion, the “inquiry” is made on the assumed truth of the facts pleaded in the statement of claim.

[44] It must be stressed that “it is the occasion, not the communication that is privileged. The privilege belongs to the occasion by reason of the setting.” [Citations omitted; emphasis in original.] Determining whether an occasion is preparatory to, or intimately connected with, judicial or quasi-judicial proceedings involves, as Cullity J. aptly put the matter in Moseley-Williams, at paras. 57 and 58, an exercise of ascertaining where a line is to be drawn so that the degree of connection between the occasion and the judicial proceeding is not too remote.

[52] On the defence of qualified privilege, in Foulidis v. Baker, 2014 ONCA 529 at paras. 40 to 43, the court wrote:

[40] First, qualified privilege attaches to the occasion on which a communication was made, not to the communication itself: Hill v. Church of Scientology of Toronto, 1995 SCC 59, [1995] 2 S.C.R. 1130, at para. 143; RTC Engineering Consultants Ltd. v. Ontario (Ministry of the Solicitor General & Correctional Services-Office of Fire Marshall), 58 O.R. (3d) 726 (C.A.), at para. 14; and Botiuk v. Toronto Free Press Publications Ltd., 1995 SCC 60, [1995] 3 S.C.R. 3, at para. 78.

[41] Second, on an occasion of qualified privilege, one person may defame another without attracting liability for defamation. The law presumes that the defamatory statement was made honestly and in good faith: RTC Engineering, at para. 14. Said somewhat differently, the legal effect of the defence of qualified privilege is to rebut the inference, one that naturally emerges from the publication of defamatory words, that they were spoken with malice: Hill, at para. 144.

[42] Third, as the term “qualified privilege” would itself suggest, the privilege is not absolute: RTC Engineering, at para. 18.

[43] Fourth, qualified privilege may be defeated when the information communicated in the statement is not reasonably appropriate in the context of the circumstances existing on the occasion when the information was given: Hill, at paras. 146-147; RTC Engineering, at para. 18; Botiuk, at para. 80; and Douglas v. Tucker, 1951 SCC 54, [1952] 1 S.C.R. 275, at p. 286.

[53] Further, in Whitfield v. Whitfield, 2016 ONCA 581, the court wrote:

[66] In assessing whether such an interest or duty exists, the test is whether persons of ordinary intelligence and moral principle, or the great majority of right-minded persons, would have considered it a duty to communicate the information to those to whom it was published: Halls v. Mitchell, 1928 SCC 1, [1928] S.C.R. 125, at pp. 132-33; Raymond E. Brown, The Law of Defamation in Canada, loose-leaf (2014-Rel. 3), 2nd ed. (Toronto: Thomson Reuters Canada Limited, 1999) at pp. 13-5, 13-103.

[67] In determining whether the defence of qualified privilege is applicable, context matters. Relevant factors include the nature of the statement, the circumstances under which it was made, and by whom and to whom it was made. Reciprocity of interest is essential, and at the very heart of the defence of qualified privilege – the defendant must have some interest in making the statement and those to whom the statement is made must have some interest in receiving it: R.T.C. Engineering, at para. 16.

[68] The privileged occasion must be created by the exigency of the circumstances and not by the state of mind of the person who communicates the information. That the person communicating the information believes in its truth is irrelevant to whether the occasion is privileged, although the lack of such a belief may constitute malice, causing the privilege to be lost: R.T.C. Engineering, at para. 18; Ahmad v. Ontario Hydro, at para. 5.

[69] Further, the privilege is to be narrowly applied and does not extend to comments that go beyond the exigency of the occasion or which are communicated to those who have no interest in receiving them: Hill, at paras. 146-147; R.T.C. Engineering, at paras. 15, 18. Simply put, “to maintain privilege a defendant must communicate appropriate information to appropriate people”: R.T.C. Engineering, at para. 18.

[54] On the issue of IAP confidentiality, IAP privacy provisions are set out in Schedule “D”, III, “o” of the IRSSA and pertain to evidence at IAP hearings.

[55] IAP confidentiality is also preserved through Orders made in connection with the hearing of individual RFDs, and notably, an in rem order made by Justice Perell, dated August 6, 2014. The said in rem order, orders and declares that IAP documents and IAP personal information are private and confidential and may not be used or disclosed by anyone for any purpose other than resolving IAP claims and paying compensation, for the limited purposes of prosecuting criminal or child protection or lawyer regulation proceedings, or as permitted by the order and any other orders made by the supervising courts in the courts in the implementation of the IRSSA. Nothing in the order interferes with the ability of a claimant, perpetrator, and witness, to disclose information within the parameters as set out in the order.

[56] In Schedule “A” to the order made by Justice Perell, dated August 6, 2014, IAP Documents are defined as: Records, in any medium, specifically generated for use in an IAP Claim and containing IAP Personal Information, and includes any copies of records, in any medium, specifically collected for use in an IAP Claim. For greater clarity, IAP Documents do not include pre-existing records generated or compiled for a purpose other than to be used in the IAP, particularly where those records remain lawfully held by their respective custodians. Without limiting the generality of the foregoing, IAP Documents include: (a) IAP application documents, including IAP Application Forms (as set out in Appendix XIV of Schedule D as well as variations thereof) and any related correspondence or documentation (Particularly as related o the matters set out in Appendices I and II of Schedule D); (b) IAP Claimants’ mandatory documents, within the meaning of Appendix VII of Schedule D, and any related correspondence or documentation; (c) Canada’s mandatory documents within the meaning of Appendix VIII of Schedule D, and any related correspondence or documentation; (d) Third party documents, including statements by alleged perpetrators or witnesses (as contemplated in Appendices III and IV of Schedule D) and correspondence or documentation relating to the participation of an alleged perpetrator, witness, or Church entity in an IAP Claim; (e) IAP hearing records, including correspondence or documentation relating to any aspect of the hearing of an IAP Claim, notices of hearing, records of attendance at hearing, confidentiality agreements, audio recordings of hearings, written transcripts of hearings, and correspondence or documentation relating to the scheduling of an IAP hearing; (f) IAP expert reports and assessments, within the meaning of Appendix VI of Schedule D, and any related correspondence or documentation; (g) IAP Claimants’ legal representation documentation, including retainer agreements, notices of withdrawal, legal fees decisions and any related correspondence or documentation; (h) Other documents exchanged and used by participants during the conduct of an IAP Claim, and without limiting the generality of the foregoing, including future care plans (as referred to in Appendix VII of Schedule D) completed release forms under Schedule P to the Settlement Agreement, records relating to previous Indian Residential Schools litigation, formal research requests from adjudicators, and any responses thereto; (i) Records of adjudicators’ decisions relating to IAP Claims, including preliminary decisions by adjudicators on jurisdictional matters, adjudicators’ compensation decisions in relation to an IAP Claim as referred to in Appendix XII of Schedule D, and review decisions pursuant to Part III(1) of Schedule D; and (j) Other administrative documents relating to any IAP Claim, including correspondence and notes produced by any participant in an IAP Claim.

[57] In Schedule “A”, of the order made by Justice Perell, dated August 6, 2014, IAP Personal Information is defined as: Any Personal Information about a Claimant, alleged perpetrator or other affected individual in respect of an IAP Claim that is obtained through the administration of an IAP Claim, and includes the fact that an identifiable individual is a Claimant, alleged perpetrator or other affected individual in respect of an IAP Claim.

[58] Solicitor and client privilege/client confidentiality are long standing principles subject to many special considerations and restrictions.

ANALYSIS

Issue: Multiplicity of Proceedings and Prejudice to Other Interested Parties

[59] As a result of Justice Perell’s April 24, 2017 decision, there are no outstanding RFDs scheduled to be heard and/or decided that will address and/or concern common facts and/or issues with the defamation action.

[60] Given that there are no other outstanding proceedings with common facts and/or issues to be determined, the issue of multiplicity of proceedings/inconsistent findings in my respectful view is no longer a consideration at this point in time.

[61] In addition, Justice Perell found in his April 24, 2017 decision that there is no jurisdiction to hear and adjudicate many of the claims in the RFDs, by the court administrating and enforcing the IRSSA. Those claims included the claims that pertained to the plaintiffs’ role in the non-disclosure; and conduct and representation of IAP claimants. He went on to find that such claims should be brought pursuant to the Rules of Civil Procedure, in the Ontario Court of Justice and not by way of proceedings that might be brought by the Monitor under the IRSSA.

Issue: Injustice/Prejudice to Brunning: Confidentiality of Documents/Information and Defending the Defamation Action

[62] As a result of the RFDs being dismissed by Justice Perell, April 24, 2017, Brunning is no longer putting forward grounds/allegations involving the plaintiffs, on behalf of her clients, in any RFD that I am aware of.

[63] To defend herself in the defamation action, Brunning will potentially have to address the following questions: a. Did she write and publish any of the correspondence complained of in the statement of claim, and if so, which ones? b. When and how were they sent and to whom? c. Were any or all of the disputed statements contained in the correspondence true or substantially true? d. On what basis and in what capacity and for what purpose did she prepare the correspondence? e. Did she send the correspondence to the entitled/necessary recipients? f. Did she make the statements in the correspondence honestly and in good faith; and were they reasonably appropriate in the context of the circumstances existing on the occasions they were sent? g. Were the statements contained in the correspondence made during, incidental to, and in the processing and furtherance of judicial or quasi-judicial proceedings?

[64] Because of the drafting in the statement of claim, it is not clear as to how many pieces of correspondence were actually sent. Some of the correspondence share the same date and it is not clear if one letter exists for that particular date or if there is more than one letter under the same date.

[65] Copies of the correspondence were not filed.

[66] The first issue is that Brunning has asked the plaintiffs to produce the correspondence and they refused. Brunning’s counsel sent a letter to plaintiffs’ counsel attaching a request to inspect documents and a demand for particulars, including a request for a copy of the correspondence. Plaintiffs’ counsel characterized the request as a tool of waste and delay.

[67] Brunning wants to determine whether or not the correspondence is subject to solicitor and client privilege/ confidentiality and/or IAP confidentiality before she responds, for obvious reasons.

[68] I agree that clearly, the correspondence is necessary and relevant to this claim. That being said, I find that the plaintiffs’ refusal to provide the correspondence does not justify a stay.

[69] The court may order necessary and relevant productions and particulars when asked (and costs for having to resort to the court for same, if appropriate). Ms. Brunning can bring such a request before the court if need be.

[70] That being said, I find there is merit to the argument that Brunning should already have, at the very least, copies of correspondence she has written.

[71] Until such time as disclosure is made (either voluntarily or by court order if that is necessary), there is nothing in the evidence that supports that she cannot realistically locate the correspondence referred to in the statement of claim, to plan her defence and/or properly develop or address privilege/confidentiality concerns for the court’s further consideration.

[72] The dates of the correspondence are provided in the statement of claim, as well as specific excerpts from them which should (if accurately transcribed) assist in identifying the subject correspondence; Brunning simply has to look in her file(s).

[73] As such, based on the above, Brunning is not prohibited from discerning or reminding herself as to how and under what circumstances and/or for what purpose each of the pieces of the correspondence was created and/or sent and to whom and why.

[74] As for privilege/confidentiality issues, it may well be that some of the correspondence may pose challenges.

[75] Regarding the correspondence however, the excerpts in the statement of claim do not identify clearly whether any or all of the correspondence was sent on a without prejudice basis or on a private or confidential basis. They do not set out the context and for what purpose the correspondence was sent, including but not limited to whether or not all of the correspondence was sent in contemplation of or part of a proceeding. The term “and others” is used to identify some of the correspondence recipients. Particulars are not sufficiently outlined in the evidence filed. As such, it is very difficult without the correspondence and particulars to give merit to this argument at this stage in the context of a stay motion given the effect of a stay.

[76] Also, I note that in this case, the court was permitted to receive a copy of a letter relating to the Mushkegowuk Council RFD exchanged in the IAP, which the court was advised was not considered subject to IAP confidentiality. This was confirmed by Brian Gover, independent counsel, in the IAP, by letter dated October 14, 2016. All that had to be done to determine the ability to file the said letter was to ask. There is no evidence that any of the correspondence that is subject to the defamation action has ever been queried for IAP confidentiality concerns and/or that they could not be, the same way the Mushkegowuk Council’s letter was queried.

[77] There also appears to be, by Justice Perell’s August 6, 2014 in rem order in the IAP, a process/jurisdiction by which one could bring an RFD to address the issue of disclosure or use of information. Neither the plaintiffs nor Brunning have attempted this process nor suggested this would not be an available avenue to address IAP confidentiality concerns. This may be a novel situation for the IAP to consider. In my view, Justice Perell’s August 6, 2014, order by its wording does not foreclose a finding that other circumstances/cases, such as a lawyer’s need to defend him or herself in a serious defamation action, may warrant disclosure of documents and/or information and/or parts thereof, to be used or disclosed in a manner that would protect documents and information as intended by the IRSSA. This could apply to all documents/information Brunning claims she needs to defend herself in the defamation action, not only the correspondence in issue.

[78] In respect of other documents and information beyond the correspondence, and Brunning’s claim that she is prevented from defending herself, in my view, a consideration is that there exists publically available/accessible decisions, in which a significant portion of the facts regarding the background leading to the defamation action, and the actions of the IAP participants, have been determined. Brunning is not prohibited from using or referring to the facts in these decisions. The plaintiffs in fact were intervenors on the RFDs resulting in Justice Perell’s April 24, 2017 decision, which decision contains many of the facts she would need.

[79] In the decisions on the RFDs, it is clear that Justice Perell found that Canada breached the IRSSA and its disclosure obligations. He reiterated this in his April 24, 2017 decision. He commented more than once in his April 24, 2017 decision that there was no mystery to clear up with respect to the Cochrane documents and non-disclosure. The issues concerning the role, conduct and representation of IAP claimants by the plaintiffs (and other participants) were outlined. Some parties are identified and others are protected with descriptors. The history leading to the RFDs is outlined, including put not limited to the plaintiffs’ involvement with the Cochrane actions before the IRSSA; the Trainer order; and what happened with Claimant H-15109, including his hearing, the review and attempt to take his life. In terms of what was done and what was not done, it is noted on the non-disclosure issue, that the plaintiffs after his January 14, 2014 order, did not seek to adjourn Claimant H-15109’s hearing and that they did not request revised disclosure at any time after the January 14, 2014. It is equally clear that the St. Ann’s narrative and POI was not updated per his January 14, 2014 order. Claimant H-15109’s application was re-opened as a result. It is public information that she acted for former students and in particular Claimant H-1509. Even the issue of how claimants were affected by the non-disclosure (rights and compensation) was addressed by Justice Perell in his decision April 24, 2017.

[80] It is not known at this stage as to what position the plaintiffs would take regarding the findings in each of the decisions, but the point is, Brunning’s ability to plead many of the facts is not prevented as a result of the decisions and/or confidentiality concerns regarding same.

[81] As to other information that may be needed pertaining to Claimant H-15109 that is not already public (by the facts outlined in the decisions concerning him), it is clear that at some point he wanted to make certain information public and waive privacy/confidentiality rights.

[82] IAP claimants receive a copy of their claim decision redacted to remove identifying information. IAP claimants are free to discuss the outcome of their hearing, including his or her own evidence on the claim or experiences and the amount of any compensation he or she is awarded. I was not provided with a copy of an order prohibiting the foregoing in respect of Claimant H-15109, only information that material that he filed on an RFD was sealed.

[83] As for the issue of paragraph 10 of the statement of claim which states that the plaintiffs diligently and effectively represented former St. Anne’s students, the plaintiffs described this as pleadings’ fluff and of questionable relevance. The plaintiffs are happy to have it struck and would consent to an order to that effect. As such, Brunning would not have to answer to this assertion. However, even if Brunning herself wanted to assert that the plaintiffs did not diligently and effectively do so (which is clearly the subject of the RFDs and correspondence), I am not satisfied that she is prevented from doing so at this time. There is no evidence of impediment to any of the former clients of the plaintiffs coming forward to talk about how his or her case was handled by the plaintiffs if he or she wants to. Brunning won’t know until she asks.

[84] Finally, the court has jurisdiction and a variety of means to address privilege/confidentiality concerns depending on the specific concerns for each document and/or piece of information, including but not limited to redactions, use of non-identifying descriptors, sealing of documents, publication bans and in-camera proceedings. This process of consideration is available to Brunning to pursue.

Issue: Prejudice to the Plaintiff and Merits of the Defamation Action

[85] Allegations that a law firm and/or its lawyers failed to meet their obligations to their clients; violated former clients’ rights; traumatized former clients; agreed to cloak abuse; obstructed justice; wilfully kept adjudicators in the dark; did or facilitated withholding, hiding or burying of documents and/or information for personal financial gain, are very strong and serious allegations. I am not of the view that in this particular case, an affidavit of the plaintiffs is required to explain or assert this, or to express that a stay would interfere and prejudice their ability to seek recourse.

[86] I find, a stay would interfere with and prejudice the plaintiffs’ ability to seek a remedy for the harm they claim they have suffered as a result of the Brunning allegations.

[87] Subject of course to the application of defences and admissible evidence, the basic elements of defamation appear to be present based on the excerpts set out in the statement of claim.

[88] Further, I am not satisfied at this stage, having regard for the law concerning the intended defences, and the evidence (or more importantly, the lack thereof) filed on this motion, that the defamation action is wholly untenable. The onus on this motion belongs to Brunning.

[89] As previously stated, the correspondence was not filed. Only excerpts are provided in the statement of claim, the accuracy of which cannot be determined without the actual correspondence.

[90] The evidence does not address sufficiently, the nature of the correspondence, the particulars of the circumstances under which each piece of correspondence was sent, the relevant interests for sending each piece of correspondence and the relevant interests of those to whom each piece of correspondence was sent.

[91] Brunning did not sufficiently elaborate in her materials filed and/or at her cross-examination September 15, 2016 because of her concerns regarding IAP and client confidentiality/privilege; and on the basis that the plaintiffs did not produce the correspondence as requested. I appreciate the foregoing, but that being said, these considerations do not lead to the conclusion that the action is questionable.

[92] It may well be that some of the defences will be dispositive of all or some of the claim, but without the relevant information including a copy of the correspondence, at this time, I am unable to agree or find that the merit of the defamation action is questionable.

CONCLUSION

[93] I find that it is not just to, and I decline to exercise my discretion to grant a temporary stay in this case.

[94] No related RFDs are pending. There is no longer any concern of multiplicity of proceedings and the possibility of inconsistent results; and no concern of prejudice to St. Anne’s IAP claimants (whose rights were being represented on the RFDs).

[95] I am not satisfied at this particular time, that any solicitor and client privilege and/or client or IRSSA confidentiality requirements will prevent Brunning from pleading or disclosing the facts, information and documentation necessary to properly defend herself in the defamation action. If there are some impediments arising from same I am not satisfied that there exists no mechanism to remedy same and/or to protect confidentiality of information and participants in the defamation action.

[96] Brunning has not established at this particular time that the defamation action on its face is of questionable merit, and that the defences she will raise will be found to be completely dispositive of the claims against her.

[97] I find that allowing the case to move forward would not amount to an abuse of process. I do not find there to be any part of the process that would be manifestly unfair to Brunning or would in some other way bring the administration of justice into disrepute at this juncture.

[98] I am satisfied that the plaintiffs in the context of this defamation action are genuinely attempting to address serious allegations made against them.

[99] I am satisfied that not allowing the case to move forward at this stage would cause injustice to the plaintiffs.

[100] I am not satisfied that the case moving forward at this stage would work an injustice or be oppressive or vexatious to Brunning.

[101] I find that the issues facing Brunning do not weigh significantly in favour of granting a stay.

[102] The motion is dismissed.

[103] If the parties cannot agree on the issue of costs, brief submissions as to costs may be made to me in writing within 30 days of today’s date.

Rasaiah J.

Released: April 26, 2017

Schedule “A”

List of Materials Filed and Considered

1. Brunning’s Motion Record Volume 1 August 22, 2016
2. Brunning’s Motion Record Volume 2 August 22, 2016
3. Brunning’s Motion Record Volume 3 August 22, 2016
4. Plaintiffs’ Responding Motion Record September 9, 2016
5. Brunning’s Factum September 12, 2016
6. Brunning’s Book of Authorities September 14, 2016
7. Cross-examination of Brunning September 15, 2016
8. Plaintiffs’ Factum September 19, 2016
9. Plaintiffs’ Book of Authorities September 20, 2016
10. Brunning’s Supplementary Motion Record September 21, 2016
11. Brunning’s Brief of Statutory Authority Volume 1 September 21, 2016
12. Brunning’s Brief of Statutory Authority Volume 2 September 21, 2016
13. Letter from Mr. Adair dated October 6, 2016 enclosing Letter from Mushkegowuk Council to Perell J. dated September 30, 2016
14. Letter from Mr. Adair dated October 14, 2016 enclosing letter from Mr. Gover dated October 14, 2016 and Order of Perell J. dated August 6, 2014
15. Brunning’s Second Supplementary Motion Record November 4, 2016
16. Plaintiffs’ Supplementary Responding Motion Record dated November 9, 2016
17. Brunning’s Third Supplementary Motion Record November 11, 2016
18. Brunning’s Fourth Supplementary Motion Record December 5, 2016
19. Brunning’s Submissions December 5, 2016
20. Plaintiffs’ Factum December 8, 2016
21. Plaintiffs’ Book of Authorities December 8, 2016
22. Brunning’s Submissions December 12, 2016
23. Letter from Ms. Secord dated March 1, 2017 enclosing Decision of Perell J. dated December 14, 2016; Factum of Mr. Metatawabin and Claimant K-10106; Direction of Perell J. dated February 17, 2017; Order of Chief Justice Winkler dated December 15, 2006
24. Decision of Perell J. dated April 24, 2017