CITATION: Wallbridge v. Brunning et al., 2017 ONSC 6283

COURT FILE NO.: 20018/16

DATE: 2017-10-20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JAMES WALLBRIDGE, ALMEDA WALLBRIDGE and WALLBRIDGE, WALLBRIDGE

Plaintiffs

– and –

FAY BRUNNING and WILLIAMS-LITIGATION LAWYERS

Defendants

Gordon McGuire, Counsel for the Plaintiffs

Sandra L. Secord, Counsel for the Defendants

HEARD: July 31, 2017

rasaiah j.

REASONS ON MOTION

OVERVIEW

[1] The defendant Fay Brunning (“Brunning”) brought a motion seeking:

1. An order pursuant to rule 30.04 of the Rules of Civil Procedure, requiring the plaintiffs to comply with a request to inspect documents dated July 29, 2016, within 15 days of the order of this Honourable Court;

2. An order pursuant to rule 25.10, requiring the plaintiffs to provide particulars of the allegations contained in their statement of claim in accordance with Brunning’s demand for particulars dated May 12, 2017, within 15 days of the order of this Honourable Court;

3. Brunning’s costs of this motion on a full indemnity basis, including all applicable taxes and, in the alternative, on a partial indemnity basis;

4. Such further and other relief as counsel may advise and this Honourable Court may deem just.

[2] In support of the motion, Brunning filed the affidavit of B. Lee Menzies sworn June 8, 2017, which affidavit included 25 exhibits attached thereto (“Menzies affidavit”). Ms. Menzies is a law clerk with Brunning’s counsel’s firm.

[3] The plaintiffs filed the affidavit of Melissa Mustafa, sworn June 19, 2017, which included two exhibits attached thereto (“Mustafa affidavit”). Ms. Mustafa is an articling student with the plaintiffs’ counsel’s firm.

[4] There were no affidavits filed in support of the motion or responding thereto sworn by a party, him or herself.

[5] After the motion was argued, I received and considered information provided to me with the intention of correcting and clarifying information/submissions that had been made, namely:

a. A letter from Mr. McGuire dated August 2, 2017;

b. A letter from Ms. Secord dated August 3, 2017; and

c. A letter from Mr. McGuire dated August 4, 2017;

which letters I have made Exhibits 1, 2 and 3, respectively on this motion.

BACKGROUND

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

[7] 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.

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

[9] The action is primarily a defamation action which arises out of written communications made by the Brunning from August 7, 2015 to April 13, 2016.

[10] The statement of claim was issued May 20, 2016.

[11] Brunning served a notice of intent to defend on June 10, 2016.

[12] The defamatory allegations or actions of Brunning, are described at paragraphs 14 to 18 of the statement of claim, and include the preparation of letters, and one email (collectively hereinafter referred to as “the seven letters”), and in particular, statements alleging negligence; professional misconduct; unethical conduct; and obstruction of justice, as against the plaintiffs (“defamation allegations”).

[13] Excerpts from the seven letters are set out in paragraph 17 of the statement of claim.

[14] Paragraph 19 of the statement of claim provides that the defamation 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 a self-styled journalist, to unknown readers in unknown numbers via two email blogs on the internet.

[15] The claim also claims gross professional misconduct, aggravated, exemplary and punitive damages.

[16] Brunning states her defence will be based on absolute privilege, qualified privilege and justification. She believes the communications to be true and further, 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, to address: the non-disclosure she discovered; and the role, conduct and representation of IAP claimants in respect of that non-disclosure. Brunning’s communications also involved putting the plaintiffs on notice of a potential negligence claim. One of the plaintiffs’ former clients, namely Claimant H-15109 (“Claimant H”), made a complaint to the Law Society.

[17] This case has come before me twice before. First, I heard a summary judgment motion brought by the defendant Williams-Litigation Lawyers to dismiss the action against them, which I granted (which I understand is under appeal). Next, that same day, I heard a motion made by Brunning to stay the action as against her, which motion I dismissed. Those decisions were attached as exhibits to the Menzies affidavit. The seven letters had not been filed as evidence on either motion.

[18] As to this motion, on July 29, 2016, Brunning served a request to inspect documents referred to in the plaintiffs’ statement of claim, dated July 29, 2016, to which Brunning states the plaintiffs have failed to fully respond. On the same date, Brunning also delivered a demand for particulars dated July 29, 2016, to which the Brunning states the plaintiffs have refused to respond. After the release of my decision regarding the stay motion, on May 12, 2017, Brunning delivered a revised demand for particulars dated May 12, 2017, to which Brunning states the plaintiffs have refused to fully respond. This amended demand for particulars is the demand that is the subject of the motion (and not the first demand).

[19] The request to inspect documents and the demands for particulars were attached as exhibits to the Menzies affidavit.

[20] The request to inspect contains 32 paragraphs of requests to inspect documents referred to in the plaintiffs’ statement of claim.

[21] The revised demand for particulars is made up of 12 paragraphs containing a total of 37 demands for particulars.

[22] By letter dated July 25, 2016 Brunning’s counsel made it known to plaintiffs’ counsel (G. Adair) that a demand for particulars and request to inspect documents were going to be delivered. Mr. Adair responded taking the position that the foregoing amounted to delay tactics. Brunning’s counsel sent a further letter dated July 29, 2016 in essence denying same.

[23] In a letter dated August 19, 2016, plaintiffs’ counsel, commented that the request to inspect documents and demand for particulars were “tools of waste and delay” and he pointed out that the documents that Brunning was seeking to inspect had been authored by Brunning. Brunning’s counsel sent a responding letter dated August 22, 2016 purporting to confirm that plaintiffs’ counsel would not answer or produce anything in respect of the request and demand.

[24] After the stay motion decision was released, the plaintiffs sought Brunning’s statement of defence. In response, Brunning’s counsel inquired as to whether or not the plaintiffs intended to respond to the request to inspect and/or the demand for particulars.

[25] On May 3, 2017, plaintiffs’ counsel responded and advised that documents would be produced for inspection at a time convenient to all assuming his clients retained hard copies of what his clients received. Plaintiffs’ counsel indicated that the demand for particulars would not be responded to for reasons previously stated, but ... that the plaintiffs would be pleased to consider any amended request that limits the request to reasonable particulars required to allow Brunning to plead.

[26] On May 9, 2017 plaintiffs’ counsel sent an email to Brunning’s counsel informing her that he determined that the seven letters referred to in the statement of claim were sent via email except for two, and that as such he felt there was nothing to show or produce for inspection that Brunning did not already have. The other two letters were identified and Brunning’s counsel was advised that they would be made available for her review May 12, 2017 at his office. In this email plaintiffs’ counsel was encouraging the delivery of a defence.

[27] Brunning’s counsel sent the revised demand for particulars May 12, 2017. Later on, that same day, plaintiffs’ counsel sent an email to Brunning’s counsel stating, “Your tactics smack of obvious delay. I will be noting pleadings closed on Monday morning.”

[28] On or about May 15, 2017, Brunning’s counsel sent a further letter to plaintiffs’ counsel expressing that she was perplexed and disturbed by his May 12, 2017 email for various reasons including that his May 3, 2017 email invited Brunning to serve a revised demand for particulars. Brunning’s counsel also states in this letter, her position as to what ought to be produced and what Brunning was entitled to. She further pointed out that an appeal had been brought in respect of the summary judgment motion decision which was not scheduled to be heard until October 3, 2017 and that this appeal hearing date was almost 5 months from the date of Brunning’s counsel’s letter (to emphasize that given this appeal hearing date, any allegation that the plaintiffs were being delayed was not taking this into consideration).

[29] Plaintiffs’ counsel responded May 23, 2017 wherein his letter, he asserted that asking him to print out letters from Brunning herself to his clients suggests a delay motive. He indicated that his change in mind and request for an immediate demand for a statement of defence came after he read the revised demand for particulars. He was of the view that it was filled with requests for information squarely within Brunning’s knowledge and/or completely unnecessary for pleading. He demanded delivery of the statement of defence or that Brunning bring whatever motions she intended to bring by May 26, 2017 (otherwise he was going to note pleadings closed against Brunning). Plaintiffs’ counsel’s letter invited Brunning’s counsel to inspect the two original letters and the printouts of other five letters referred to in the statement of claim to satisfy the request to inspect notwithstanding his view of Brunning’s counsel’s tactics. Finally, plaintiffs’ counsel also responded to one paragraph of the demand for particulars, namely paragraph 8.

[30] On May 24, 2017 Brunning’s counsel wrote to plaintiffs’ counsel advising she was seeking instructions on a motion for particulars and advising that she wished to attend to inspect documents May 26, 2017. A response was sent to Brunning’s counsel that she could attend on that date.

[31] On May 26, 2017, plaintiffs’ counsel sent an email to Brunning’s counsel confirming that Brunning’s counsel attended to inspect documents as scheduled and that she was provided with, a copy of the seven letters, namely the letters dated August 7, 2015, September 8, 2015, September 28, 2015, March 17, 2016, March 18, 2016, April 8, 2016 and April 13, 2016. A letter was sent by Brunning’s counsel on May 26, 2017 wherein she acknowledged the foregoing but set out that not all of the documents listed in the request to inspect were produced to her; that the documents set out in items 1 through to 9, 23 and 32 of the request had not been produced. An inquiry was made as to whether or not they would be.

[32] On June 9, 2017, Brunning filed the within motion.

DEMAND FOR PARTICULARS

OVERVIEW

[33] The demand for particulars is attached as Exhibit “P” to the Menzies affidavit. I do not intend to reproduce each of the 37 demands herein. I will refer to them generally and by their paragraph number.

ANALYSIS

[34] Rule 25.06(1) provides that every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.

[35] Rule 25.06(7) provides that the effect of a document or the purport of a conversation, if material, shall be pleaded as briefly as possible, but the precise words or the document or conversation need not be pleaded unless those words are themselves material.

[36] Rule 25.06(8) provides that where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred. This rule focuses on the nature of the act, or condition of the mind.

[37] In Frank v. Legate, 2015 ONCA 631, 2015 CarswellOnt 14043, [2015] O.J. No. 4819, 23 C.C.L.T. (4th) 190, 257 IC.W.S. (3d) 483, 339 O.A.C. 359, 390 D.L.R. (4th) 39, the court wrote at para. 39:

In Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 (S.C.C.), 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. If these elements are established on a balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism: see, e.g., R. I Smolla, “Balancing Freedom of Expression and Protection of Reputation Under Canada’s Charter of Rights and Freedoms”, in D. Schneiderman, ed., Freedom of Expression and the Charter (1991), 272, at p. 282. (The only exception is that slander requires proof of special damages, unless the impugned words were slanderous per se: R. E. Brown, The Law of Defamation in Canada (2nd ed. (loose-leaf)), vol. 3, at pp. 25-2 and 25-3.) The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.

[38] In a defamation action, the specific words alleged to be defamatory, to the extent they are known to the plaintiff, must be pleaded with sufficient particularity to enable the defendant to understand the allegation: Lysko v. Braley(2006), 2006 CanLII 11846 (ON CA), 79 O.R. (3d) 721 (Ont. C.A.) at para. 102.

[39] With respect to a claim for punitive damages, in Whiten v. Pilot Insurance Co., 2002 SCC 18, 2002 CSC 18, 2002 CarswellOnt 537, 2002 CarswellOnt 538, [2002] 1 S.C.R. 595, at paras. 87 and 92, the court wrote:

One of the purposes of a statement of claim is to alert the defendant to the case it has to meet, and if at the end of the day the defendant is surprised by an award against it that is a multiple of what it thought was the amount in issue, there is an obvious unfairness. Moreover, the facts said to justify punitive damages should be pleaded with some particularity. The time-honoured adjectives describing conduct as “harsh, vindictive, reprehensible and malicious” (per McIntyre J. in Vorvis, supra, p. 1108) or their pejorative equivalent, however apt to capture the essence of the remedy, are conclusory rather than explanatory.

… punitive damages are directed to the quality of the defendant’s conduct, not the quantity (if any) of the plaintiff’s loss. As Cory J. observed in Hill, supra, at para. 196, “[p]unitive damages bear no relation to what the plaintiff should receive by way of compensation. Their aim is not to compensate the plaintiff, but rather to punish the defendant. It is the means by which the jury or judge expresses its outrage at the egregious conduct of the defendant”.

[40] In Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), 1995 CarswellOnt 396, 1995 CarswellOnt 534, [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, 126 D.L.R. (4th) 129, 184 N.R. 1, 24 O.R. (3d) 865 (note), 25 C.C.L.T. (2d) 89, 30 C.R.R. (2d) 189, 56 IC.W.S. (3d) 495, 6 W.D.C.P. (2d) 356, 84 O.A.C. 1, J.E. 95-1495, EYB 1995-68609, para. 148, the court wrote:

Malice is commonly understood, in the popular sense, as spite or ill-will. However, it also includes, as Dickson J. pointed out in dissent in Cherneskey, supra, at p. 1099, “any indirect motive or ulterior purpose” that conflicts with the sense of duty or the mutual interest which the occasion created. See also Taylor v. Despard, 1956 CanLII 124 (ON CA), [1956] O.R. 963 (C.A.). Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth. See McLoughlin, supra, at pp. 323-324, and Netupsky v. Craig (1972), 1972 CanLII 19 (SCC), [1973] S.C.R. 55, at pp. 61-62.

[41] As such, in order to make out a claim of malice, it would be necessary for a plaintiff to plead that a defendant was engaged in some wrong or improper purpose or indirect motive, spoke dishonestly, or spoke in knowing or reckless disregard for the truth.

[42] The plaintiffs claim they are not claiming malice. The rule extends to intent claims. Intent/motive, and reckless disregard claims require sufficient particulars for a responding party to understand and plead to.

[43] Rule 25.10 provides that where a party demands particulars of an allegation in the pleading of an opposite party, and the opposite party fails to supply them within seven days, the court may order particulars to be delivered within a specified time.

[44] In Pennyfeather v. Timminco Ltd. (2011), 107 O.R. (3d) 201, 2011 ONSC 4257, Perell J. set out at paras. 59-62:

In Antonacci v. Great Atlantic & Pacific Co. of Canada Ltd. (2000), 2000 CanLII 5496 (ON CA), 181 D.L.R. (4th) 577 (Ont. C.A.) at para. 34, the Court of Appeal explained the role of particulars. The Court stated:

[t]he function of particulars is to limit the generality of pleadings and thus to define the issues which have to be tried and as to which discovery must be given. Each party is entitled to know the case to be made against him at the trial and to have such particulars of his opponent’s case as will prevent him from being taken by surprise.

In J.W. Morden and P.M. Perell, The Law of Civil Procedure in Ontario (1st ed.) (Markham, LexisNexis Canada Inc., 2010) at p. 347, I describe the role of particulars as follows:

In between material facts and evidence, is the concept of “particulars”. Particulars are additional details that enhance the material facts, and particulars have a role to play different from just being evidence: Copland v. Commodore Business Machines Ltd. (1985), 1985 CanLII 2190 (ON SC), 3 C.P.C. (2d) 77 at 80-81 (Ont. S.C.J.), affd (1985), 3 C.P.C. (2d) 77n (Ont. H.C.J.). Particulars are ordered primarily to clarify a pleading sufficiently to enable the adverse party to frame his or her answer, and their secondary purpose is to prevent surprise at trial: Steiner v. Lindzon, (1976) 1976 CanLII 760 (ON SC), 14 O.R. (2d) 122 (H.C.J.). Particulars have the effect of providing information that narrows the generality of pleadings: Mexican Northern Power Co. v. Pearson (1913), 25 O.L.R. 422 (Ont. S.C.). Particulars define the issues, enable preparation for trial, prevent surprise at trial and facilitate the hearing: Physicians’ Services Inc. v. Cass, 1971 CanLII 359 (ON CA), [1971] 2 O.R. 626 (C.A.) at p. 627; Areva NP GmbH v. Atomic Energy of Canada Ltd., [2009] O.J. No. 4372 (S.C.J.) at paras.39-40; Obonsawin v. Canada, 2001 CanLII 28431 (ON SC), [2001] O.J. No. 369 (S.C.J.) at para. 33. A function of particulars to a statement of claim is to define the claim sufficiently to allow a defendant to respond intelligently to it: International Nickel Co. v. Travelers Indemnity Co., [1962] O.J. No. 56 (C.A.); Hou v. Wesbild Holdings Ltd., [1994] B.C.J. No. 2021 (B.C.S.C.); Blatt Holdings Ltd. v. Traders General Insurance Co., 2001 CanLII 62756 (ON SC), [2001] O.J. No. 949 (S.C.J.).

In Cansulex Ltd. v. Perry, [1982] B.C.J. No. 369 at para. 15 (B.C.C.A.), the British Columbia Court of Appeal identified six functions for particulars: (1) to inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved; (2) to prevent the other side from being taken by surprise at the trial; (3) to enable the other side to know what evidence they ought to be prepared with and to prepare for trial; (4) to limit the generality of the pleadings; (5) to limit and decide the issues to be tried, and as to which discovery is required; and (6) to tie the hands of the party so that he or she cannot without leave go into any matters not included.

A motion for particulars usually will not be granted unless the moving party deposes that the particulars are not within his or her knowledge and that they are needed to plead; however, a supporting affidavit is not required if the allegations are so general and bald that it is clear that particulars of them are necessary: Steiner v. Lindzon (1976), 1976 CanLII 760 (ON SC), 14 O.R. (2d) 122 (Ont. H.C.); Wood Gundy Inc. v. Financial Trustco Capital Ltd., [1988] O.J. No. 275 (Ont. Master); Curry v. Advocate General Insurance Co. of Canada, [1986] O.J. No. 2564 (Ont. Master).

[45] In D’Aguanno v. VIPR Industries Inc. 2010 ONSC 3369, 2010 CarswellOnt 3937, [2010] O.J. No. 2487, 189 IC.W.S. (3d) 655, Muir M. wrote:

Ordinarily, I would agree with the plaintiffs’ argument that particulars will only be ordered where the party seeking the particulars swears an affidavit that states that he or she is unable to plead without them and they are not otherwise within his or her knowledge. However, I do not view that requirement as mandatory when the allegations in question are in the nature of fraud, misrepresentation or breach of trust. Rule 25.06(8) specifically requires full particulars of such allegations. See Lana International Ltd. v. Menasco Aerospace Ltd., 1996 CarswellOnt 1534 (Ont. Gen. Div.), 1996 CanLII 7974. In my view the allegations in issue on this motion fall into those categories and the absence of such evidence from the moving defendants is not fatal to their motions.

[46] In Van-Rob Inc. v. Rapid Metals LLC, 2016 ONSC 1321, 2016 CarswellOnt 2661, 263 IC.W.S. (3d) 906, 92 C.P.C. (7th) 413, at paras. 8 -10, the court set out:

Particulars of a pleading will only be ordered if:

(1) They are not within the knowledge of the party demanding them;

(2) They are necessary to enable the party to plead (Physicians Services Inc. v. Cass, 1971 CanLII 359 (ON CA), [1971] 2 O.R. 626 (Ont. C.A.), 1731431 Ontario Ltd. v. Crestwood Apartments (Thunder Bay) Ltd., 2010 ONSC 5040 (Ont. S.C.J.) and Big Green Property Services Ltd. V. Guelph Campus Co-operative (2005), 2005 CanLII 34577 (ON SC), 78 O.R. (3d) 775 (Ont. S.C.J.)).

The deponent in the supporting affidavit on a motion for particulars should be the moving party and not the solicitor representing that party; otherwise, little weight will be given to the affidavit (Hanna v. Hanna (1986), 1986 CanLII 2828 (ON SC), 53 O.R. (2d) 251 (Ont. Master) and 1731431 Ontario Ltd., supra).

The purpose of particulars is to define the issues in the case. Where oral discovery is available, the general approach is to limit particulars to what a party requires in order to respond to a pleading and to flush out the story at oral discoveries (Big Green Property Services Ltd., supra).

[47] There is no evidence suggesting oral discoveries are not available.

LACK OF AFFIDAVIT

[48] I am not as concerned about the lack of an affidavit sworn by Brunning and/or the plaintiffs, as I am for this case to be dealt with in a just, most expeditious and least expensive determination on its merits. The claim also includes “motive/intent/reckless disregard” based claims.

[49] Furthermore, the seven letters, which are specific documents incorporated into the statement of claim, were filed as an exhibit to the Menzies affidavit. There is no evidence before me to contradict that Brunning is the author of these letters as indicated and/or did not have knowledge of the contents therein. These letters provide insight as to Brunning’s knowledge.

[50] In fact, within the seven letters, I find that there is a clear demonstration of knowledge of particulars/details related to many of the particulars and documents Brunning is seeking. Quite frankly, after having read these letters as against the statement of claim and the demand for particulars, I am of the view that, except as otherwise stated in my analysis below, the majority of the particulars that Brunning is seeking are within her knowledge. As of the date of arguing the motion, she had received a copy of the seven letters. Except as otherwise ordered herein, having the seven letters to consider in conjunction with the statements made in the statement of claim, I find Brunning is in a position to plead; the concerns about being unclear about the allegations or being taken by surprise and/or being placed at a disadvantage are not supported.

[51] In particular, after looking at the statement of claim paragraphs, the demand for particulars and seven letters, I am of the view that the letters demonstrate:

a. Brunning has extensive knowledge of the civil litigation (“Cochrane actions”) which pre-dated the IRSSA, including but not limited to knowledge concerning motion records, orders made, who represented whom, how many plaintiffs there were, how many perpetrators there were, responses to requests for particulars, the conduct of examinations for discoveries, contents of settlement documents, contents of release documents;

b. Brunning has extensive knowledge of the IRSSA including its schedules, and the history predating the IRSSA;

c. Brunning has a working knowledge of the IAP process through direct experience of representing clients in that process;

d. Brunning has knowledge of the documents that were not disclosed in the development of the initial narrative for the IAP process for former St. Anne students;

e. Brunning has knowledge of the fact that there were 12,300 plus documents (and they were received by her redacted in 2014);

f. Brunning has knowledge of the fact that there were OPP and other criminal proceeding documents relating to former St. Anne’s students that were not received to prepare the initial narrative for St. Anne’s students;

g. Brunning possesses the new narrative that is 1,200 pages long which summarizes the information gathered in various legal proceedings from the “non-disclosed” documents related to the treatment of St. Anne’s students (which information was not in the previous narrative that existed for the St. Anne’s students);

h. Brunning has extensive knowledge of the IAP process involving claimant H. (who she unquestionably knows to be the plaintiffs’ former client) and claimant K.;

i. Brunning has possession of part of claimant H.’s file that she received directly from the plaintiffs;

j. Brunning had conversations with the plaintiffs, in particular, Lindsy McNicoll and James Wallbridge;

k. Brunning possesses detailed information collected from claimant H. as to what he says the plaintiffs did or did not do before, during and after his IAP hearings during the time they represented him, including alleged failures and negligence;

l. Brunning possesses information from Lindsy McNicoll as to what Lindsy McNicholl told Brunning, namely that the POI report and documentary disclosure about a particular perpetrator had not been before the original or the review adjudicator for claimant H.

m. Brunning was involved in reviewing and summarizing 2,500 documents pertaining to the said perpetrator of former St. Anne’s students;

n. Brunning believed and stated her belief that the plaintiffs possessed or had access to helpful documents to represent their clients in the IAP process that were not filed;

o. Brunning did in fact take steps to seek re-hearings; to “invent” a re-hearing process for some of the claimants as a result of non-disclosure and she made these intentions known;

p. Brunning sought/had been involved with more than one RFD (acronym for request for directions), legal proceedings in the IAP process related to the non-disclosure and/or re-hearings;

q. Brunning prepared and gave a copy to the plaintiffs of the claimant H. RFD (the initiating document itself which has the same name as the proceeding step) and thereafter a copy of the Mushkegowuk Council RFD;

r. Brunning possesses affidavits of claimant H. and other former St. Anne’s students on the issue of the non-disclosure and their representation throughout the IAP process;

s. Brunning made a statement that she possesses proof that the plaintiffs had possession of pertinent documents since 2003 that were not filed in the IAP process;

t. Brunning stated her opinions that the plaintiffs failed vulnerable persons in the IAP process and how, in great detail;

u. Brunning expressed hopes that all files requiring new lawyers would be passed on;

v. Brunning expressed hopes that the plaintiffs would consult her if they had any other IAP cases that could require a re-hearing;

w. Brunning expressed hopes to bring forward groups of IAP claims for possible re-hearings;

x. Brunning expressed hopes that the plaintiffs would comply with their professional obligations;

y. Brunning responded to the plaintiffs about Facebook postings by Ms. Enberg (which response includes Brunning’s assertion that she had nothing to do with them and/or other media related processes Ms. Enberg had been involved with);

z. Brunning knew that the plaintiffs were alleging defamation and she sets out her position and defences she believes would apply to her comments in detail;

aa. Brunning expressed to James Wallbridge that her intent was to pursue justice for St. Anne’s survivors and that she was speaking the truth/and or during the course of her representation of these former students;

bb. Brunning expressed to Nelligan O’Brien Payne that she was practicing in association but separately from Williams Litigation Lawyers, under Fay Brunning Professional Corporation;

cc. Three of the seven letters were written on Brunning’s corporation’s letterhead before she began her association with Williams Litigation Lawyers;

dd. Brunning was aware that many former St. Anne’s students resided in the North, namely in Attawapiskat/James Bay Region;

ee. Brunning did not identify as confidential, the majority of the information contained in the seven letters. Only one of the seven letters was written as having confidential status and none of the remaining six were claimed as being written on a without prejudice basis.

ff. Brunning indeed may not know the number of former St. Anne’s students that were represented by the plaintiffs in the IAP process. However the letters reveal her knowledge of the facts pertaining to the involvement of the St. Anne’s Survivors Association, Edmund Metatewabin and Mushkegowuk Council; the letters reveal facts regarding her relationship as co-counsel with Goldblatt Partners to address issues on behalf of former St. Anne’s students; and reveal she has information pertaining to all of the aforesaid groups/persons’ involvement in the RFD process pursuing the rights of St. Anne’s survivors.

[52] In addition, in terms of knowledge and ability to plead, as outlined in the stay motion decision, since the statement of claim was issued many findings have been made regarding the non-disclosure of documents in the IAP process in respect of St. Anne’s former students.

SPECIFIC DEMANDS FOR PARTICULARS

[53] With respect to paragraph 1 of the demand for particulars – the seeking particulars of the former students, how they were represented and what they were advised of – I agree that the plaintiffs have indeed very generally set out that they represented several victims diligently and effectively. As identified in my stay motion decision, Mr. Adair had previously identified this paragraph as pleadings’ fluff and of questionable relevance, and advised that the plaintiffs would be happy to have that paragraph struck and would consent to an order to that effect. However, it has not been struck and is still part of the statement of claim. That being said, I am not of the view that these particulars are necessary for Brunning to prepare her statement of defence. This is a defamation case, where, in part, Brunning will be taking the position that what she wrote about the plaintiffs is true, which surely must be premised on knowledge of facts that accordingly she should have to enable her to plead. In addition I have noted that the seven letters outline in detail her knowledge of the plaintiffs (and others) having acted for former students; her details as to how she states these former St. Anne’s students were represented; and her details as to what she alleges was hidden/agreed to be supressed by the plaintiffs and others. Finally, her letters refer to “having proof” of documents in the possession of the plaintiffs since 2003 that could have been filed in the IAP process for these students but that they were not.

[54] With respect to paragraph 2 of the demand for particulars, based on my observations of the seven letters, I find that Brunning has knowledge of sufficient particulars, except in respect of 2(j). Brunning knows who she represented; when she began to represent them; that claimant H. was a former client (where he lives, what he was advised about documents; the outcome of his IAP process and that there was no RFD). She knows she advocated for re-hearings (knowing the when and how; the IAP decisions; and the outcome on advocating for re-hearings). As for paragraph 2(j)… that “she continues to seek additional claimants to represent in proposed re-hearings”, this information would be within her knowledge, namely, what she is or is not doing. In the August 7, 2015 letter, Brunning sets out her “hope to bring forward groups of IAP claims for possible re-hearing” and she can, in my view, simply deny it, if she did not ever do this and/or if she is no longer continuing to do so.

[55] With respect to paragraph 3 of the demand for particulars about “quest for re-hearings”, I quite frankly do not know what Brunning is looking for and I was not provided with that. Again, all of the steps that Brunning took to obtain re-hearings are within her knowledge. Her seven letters outline and detail: many of these steps; her search for information; her expressed intent to seek justice for St. Anne’s former students; her statement about inventing a re-hearing process; and the letters speak to significant amount of time and effort she has devoted to the RFDs. According to the letters one could argue her work on this started in Timmins back in 2011. She in my view does not need further particulars to prepare her statement of defence on this topic, a topic that is set out in the background section of the statement of claim. Reading the statement of claim as a whole with the letters (incorporated into the statement of claim), sufficient knowledge is possessed to plead whether or not she was on a quest and/or to state her position on the use of that word, if that is the issue.

[56] With respect to paragraphs 4, 5, 6, and 7 of the demand for particulars, again, the seven letters filed provide particulars to plead, read in conjunction with statements in the statement of claim. The “to whom”, the “when”, the “how”, the “context”, “the date of the initial letter”, the “various persons”, the “certain information and documents”, and “the documents in their possession” are detailed in the seven letters. It is clear, in my view, the plaintiffs’ complaints in the statement of claim (confirmed by Mr. McGuire) relate for the most part to these seven letters and that the act of sending them is “the publishing” complained of. I am of the view also that it is clear that the plaintiffs view the collection of letters as a concerted, ever-escalating pattern as each letter was written, based on ordinary meaning and interpretation of their allegations in the statement of claim, and how the plaintiffs have set out those particulars in chronological order. The “conduct” is sufficiently pleaded in the statement of claim for purposes of Brunning preparing a statement of defence.

[57] With respect to paragraph 8 of the demand for particulars, the plaintiffs state, that this demand was answered May 23, 2017 in a letter written by plaintiffs’ counsel. In this letter the plaintiffs wrote:

“the plaintiff’s state the following with respect to Demand for Particulars #8: with respect to paragraph 18, the “other substantially similar comments” are all contained in the communications referenced in paragraphs 14 – 17 of the statement of claim herein.”

[58] I find that further particulars are required. If there are other specific words in any of these letters that are not otherwise outlined in paragraphs 14-17, the law requires them to be sufficiently pleaded and they should be identified to the extent they can be. The plaintiffs’ answer is not clear and does not let Brunning know the case she has to meet. Some of the seven letters are long, and say many things. I also find that particulars should also be provided of “they were made at least in part in an effort to attract publicity for Brunning” for the same reasons.

[59] In respect of paragraph 9 of the demand, namely, particulars of the defamatory comments or “substantially similar” comments published by Ms. Enberg. Brunning should know the case she has to meet. Particulars should be provided as to what is complained about to the extent it can be pleaded.

[60] I am satisfied based on my review of the letters that no other particulars are required for the balance of paragraphs 8 and 9. It is now clear that paragraph 18 and 19 of the statement of claim relate to the seven letters and the two Facebook entries, which documents demonstrate knowledge of sufficient particulars for the balance of these demands.

[61] As for “unknown number of readers” referred to in paragraph 9 of the demand, I am not sure how Brunning would expect that further particulars could be provided on “unknown number of readers” and that was not explained.

[62] With respect to paragraph 10 of the demand for particulars, again, it is not clear what Brunning is really looking for having regard for the context of paragraph 21 of the statement of claim. Given the context, I find the particulars are not needed to plead. Further, this claim is not general, in my view, and further details are contained in paragraphs 14-20 of the statement of claim. The pleading is to be read as a whole. Finally, the balance of these demands I find are like demands to those made in paragraph 1 of the demand for particulars, which I have already addressed and find not required to plead.

[63] With respect to paragraph 11 of the demand for particulars, the amount of damages being claimed is set out in paragraph 1 of the statement of claim. Rule 25.06(9) provides that the amount in respect of each claim shall be stated and the amounts and particulars of special damages need only be pleaded to the extent that they are known at the date of the pleading. Particulars should be provided to the extent that they were known at the date of pleading. I have no evidence that these particulars were provided. This is not addressed in the statement of claim.

[64] With respect to paragraph 12 of the demand for particulars, I find that further particulars are not needed to plead over and above what I have determined above. The plaintiffs’ claim for aggravated, exemplary and punitive damages in paragraph 25 directly alerts Brunning to the claim and directly relates the claim to “in making the serious groundless defamatory comments as pleaded herein.” [Emphasis mine] ...as amounting to gross professional misconduct and high-handed and callous disregard of the rights of the plaintiffs. The statement of claim has a section specifically titled “Brunning’s Defamatory Communications” in bold, italicized. Directly below, starting at paragraph 14, the claim sets out the making of the comments and the defamation allegations, through to paragraph 20; this section is 6 pages in length. The claim identifies the comments as groundless and made without proper investigation and/or facts. Paragraph 16 clearly states an allegation of a “concerted, every escalating pattern on the part of Brunning” beginning with the August 7, 2015 letter. Paragraph 18 alleges the intent that the plaintiffs believed was behind the comments, namely to impugn the plaintiffs professional conduct, competence and integrity…and their position on how the comments did that. The plaintiffs further set out their allegations regarding the allegedly groundless bases as demonstrating high-handed and callous disregard for their reputation and rights. Finally, paragraph 18 specifically states an allegation that the comments were “made in part to attract publicity”. This claim is sufficiently pleaded, in my view, to enable Brunning to plead.

REQUEST TO INSPECT DOCUMENTS

OVERVIEW

[65] I was asked by Brunning’s counsel to reflect in my reasons, those items that were no longer in issue on the motion with respect to the request to inspect documents. Mr. McGuire did not object.

[66] Item 8 of the request to inspect was not in issue. It was clarified by Mr. McGuire at the hearing of the motion that the “initial letter” is the letter dated August 7, 2015, a copy of which had been provided to Brunning’s counsel, located at page 167 of Brunning’s June 8, 2017 motion record.

[67] Items 10 through to 22 of the request to inspect were not an issue. When Brunning’s counsel attended to inspect documents, she was provided with seven letters corresponding to these requests. At the hearing of the motion, Mr. McGuire, appearing for plaintiffs’ counsel confirmed to the court that there were no other letters beyond these seven letters with respect to the letters identified in requests 10 through to 22 of the request to inspect, other than potentially an eighth letter related to item 23 of the request to inspect.

[68] Item 23 of the request to inspect, I find is no longer an issue. At the hearing of the motion, Mr. McGuire agreed that the letter highlighted at paragraph 17(xiii) of the statement of claim, if it had not been produced for inspection would be produced for inspection. Subsequently, I received a letter dated August 2, 2017 from Mr. McGuire, in which he indicated that the letter had been produced, and identified the letter as being the letter at page 158 of Brunning’s June 8, 2017 motion record, and in particular, identified page 3 of the letter as the basis for the allegation. He further clarified by letter on August 4, 2017 that paragraph 17(xiii) of the statement of claim contained a typographical error and that the letter relied on was one from Brunning to Brian Gover, and not one from the plaintiffs to Brian Gover. As such, there is no eighth letter.

[69] Accordingly, with respect to items 10 through to 23, there are only the seven letters.

[70] Items 24 through to 31 of the request to inspect were not in issue. It was clarified that the letters referred to in these requests are the seven letters. There are no further letters other than the seven letters that form the basis of allegations in the paragraphs of the statement of claim identified in these requests.

[71] Item 32 of the request to inspect, namely the email blogs referred to in paragraph 19 of the statement of claim, is no longer an issue. They were identified and confirmed by the Mustafa affidavit as being two Facebook postings dated April 4, 2016 and April 7, 2016 and further that the term “email blogs” referred to these two postings, which postings were filed as Exhibits A and B respectively to the Mustafa affidavit.

[72] The remaining items subject to argument on the motion were items 1 through 7 and 9 of the request to inspect documents.

[73] In short, Brunning asserts that these are documents referred to in an originating process and as such must be produced for inspection – compliance is mandatory and immediate.

[74] The Plaintiffs assert that item 1 is a public document or alternatively already produced; and that 2-7 and 9 are not references to specific documents pleaded in the statement of claim to make them producible per the rule – compliance is not mandatory and immediate and it is within the court’s discretion to decide whether or not to order production.

ANALYSIS

[75] Rule 30 is titled “Documentary Discovery”.

[76] The scope of documentary discovery is set out as being applicable to every document relevant to any matter in issue in an action; and production for inspection is tied to documents relevant to any matter in issue in an action: rules 30.02(1) and (2).

[77] Part of Rule 30, namely rule 30.4 is titled “Inspection of Documents” and as such governs the inspection of documents.

[78] Rule 1.04(1) provides that the rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[79] Rules 30.4(1) and (2) provides that a party who serves on another party a request to inspect documents is entitled to inspect any document that is not privileged and that is referred to in the other party’s affidavit of documents as being in that party’s possession, control or power. A request to inspect documents may also be used to obtain inspection of any document referred to in the originating process and pleadings.

[80] When the request to inspect is served, the receiving party is required to provide a date, time, and location for inspection of the documents: rule 30.04(3).

[81] Counsel referred me to cases which set out conflicting interpretations of the application of rule 30.04. Brunning referred the court to Timminco Ltd. v. Asensio as support for the position that “when a request to inspect documents referred to in a pleading is delivered, compliance is mandatory.”

[82] The plaintiffs argued that this statement from Timminco, supra was considered by Justice Belobaba J. in Mask v. Silvercorp Metals Inc., [2014] O.J. No. 3416 (S.C.J.), para. 21, a 2014 decision in which he concluded the statement was wrong in law:

Compliance with a Rule 30.04(2) request is not in fact “mandatory and immediate.” Courts have delayed compliance when it was sensible to do so. Indeed, in 1483881 Ontario Inc. v. KPMG LLP, the very case relied on in Timminco v. Asensio, the court specifically confirmed its discretion to delay inspection of the requested documents until a later stage of the litigation.

Courts have also exercised a broad discretion to limit the scope of a Request to Inspect based on relevance, proportionality, privilege, prejudice, and timeliness.

[83] Brunning submitted that the decision of Belobaba J. is a “one-off”.

[84] Brunning referred the court to D’Aguanno v. VIPR Industries Inc. 2010 ONSC 3369, 2010 CarswellOnt 3937, which relied on and found the same as in Timminico, supra, that compliance is mandatory and immediate. However, I noted that the court acknowledged that there may be a time where discretion is applicable. At para. 6. The court wrote:

While there may be circumstances where the court will exercise its discretion to decline to make such an order, there is no evidence before me on this motion of any facts that would justify the court exercising its discretion in such a fashion.

[85] I agree with Belobaba J. that the rules were not designed to ignore relevancy and proportionality and that the court has a discretion to limit the scope of a request to inspect documents based on relevance, proportionality, privilege, and timeliness.

[86] I took note of the analysis in Timminco, supra, which looked at the origin of the rule and referred to the English Court of Appeal having held that the rule was intended to give the opposite party the same advantage as if the documents referred to had been fully set out in the pleadings…to assist in preparing a responding pleading and to aid the requesting party in determining if the other’s pleadings disclosed a reasonable cause of action or defence: para. 17. I agree. I find these comments to be “relevancy and fairness based”. That being said, none of these concerns, especially unfair advantage, in my view can be said to apply to Brunning based on the evidence I was presented with, especially in respect of documents she authored and/or already has in her possession.

[87] Brown J. (as he then was) in GE Canada Real Estate Financing Business Property Co. v. 1262354 Ontario Inc., [2014] O.J. No. 835 (S.C.J.), para. 48 set out the proportionality principle as it applies to procedural steps in litigation:

…the principle of procedural proportionality…requires taking account of the appropriateness of the procedure as a whole, as well as its individual component parts, their cost, timeliness and impact on the litigation given the nature and complexity of the litigation.”

[88] As to interpretation of “referred to”, in Telus Communications Co. v. Kennedy, 2010 ONSC 2135, 2010 CarswellOnt 5117, [2010] O.J. No. 3004, 190 IC.W.S. (3d) 1051, para. 63, the court set out that the right to inspect documents referred in an originating process, pleading or affidavit under subrule 30.04(2) is limited to situations where the originating process, pleading or affidavit refers to a specific document or documents. General references to non-specific documents to not give rise to a right to inspect under subrule 30.04(2). To me, this makes sense in the context of the considering relevance and proportionality.

Item 1: The Indian Residential Schools Settlement Agreement referred to in paragraph 8

[89] Paragraph 8 of the statement of claim contains the following statement and reference: “It was during the course of the conduct of some of these actions that the Indian Residential Schools Settlement Agreement (“IRSSA”) was signed on or about May 8, 2006.”

[90] I found myself thinking about the fact that the IRSSA is a public document; that Brunning knows what this document is; that she is very familiar with this document; that she would have access to this document; that it is easy in this electronic day and age for Brunning to obtain a copy of this document herself by simply going online to a website she is undoubtedly knows about; and that she could do so and obtain a copy of the IRSSA at a lesser cost than asking to inspect any copy the plaintiffs may have, had or have access to via request to inspect documents via rule 30.04. I considered the purposes of discovery of documents and rule 1.04. I contemplated the fact that the cases I was referred to have not considered the application of this rule to publically available documents that do not involve significant time or cost to obtain. Brunning asserts that it does not matter. I don’t agree, and I don’t agree that there is no discretion to order otherwise on this basis or that discretion could not be applied to this factual situation.

[91] That being said, the internet address for the IRSSA was provided by the plaintiffs to the Brunning prior to the argument of this motion at which the document can be located and is available for inspection in electronic form. As such, I am of the view that this request can be considered satisfied.

Item 2: The “IAP decisions” referred to in paragraph 11 and Item 3: The “certain documents” referred to in paragraph 11.

[92] Paragraph 11 of the statement of claim is under the background section of the claim and it includes a sentence which reads “Brunning began advocating for a rehearing of one or more IAP decisions including that of a client formerly represented by Wallbridge, Wallbridge, all on the ground that the Government of Canada had allegedly failed to make disclosure of certain documents that Brunning contends would have been of assistance to her client(s) in obtaining a better outcome in the IAP process”.

[93] It perplexes me as to why Brunning has made this request. According to the seven letters, it is a fact that Brunning was advocating for a re-hearing of one or more IAP decisions including that of a client formerly represented by Wallbridge, Wallbridge, namely for claimants H. and K., and that this was one of the grounds. In my view, this request falls prey to the plaintiffs’ argument that in this case, Brunning seeks to create a “make work project” for the plaintiffs.

[94] That being said, I find that the reference to the IAP decisions is a particular used to describe what Brunning was advocating for and that it is not a reference to a specific document to which the rule would apply.

[95] I also find that the reference to “certain documents”, in my view, is not a reference to a specific document. It is, on ordinary reading, in my view, a re-statement of the re-hearing ground as understood by the plaintiffs.

Item 4: The Request for Direction referred to in paragraph 12

[96] Paragraph 12 of the statement of claim refers to a request for directions brought before Perell J. In this paragraph the plaintiffs acknowledge that they were not a party to the request for directions. The plaintiffs’ factum states and Mr. McGuire confirmed at the hearing of the motion that the plaintiffs are not referring to a specific document but a legal proceeding, a step in the IAP process called a request for directions which is commenced with a document tiled “request for directions”. As such, it is the action in bringing the RFD that is referenced and not a document. The reference to the plaintiffs not being a party supports this assertion and I accept it.

Item 5: The Order of January 14, 2015 referred to in paragraph 12

[97] Paragraph 12 of the statement of claim includes a statement that reads, “On January 14, 2015, Perell J. ordered, inter alia, the Government of Canada to produce its copies of OPP documents and transcripts in its possession as part of the IAP.”

[98] First of all, I believe that there is a typographical error. Perell J.’s order was referred to on the stay motion. My stay motion decision refers to this order as being dated January 14, 2014. If this is the case, Brunning has a copy and as such, it would make no sense to order that it be requested or produced for inspection. The plaintiffs should, however, be made to clarify whether or not this is a typographical error.

Item 6: The RFD referred to in paragraph 13

[99] Paragraph 13 of the statement of claim states, “Brunning has continued to make at least one further RFD before Perell J. on May 11, 2016 in her quest for re-hearings”. The plaintiffs’ factum states and Mr. McGuire stated that the plaintiffs, are not referring to a specific document or any document at all, but to a legal proceeding, a step in the IAP process called a request for directions. As such, it is the action of bringing the RFD that is referenced and not a document. I accept this.

Item 7: The “documentation” referred to in paragraph 14

[100] In my view, this is not a specific reference to a specific document to which the rule applies. Based on the wording of this paragraph in the statement of claim, and its location within the claim itself, I find that is a reference to describe the understood purpose of the commencement of the communication, the “to whom”, and the contents of the initial August 7, 2015 letter, which facts, in my view fall under required particulars to be pleaded in a defamation action. The August 7, 2015 letter has been provided.

Item 9: The “documents in their possession” referred to in paragraph 15

[101] This item, in my view, clearly relates to paragraph 14, the August 7, 2015 letter and the statements set out therein. I find that this is not a specific reference to a specific document to which the rule applies. Reading this paragraph of the statement of claim, it is not unclear that it is a reference to statements made in the August 7, 2015 letter, statements that the plaintiffs are required to plead in a defamation action. The August 7, 2015 letter has been provided.

CONCLUSION

[102] I decline to make any order requiring the plaintiffs to produce any of the documents requested in paragraphs 2-7 and 9 of the request to inspect documents at this time.

ORDER

[103] Within 30 days of today’s date, the plaintiffs shall advise the defendant Brunning as to whether or not the order referred to in paragraph 12 of the statement of claim is the order of Perell J. dated January 14, 2014.

[104] Particulars are to be provided to the defendant Brunning by the plaintiffs within 30 days of today’s date of all “other substantially similar comments” from each letter referred to in paragraph 18 of the statement of claim.

[105] Particulars shall be provided to the defendant Brunning by the plaintiffs within 30 days of today’s date of “they were made at least in part in an effort to attract publicity for Brunning” referred to in paragraph 18 of the statement of claim.

[106] Particulars shall be provided to the defendant Brunning by the plaintiffs within 30 days of today’s date of the defamatory comments or “substantially similar” comments complained of as published by Ms. Enberg referred to in paragraph 19 of the statement of claim.

[107] Particulars of any and all special damages shall be provide to the defendant Brunning by the plaintiffs within 30 days of today’s date to the extent that they were known at the date of pleading.

[108] The balance of the motion is dismissed.

[109] Brief submissions as to costs, if this issue cannot be resolved, shall be made in writing to my attention via the trial co-ordinator within 30 days.

Rasaiah J.

Released: October 20, 2017