Court File and Parties

COURT FILE NO.: CV-15-00533471

MOTION HEARD: 20180511

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kiwon Park, Plaintiff, Defendant to the Counterclaim

AND: Jaesuck An (Also known as Andy An) and 1397280 Ontario Ltd. O/A Western Town College For ESL, Defendants, Plaintiffs by Counterclaim

BEFORE: Master B. McAfee

COUNSEL: R. Choi, Counsel for the Moving Party, the Plaintiff, Defendant to the Counterclaim M. Diskin and M. Bacal, Counsel for the Responding Parties, the Defendants, Plaintiffs by Counterclaim

HEARD: May 11, 2018

REASONS FOR DECISION

[1] This is a motion brought by the plaintiff, defendant to the counterclaim Kiwon Park (the plaintiff) for an order that the defendants, plaintiffs by counterclaim Jaesuck An (also known as Andy An) and 1397280 Ontario Ltd. O/A Western Town College for ESL (the defendants), serve a further and better affidavit of documents together with production of certain documents listed in the amended notice of motion.

[2] In an effort to resolve the motion, on a without prejudice basis and without conceding relevance of the documents listed, the defendants have now produced all of the documents listed to the extent that they exist, save for the documents listed at (a)(i) and (ii) of the amended notice of motion. On the motion, the plaintiff did not take issue with the documents being produced on this basis.

[3] On the same without prejudice basis, the defendants consent to an order that they serve a further and better affidavit of documents listing the documents now produced. On the motion, the plaintiff did not take issue with the service of a further and better affidavit of documents on this basis. An order shall go accordingly.

[4] The only issues remaining for determination on this motion are whether the documents listed at (a)(i) and (ii) ought to be produced and costs.

[5] The documents listed at (a)(i) and (ii) are as follows:

(i) an unredacted copy of 1397280 Ontario Ltd.’s financial statements dated December 31, 2015; and

(ii) an unredacted copy of 1397280 Ontario Ltd.’s financial statements dated December 31, 2016.

[6] The defendants object to producing these documents on the basis of litigation privilege and in particular common interest privilege. For the purpose of this motion only, there is no issue of relevancy.

[7] The defendants argue that the redacted portions of the 2015 and 2016 financial statements are the defendants’ characterization of the events in the context of ongoing litigation and were prepared for the dominant purpose of litigation. The defendants argue that the redacted portions are notes to shareholders of a company in litigation describing the litigation in question, with the assistance of counsel for the defendants. The defendants argue that disclosure of this portion of the financial statements does not end litigation privilege because the shareholders have a common interest in the litigation.

[8] The onus is on the party claiming litigation privilege to establish the evidentiary foundation for that claim of privilege (Mamaca (Litigation Guardian of) v. Coseco Insurance Co., 2007 CanLII 9890 (ON SC), [2007] O.J. No. 1190 (Master) at paras. 13-15).

[9] The evidence referred to on the motion by the defendants in support of the claim for privilege is set out in the affidavit of Felicity Fenton, legal assistant, sworn March 5, 2018, at paragraph 14 wherein the following is stated: I am informed by Meredith Bacal and believe that she assisted John K. Jang, WTC’s accountant, in preparing Notes 14 in the 2015 and 2016 financial statements.

[10] This evidence does not satisfy me that the redacted portions of the financial statements are subject to litigation privilege or more specifically common interest privilege.

[11] I have reviewed and considered the decision of General Accident Assurance Co. v. Chrusz, 1999 CanLII 7320 (ON CA), [1999] O.J. No. 3291 (C.A.) relied upon by the defendants on the motion. At paragraph 33 the following is stated: An important element of the dominant purpose test is the requirement that the document in question be created for the purposes of litigation, actual or contemplated (see also Green v. Mirtech International Security Inc., 2010 ONSC 1240 (Master) at para. 35 and Mamaca, supra).

[12] While the date of the documents indicate that they were created after the within action commenced, I was not referred to evidence that the redacted portions of the financial statements were created for the purposes of litigation, actual or contemplated. I was not referred to evidence that the redacted portions of the financial statements were created for the dominant purpose of litigation. The evidence referred to at paragraph 14 of the legal assistant’s affidavit does not satisfy me in this regard.

[13] Counsel for the defendants asked that I review the redacted portions of the documents at issue pursuant to Rule 30.06(d) of the Rules of Civil Procedure to determine the validity of the claim for privilege. I have reviewed the documents. My review did not assist the defendants in satisfying me that the documents were created for the dominant purpose of litigation.

[14] Accordingly, the defendants shall serve a further and better affidavit the documents listing the documents at (a)(i) and (ii) of the amended notice of motion and these documents shall be produced.

[15] With respect to the issue of costs, if successful, the plaintiffs seek costs of the motion in the all-inclusive sum of $10,000.00. The defendants submit that if the plaintiff is successful in obtaining the contested relief, costs should be awarded to the plaintiff in the all-inclusive sum of $3,000.00. The defendants also seek costs thrown away on a full indemnity basis in the all-inclusive sum of $3,280.00 on the basis that certain documents sought by the plaintiff were not specifically set out in the relief portion of the original notice of motion. The plaintiff also argues that the plaintiff incurred costs as a result of the review of a separate motion, short-served by the defendants, made returnable the same day as the plaintiff’s motion. Not having been booked, the defendants’ motion was not on the list.

[16] The plaintiff was successful on the contested issue argued. However, the amount sought by the plaintiff is too high in all of the circumstances of the motion. The defendants made significant efforts to resolve the majority of matters at issue on the motion. I agree with the defendants that $3,000.00 is a fair and reasonable amount that the defendants could expect to pay for costs in all of the circumstances of this motion. I am not satisfied of conduct on the part of the plaintiff that would entitle the defendants to costs thrown away on a full indemnity basis or on any basis. I make no determination of costs of a separate motion that was not booked or on the list.

[17] Costs of the within motion are fixed in the all-inclusive sum of $3,000.00 payable by the defendants to the plaintiff within 30 days.

Master B. McAfee

Date: May 17, 2018