Court File and Parties

Court File No.: CV-17-585698 Motion Heard: 2018-07-05

Superior Court of Justice - Ontario

Re: The Corporation of the Town of Oakville v. Clublink Corporation ULC and Clublink Holdings Limited

Before: Master R.A. Muir

Counsel: Michael Watson and Jennifer King, for the applicant, The Corporation of the Town of Oakville Cynthia Kuehl and Kyle Gossen, for the respondents, Clublink Corporation ULC and Clublink Holdings Limited

Reasons for Decision

[1] The applicant brings this motion for an order requiring the respondents to answer certain questions refused on the cross-examinations of two of the respondents’ witnesses, Michael McClelland and Thomas McBroom. During the course of argument, the applicant withdrew the relief requested in connection with Mr. McBroom’s examination.

[2] Mr. McClelland’s cross-examination was conducted in connection with two applications scheduled to be heard over a period of two days on July 16 and 17, 2018. Given that the hearing of these applications is set to begin in 10 days’ time, it was necessary for this motion to be heard and decided on an expedited basis.

[3] The pending applications involve the Glen Abbey golf course located in the Town of Oakville. The respondents are the property owners. The golf course has been designated by the applicant as having heritage value under section 29 of the Ontario Heritage Act, RSO 1990 c O.18 (the “OHA”). The respondents wish to redevelop the golf course property into a mixed-use residential subdivision. The respondents take the position that they are entitled to seek the consent of Oakville town council to remove any “building or structure” on the property as provided under section 34 of the OHA. The applicant argues that the golf course is not a building or structure and therefore section 34 of the OHA has no application. The proper interpretation of section 34 of the OHA in relation to this property is the single matter in issue on the pending applications.

[4] Mr. McClelland is an architect and a heritage consultant. He was initially retained by the respondents in June 2015 to provide heritage architectural consultant services in connection with the redevelopment of the golf course. Mr. McClelland submitted reports in November 2016 in support of the respondents’ redevelopment applications. Mr. McClelland also submitted a report in November 2017 in support of the respondents’ purported application for consent under section 34 of the OHA. Mr. McClelland has sworn affidavits in connection with these applications as well and is now being put forward as an expert witness in these applications on behalf of the respondents.

[5] Mr. McClelland has produced a copy of his initial retainer agreement with the respondents. The retainer agreement is dated June 16, 2015 and was accepted by the respondents on June 18, 2015. Mr. McClelland’s evidence is that his retainer as an expert witness in connection with these applications is a continuation of his June 2015 retainer agreement with the respondents.

[6] The applicant seeks production of certain documents referred to in the June 2015 retainer letter. There are three documents in question. The first is a memorandum described in the retainer letter as “preliminary analysis and recommendations related to the heritage dimension of this project”. The second is an appendix to the memorandum, being Oakville’s Terms of Reference: Heritage Impact Assessment for a Cultural Heritage Landscape, with relevant sections apparently highlighted by Mr. McClelland’s office. The third is a copy of Mr. McClelland’s retainer agreement, if any, for a subsequent heritage impact assessment completed on behalf of the respondents.

[7] The applicant takes the position that these requested documents are relevant to matters in issue on these applications for two reasons. First, the applicant states that these documents are relevant to the interpretation of section 34 of the OHA. Second, the applicant argues that these documents are relevant to the issue of Mr. McClelland’s independence, credibility and reliability as an expert witness. The applicant submits that the documents will assist the application judge with any determination of the admissibility or the weight to be given to Mr. McClelland’s evidence.

[8] The respondents argue that the requested documents are not relevant to the narrow issues on these applications or to Mr. McClelland’s role as an expert witness. Alternatively, the respondents submit that the memorandum is protected by privilege. Either way, the respondents’ position is that the documents need not be produced.

[9] In determining the issues on this motion, I have considered and applied the relevance test set out in the Rules of Civil Procedure, RRO 1990, Reg. 194 (the “Rules”). I am also mindful of the January 1, 2010 amendments to the Rules which replaced the former “semblance of relevance” test with a narrower “relevance” test. Proportionality is also a consideration as required by Rule 1.04(1.1).

[10] In my view, the memorandum and its appendices are not relevant to the issues on these applications and need not be produced. The memorandum is stated to be a “preliminary analysis and recommendations related to the heritage dimension of this project”. The memorandum was prepared in connection with the proposed redevelopment of the golf course. It was not a document prepared in order to address the interpretation of section 34 of the OHA. Of course, it could not have been such a document as there was no heritage designation of the golf course at the time the memorandum was prepared and therefore there could be no actual or contemplated application for consent under section 34 of the OHA. The evidence of the respondents’ lawyer, to whom the memorandum was directed, is that the memorandum does not expressly deal with section 34 of the OHA. The simple fact that the memorandum and its appendices may use a word such as “structure” in the context of a proposed redevelopment of the golf course does not make the document relevant for the purpose of these applications and the interpretation of the word “structure” as used in section 34 of the OHA. This is the sole matter in issue on these applications. The merits of the proposed redevelopment, the heritage designation itself and the application for consent under section 34 of the OHA, or a consultant’s views on the merits of those matters, are not relevant to these specific applications.

[11] I also do not view the memorandum to be relevant to any challenge to Mr. McClelland’s evidence. The fact of Mr. McClelland’s prior retainer is not in question. Mr. McClelland was initially retained to provide heritage advice in connection with the proposed redevelopment of the golf course. He also provided advice in connection with the respondents’ purported application for consent under section 34 of the OHA. He is now being put forward by the respondents as an expert witness in connection with these applications.

[12] The applicant has Mr. McClelland’s June 2015 retainer agreement which sets out the scope of his prior involvement in the proposed redevelopment. The applicant has copies of Mr. McClelland’s reports. It is fully aware of his dual role and history of providing heritage consulting services to the respondents. The applicant is free to seek leave to raise these facts with the application judge in an effort to exclude or minimize Mr. McClelland’s evidence. The actual advice and recommendations Mr. McClelland may have provided in the past are not relevant to the question of his independence. The details of Mr. McClelland’s preliminary analysis and recommendations in relation to the proposed redevelopment of the golf course are not required in order for the respondents to now challenge Mr. McClelland as an expert witness based on a lack of independence. In my view, a party to litigation is not entitled to the production of otherwise irrelevant documents from an expert witness’ file by simply alleging a lack of independence on the part of the proposed expert.

[13] I also agree with the respondents that the memorandum and its appendices are not part of the retainer agreement. The memorandum is referred to in the retainer letter but the letter simply requests that the memorandum be read in conjunction with the retainer letter. It does not state that the memorandum forms part of the retainer agreement. The evidence on this motion is that the memorandum does not contain information relevant to the terms of Mr. McClelland’s retainer and it was not included with the executed retainer agreement when the respondents returned the document to Mr. McClelland.

[14] For these reasons, I have concluded that the memorandum and its appendices are not relevant to matters in issue on these applications and need not be produced. Given my finding on the issue of relevance, it is not necessary for the court to deal with the privilege claim.

[15] The third document requested by the respondents is a copy of Mr. McClelland’s retainer agreement, if any, for a heritage impact assessment referenced in the June 2015 retainer letter. It is unclear from the evidence whether there ever was a separate written retainer agreement for that work. However, it is my view that if such a separate retainer agreement exists it is of some marginal relevance to the applicant’s proposed challenge to Mr. McClelland’s independence as an expert witness. The nature and scope of the retainer in relation to the heritage impact assessment on behalf of the respondents is relevant to any challenge to Mr. McClelland’s current role as an expert witness on these applications. Prior retainers are a consideration for the application judge when determining the admissibility or the weight to be given to expert evidence based on a lack of independence. See Ebrahim v. Continental Precious Minerals Inc., 2012 ONSC 2918 at paragraph 46. In my view, this retainer agreement must be produced, if it exists.

[16] One further issue must be addressed. The hearing of this motion concluded at approximately 12:30 p.m. on July 5, 2018. At approximately 4:30 p.m. that day, I received hand delivered correspondence from Ms. Kuehl. This correspondence made submissions with respect to a matter that had arisen after the conclusion of argument. This letter was sent without the consent of the applicant’s counsel. In fact, counsel for the applicant specifically declined to provide his consent. Mr. Watson then sent reply correspondence to the court at approximately 8:00 p.m. on July 5, 2018, taking the position that Ms. Kuehl’s letter was not in compliance with Rule 1.09 of the Rules of Civil Procedure.

[17] Rule 1.09 reads as follows:

When a proceeding is pending before the court, no party to the proceeding and no party’s lawyer shall communicate about the proceeding with a judge, master or case management master out of court, directly or indirectly, unless,

(a) all the parties consent, in advance, to the out-of-court communication; or

(b) the court directs otherwise.

[18] In 465519 Ontario Limited v. Sacks, 2015 ONCA 175, the Court of Appeal stated as follows at paragraph 18:

In our view, the delivery of the letter in question, without the consent of the appellants' counsel and in the face of his opposition to its delivery to the motion judge, was inadvisable and contrary to rule 1.09. That rule authorizes out-of-court communications with judges in respect of proceedings before the court only where all parties consent, in advance, to the communication or the court otherwise authorizes the communication. Neither circumstance applied here. In our view, on the facts here, the appropriate procedure was for Cliffwood's counsel to seek an appointment with the motion judge, on notice to the appellants, to settle the terms of her order.

[19] I agree with these observations of the Court of Appeal. The same circumstances apply here.

[20] I do understand that this motion is one small part of a complex and seriously contested dispute. The stakes are high. The parties and counsel are facing significant time pressure. However, it is my view that the correspondence to the court that was delivered after the completion of the argument of this motion was contrary to Rule 1.09. The appropriate procedure was for counsel to contact my office and seek the court’s permission to make further submissions. This was not done. I have therefore not considered the matters raised in the out-of-court communications. They form no part of my decision on this motion.

[21] For the reasons set out above, I hereby order that a copy of any retainer agreement for Mr. McClelland’s heritage impact assessment, if a separate written retainer exists, shall be produced by July 10, 2018. If that work was carried out as an extension of the June 2015 retainer agreement, no further production is required. The balance of the relief requested on this motion is dismissed.

[22] If the parties are unable to agree on the issue of the costs of this motion, they shall provide the court with brief submissions in writing by August 7, 2018. These submissions may be sent directly to me by email.

[23] Finally, I wish to thank counsel for their very helpful written and oral submissions.

Master R.A. Muir Date: 2018-07-06