Court File and Parties

COURT FILE NO.: CV-07-334113-CP DATE: 20190607

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dara Fresco, Representative Plaintiff AND: Canadian Imperial Bank of Commerce, Defendant

BEFORE: Justice Edward P. Belobaba

COUNSEL: Linda Plumpton and John C. Field for the Defendant / Moving Party Peter Engelmann, David O’Connor and Louis Century for the Plaintiff / Responding Party

HEARD: May 30, 2019

Proceeding under the Class Proceedings Act, 1992

PRIVILEGE MOTION

[1] This class action, which involves allegations of unpaid overtime at the defendant bank, was commenced in 2007 and was certified as a class proceeding in 2012 after several appeals.[^1] The documentary collection and production phase of this litigation, which the defendant began in earnest after the appeal process was exhausted, proved to be demanding and complex.

[2] During the rolling production, the defendant discovered that it had mistakenly given the plaintiff what it believed were three privileged documents. When the plaintiff refused to return the documents, the defendant brought this motion.

[3] The defendant seeks a declaration that the three documents - described as the “2007 Theme Reports” - are protected by solicitor-client and litigation privilege and should be returned immediately. The plaintiff takes issue with each of these points and asks that the motion be dismissed.

[4] Counsel on both sides submitted lengthy motion records and detailed factums that focused on three issues: (i) whether the defendant has established to this court’s satisfaction that the three documents are protected by solicitor-client or litigation privilege; (ii) whether the documents were produced inadvertently; and (iii) whether, in any event, privilege has been waived on the facts herein.

[5] It is sufficient for the purposes of this motion to focus on the threshold issue - whether any legal privilege has been established. For the reasons set out below, I am not persuaded that any of the three documents are protected by solicitor-client or litigation privilege.

The three documents

[6] Some context will assist. Like many organizations, CIBC conducted annual or biennial employee surveys on an anonymous basis to gather employee feedback on a range of work-place related matters - as one CIBC affiant put it, “to gauge overall trends related to employee satisfaction across the organization.” Until 2007, according to the same CIBC affiant, the employee surveys were conducted biennially; beginning in 2007, they became annual events.

[7] The employee surveys asked CIBC employees to answer a list of specific multiple-choice questions and then respond to an open-ended prompt that asked for “Any other comments?” None of the specific questions asked about overtime. Any overtime-related comments were made in response to the open-ended prompt.

[8] Because the employee surveys were designed to generate overall trends or “themes”, the summaries of the survey results are referred to as “theme” reports. The 2007 Theme Reports were created by third-party survey specialist, Zenger Folkman (“ZF”).The defendant says that the three “2007 Theme Reports” at issue herein, were created at the request of CIBC legal counsel to assist in their preparation for this class action and are thus protected by solicitor-client and/or litigation privilege.

[9] The three documents in question have production numbers 2852, 2854 and 2853 and can be described as follows:

(i) 2852 – A two-page summary of the employees’ written comments under 13 themes, one of which is “Employees feel overworked and undervalued.”

(ii) 2854 – A one-page Excel table showing the number of comments made with respect to each of the 13 themes in both numerical and percentage terms.

(iii) 2853 – A four-page document consisting of a one-page table, similar to 2854, showing the number of comments made with respect to each of the 13 themes in numerical and percentage terms (the 2853 table adds the word “overtime” to the theme that “employees feel overworked and undervalued),” and a three-page summary, similar to 2852 but in slightly larger font, of the written comments set out under 13 themes, one of which is “employees feel overworked and undervalued.” The 2853 summary under this latter theme includes two statements that are not found in 2852 – namely, that employees put in too many hours and then “are not compensated for it” and that some employees had expressed concerns “regarding the lawsuit on lack of payment for overtime.”

[10] The three 2007 Theme Reports - both narrative structures and numerical table - are similar in format and content to the Theme Reports that summarized employee engagement surveys in previous years. Like the earlier surveys, examples of which go back to at least 1999, the 2007 Theme Reports on their face appear to be internal and routine business reports that have nothing to do with solicitor-client or litigation privilege.

[11] The defendants, however, say the three documents in question (unlike those in previous years) are protected by solicitor-client and litigation privilege because they were created in the summer of 2007, at the CIBC legal counsel’s request to assist with the defence of this class action proceeding, just months after the class action was commenced,

The evidence supporting the claim of privilege

[12] The defendant relies almost entirely on the affidavit of Benjamin Mellett, now a senior CIBC executive. In the summer of 2007, Mr. Mellett was the leader of a project team whose purpose was “to collect information and data for CIBC’s lawyers” to assist in the bank’s defence of the overtime class action. Mr. Mellet swears that he is “certain” that the 2007 Theme reports were “created for and sent to CIBC in response to Legal’s request for an analysis of the overtime comments from the 2007 employee engagement survey.”

[13] In his evidence, Mr. Mellett explained how he was asked in August, 2007 by CIBC legal counsel to get an “analysis” of the overtime comments from both the 2005 and 2007 employee engagement surveys. He conveyed that request to Ms. Whitebread in HR who in turn forwarded the request down the chain. The request made its way to ZF who had been hired several years earlier to review the employee surveys and create the summary narratives and tables.

[14] The email chain, marked “privileged and confidential,” begins with Ms. Whitebread advising another colleague that Mr. Mellett had requested “the comments that were in the F’05 survey” together with “the number of comments about OT as a percentage of the total comments made.” Ms. Price at ZF provided the 2005 survey information about 10 days later and the 2007 survey information about 18 days after that. The 2007 survey information was summarized in two documents, 2852 (the two-page narrative) and 2854 (the Excel table) both of which were attached in the email from Ms. Price.

[15] The 2853 document is discussed further below. According to Mr. Mellett, 2853 (not attached to the ZF email) was simply “a compilation” of 2852 and 2854.

Mr. Mellett’s “certainty”

[16] I accept that Mr. Mellett may be genuinely “certain” that the three documents in questions were specifically created in response to CIBC legal counsel’s request. But the factual basis for his certainty is questionable. I note the following:

(i) As already noted, the 2007 Theme Reports are very similar in form and content to earlier Theme Reports and appear to be routine, internal business reports;

(ii) There is nothing in the email chain that mentions or refers to any request from CIBC legal counsel. Indeed, when Ms. Whitebread forwarded Mr. Mellett’s request to her colleague, Ms. Speal, she noted that “they want this [information] for RM [Retail Markets] and CIBC.” Nothing about legal counsel.

(iii) Ms. Whitebread also noted specifically that the incoming request was for the 2005 information (nothing about a request for the 2007 information);

(iv) The 2007 summary and table information that was in due course provided by ZF was not a direct response to Mr. Mellett’s request for an analysis of the overtime comments – the information provided was in the usual 13-themes format (narrative summary and numerical table) and was not limited to the overtime comments only;

(v) The 2007 summary and table information provided by ZF was purely factual in nature - that is, the employee comments were summarized under 13 themes and the numbers and percentages were noted in the table) - and did not involve any “analysis” whatsoever;

(vi) The defendant did not call any witness, in particular Ms. Price or anyone else from ZF, who could suggest or explain otherwise.

The 2853 document

[17] Even if I were to ignore these evidentiary deficiencies and find that 2852 and 2854 were indeed created at CIBC counsel’s request to assist in the defence of this class action, I cannot make the same finding about 2853.

[18] Mr. Mellett’s evidence is that that 2853 is simply “a compilation” of the other two documents, 2852 and 2854. A “compilation” is defined in modern dictionaries as “a thing, especially a book or record, compiled (that is, collected or assembled) from different sources.”[^2]

[19] On any fair assessment, 2853 cannot be described as a compilation of material collected from 2852 and 2854 because neither 2852 nor 2854 contain the additional two statements (noted above in paragraph 9) that (i) employees put in too many hours and “are not compensated for it” and (ii) that concerns were expressed “regarding the lawsuit on lack of payment for overtime.” Contrary to Mr. Mellett’s opinion, I find that 2853 is not simply a compilation of 2852 and 2854.

[20] Nor is 2853 the subject of any communications whatsoever, whether solicitor-client or otherwise. Rather, it is a separate document created by ZF that stands apart from 2852 and 2854 and is therefore fully producible.

[21] This leaves 2852 and 2854. For the reasons set out below, I find that 2852 and 2854, even if they were created in response to legal counsel’s request, are not protected by either solicitor-client or litigation privilege.

Why 2852 and 2854 are not protected by solicitor-client privilege

[22] The law of solicitor-client privilege is not in dispute. Solicitor-client privilege applies only to confidential communications between a client and his or her solicitor.[^3] A confidential communication between a client and his or her lawyer will be protected by solicitor-client privilege if it is made in the context of a solicitor-client relationship and entails the “seeking or giving of legal advice.”[^4] The purpose of the privilege is to protect the confidential relationship between a lawyer and a client in order to facilitate access to proper and candid legal advice.[^5]

[23] There is no suggestion that 2852 or 2854 contain or transmit legal advice. They are survey reports created by a third-party survey provider and delivered to CIBC’s non-legal staff. These documents were not part of any communication between solicitor and client.

[24] Nor is this a case involving communications between a solicitor and a third party on the client’s behalf. ZF was not retained by CIBC counsel (internal or external). There were no communications between CIBC counsel and ZF. Nor is there any evidence that ZF served “as a channel of communication between the client and solicitor.”[^6]

[25] To reiterate, CIBC counsel did not communicate with the author of the documents. Indeed, when asked whether CIBC’s lawyers were given the 2007 Theme Documents or were simply given the number and percentage of overtime comments, CIBC confirmed that it provided the information requested to Legal but, as for the documents themselves, CIBC confirmed that it “has no documents evidencing receipt of [the 2007 Theme Reports] by internal or external counsel.”

[26] The plaintiff is not seeking disclosure of the legal advice CIBC counsel provided based on information contained in the documents. She simply seeks to rely on the documents themselves, which are factual in nature and were created by a third party and delivered to CIBC. The fact that CIBC may have communicated the number and percentage of overtime comments to its lawyers, or even if CIBC delivered the actual documents to its lawyers (which, again, is not supported by the evidence) would not transform the documents into solicitor-client communications.

[27] As the Supreme Court noted in Pritchard [^7] “the scope of the privilege does not extend to communications where legal advice is not sought or offered.”[^8] The Court of Appeal made the same point in General Accident v Chrusz:[^9]

Client-solicitor privilege is intended to allow the client and lawyer to communicate in confidence. It is not intended, as one author has suggested, to protect "... all communications or other material deemed useful by the lawyer to properly advise his client ...": Wilson, Privilege In Experts' Working Papers, supra, at 371. While this generous view of client-solicitor privilege would create what clients might regard as an ideal environment of confidentiality, it would deny opposing parties and the courts access to much information which could be very important in determining where the truth lies in any given case.[^10]

[28] I therefore find that the defendant has not established on a balance of probabilities that 2852 and 2854 (and a fortiori 2853) are communications seeking or giving legal advice, between a solicitor and a client, or between a solicitor and third parties or agents of the client. The solicitor-client privilege claim does not succeed.

Why 2852 and 2854 are not protected by litigation privilege

[29] Litigation privilege is a common law rule that “gives rise to an immunity from disclosure of documents and communications whose dominant purpose is preparation for litigation.”[^11] The purpose of litigation privilege is to allow counsel to develop strategies to pursue or respond to litigation. “The tact that counsel for a party is going to take, or the approach that is going to be pursued, is protected by this privilege.”[^12]

[30] Litigation privilege is not a substantive right. The test of dominant purpose is a higher standard than substantial purpose and recognizes “the trend toward mutual and reciprocal disclosure which is the hallmark of the judicial process.”[^13] Litigation privilege is a “zone of privacy” left to a solicitor after the disclosure requirements of discoverability have been met.[^14]

[31] The moving party must put its best food forward and tender “cogent admissible evidence… usually accomplished through affidavits setting out fully the supporting facts.”[^15] Any supporting affidavit must be construed “strictly” and “a significant deficiency in the evidentiary record provides a good ground for the rejection of the privilege claim.”[^16] Inadequate evidence about the dominant purpose of a document is a valid basis for refusing litigation privilege.[^17]

Dominant purpose

[32] Because the three 2007 Theme reports were created in 2007 just months after this class action was commenced, the defendant says they are protected by litigation privilege.

[33] The defendant, however, fails to demonstrate that the documents’ dominant purpose was to assist legal counsel in their preparation for litigation. I find that the following points made by the plaintiff are particularly compelling:

(i) The non-litigation or business purpose of the 2007 Theme Reports is arguably evident on their face: to identify and summarize the 13 “themes or topics” that emerged from the write-in comments to the 2007 survey. As already noted, these documents are similar in form and substance to the Theme Reports created in other years, over which privilege is not claimed. As in other years, the 2007 Theme Reports identify human resource themes arising out of the survey, summarize those themes, and provide numerical information about the frequency of each theme;

(ii) The defendant’s assertion that the 2007 Theme Reports were created “for the purpose of legal advice” contradicts its own evidence. The defendant’s Senior Director responsible for the surveys (Ms. Speal) previously deposed that the purpose of the survey documents is “continuous organizational improvement” and “to inform people-related decisions and actions that will result in a better experience for our employees.” The defendant gave evidence that the 2007 Theme Reports were requested by “business leaders” and delivered by HR to “the leadership of Retail Markets” or “the requesting business leader.” The defendant has failed to put forward any witnesses – including Ms. Speal – who could have shed light on these contradictory positions regarding the purpose of the documents;

(iii) The defendant refused all questions about which business leaders at CIBC would have reviewed and relied on the documents, or whether the documents were delivered to other business leaders within the bank. The defendant cannot establish a document’s dominant litigation purpose while refusing to answer questions relating to the dissemination, use and admitted business purposes of the same document;

(iv) The defendant’s evidence linking the documents to a request from counsel is deficient. The defendant says that Ms. Fanjoy (internal counsel) requested information regarding the number and frequency of overtime-related comments in the 2007 survey but the defendant has not put Ms. Fanjoy forward as a witness. The defendant says that Ms. Fanjoy’s request was emailed to Mr. Mellett (although there is no email to support this), who emailed Ms. Whitebread, who emailed Ms. Speal, who emailed Ms. Thomas, who emailed Ms. Price at ZF, who created the documents. It was only Mr. Mellett (who had no knowledge about the creation or distribution of the documents in question) who gave evidence on behalf of the defendant about “legal counsel’s request.” The defendant cannot establish a dominant purpose for the creation of certain documents while shielding from cross-examination:

• The lawyer who allegedly made the request (Ms. Fanjoy);
• The three HR officials who oversaw the process and communicated the request to ZF (Ms. Whitebread, Ms. Speal and Ms. Thomas);
• The actual author and creator of the documents in question (Ms. Price of ZF); and
• The recipient of the documents at CIBC (Ms. Thomas).

(v) The request by legal counsel was limited to information about the number and frequency of overtime-related comments in the 2007 survey. However, the 2007 Theme Documents go far beyond what was asked, providing narrative summaries and percentage frequencies for 13 wide-ranging human resources themes, only a few of which relate to overtime issues. The defendant claims privilege not only over the requested numbers and frequencies – which is factual information and discoverable in any event – but rather, over the entirety of the 2007 Theme Reports. The defendant makes this claim even though there is no evidence that the 2007 Theme Reports– as opposed to information about the number and frequency of the overtime comments – were ever provided to legal counsel.

[34] The defendant has asserted in its factum that the reports were created “for the purpose of legal advice” rather than for a business purpose and that “there was no other purpose for the creation of the documents”. However, on the evidence before me, which must be construed “strictly”, these assertions have not been proven.

[35] Given the deficiencies in the evidence before me, as set out above, I am not persuaded that 2852 and 2854’s dominant purpose was to assist legal counsel in their preparation for litigation.

No disclosure of counsel work product, theories or strategy

[36] I also agree with the plaintiff that disclosing the 2007 Theme Reports would not breach the “zone of privacy” to which the defendant and its lawyers are entitled. The documents are factual summaries of non-privileged survey responses prepared by a third-party vendor.

[37] As Nordheimer J. (as he then was) noted in Assessment Direct,[^18] the purpose of litigation privilege “is to protect the lawyer’s work product, that is, his or her theories and strategy. It is not intended to shield facts from disclosure.”[^19] It is only the revelation of the party’s litigation strategy that is protected, not base information itself.[^20] The 2007 Theme Reports do not reveal “what counsel thought was important” from the surveys.[^21]

[38] It is worth setting out Justice Nordheimer’s discussion of litigation privilege in Assessment Direct in full:

[…] The purpose of litigation privilege is to allow counsel to develop strategies to pursue or respond to litigation. The tact that counsel for a party is going to take, or the approach that is going to be pursued, is protected by the privilege. In other words, it is the revelation of the party's litigation strategy that is protected, not base information itself … If the issue here was what counsel thought was important from the witness statements, or whether counsel thought some witness statements were important while others were not, that information might be covered by the privilege. However, litigation privilege cannot be used as an indiscriminate blanket to cover each and every witness statement collected. There must be a balance between the two competing interests that are reflected in litigation privilege and which were described by Sharpe J.A. in his lecture entitled "Claiming Privilege in the Discovery Process" in Law in Transition: Evidence, L.S.U.C. Special Lectures (Toronto: De Boo, 1984) at p. 165:

There are, then, competing interests to be considered when a claim of litigation privilege is asserted; there is a need for a zone of privacy to facilitate adversarial preparation; there is also the need for disclosure to foster a fair trial.

In his lecture, Justice Sharpe explains what he views as the proper rationale for litigation privilege. He identifies the rationale as being the American "work product" test which he describes, at p. 168:

The work product test focuses on the need to protect counsel's observations, thoughts and opinions as the core policy of the protection from disclosure of preparatory work.

Indeed, in his lecture, Sharpe J.A. rejects the assertion that a party can withhold statements from disclosure. He notes, at p. 170:

While the formal rule of privilege will permit a party to refuse to produce witness statements, reports or other documents gathered in anticipation of litigation, the actual effect of the privilege is substantially reduced by the oral discovery rule which requires disclosure of evidence contained in those documents. What remains protected is something very close to the lawyers' work product.

In my view, the revelation of these recorded conversations with potential witnesses will not reveal counsel's work product because it does not reveal counsel's "observations, thoughts and opinions … [T]he purpose of litigation privilege is to protect the lawyer's work product, that is, his/her theories and strategy. It is not intended to shield facts from disclosure.[^22]

[39] The defendant has repeatedly sought to characterize the 2007 Theme Reports as providing “analysis”. As I have already noted, this submission does not succeed. There is no “analysis” in the 2007 Theme Reports that were prepared by ZF. Indeed, it is the defendant’s own evidence that ZF was not retained to provide “consulting advice”. The defendant engaged ZF strictly for its “survey report production capability”. Whether or not the reports were requested by lawyers, the reports themselves are factual reports that reveal nothing about counsel strategy. As this court noted in L’Abbe v. Allen-Vanguard:[^23]

[…] it is not the evidence gathered that is privileged. It is the process of gathering the evidence, communication about the case, work product of the lawyer and information that would reveal what avenues the lawyer and client have been exploring that is within the zone of privacy.[^24]

[40] Disclosure of the documents in question would not reveal counsel’s work product or their “observations, thoughts and opinions.”[^25]

[41] Even if the 2007 Theme Documents had been provided to the defendant’s legal counsel and had been relied upon by them in providing legal advice (which the evidence does not establish) this would not render the documents themselves litigation privileged:

Simply providing a document that is otherwise not privileged to a lawyer in order to obtain legal advice does not render the document itself a privileged document.[^26]

[42] For all of these reasons, I find that the defendant has not established litigation privilege for documents 2852, 2854 or (a fortiori) 2853.

Conclusion

[43] The 2007 Theme Reports (that is documents 2852, 2854 and 2853) are not protected by either solicitor-client or litigation privilege.

Disposition

[44] The defendant’s motion is dismissed with costs.

[45] The parties agreed at the hearing of the motion that a costs award of $17,500 would be fair and reasonable. Costs are therefore fixed at $17,500 all-inclusive to be paid forthwith by the defendant to the plaintiff.

[46] Order to go accordingly.

Justice Edward P. Belobaba

Date: June 7, 2019

[^1]: Fresco v. Canadian Imperial Bank of Commerce, 2012 ONCA 444. [^2]: See any edition of the Concise Oxford English Dictionary. [^3]: Blank v. Canada (Minister of Justice), 2006 SCC 39, at para. 28. [^4]: Pritchard v. Ontario (H.R.C.) [2004] 1 S.C.R. 31, at para. 15, citing Smith v. Jones, 1999 CanLII 674 (SCC), [1999] 1 S.C.R. 455, at para. 46. [^5]: Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, at para. 22; Blank, supra, note 3, at para. 28. [^6]: General Accident Assurance Company v. Chrusz, (1999) 1999 CanLII 7320 (ON CA), 45 O.R. (3d) 321, at 352. [^7]: Pritchard, supra, note 4. [^8]: Ibid. at para. 16. [^9]: General Accident, supra, note 6. [^10]: Ibid. at para. 127. [^11]: Lizotte, supra, note 2, at para. 19. [^12]: R v. Assessment Direct, 2017 ONSC 5686 at para. 10. [^13]: Blank, supra, note 3, at para. 61. [^14]: General Accident, supra, note 6, at 331. [^15]: Seely v. Corrier, 2009 NBCA 3 at 35. [^16]: Ibid. at 36. [^17]: Grand Rapids First Nation v Canada, 2014 FCA 201, at paras. 30 and 33. [^18]: R v. Assessment Direct, 2017 ONSC 5686. [^19]: Ibid. at para. 14, citing Blank, supra, note 3. [^20]: Ibid. at para. 10. [^21]: Ibid. at para. 10. [^22]: Ibid. at paras. 10-14 (emphasis added). [^23]: L’Abbé v. Allen-Vanguard, 2011 ONSC 7575. [^24]: Ibid. at para. 86. [^25]: Assessment Direct, supra, note 18, at para. 14. [^26]: L’Abbe, supra, note 23, at para. 29.