Court File and Parties

COURT FILE NO.: CV-15-536748 DATE: 20190114 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Carillion Construction Inc., Plaintiff – AND – City of Toronto, Defendant

COURT FILE NO.: CV-16-564857 AND RE: Carillion Construction Inc., Plaintiff – AND – NORR Limited, Defendant

COURT FILE NO.: CV-14-516955 AND RE: City of Toronto, Plaintiff – AND – NORR Limited, Defendant

COUNSEL: Christopher Hubbard, Brendan Bowles, Jessica Firestone, for Carillion Construction Inc. Kevin O’Brien and Sarah McLeod, for the City of Toronto

BEFORE: E.M. Morgan J.

HEARD: January 10, 2019

Refusals Motion

[1] This motion is brought by the Plaintiff, Carillion Construction Inc. (“Carillion”), to compel answers to questions refused by the Defendant, City of Toronto (the “City”), during what has been termed the “executive discovery” of the City’s representative, Rick Tulkunow. There were initially a larger number questions objected to and refused by counsel for the City, but most of them have now been answered. Only one remains as the subject of a contested motion.

[2] Before getting into the issue before me, it is worth reviewing the nature of the litigation overall. I described it briefly in my January 15, 2018 case management endorsement, as follows:

This litigation arises out of one of Canada’s largest-ever infrastructure construction projects – the renovation of Union Station in Toronto (the “Project”). The Project is complex and massive and the civil litigation that it has spawned is equally complex and massive. In all there are some 47 civil actions in relation to it, of which 41 remain alive. The combined cases involve the participation of 24 different law firms.

[3] In addition, I should note that the documentary disclosure among the parties has been voluminous. The productions from the City alone amount to some 500,000 documents. The discoveries have been conducted in abbreviated form – dubbed “executive discoveries” by counsel – in order to prepare the parties for an upcoming multi-day mediation session, and will be continued as full-scale discoveries in the event that mediation does not result in a settlement. Even the executive discoveries have encompassed several days for each of the three main parties, and were as extensive as the discoveries might typically be in ordinarily complex commercial litigation. In other words, this set of actions is in the realm of mega-litigation, by any standard.

[4] The City’s representative for discovery purposes, Mr. Tolkunow, is the City’s Principal Engineer with responsibility for the Union Station revitalization project. Counsel for Carillion has no objection to him taking the lead role as the City’s deponent. Needless to say, in a project and dispute of this magnitude no one deponent could possibly know every detail or even every aspect of the complicated dispute. Carillion expected Mr. Tolkunow to inform himself of the issues to the best of his ability, which I gather he did, and in the event that he still did not have some relevant facts at his disposal to make inquiries of other City employees to fill in the gaps in his knowledge.

[5] This approach is in keeping with that envisioned by the Rules of Civil Procedure and case law thereunder. The discovery right is framed as a broad one; under Rule 31.06(1), examining counsel may ask and a party’s representative must answer “any proper question relevant to any matter in issue in the action.”

[6] Furthermore, the courts have made clear that this is not limited to the deponent’s own personal knowledge. He or she must inform themselves from other employees or persons with knowledge within the party: Anderson v St. Jude Medical Inc., 2007 ONSC 5383, at para 14. Myers J. described the proper process for this in Central Sun v Vector Engineering, 2016 ONSC 7927, at para 10: “If a witness who has been properly prepared still cannot answer a proper question then he or she is required to undertake to make efforts to search for and provide the answer later on behalf of the party.”

[7] One of the key City employees working under Mr. Tolkunow on the Union Station revitalization project was Jelena Rekalic. She was hired specifically for the project as the City’s manager of design. She has also been responsible for overseeing the other major party to this litigation, the architectural firm NORR Limited (“NORR”). In that capacity, Ms. Rekalic was charged with reviewing and approving NORR’s design and ongoing architectural changes. In this litigation, the City and Carillion each allege that NORR’s designs were the cause of significant delay and that NORR was negligent. The City’s position in this regard was apparently set out in a June 2014 letter from Ms. Rekalic to NORR regarding NORR’s performance.

[8] During the course of the examination of Mr. Tolkunow, counsel for Carillion asked numerous questions that were responded to by way of undertaking to inquire of Ms Rekalic. Some 15 questions have been answered in this way. One question remains which has been refused by the City. That question was a catch-all question, asking Mr. Tolkunow to ask Ms. Rekalic to advise counsel for Carillion all relevant facts that she knows or that she has relayed to others in the City or to counsel for the City.

[9] Counsel for Carillion relies on Rule 31.06(2) in seeking an answer to this sweeping question. He submits that this Rule requires disclosure of relevant information from any person, whether or not he or she is an employee of the party: Tax Time Services Ltd. v National Trust Co., at para 11. Carillion’s counsel further argues that, “It is also important to distinguish between discovery of documents, provided by R. 30 and discovery of information of information, provided by R. 31”, and that the information to be disclosed at the discovery stage is a far broader category: Pearson v Inco Limited, at para 19, quoting Sacrey v Berdan, at para 12.

[10] The City’s response is that communications between Ms. Rekalic and counsel for the City are privileged. It contends that the conversations with Ms. Rekalic have taken place in the context of preparing this case, and so litigation privilege applies to her. More importantly, the City’s counsel describes Ms. Rekalic as representing “the face of my client”, and argues that his conversations with someone so central in the City’s approach to the Union Station project are covered by solicitor-client privilege as well. The City therefore takes issue with the request that it disclose by way of undertaking the essence of the many discussions between its legal counsel and a person who is part of its key personnel guiding the project and the City’s approach to the dispute over the project.

[11] Carillion’s counsel concedes that privileged communications do not have to be disclosed. He argues however, that even where some of a conversation may be privileged “a party is entitled to know ‘the underlying facts that are or may be relevant to the determination of the facts in issue’”: Uran v AG Canada, quoting Susan Hosiery Ltd. v Minister of National Revenue, [1969] 2 Ex CR 27 (Can Ex Ct). He submits that the purpose of solicitor-client privilege is to protect legal advise and that “…the purpose of litigation privilege is to the lawyer’s work product, that is, his/her theories and strategy”, but that privilege “is not intended to shield facts from disclosure”: R v Assessment Direct Inc., 2017 ONSC 5686, at para 14, citing Lizotte c Aviva Cie d’assurance du Canada, 2016 SCC 52, [2016] 2 SCR 521.

[12] Counsel for the City takes issue not so much with these statements as a matter of law, but with their application to the context of this litigation. In the first place, he points out that, “There is…a significant distinction to be drawn between the status of a statement taken by counsel from his/her own client, clearly done for the purpose of counsel being advised of the facts of the case, and statements taken from third parties…”: Assessment Direct, at para 19. Whereas third party statements and information are disclosable without much qualification, the content of conversations between lawyers and their client is “presumptively privileged. Evidence of objective facts is not, but may be privileged if its disclosure would trench upon privilege”: Wong v Lu, 2015 BCCA 159, at para 29.

[13] It is axiomatic that, “The right to communicate freely and confidentially with a client is a fundamental legal right founded on the unique relationship between lawyer and client: Solosky v The Queen, [1980] 1 SCR 821. If there are relevant, discrete factual matters that come out in a conversation between a lawyer and a client and nowhere else in the record, those specific facts may have to be disclosed to the opposing side.

[14] That, however, is not what Carillion seeks from the City and Ms. Rekalic. Rather than discreet facts that Ms. Rekalic may have conveyed, Carillion has asked for every fact that Ms. Rekalic has conveyed. This certainly trenches upon privilege; if taken seriously, it would entail disclosing the entire structure, content, and viewpoint contained in the City’s discussions with its counsel. Conversations do not necessarily separate fact, perspective, opinion, strategy, etc. into separate sentences; people speak to each other with facts interspersed with other types of statements. To disclose discrete facts is one thing. To disclose every single fact in every single conversation is to give away the essence of those conversations. There would be virtually nothing left of privileged communication after this type of disclosure.

[15] It is fair to say that Rule 31.06 requires that information not specifically known by the individual deponent be given at discovery by the deponent informing himself from the witness, or by undertaking. However, it does not require a written summary of the evidence of any person not being examined: Tax Time Services, at para 14. Courts have specifically found that, “Counsel is not entitled to extensively question the party being discovered about the identified person and then also ask for a summary of evidence at the end of the questioning”: Ibid., at para 18.

[16] Under the Rules, parties can examine one representative of the adverse party as of right, and if they feel the need to examine a second representative they are obliged to move for leave to do so. They cannot in effect examine two people in the guise of examining one by concluding the examination of the first person with a request for an undertaking that the second person let them know everything he or she knows as well. The Rules permit asking the deponent to seek an answer to a factual question from one of his or her colleagues if that is possible, but the court retains the discretion to prevent that approach from being exploited by an unbounded question whose effect is to turn the discovery of one person into the discovery of two.

[17] The Rules grant a motion judge the power to ensure that discoveries are as broad or as narrow as the court deems appropriate:

…the court retains a degree of discretion to broaden or restrict discovery rights. What is set out in the rules is the default position which parties are expected to follow without the need for court direction. Ultimately however discovery is a court process and it proceeds under court supervision. The court has the power to restrict discovery that is onerous or abusive or to expand discovery rights if the ends of justice require it.

Andersen v St. Jude, 2007 ONSC 5383, at para 15.

[18] While this is a case that will ultimately engage very broad rights of discovery for each of the major players, the process cannot be manipulated by the parties. Each of the three parties engaged in the executive discoveries has had a chance to examine one representative from the other; and if the matter does not settle at the upcoming mediation, each will have a further opportunity to complete their examination of those representatives. But without leave, they may each only examine one representative of the other. They cannot get discovery of a second representative through the back door by asking the first to relay anything and everything known by the second.

[19] Accordingly, Carillion’s motion to compel the City to provide a complete rendition of every relevant fact that Jelena Rekalic has disclosed to the City is dismissed.

[20] Carillion and the City are encouraged to attempt to resolve the costs of this motion between themselves. If they are unable to settle on costs, then within three weeks of today counsel for the City is to provide me with a Cost Outline and brief (2 pages, maximum) written submissions. Counsel for Carillion is to provide me with equally brief written submissions within one week thereafter. The Cost Outlines and submissions may be emailed directly to my assistant.

Morgan J. Date: January 14, 2019