COURT FILE NO.: CV-18-75993

DATE: 2019/08/15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

LE GROUPE CONSEIL BRONSON CONSULTING INC. and COX & KINGS LTD.

Plaintiffs

– and –

ATTORNEY GENERAL OF CANADA

Defendant

Peter N. Mantas and Christopher McLeod, for the Plaintiffs

Alexander Gay, Adrian Johnston, and Andrew Kinoshita, for the Defendant

James M. Wishart, for the Non-Party Respondents, FV Worldwide Holdings Inc. and VFS Global

Simon V. Potter, for the Non-Party Respondent, TT Visa Services Inc.

Lia Bruschetta, for the Non-Party, TLSContact

HEARD: May 2, 2019

ENDORSEMENT

Corthorn J.

Introduction

[1] This action concerns the outcome of a procurement process with respect to Visa Application Centre services in numerous locations around the world. The plaintiffs participated in that process. Ultimately, they were not awarded the contract for those services. In this action, the plaintiffs claim damages of $195,000,000.

[2] A number of other corporations participated in the procurement process (“the Third Parties”). To fulfil its documentary disclosure obligations in this action, the defendant must consider the relevance of documents it received from the Third Parties during the procurement process. Those documents may contain information for which a claim of confidentiality has been or may be made by the Third Parties (“Third Party Information”). A process is now required to permit:

• The defendant to determine whether any documents in its possession and relevant to the action (“Relevant Documents”) include Third Party Information;

• The defendant to consult with the Third Parties about Third Party Information that is or may be included in Relevant Documents; and

• The parties and the Third Parties to resolve disputes as to whether such information is Third Party Information and therefore subject to the protection of a confidentiality order (the terms of which the parties have agreed upon and “the Order”).

[3] The parties agree upon the process by which Third Party Information may be reviewed by the lawyers of record for the plaintiffs and by others. The parties disagree about the level of involvement of the Third Parties in the dispute resolution process described in the third bullet point above. On this issue, the parties and the Third Parties made oral submissions, and the parties made written submissions. The Third Parties had the opportunity to make written submissions but declined to do so.

[4] The parties’ respective written submissions were filed by the deadline set. Unfortunately, not all of the submissions were brought to my attention until a number of months after the deadline. As a result, the decision on this issue was delayed.

Background

[5] The parties and the Third Parties (the latter through consultation with the defendant) agree upon the Order. The Order is five pages long, includes 16 paragraphs, and includes, as an appendix, an undertaking to be signed by anyone who reviews Third Party Information (the “Undertaking”).

[6] In summary, when the defendant determines, on a preliminary basis, that a relevant document includes Third Party Information, the defendant is required to consult with the affected Third Party. Following that consultation, the defendant must make a final determination (from its perspective) as to whether any Relevant Documents includes Third party Information. If so, then the defendant must (a) notify the plaintiffs in writing of the documents so designated, and (b) provide the affected Third Party with a copy of the written notice.

[7] The documents designated by the defendant as including or found—the latter through the dispute resolution mechanism—to include Third Party Information shall be made available for review by individuals who have executed the Undertaking (e.g. the lawyers of record for the plaintiffs).

[8] The parties and the Third Parties disagree about how to resolve disputes as to whether information designated by the defendant as Third Party Information is confidential. Specifically, the plaintiffs disagree with the defendant and Third Parties collectively about the extent to which the Third Parties may be involved in the dispute resolution process.

[9] Paragraphs 10 and 11 of the Order set out the dispute resolution process. The parties agree that paragraph 10 of the Order is to be worded as follows:

In the event [that] the plaintiffs and the defendant disagree whether the information designated by the defendant as Third Party Information is confidential or whether it may be disclosed, the plaintiffs shall advise the defendant and the defendant shall, within 30 days, serve and file a Notice of Motion for a determination of the issue of confidentiality and any restrictions to be placed on access to the information in this proceeding.

[10] The parties have, since the return of the motion, attempted to resolve their continuing disagreement with respect, specifically, to paragraph 11 of the Order.

[11] On the return of the motion, the dispute between the plaintiffs and the defendant and Third Parties was as to the scope of the Third Parties’ involvement on a motion brought pursuant to paragraph 10. For instance, the plaintiffs argued that the Third Parties should only be permitted to make submissions on the issue of designation (or not) of Third Party Information. The defendants and Third Parties submitted that it should be left to the judge hearing the motion pursuant to paragraph 10 to determine the issues about which the Third Parties are entitled to make submissions.

[12] By way of example, the Third Parties submitted that, in addition to addressing confidentiality, they might wish to address whether the document identified by the defendant as including Third Party Information was in fact relevant to the action. Since the return of the motion, however, the Third Parties have abandoned that position. The defendant has done the same.

[13] Also since the return of the motion, the parties and the Third Parties have exchanged suggested wording for paragraph 11 of the Order. It is clear from the wording suggested in the recent exchange that the parties and the Third Parties:

• Agree that the Third Parties are entitled to make submissions on the issue of confidentiality of Third Party Information; and

• Disagree as to the subject matters the Third Parties are permitted to address in their submissions on the issue of confidentiality.

[14] The defendant and the Third Parties propose a broader scope of subject matter than do the plaintiffs. Set out below is the wording of paragraph 11 proposed by the Third Parties, agreed to by the defendant, and amended unilaterally, by way of counter-proposal, by the plaintiffs:

In the event [that] the defendant brings a motion pursuant to paragraph 10, the motion record and related materials shall be served on the affected Third Party or Third Parties, and they who shall have the right to deliver responding materials, and to have counsel appear on their behalf on the return of the motion, and to have those counsel make representations as to the confidentiality of the information, the potential effects of its disclosure on the affected Third Parties, the balance of harms and benefits of disclosure, and the appropriate protective measures to be imposed by the Court in respect of any confidential information ordered to be disclosed.

[15] To be clear, the amendments proposed by the plaintiffs are (a) the addition of “on the affected Third Parties”, and (b) the deletion of “the balance of harms and benefits of the disclosure”. The insertion of “that” in the first line is the court’s suggestion.

The Issue

[16] The sole issue to be determined at this late stage of the motion is the wording of paragraph 11 of the Order. Specifically, prior to the return of a motion pursuant to paragraph 10 of the Order, to what extent is it appropriate to define the matters the Third Parties are entitled to address with respect to the issue of confidentiality?

Positions of the Parties

a) The Plaintiffs

[17] The plaintiffs describe the wording of paragraph 11 proposed by the Third Parties (and supported by the defendant) as an improper demand. The plaintiffs submit that the demand is improper because:

• The Third Parties are introducing a new issue at a late stage of the motion;

• There is no support in law for a “balance of convenience” test with respect to documentary disclosure; and

• The wording proposed by the Third Parties, if adopted, would permit the Third Parties to make submissions going to aspects of the subject litigation other than confidentiality. The result would be to increase the costs and complexity of the litigation.

[18] In essence, the plaintiffs submit that the Third Parties should not be permitted to meddle in the private dispute between the plaintiffs and defendant.

b) The Defendant

[19] In support of their position, the defendant relies on r. 37.07 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. This rule concerns service of a notice of motion on a person “who will be affected by an order sought”. The defendant submits that making an order based on the wording of paragraph 11 as proposed by the plaintiffs would (a) limit the application of r. 37.07 on the motion, and (b) be an incursion into the discretion of the judge hearing the motion.

c) The Third Parties

[20] Although the Third Parties are the authors of the broader-in-scope version of paragraph 11, they did not deliver written submissions specific to that version. I therefore rely on the oral submissions made on behalf of the Third Parties on the return of the motion.

[21] The Third Parties’ position is that, to the extent possible, the matters upon which they are entitled to make submissions on a paragraph 10 motion should be left to the judge hearing the motion. In the absence of the motion materials, and without appreciating the potential context of such a motion, there should be no limitation placed on the scope of the Third Parties’ submissions.

Analysis

[22] Whether pursuant to the Order or absent such an order, the Third Parties would, on a motion addressing Third Party Information, be a “person who will be affected by the order sought”. As such, their entitlement to notice of a paragraph 10 motion stems not only from the Order, but also from r. 37.07(1) of the Rules of Civil Procedure.

[23] The Third Parties are not “intervenors” within the meaning of Rule 13 of the Rules of Civil Procedure; nor would they qualify as such (r. 13.01(1)(a)-(c)).

[24] A number of the arguments made by the plaintiffs are based on the law with respect to intervenors. For example, the plaintiffs rely on the following passage from the Ontario Court of Appeal decision in Meridian Credit Union Ltd. v. Baig, 2016 ONCA 150, at para. 56: “Non-parties should not be able to lurk in the shadows and then spring up to challenge a decision whenever the outcome—or finding of fact—may affect them in some manner they do not like.” That passage is not, however, relevant to the scope of the involvement of the Third Parties in a paragraph 10 motion.

[25] The Third Parties have not conducted themselves in this matter as did the intervenors in Meridian. Those intervenors were given notice of the claim being advanced, had the option of seeking intervenor status, and chose not to pursue that option. They were subsequently unsuccessful on an appeal from a decision on a motion for summary judgment (in which an adverse finding was made against the intervenors in their absence).

[26] The plaintiffs also rely on the decision of the Ontario Court of Appeal in Ivandaeva Total Image Salon Inc. v. Hlembizky (2003), 2003 CanLII 43168 (ON CA), 169 O.A.C. 354, 63 O.R. (3d) 769. Borins J.A. reviewed the history of Rule 37 of the Rules of Civil Procedure—specifically the meaning of “affected by” in rr. 37.07 and 37.14. The latter rule addresses when a person “affected by” an order obtained without notice may move to set aside the order.

[27] At paragraph 27 of the decision, Borins J.A. concluded that “affected by” must mean that the order requested (r. 37.07) or to potentially be set aside (r. 37.14), “must be one that directly affects the rights of [the party] in respect to the proprietary or economic interests of the party.” One must only look to the definition of “Third Party Information” in paragraph 3 of the Order to understand that the Third Parties are “affected by” an order made on a paragraph 10 motion. “Third Party Information” is therein defined as including, but not being limited to information that:

a. Is not in the public domain;

b. Involves trade secrets, pricing information, or software tools and information technology used in connection with the business of a Third Party or Third Parties, and is proprietary or is otherwise confidential, strategic, research, development, or commercial know-how; and

c. Is commercially sensitive, or proprietary, such that its disclosure to the plaintiffs could cause commercial harm to a Third Party or Third Parties.

[28] An order made with respect to the manner in which Third Party Information is to be disclosed, if disclosed at all, clearly relates to the “proprietary or economic interests of the [Third Parties].”

[29] I agree with the defendant and the Third Parties that prior to the delivery of materials on a paragraph 10 motion, it is not possible for the court to fully appreciate either the specific issues or the context within which the motion is to be determined. As a result, it is not reasonable to tie the hands of the judge hearing the motion regarding the issues to be addressed and the extent to which the Third Parties are entitled to make submissions with respect to each issue.

[30] Ultimately, then, the dispute between the plaintiffs and the defendant and Third Parties is reduced to whether the phrase “the balance of harms and benefits of disclosure” is included in or excluded from paragraph 11. The significance of that phrase is unclear. Is it intended to refer to the balance of harms and benefits concerning the affected Third Party, one or both of the parties, and/or the public at large? Regardless of what is meant by that phrase, it is not possible, without the benefit of the motion materials and context, to know whether the balance of harms and benefits is relevant to the determination of one or more issues on a paragraph 10 motion.

[31] There are two phrases in paragraph 11 that the parties and Third Party agree upon. The first phrase is “the potential effects of its disclosure”. When paragraphs 10 and 11, and the Order, are read in their entirety, it is clear that “the potential effects of its disclosure” are those on “the party affected”. As a result, the inclusion of the description, “on the affected Third Parties” at the end of that phrase—as proposed by the plaintiffs—does not change the intended meaning of the phrase.

[32] The second phrase is “the appropriate protective measures to be imposed by the Court in respect of any confidential information ordered to be disclosed.” Those measures are clearly intended to protect the economic and proprietary interests of the affected Third Party.

[33] I would not, however, limit the phrase “balance of harms and benefits” (if included in paragraph 11 of the Order) as being related only to the Third Parties. In deciding a paragraph 10 motion, it may be necessary for the court to “balance the harms and benefits” specific to the Third Parties, to one or both of the parties, and/or to the public at large. There may also be any number of other factors for the court to consider on a paragraph 10 motion that cannot be identified at this time.

[34] As a result, I find that the appropriate wording for paragraph 11 is that proposed by the plaintiffs. That wording addresses issues clearly relevant to the Third Parties. It also eliminates wording whose significance is unclear at this time. This is not to say that, on the return of a paragraph 10 motion, the “balance of harms and benefits of disclosure” will not be relevant. Nor does this finding necessarily preclude the Third Parties from making submissions on issues other than those outlined in paragraph 11.

[35] It is important that the parties and the Third Parties remember that this action is being case-managed. To date, all motions and case conferences have been before me. At the conclusion of the parties’ most recent appearance before me (July 23-24, 2019—motions with respect to r. 39.03 summons and examinations), the parties agreed that the case management of this action would be handled by Master Fortier and myself.

[36] Therefore, matters that fall within the jurisdiction of a master will proceed before Master Fortier. The parties have the option, however, of requesting that a matter otherwise within the jurisdiction of a master proceed before me. The grounds for such a request could include urgency and Master Fortier being unavailable and/or efficiency and cost-effectiveness for matters in follow-up to those previously decided by me.

[37] Without reviewing the materials for a paragraph 10 motion, it is not possible to know whether any issue to be determined falls outside the scope of a master’s jurisdiction (r. 37.02(2), Rules of Civil Procedure). I may ultimately, and in any event, be required to determine what issues, if any, in addition to those enumerated in paragraph 11 of the Order about which the Third Parties may make submissions.

Disposition

[38] Paragraph 11 of the Order (exhibit “A” on the motion) shall read as follows:

In the event [that] the defendant brings a motion pursuant to paragraph 10, the motion record and related materials shall be served on the affected Third Party or Third Parties, and they shall have the right to deliver responding materials, to have counsel appear on their behalf on the return of the motion, and to have counsel make representations as to the confidentiality of the information, the potential effects of its disclosure on the affected Third Parties, and the appropriate protective measures to be imposed by the Court in respect of any confidential information ordered to be disclosed.

[39] The wording of paragraph 11 above is slightly different from the version proposed by the plaintiffs. I revised the wording for readability.

[40] To be clear, nothing in this ruling precludes the Third Parties who appear on the return of a paragraph 10 motion from requesting an opportunity to make submissions with respect to matters other than those specifically described in paragraph 11—with the exception of relevance. As noted, the defendant and the Third Parties abandoned their respective positions that the Third Parties should be entitled to wade into the issue of the relevance of documents in the possession of the defendant.

Costs

[41] The plaintiffs prevail in terms of the wording of paragraph 11. The defendant and the Third Parties prevail, however, in their argument that the scope of submissions to be made by the Third Parties on a paragraph 10 motion should not be overly restricted in advance of the court having an opportunity to see the motion materials and consider the context of the motion. Success on this motion is therefore divided.

[42] As a result, costs of this motion shall, as between the parties, be in the cause.

[43] In the event the Third Parties seek their costs of this motion and cross-motion and they are unable to resolve the issue of costs with the parties, costs submissions shall be delivered as follows:

a) The submissions shall be limited to a maximum of four pages, exclusive of a bill of costs;

b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure;

c) Hard copies of any case law or other authorities relied on shall be provided with the submissions and shall comply with Rule 4 of the Rules of Civil Procedure with respect to font size;

d) The submissions, the documents referred to therein, case law, and other authorities, shall be on single-sided pages;

e) Written submissions from the Third Parties shall be delivered by 5:00 p.m. on the twentieth business day following the date on which this Ruling is released; and

f) In the event any party wishes to deliver a reply to the costs submissions of the Third Parties, the reply submissions shall be delivered by 5:00 p.m. on the twenty-fifth business day following the date on which this Ruling is released. Reply submissions shall comply with paragraphs (a) to (d) above.

Madam Justice Sylvia Corthorn

Released: August 15, 2019

COURT FILE NO.: CV-18-75993

DATE: 2019/08/15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

LE GROUPE CONSEIL BRONSON CONSULTING INC. and COX & KINGS LTD.

Plaintiffs

– and –

ATTORNEY GENERAL OF CANADA

Defendant

endorsement

Madam Justice Sylvia Corthorn

Released: August 15, 2019