RELEASED: 2019/09/03
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: René Brewer v. Royal College of Dental Surgeons of Ontario and Irwin Fefergrad
BEFORE: Master Graham
HEARD: August 19, 2019
APPEARANCES: Tanya Pagliaroli and Bethany McKoy for the plaintiff
Megan Shortreed and Daniel Rosenbluth for the defendant RCDSO (moving party)
REASONS FOR DECISION
(Defendant’s motion to compel answers to questions refused)
[1] The plaintiff René Brewer claims damages arising out of the termination of her employment as the manager of the Professional Liability Program (“PLP”) of the defendant Royal College of Dental Surgeons of Ontario (“RCDSO” or “the College”). The defendant Fefergrad was the registrar and CEO of the College. Ms. Brewer occupied her position from November 7, 2011 until her termination without cause on January 23, 2017. She alleges that she was wrongfully terminated in reprisal for “continuously challenging Fefergrad and imploring him and [RCDSO] Council to address the toxic and inappropriate work environment at the RCDSO”.
[2] The defendant College brought a motion to amend its statement of defence and to compel answers to questions refused at the plaintiff’s examination for discovery held June 14 and 15, 2018. I ruled on the defendant’s motion to amend its statement of defence and with respect to various questions refused in my endorsement of June 4, 2019. The motion was continued on August 19, 2019 with respect to the questions in Issues 1 and 4 in the defendant’s refusals chart, and these Reasons contain my rulings on those questions.
[3] The disputed questions relate primarily to the sources of the plaintiff’s information, first, regarding the fact that she was about to be terminated from her employment on January 23, 2017 (Issue 1), and second, regarding what transpired at a meeting of the College’s Executive Council on February 23, 2017 (Issue 4). The plaintiff submits that these sources are confidential.
[4] The paragraphs in the pleadings that relate to this motion are:
Statement of Claim
On January 23, 2017, Fefergrad terminated René’s employment without cause. During their final meeting, Fefergrad informed René he had decided to fire her in December 2016.
The RCDSO owed René fiduciary duties and a common law duty of care to provide her with a work environment free of harassment, intimidation, and hostility, and to make reasonable efforts to investigate information and complaints of wrongdoing. The RCDSO breached these duties in that:
a. It was wilfully blind to, or negligently disregarded an abundance of information, including some provided by René directly, in relation to the toxic work environment at the RCDSO, and the failure of senior staff, including Fefergrad, to remedy these issues. Through its Council, it failed to make any reasonable investigations in relation to this information and failed to protect its employees, including René; and
b. It failed to make reasonable inquiries or investigation into René’s termination and the arbitrary and sudden timing of Fefergrad’s decision to end her employment despite René’s exemplary track record.
To the extent that Fefergrad or any other RCDSO employees are liable to René, the RCDSO is vicariously liable for those acts and omissions.
The manner in which Fefergrad deceitfully orchestrated René’s termination was designed to intimidate her as a whistleblower and to send a message to anyone else in the RCDSO who might consider challenging Fefergrad or exposing the ongoing and toxic workplace culture at the RCDSO.
In addition to the common law tort of intimidation, René pleads and relies on the novel tort of retaliation against a whistleblower. Fefergrad commited this tort in that:
a. Fefergrad was aware of misconduct and wrongdoing at the RCDSO;
b. Fefergrad was aware that René was concerned about this misconduct and wrongdoing and had expressed her concerns directly to him. There was a risk that she would “blow the whistle” about this misconduct; and
c. Fefergrad took steps in direct retaliation against René by terminating her, and offering her a payout for her silence. These steps included actionable wrongs such as injurious falsehood and inducing breach of contract. They were designed to silence René and to discredit her in public. [emphasis added]
Statement of defence of the defendant RCDSO
On December 22, 2016, the College’s Executive Committee supported Mr. Fefergrad’s decision that her [Ms. Brewer’s] employment be terminated.
Mr. Fefergrad notified the College’s Executive Committee prior to terminating the Plaintiff’s employment. The approval of the Executive Committee was not required. Mr. Fefergrad was legally entitled to act on his own authority. . . .
The College:
(a) denies the Plaintiff is or was a “whistleblower”;
(b) states the Plaintiff’s employment was terminated for the reasons set out above and not as a result of any retaliatory conduct;
(c) [pleads that] any claim the termination of the Plaintiff’s employment was related to the issues alleged in paragraph 34 of the Statement of Claim is false, in that the decision to terminate her employment was already in process at that time; and
(d) [pleads that] none of the allegations made by the Plainitff regarding her employment or termination thereof affect the enforceability of the termination provisions in the Plaintiff’s employment contract, which expressly state that the amounts payable on termination are the Employee’s “entire entitlement to notice of termination”.
- The College states that all or some of the Plaintiff’s allegations relate to the effects the work environment allegedly had on her incidentally, rather than through direct action related to herself. The College states that any ill effects the Plaintiff experienced from the work environment were caused by the Plaintiff’s own unjustified conduct, but in any event, her allegations do not constitute a cause of action.
Plaintiff’s reply to the statement of defence of the RCDSO
In reply to paragraphs 36, 40 and 42 of the Statement of Defence, the fact is that René sought protection from the RCDSO Council for herself and other RCDSO staff. On January 12, 2017, after learning of Fefergrad’s intention to terminate her, René met with Flavio Turchet (“Turchet”), who, unbeknownst to René, had been elected Vice President of the RCDSO the night before. René advised Turchet of her impending termination. Turchet expressed surprise because René was considered by many Council members to be a “superstar” capable of succeeding Fefergrad when the time came and they had only heard good things about her from Fefergrad. René said she had always planned to go to Council after she left the RCDSO to alert the members to what was going on. She told Turchet about low staff morale, high turnover in Professional Conduct and Regulatory Affairs (“PCRA”), and complaints of bullying and harassment. Turchet replied that he wasn’t surprised because he had heard similar things from other RCDSO staff over the years. [emphasis added]
At its meeting of February 13, 2017, the Executive Committee voted to conduct an “investigation” into René’s allegations, which consisted of receiving a report from RCDSO HR Director Joe Donahue (“Donahue”). During his presentation on February 23, 2017, Donahue downplayed the number of complaints of harassment and bullying in PCRA by focusing only on formal complaints, distorted turnover in PCRA by omitting terminations from his statistics, implied a complaint to the Ministry of Labour against René had merit by crediting the RCDSO’s employment lawyer with its successful defence, despite the fact that René had been completely exonerated by the adjudicator, and exaggerating concerns about René’s behaviour, causing the Executive Committee and Council not to order a workplace assessment. In failing to conduct an independent review, the RCDSO continued to breach its fiduciary duty by supporting a termination that was wrongful and failing to prevent ongoing harm to RCDSO staff. [emphasis added]
[5] In summary, Ms. Brewer’s claim includes allegations that the College owed her a fiduciary duty both to provide her with a work environment free of harassment and to make reasonable efforts to investigate information and complaints of wrongdoing. Ms. Brewer alleges that the College breached its duty by (a) failing to conduct a reasonable investigation in relation to information provided as to the toxic work environment and (b) failing to conduct a reasonable investigation into her termination. Ms. Brewer asserts various causes of action against the defendant Fefergrad, for whose conduct she claims that the College is vicariously liable, including “the novel tort of retaliation against a whistleblower”, and alleges that she was terminated in retaliation for raising various issues of misconduct at the College.
[6] In paragraph 6 of her reply, Ms. Brewer particularizes information communicated to Dr. Turchet on January 12, 2017, after she learned that her employment was to be terminated, regarding the work environment (low staff morale, high turnover, complaints of bullying and harassment). Her evidence at her examination for discovery was that the information that the College failed to act on in relation to the allegedly toxic work environment included the information that she provided through the entire course of her employment (Q. 2059), including the information given to Dr. Turchet (Qs. 2053-2054).
[7] In paragraph 8 of her reply, Ms. Brewer provides further details of the College’s alleged breach of its fiduciary duty to investigate her termination, consisting of misrepresentations in its HR Director Joe Donahue’s presentation of February 23, 2017 regarding complaints of bullying and harassment in the PCRA and regarding her performance and conduct. Ms. Brewer specifically pleads in this paragraph that in failing to conduct an independent review, the College continued to breach its fiduciary duties, with respect to both her termination and the work environment.
Questions in dispute
Issue 1 - Questions re: Source of Information about Ms. Brewer’s Pending Termination
Qs. 113-114: To advise who told Ms. Brewer that she was going to be terminated from her employment at the College before January 23, 2017.
Q. 115: To advise if a member of College staff told Ms. Brewer that she was going to be terminated from her employment at the College before January 23, 2017.
Qs. 119-121: To advise whether Ms. Brewer’s discussions on January 11, 2017 about her termination were with only one person or many people.
- Questions 115 and 119-121 have been answered by Ms. Brewer’s statement at paragraph 15 of her responding affidavit that the source of this information was “two staff members, who provided me with this information in the strictest confidence and based upon my explicit promise that their identity [sic] would remain confidential”. Ms. Brewer further states in paragraph 16 of the affidavit that the sources no longer work at the College but have told her that they continue to be afraid of reprisals from the defendants if their identities are revealed.
Qs. 122-123: To advise when the meeting on January 11, 2017 regarding Ms. Brewer’s termination took place.
Q. 1541: To advise if Ms. Brewer knows how the person or persons informing her that she was going to be terminated from the College knew that Ms. Brewer was going to be terminated on January 23, 2017.
Qs. 1603-1609: To advise whether Ms. Brewer was concerned that Mr. Fefergrad or anyone else at the College would take action against the individual or individuals that leaked information concerning her termination because what they had done was possibly illegal.
Q. 1612: To advise whether Ms. Brewer turned her mind to how someone got the information that she was going to be terminated on or around January 23, 2017.
Issue 4 - Questions re: Sources of information obtained by Ms. Brewer post-termination respecting the RCDSO’s investigation of her allegations
Qs. 1976 and 1981: To provide the name of the individual that told Ms. Brewer that Alan Bromstein attended a PLP [Professional Liability Program] meeting on or around April 28, 2017.
Q. 2013: To advise why Ms. Brewer does not know whether she would advise the College if she improperly received confidential information from the College.
Qs. 2020-2021 and 2026: To provide the name of the individual that told Ms. Brewer that there had been a meeting of the Executive Committee on February 13, 2017.
- The plaintiff took the position in her responding chart that this question was answered at Q. 2017 where she stated that she did not recall how she learned that there was a meeting on February 13, 2017. However, at Q. 2020 she stated that someone told her that this meeting had taken place and there is nothing in the subsequent exchange between defendants’ counsel, plaintiff’s counsel and the plaintiff to suggest that the plaintiff does not recall the identity of this person. The question has therefore not been answered and requires a ruling.
Q. 2027: To provide the name of the individual that told Ms. Brewer that a vote was taken at the February 13, 2017 Executive Committee meeting.
Q. 2028-2029: To advise whether Ms. Brewer understood that an Executive Committee meeting, in camera, where a vote was taken about allegations raised by a departing employee, was confidential information of the College.
Q. 2030-2031: To advise who told Ms. Brewer that the Executive Committee was going to receive a report from the HR director.
The remaining six refusals (Qs. 2035 to 2050) all relate to the source of Ms. Brewer’s information as to the content of Mr. Donahue’s presentation of February 23, 2017, specifically:
Qs. 2035-2036: To provide the source of Ms. Brewer’s information and belief that Mr. Donahue made a presentation on February 23, 2017.
Qs. 2037-2038: That Mr. Donahue downplayed a number of complaints of harassment and bullying in PCRA [Professional Conduct and Regulatory Affairs] by focussing only on formal complaints;
Qs. 2039-2040: That Mr. Donahue distorted turnover in PCRA by omitting terminations from his statistics;
Qs. 2041-2042: That Mr. Donahue implied that a complaint to the Ministry of Labour against Ms. Brewer had merit by crediting the College’s employment lawyer with a successful defence;
Qs. 2043-2044: That Mr. Donahue exaggerated concerns about Ms. Brewer’s behaviour, thereby causing the Executive Committee or Council not to order a workplace assessment;
Qs. 2046-2050: That the Executive Committee only heard from Joe Donahue with respect to their investigation into Ms. Brewer’s termination.
Applicable rules and case law
[8] The applicable rules of civil procedure are sub-rules 31.06(1) and (2):
31.06(1) A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action or to any matter made discoverable by subrules (2) to (4) and no question may be objected to on the ground that,
(a) the information sought is evidence;
(b) the question constitutes cross-examination, unless the question is directed solely to the credibility of the witness;
(c) the question constitutes cross-examination on the affidavit of documents of the party being examined.
(2) A party may on an examination for discovery obtain disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action, unless the court orders otherwise.
[9] The sources of the plaintiff’s information regarding both her pending termination and what transpired at the February 23, 2017 Executive Council meeting are potentially within the scope of rule 31.06(2), as the “names . . of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action”.
[10] The first issue is whether the identity of those sources is relevant to “any matter in issue in the action” (rule 31.06(1)). The second issue is whether the court should “order otherwise”, by declining to require disclosure of the names of the sources, based on the plaintiff’s submission that those sources are confidential. The plaintiff acknowledges that the identities of the sources do not fall within any class privilege but submits that they are covered by the common law privilege established through the “Wigmore” analysis described by the Supreme Court of Canada in M. (A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157 (at para. 20):
20 While the circumstances giving rise to a privilege were once thought to be fixed by categories defined in previous centuries – categories that do not include communications between a psychiatrist and her patient [which were the circumstances in which the privilege was claimed in M.(A.) v. Ryan] – it is now accepted that the common law permits privilege in new situations where reason, experience and application of the principles that underlie the traditional privileges so dictate: Slavutych v. Baker, 1975 CanLII 5 (SCC), [1976] 1 S.C.R. 254; R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263, at p. 286. The applicable principles are derived from those set forth in Wigmore on Evidence, vol. 8 (McNaughton rev. 1961). First, the communication must originate in a confidence. Second, the confidence must be essential to the relationship in which the communication arises. Third, the relationship must be one which should be “sedulously fostered” in the public good. Finally, if all these requirements are met, the court must consider whether the interests served by protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation.
Rulings: Issue 1
[11] As indicated above under Questions 115 and 119-121, the plaintiff has provided evidence in her responding affidavit that she was informed of her termination before her January 12, 2017 meeting with Dr. Turchet by two former College staff members. The issues with respect to disclosure of the currently anonymous sources identified in Issue 1 are:
Are the identities of the sources relevant to Ms. Brewer’s allegation that the College exercised bad faith in investigating her whistleblowing allegations?
If so, does the application of the Wigmore criteria allow the plaintiff to maintain confidentiality over the identities of those sources?
[12] It is not disputed that the College’s decision to terminate Ms. Brewer’s employment was made before her meeting of January 12, 2017 with Dr. Turchet; she herself pleads (in paragraph 6 of her reply) that she attended this meeting “after learning of Fefergrad’s intention to terminate her”. Ms. Brewer’s own evidence at Qs. 1456-1458 and Q. 1461 of her examination for discovery is that her communications with Dr. Turchet at this meeting constituted “whistleblowing”, for which she alleges that her employment was terminated in retaliation. However, any whistleblowing on this occasion could not give rise to damages because she was already going to be fired regardless, allegedly for previous instances of whistleblowing, so the identities of the individuals who told her that her employment would be terminated are irrelevant. The plaintiff’s refusal to answer Qs. 113-114 is therefore upheld on the basis of a lack of relevance, and it is not necessary to determine whether the source of the information is protected under Wigmore.
[13] Given my finding that what transpired at Ms. Brewer’s meeting of January 12, 2017 with Dr. Turchet is not relevant to her claims arising from her whistleblowing, the timing of Ms. Brewer’s meeting with her sources (Qs. 122-123), how those sources obtained their information about her termination (Q. 1541), whether Ms. Brewer was concerned that action would be taken against her sources (Qs. 1603-1609), and whether she turned her mind to how the sources obtained the information (Q. 1612), also cannot be relevant. The refusals with respect to these questions are also hereby upheld.
[14] Counsel for the College submitted that the information communicated by the unnamed sources to Ms. Brewer regarding her pending termination was confidential and should not have been disclosed to her or used by her. On June 4, 2019, I granted leave to the defendant College to amend paragraph 48 of its statement of defence to plead that the plaintiff “improperly sought, obtained, or received confidential information for the purposes of advancing her claims in this action and for use in her pleadings . . . and failed to report these breaches of confidence to the appropriate persons within the College.” However, at the time of Ms. Brewer’s examination, there was no pleading that she had sought or misused confidential information, and therefore no relevance to questions regarding the source of any allegedly confidential information. Based on the pleadings in place at the time of Ms. Brewer’s examination, the mere fact that the information that a decision had been made to terminate her employment may have been confidential did not make it relevant to issues in this action.
Rulings: Issue 4
[15] The questions in Issue 4 seek the identity of individuals who provided Ms. Brewer with information regarding the occurrence of an Executive Committee meeting on February 13, 2017, an Executive Committee meeting on February 23, 2017 at which HR Director Joe Donahue made a presentation, and a Professional Liability Program meeting on April 28, 2017. For the reasons set out below, I have concluded that the questions about the February 23, 2017 meeting are relevant and the questions about the other two meetings are not.
[16] My rulings on the questions in Issue 4 between Q. 1976 and Q. 2031 are:
Qs. 1976 and 1981: As it is not disputed that Alan Bromstein attended a PLP meeting on April 28, 2017, and Ms. Brewer does not plead any reliance on his presence at that meeting or on any statements made at that meeting in support of her claims, the source of her information that he was present is irrelevant. Refusal upheld.
Q. 2013: Any possible reason that Ms. Brewer might have for not knowing whether she would advise the College if she had received any confidential information would not assist in proving or disproving any fact at trial. Refusal upheld.
Qs. 2020-2021, 2026, 2027 and 2030-2031: The only pleading relating to the Executive Committee meeting of February 13, 2017, and the anticipated report from the HR director, is in paragraph 8 of the plaintiff’s reply to the College’s statement of defence, and is that at that meeting, the Committee “voted to conduct an “investigation” into René’s allegations, which consisted of receiving a report from RCDSO HR Director Joe Donahue”. The occurrence of the February 13, 2017 meeting, that a vote was taken at the meeting, and that Donahue would subsequently report to the Executive Committee, are not disputed facts, and there is no allegation that the plaintiff relies on any statements made at that meeting in support of her claim of bad faith in the investigation of her termination. The source of this information is therefore irrelevant. Refusal upheld.
Q. 2028-2029: At the time of the examination at which the question was asked, there was no pleading regarding the use of confidential information, so the question about whether Ms. Brewer was aware that certain information was confidential was not relevant. Refusal upheld.
[17] With respect to the balance of the questions in Issue 4 (Qs. 2035-2050), in paragraph 8 of her Reply, Ms. Brewer pleads various misrepresentations by Joe Donahue during his report to the College’s Executive Council on February 23, 2017, including that he “downplayed”, “distorted”, and “exaggerated” certain information. This pleading constitutes particulars of her allegation that the College breached its fiduciary duty to conduct an independent review of her termination. Ms. Brewer’s own pleading therefore makes the presentation by Mr. Donahue of his report relevant. The source of the information regarding the content of that presentation is clearly a person with knowledge of the “occurrence” of that presentation, whose identity is discoverable under rule 31.06(2), unless entitled to protection based on the Wigmore criteria.
[18] The first issue in the application of the Wigmore principles is whether the communication to Ms. Brewer about the presentation and content of Mr. Donahue’s report originated in confidence.
[19] Ms. Brewer’s evidence in her responding affidavit is that the source who informed her that Mr. Donahue made a presentation on February 23, 2017 provided her with the information “in the strictest confidence and based upon my explicit promise that their identity would remain confidential.” Further, the source is a current staff member at the RCDSO and as such, Ms. Brewer believes that that employee would suffer reprisals if identified as the source of her information regarding the Executive Committee meeting.
[20] On cross-examination on her responding affidavit, Ms. Brewer gave this evidence:
Q. 190: And, as we just saw in your affidavit, you said in each circumstance you assured the informant they – that you would not disclose their identity, correct?
A. Yes.
Q. 191: And you gave that assurance before or after they gave you the confidential information in each case? Or was it a different answer for each informant?
A. I don’t recall. I didn’t ask people for this information so I wouldn’t have been able to give assurance before, to the best of my recollection. I wasn’t asking people to give me things that would appear in the litigation or could be useful. People were coming to me with information about what was happening.
Q. 192: And then afterwards you’d make them the – you’d give them the assurance that you would not disclose their name?
A. They would ask me, usually that’s what happened. I can’t recall in each specific instance, but they could would [sic] say that they didn’t want their identity to be revealed and I would say, I won’t.
[21] So, Ms. Brewer’s evidence is that she did not ask her sources for information but rather, that she became aware of the information when people came to her, and, although she could not recall in each specific instance, she would then agree not to reveal their identities.
[22] The College submits that the communications did not originate in confidence because the sources did not first secure assurances of confidentiality. However, there is little benefit to scrutinizing the exchanges between Ms. Brewer and her sources to determine who said what first. For a communication to have originated in confidence, it is sufficient for the communication and the request for confidentiality to have been contemporaneous. Based on Ms. Brewer’s evidence that the communication and the request occurred during the same conversation, I am satisfied that the communication originated in confidence.
[23] The second Wigmore issue is whether the confidence was essential to the relationship in which the communication arose.
[24] The relationship in which the communication regarding Mr. Donahue’s report arose is one of terminated employee (Ms. Brewer) and apparently sympathetic former colleague (“the source”), who Ms. Brewer contends assumed the role of whistleblower in relation to the investigation of her termination. The fact that the source requested anonymity at the time the information was communicated strongly suggests that the source came to Ms. Brewer in confidence, and only did so in the expectation that Ms. Brewer would respect that confidence. I therefore accept that the confidence was essential to the relationship.
[25] The third Wigmore issue is whether the relationship leading to the communication is one which should be “sedulously fostered” in the public good.
[26] On cross-examination on her affidavit filed in response to this motion, Ms. Brewer was questioned about the information she received after her departure (starting at Q. 207), which would include the information that she received about Mr. Donahue’s presentation to the Executive Committee on February 23, 2017. At Q. 212, Ms. Brewer was asked:
Q. 212: And you received the information, I take it, understanding that your informants were breaching their confidentiality duties in giving it to you?
A. Yes.
[27] At Qs. 226-227, Ms. Brewer was asked:
Q. 226: You did not tell any of your informants that you planned to plead, or use, or refer to the information that they were giving you in litigation?
A. No.
Q. 227: And you certainly did not tell the College you were offering these promises of confidentiality to informants?
A. No.
[28] Ms. Brewer has acknowledged that the source of her information about Mr. Donahue’s presentation was breaching a duty of confidentiality, and that she did not tell the source that she planned to use the information in her litigation. Given the plaintiff’s admission that the disclosure of the information in question constituted a breach by her source of a duty of confidentiality, I cannot conclude that their relationship is one that should be “sedulously” (i.e. diligently, assiduously, conscientiously) fostered.
[29] A further issue raised under this part of the test is whether a confidential relationship of the type under consideration should be fostered in the public good. Examples of relationships of confidence that the Supreme Court of Canada, in applying the Wigmore criteria, has held should be “sedulously fostered”, are those between a victim of sexual abuse and her psychiatrist ((M.) A. v. Ryan, supra, at para. 27) and between a journalist and a confidential source (R. v. National Post, 2010 SCC 16 at para. 57). These are relationships which each serve a greater societal purpose, being the treatment of psychological trauma (Ryan) and effective investigative journalism (National Post). A source of information who breaches their own duty of confidentiality to assist in a private dispute is not contributing to the public good and does not warrant similar protection.
[30] Although I have concluded that the communications under consideration do not meet the third of the Wigmore criteria, I will also consider the fourth branch of the test, being whether, if the first three criteria are met, the interests served by protecting the communications from disclosure outweigh the public interest in having all material facts before the court to ensure a fair outcome in the litigation.
[31] I do note that it would be highly unlikely that a communication that did not occur in a relationship that should be “sedulously fostered in the public good” could still warrant protection at the expense of the public interest in a thorough evaluation of a complete evidentiary record at trial.
[32] The interest advanced by Ms. Brewer in protecting her source’s communications is purely personal to her and the source. Weighed against this personal interest is the interest of the administration of justice in enabling the College to test the evidence provided to Ms. Brewer by her source, that she has pleaded and relied upon in support of her claim of bad faith in the College’s investigation of her termination. The ability to test an opposing party’s evidence is an essential component of trial fairness, and must take priority over the personal interest that the plaintiff advances.
[33] The fact that ordering Ms. Brewer to disclose the name of the source of her information would cause her to breach a confidence is not a sufficient reason for the court to decline to do so. The plaintiff should not be able to use information obtained from a source in support of her action but then be permitted to conceal the source from the party from which she claims damages. In this regard, I rely on the words of Master Dash, who addressed the same concern when applying the Wigmore criteria in Cadillac Fairview Corp. v. Standard Parking of Canada Ltd., [2004] O.J. No. 37 (at para. 44):
44 . . . In my view, that [i.e. the plaintiff’s potential breach of confidence] should not be a consideration on this motion. If the plaintiff becomes liable to the informants for breaching a confidence as a result of this order, the plaintiff must take responsibility therefor. The plaintiff promised to keep a confidence that it should have known could not be guaranteed once it used the information provided in confidence to launch an action for damages. The defendant should not have its rights of disclosure circumscribed by a promise made without its knowledge or consent.
[34] Ms. Brewer has not met the third or fourth Wigmore criteria that would enable her to keep the source of her information regarding Mr. Donahue’s report of February 23, 2017 confidential. She shall answer Qs. 2035-2050, being items 24-29 in the chart.
[35] Costs: At the conclusion of the hearing, both parties provided me with their costs outlines. If they cannot agree to costs, they may make written submissions, not to exceed three pages each, the defendants within 20 days and the plaintiff within 20 days thereafter. For their assistance, my review of my rulings in these Reasons and in my endorsement of June 4, 2019 indicates similar degrees of success, so an order of no costs or of costs in the cause may well be appropriate.
MASTER GRAHAM
September 3, 2019