COURT FILE NOS.: CV-17-582560; CV-18-598782
MOTION HEARD: 20191128
REASONS RELEASED: 20191204
SUPERIOR COURT OF JUSTICE – ONTARIO
In the Matter of the Construction Act, R.S.O. 1990, c. C.30, as amended
BETWEEN:
WALSH CONSTRUCTION COMPANY CANADA
Plaintiff
- and-
TORONTO TRANSIT COMMISSION, YORK UNIVERSITY, UNITED PARCEL SERVICE CANADA LTD., THE REGIONAL MUNICIPALITY OF YORK, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF INFRASTRUCTURE, and CITY OF TORONTO
Defendants
BEFORE: MASTER M.P. McGRAW
COUNSEL: B. Halfin, G. Smith and M. Mandel
Email: bhalfin@goodmans.ca
-for Walsh Construction Company Canada (“WCC”)
M. Aboud and S. Whitmore
Email: maboud@osler.com
-for Toronto Transit Commission (“TTC”)
REASONS RELEASED: December 4, 2019
Reasons For Endorsement
I. Introduction
[1] This is a motion by TTC for leave to file additional evidence (the “Evidence Motion”) on WCC’s motion returnable before me on December 10, 2019 in which WCC seeks to compel TTC to produce approximately 1,600 documents over which TTC claims litigation privilege (the “Privilege Motion”). TTC also requests a preliminary ruling with respect to waiver of privilege related to a sealed document over which TTC claims solicitor-client privilege which it seeks to file as evidence on the Privilege Motion (the “Sealed Document”).
[2] The detailed background to these proceedings is set out in my Reasons For Endorsement dated February 22, 2019 (Walsh Construction Company Canada v. Toronto Transit Commission, 2019 ONSC 1630)(the “Refusals Reasons”) and my Reasons For Endorsement dated September 24, 2019 (Walsh Construction Company Canada v. Toronto Transit Commission, 2019 ONSC 5537 (the “Bechtel Reasons”).
II. Background
[3] WCC was the general contractor for the construction of the Steeles West (Pioneer Village) Subway Station in Toronto (“SW”). SW is part of the Toronto York Spadina Subway Extension, a $3.184 billion project comprised of 6 above ground stations and an 8.6 km tunnel.
[4] Pursuant to its Contract with TTC dated September 22, 2011 (the “Contract”), WCC agreed to complete SW for a contract price of $165,925,000 with a substantial performance date of November 4, 2014. However, SW did not achieve substantial performance until June 15, 2017. WCC claims $218,751,335 from TTC for amounts owing, breach of contract, negligence and failure to act in good faith. TTC alleges that WCC and its subcontractors are responsible for delays and deficiencies and counterclaims for $22,381,666.34.
[5] The Contract provides for a process by which WCC could advance claims against TTC (“Contract Claims”). On August 14, 2014, WCC submitted the “Claim for Adjustment of Contract Price and Extension of Time” (the “Red Book”) for all Contract Claims related to SW up to and including December 31, 2013 in which it sought an increase in the Contract Price of $136,959,126.34 and an extension of 694 days. WCC later delivered an updated claim.
[6] The Privilege Motion arises from the Refusals Reasons which relate to numerous motions involving approximately 680 refusals as between WCC, TTC and other subcontractors which proceeded before me on January 28, 29 and 30, 2019. WCC and TTC sought answers to approximately 200 refusals each including 10 refusals with respect to TTC’s claims of litigation privilege over documents related to its review of the Red Book (the “Review Documents”). Given the significant number of refusals, disputed issues and documents, significant case management has been provided throughout these proceedings with a view to resolving and/or narrowing as many issues as possible without the need for opposed motions, or, at least, shorter opposed motions.
[7] As set out in the Refusals Reasons, I was unable to determine when litigation was reasonably contemplated and whether the Review Documents were created for the dominant purpose of litigation. TTC had not identified or reviewed any of the Review Documents and different conclusions likely apply to different documents depending on the nature and timing of litigation commenced by WCC and its subcontractors and the timing of TTC’s review. Therefore, I ordered TTC to, within 60 days, review all documents which are relevant to its privilege claims and produce a Supplementary Affidavit of Documents with fully particularized Schedules. This was delivered on June 12, 2019 and listed approximately 2,700 documents on Schedule “B” over which TTC claimed privilege.
[8] The parties were unable to resolve all of the disputed Review Documents and, as set out in my Telephone Case Conference Endorsement dated July 30, 2019 (the “July 30 Endorsement”), the Privilege Motion was scheduled for October 30, 2019 and the parties agreed to a timetable (the “Timetable”). As set out at paragraph 2 of the July 30 Endorsement: “WCC will be moving for production of a large number of these documents in various groups and 10-12 additional groups of refusals arising from the most recent round of examinations for discovery.”
[9] In the interim, on May 3 and June 24, 2019, another motion arising from the Refusals Reasons proceeded before me. On that motion, WCC sought production of an unredacted copy of the Spadina Subway Extension Project Assessment Report dated February 5, 2015 prepared by Bechtel Canada Co. (the “Bechtel Report”) over which TTC also claimed litigation privilege. In the Bechtel Reasons, released on September 24, 2019, I ordered TTC to produce an unredacted copy of the Bechtel Report.
[10] Pursuant to the Timetable, on September 20, 2019, TTC delivered its Responding Motion Record on the Privilege Motion which included the Affidavit of Tony Baik sworn September 21, 2019 (the “Baik Affidavit”). Another telephone case conference was held on October 7, 2019. Paragraphs 2-3 of my Telephone Case Conference Endorsement dated October 8, 2019 (the “October 8 Endorsement”) state:
“[2] There are approximately 1,600 documents (as listed by TTC on its Schedule “B”) plus other refusals. TTC has divided the documents into approximately 10-15 categories comprised of approximately 30-100 documents. TTC submits that its privilege claims can be considered in these groups. Prior to the motion, WCC will, to the extent possible, review these groups with a view to determining if there are documents which may need to be considered separately and/or individually. TTC is not required to bring copies of the actual documents to the first attendance on October 30.
[3] TTC intends to file an additional affidavit for the motion this week to provide direct evidence with respect to its privilege claims. If WCC intends to cross-examine the affiant, the parties will endeavor to complete this at the same time as other cross-examinations on October 11 or, on another date during the week of October 14.”
[11] As described in the October 8 Endorsement, TTC’s counsel also advised of the Sealed Document for the first time. Counsel explained that the Sealed Document is subject to solicitor-client privilege and TTC wishes to file it as evidence on the Privilege Motion to establish litigation privilege over some of the Review Documents. Counsel further advised that TTC was prepared to waive privilege over the Sealed Document on the condition that the waiver be restricted to this document. I ordered that this be spoken to upon the return of the Privilege Motion. I further directed that the parties continue to comply with the Timetable, subject to any amendments on consent.
[12] On October 9, 2019, as provided for in the October 8 Endorsement, TTC delivered its additional affidavit, the Affidavit of John Pipilas sworn October 9, 2019 (the “Pipilas Affidavit”). WCC cross-examined Mr. Baik and Mr. Piplas on October 16 and 17, 2019, respectively. TTC and WCC delivered their Factums and Books of Authorities on October 21, 2019 and 24, 2019, respectively. TTC then delivered a Reply Factum on October 28, 2019.
[13] As set out in my Interim Endorsement dated October 31, 2019 (the “Interim Endorsement”), upon the return of the Privilege Motion on October 30, 2019, significant case management was provided particularly with respect to the 23 document categories identified by TTC. Paragraph 3 of the Interim Endorsement states:
“[3] As provided in the Endorsements, TTC has allocated the documents into 23 categories based on subject matter and provided brief, general descriptions of each category. Given the significant number of documents, the issues raised by the parties and the category descriptions, I was of the view that further efforts were required to resolve and/or narrow as many documents and issues as possible. Accordingly, consistent with Rule 1.04(1) and proportionality, today’s attendance proceeded largely as a case management conference. The primary exercise during case management was to review the 23 categories and other classifications of the documents to determine what documents had been or could be resolved and further efforts required by the parties.”
[14] During the October 30 attendance, TTC’s counsel advised that it might seek to file additional evidence on the Privilege Motion:
“[5] As provided in the Endorsements, TTC filed a supplementary affidavit on this motion to provide additional direct evidence with respect to its privilege claims. Counsel for TTC advises that it may seek to file additional evidence on this motion. Counsel submits that this new request is a result of the timing of the release of my Reasons For Endorsement dated September 24, 2019 regarding its privilege claims over the Spadina Subway Extension Project Assessment Report dated February 5, 2015 prepared by Bechtel Canada Co. and WCC’s position, set out in its Factum served on October 25, 2019, that specific evidence is required with respect to each document over which privilege is claimed. WCC strenuously opposes the filing of any additional evidence submitting that TTC already received an indulgence when it filed its most recent supplementary affidavit.
[6] In my view, a separate motion with full submissions will be required with respect to TTC’s request to file additional evidence if the parties cannot resolve the issue. Both the filing of additional evidence and a motion to do so will add to the delay in hearing the current motion.” (Interim Endorsement at paras. 5-6)
[15] Pursuant to the Interim Endorsement, the parties were directed to take significant steps to review and discuss the document categories and the Privilege Motion was adjourned to December 10, 2019. Further, TTC was ordered to advise WCC by November 6, 2019 if it was bringing the Evidence Motion and a telephone case conference was scheduled for November 7, 2019 to speak to scheduling and timetabling (Interim Endorsement at paras. 2 and 7). With respect to the Sealed Document, TTC served and filed a Factum and Book of Authorities but at my direction the Sealed Document was not filed and the parties were directed to discuss its use and provide an update at the November 7 case conference (Interim Endorsement at para. 8).
[16] TTC confirmed at the November 7 case conference that it was proceeding with the Evidence Motion. Counsel also discussed potential terms governing waiver of privilege with respect to documents produced during case management which may have resolved the issues related to the Sealed Document (Telephone Case Conference Endorsement dated November 8, 2019 at paras. 2 and 5).
[17] On the Evidence Motion, TTC relies on the Affidavit of James Smith, a first-year associate at its counsel’s Firm, sworn November 11, 2019, Mr. Smith was cross-examined on November 21, 2019.
III. The Law and Analysis
[18] The issues on this motion are whether TTC should be granted leave to file additional evidence on the Privilege Motion and if this Court should make a preliminary ruling with respect to waiver of privilege related to the Sealed Document.
[19] TTC submits that the primary reason it requires additional evidence on the Privilege Motion is to respond to WCC’s position first raised in its Factum on the Privilege Motion that TTC requires specific evidence with respect to each document to satisfy its evidentiary burden in asserting privilege over the Review Documents. A secondary reason is that, given the timing of the release of the Bechtel Reasons, TTC did not have sufficient time to address concerns regarding the lack of direct evidence raised in the Bechtel Reasons.
[20] It is not entirely clear what additional evidence TTC seeks to file. On cross-examination and by answer to a refusal, TTC states that it anticipates filing additional evidence from “at least” Miguel Amaya, a former TTC employee who acted as claim manager for the Red Book, based on a review of each of of the Review Documents and including descriptions of his role, the claims team, the manner in which the Red Book was reviewed and the nature and dominant purpose of each Review Document (the “Additional Evidence”).
[21] Rule 39.02(2) provides that the court shall grant leave to a party who has cross-examined on an adverse party’s affidavit to file an affidavit where it is satisfied that the party ought to be permitted to respond to any matter raised on cross-examination. As TTC’s request arises from WCC’s position in its Factum, not cross-examination, Rule 39.02(2) does not apply. This is not in dispute.
[22] TTC relies on 2287913 Ontario Inc. v. ERSP International Enterprises Ltd., 2014 ONSC 7328. In that case, Master Hawkins (as he then was) allowed an additional affidavit on a motion one year after argument began. He relied on Rule 2.03 which provides the court with the discretion to dispense with compliance with any Rule, including the deadlines for the filing of motion materials under Rule 39.01(3) and Rules 2.01(1) and 1.05 which permit the court to grant orders and give directions on such terms as are just and grant other relief on terms (ERSP at paras. 9-13). Master Hawkins held that the court was more likely to determine the motion on the basis of the real matters in dispute and the true facts if the additional affidavit was permitted (ERSP at para. 13).
[23] TTC also cites Rule 1.04(1) such that the Additional Evidence will permit this Court to make the just, most expeditious determination of the issues on the Privilege Motion and is in the interests of justice. TTC further argues that where there is a concern as to the sufficiency of evidence in support of privilege claims, the court should accept additional evidence, including a further and better affidavit of documents, or inspect the documents (Davies v. American Home Assurance Co., 2002 62442 (ON SCDC), [2002] O.J. No. 2696 (Div. Ct.) at para. 35; Ansell Canada Inc. v. Ions World Cup, [1998] O.J. No. 5034 at para. 20).
[24] WCC submits that, among other things, TTC has mischaracterized WCC’s positions on the Privilege Motion; the Bechtel Reasons did not create any new law or principles; TTC was ready to proceed on October 30 and now seeks to use the adjournment of the Privilege Motion for a “do over” of its evidence; and to permit the Additional Evidence would offend the law against case splitting. The concept of case splitting was summarized by Perell J. in Johnson v. North American Palladium Ltd., 2018 ONSC 4496:
12 Although there is no specific rule of civil procedure that applies, with some modifications, the law against case-splitting regulates the delivery of the reply affidavit and the rule against case-splitting also regulates the argument at the hearing of the motion or the application. Where the parties or the court set a timetable for the exchange of affidavits for a motion or application, the reply evidence should generally be limited to proper reply; i.e., with evidence that complies with the rule against case splitting.
13 The rule against case-splitting that applies at hearings and trials restricts reply evidence and reply submissions to matters raised by the defendant or responding party and does not permit the plaintiff or applicant to deliver new evidence. The rationale is that the defendant or respondent is entitled to know and to respond to the case being made against him or her, and, therefore, the plaintiff or applicant should not split his or her case and take the opponent by surprise and without an opportunity to respond. It is intrinsically unfair for a plaintiff, applicant, or moving party to add new evidence or new argument after the defendant, respondent, or responding party has completed his or her evidence and argument. Reply evidence is admissible only when defendant, respondent, or responding party has raised a new matter that could not be reasonably anticipated by the plaintiff, applicant, or moving party or where the reply evidence is in response to an issue enlarged by the opponent in a manner that could not have been reasonably foreseen.
14 The standard for permissible reply evidence, however, is less strict for motion and application procedure than the standard applied at trial. When the reply evidence for a motion or application is introduced before the cross-examination and the hearing on the merits, a less rigorous standard applies. Once cross-examinations begin, the admission of reply evidence is governed by rule 39.02 (2) of the Rules of Civil Procedure, discussed below, and the standard for admitting reply evidence is higher, but still not as strict as the standard at trial.
15 On motions and applications, in appropriate circumstances, the court has a discretion to admit the improper reply evidence and to allow the opponent to respond with a sur-reply affidavit. Ultimately, it is a balancing exercise, with the goal of ensuring that each party has a fair opportunity to present its case and to respond to the case put forward by the other party.” (North American Palladium at paras. 12-15)
[25] For the reasons set out below, I conclude that TTC should be denied leave to file the Additional Evidence. In arriving at this conclusion, I have balanced the competing interests on the Privilege Motion including the importance of protecting privilege, the necessity and utility of case management and both parties’ rights to fairness in the conduct of a motion.
[26] There is no Rule which provides for the specific relief that TTC is seeking given that it arises from WCC’s Factum and not cross-examination. In order to grant leave, I would need to waive compliance with numerous Rules as in ERSP. In my view, it would be inappropriate to do so and is unnecessary in these circumstances.
[27] Even before considering the law, WCC’s confirmation of its positions on the Privilege Motion appears to be a complete answer to TTC’s reasons for bringing the Evidence Motion. Although it appears to have been WCC’s consistent position, WCC has confirmed that it does not take the position on the Privilege Motion that TTC must file affidavit evidence in support its privilege claim over each of the Review Documents on a document by document basis. WCC also does not and has not opposed the use of the 23 categories as an evidentiary basis for the Review Documents. WCC’s position is that TTC’s evidentiary burden is same whether it employs a document by document or categories approach and even using the categories approach, TTC has not satisfied its burden.
[28] When presented with this clarification, TTC advised that it is also concerned that WCC is taking the position that TTC must lead evidence from an affiant on the Privilege Motion who has reviewed all of the Review Documents. However, WCC confirmed that its position is simply that someone who has sworn an affidavit on the Privilege Motion or TTC’s Supplementary Affidavit of Documents should have reviewed all of the Review Documents at issue. TTC confirms that this is the case. Accordingly, WCC’s clarifications would seem to address TTC’s concerns such that the Additional Evidence is unnecessary.
[29] However, there is a broader, more substantive point. Whether TTC can satisfy its evidentiary burden is ultimately an issue to be decided on the Privilege Motion, not in advance and not on the Evidence Motion. The use of document categories was unopposed by WCC and in my view is a reasonable and efficient approach. This is consistent with the case law, including L’Abbe v. Allen-Vanguard Corp., 2011 ONSC 7575, cited by TTC, where Master MacLeod (as he then was) held that, even where significant amounts are at issue, a document by document review may be disproportionate where there are a large number of documents, such as here where they number in the thousands and the court should consider alternative, creative options (L’Abbe at para. 21). However, regardless of how TTC’s evidence is filed, its evidentiary burden remains the same. Notwithstanding the agreements between the parties, case management and previous directions in this case like the Bechtel Reasons, TTC must ultimately make its submissions based upon the law and the record without the guidance of this Court and the comfort it seems to be seeking. While case management is an essential and indispensable tool in large, document and issue heavy proceedings such as these, where there are disputed issues, the parties are still to required make arguments based on the applicable law and the evidentiary record compiled through the case management process. To do otherwise would be to compromise the fairness to which all parties are entitled.
[30] I also conclude that permitting the Additional Evidence would be an improper and unfair use of the adjournment of the Privilege Motion. As set out above, the October 30 attendance proceeded as a case conference and the Privilege Motion was adjourned at my direction. Mr. Smith confirmed on his cross-examination that TTC was ready, willing and able to proceed on October 30 based on the existing record (Questions 2-3). TTC then, for the first time, raised the prospect of filing a second additional affidavit. TTC agreed to the Timetable and has had sufficient opportunities to put all evidence before the court on the Privilege Motion going back to the July 29 case conference. This includes the indulgence it received on the October 7 telephone case conference to file the Pipilas Affidavit which includes evidence on advice from Mr. Amaya. If TTC believed that additional reply evidence directly from Mr. Amaya by way of his own affidavit was required, it could have requested it during the October 7 case conference. There is also no evidence to support TTC’s assertion that it filed the Pipilas Affidavit simply to preserve the October 30 return date.
[31] More significantly, TTC has already responded to the very issues raised in WCC’s Factum which it cites as reasons for the Additional Evidence. On October 28, 2019, TTC delivered a Reply Factum in which TTC submits that it has met its evidentiary burden and that it is has no obligation to tender “the best evidence” as to the dominant purpose of the Review Documents. Further, on cross-examination, Mr. Smith confirmed TTC’s position that the Baik Affidavit and the Pipilas Affidavit are sufficient to satisfy TTC’s evidentiary burden on the Privilege Motion and are not deficient (Questions 5 and 7).
[32] In this regard, I adopt the reasoning in Hartmann v. 2504886 Ontario Inc., 2017 ONSC 2483, where Master Jolley denied the plaintiff’s request to file an additional affidavit holding that it was not in the interests of justice to allow the plaintiff to revisit the strength of her case due to an adjournment resulting from a court scheduling error where the plaintiff was ready to proceed on the existing record (Hartmann at paras 24-25). Quinn J. reached a similar conclusion in rejecting an additional affidavit during a court-directed adjournment in Ensign Group Inc. v. Saine Estate, [2007] O.J. No. 1586. As TTC has already delivered the Pipilas Affidavit and its Reply Factum and is seeking to deliver a second additional affidavit, the inherent unfairness in the present case is even greater.
[33] In my view, unlike ERSP, the Additional Evidence is also unnecessary to determine the matters at issue and the true facts on the Privilege Motion. In ERSP, the plaintiff sought leave to file an additional affidavit from its accountant where its deponent could not answer questions about the plaintiff’s unaudited financial statements. Further, only part of the new affidavit was opposed. By contrast, the Additional Evidence does not arise from an identified gap in the evidence but rather TTC’s desire to file more evidence after already filing the Pipilas Affidavit and the Reply Factum. Further, to the extent to which I conclude that more information regarding the Review Documents is required, Rule 30.06(d) and the numerous cases cited in the Bechtel Reasons (and Davies above), permit me to inspect the Review Documents in making privilege determinations as I did in ruling on the Bechtel Report.
[34] I also conclude that to permit the Additional Evidence would be contrary to the law against case splitting. While case splitting is largely considered in the context of Rule 39.02(2), the principle is applicable to the present case. Although the test is less rigorous on a motion, it cannot be said that the Additional Evidence is in reply to issues which could not be reasonably anticipated or foreseen where, as here, TTC agreed to the Timetable and has already filed both the Pipilas Affidavit and a Reply Factum. To permit the Additional Evidence at this juncture, after cross-examination, would result in the kind of intrinsic unfairness rejected in North American Palladium (North American Palladium at para. 17). This is especially true where the Additional Evidence would not be for the purpose of proper reply, but for correcting perceived deficiencies in the record, which is not permitted (North American Palladium at para. 17; Hartmann at para. 12). There is also the risk that any case splitting may cause actual prejudice to WCC (Sure Track Courier Ltd. v. Kaisersingh, 2011 ONSC 7388 at para. 35; Skrobacky (Attorneys for) v. Frymer, 2011 ONSC 3295 at para. 18).
[35] I also reject TTC’s submission that to allow the Additional Evidence would secure the just, most expeditious and least expensive determination of the issues on the Privilege Motion or that it is in the interests of justice. To the contrary, to permit the Additional Evidence would lead to more cross-examinations, more responding materials and ultimately more time and cost to the parties. TTC has already delivered the Pipilas Affidavit and the Reply Factum, was ready to proceed on October 30, its concerns with respect to WCC’s positions appear to have been addressed and TTC considers its evidence sufficient. Therefore, it would not be just, efficient or proportionate to permit the Additional Evidence simply to provide TTC with the additional comfort that it seeks. Further, this would be contrary to the principle that the courts should avoid an endless exchange of affidavits and cross-examinations such that there must be closure to the evidence gathering process (Sure Track at para. 51; Brock Home Improvement Products Inc. v. Corcoran, 2002 49425 (ON SC), [2002] O.J. No. 931; Hartmann at para. 12).
[36] Having considered all of the relevant factors and circumstances, I conclude that TTC should be denied leave to file the Additional Evidence.
[37] Turning to the Sealed Document, TTC requests a preliminary ruling that if it waives solicitor-client privilege over the Sealed Document for use on the Privilege Motion, it will not result in deemed waiver of privilege over other documents. TTC relies on Elgner v. Freedman, 2014 ONSC 1989 and Transamerica Life Assurance Co. of Canada, 1995 7258 (ON SC), [1995] O.J. No. 3886. WCC opposes the ruling sought largely on the basis that the Sealed Document is not in evidence before this Court and has not been made available to WCC. Therefore, unlike in Elgner and Transamerica, WCC is unable to make proper submissions. WCC further submits that a broader waiver of privilege should apply, and in any event, the Sealed Document is inadmissible because it cannot be used as a “sword” to “shield” all other documents related to it (Cromb v. Bouwmeetster, 2014 ONSC 5318 at para. 51; Tomasone v. Capo, Sgro, Dilena, Hemsworth, Mendicino LLP, 2014 ONSC 2922 at para. 67).
[38] TTC advised during the motion that it is prepared to permit WCC’s counsel to inspect the Sealed Document on a without prejudice basis. It is not clear to me whether TTC has previously made this offer. However, WCC wishes to proceed with argument on admissibility and waiver notwithstanding TTC’s offer to inspect the Sealed Document. WCC submits that TTC has had sufficient opportunities to address this issue and that a determination should be made on both waiver and admissibility.
[39] In my view, TTC’s proposal is a reasonable next step which at the very least addresses WCC’s concerns about access to the Sealed Document and may resolve this issue in its entirety. TTC has also advised that it may waive privilege over the Sealed Document. Accordingly, counsel shall revisit their discussions regarding the larger issue of waiver in these proceedings which, as set out in the November 8 Endorsement, may also resolve the dispute over the Sealed Document.
[40] Accordingly, I conclude that it is consistent with Rule 1.04(1) and proportionate for WCC to inspect the Sealed Document on a without prejudice basis and for the parties to have further discussions. If the inspection and any resulting discussions between the parties do not resolve the disputed issues, the parties can make full submissions upon the return of the Privilege Motion.
IV. Disposition and Costs
[41] Order to go dismissing TTC’s motion for leave to file the Additional Evidence. TTC’s request with respect to the Sealed Document is adjourned to be spoken to on the return of the Privilege Motion, if necessary.
[42] Any remaining or additional issues may also be spoken to on the return of the Privilege Motion or counsel may schedule a telephone case conference in advance.
[43] If the parties cannot agree on the costs of the Evidence Motion, they may be spoken to at a future attendance before me.
Reasons Released: December 4, 2019
Master M.P. McGraw