COURT FILE NO.: CV-15-535812 MOTIONS HEARD: 2018-09-20 REASONS RELEASED: 2019-12-13

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

BIG THUNDER WINDPARK INC., BIG THUNDER WINDPARK LP, HORIZON WIND INC. Plaintiffs

• and -

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO As represented by the MINISTER OF THE ENVIROMENT Defendants

BEFORE: MASTER D. E. SHORT

COUNSEL: Peter R. Jervis and Adam Rochwerg, counsel for the Plaintiffs Sara Blake and Vanessa Glasser, counsel for the Defendants

REASONS RELEASED: December 13, 2019

Reasons for Judgment

I. Background

[1] In recent days, the Canadian public has taken a more focused interest in the interaction between politicians seeking future re-election and the legal restrictions and obligations of governmental officials and cabinet members.

[2] In this particular case, the plaintiff was a promoter of a wind farm project in the Thunder Bay area of Ontario.

[3] The planning of the subject project apparently continued for some 10 years in reliance on "green energy" initiatives of the, then in power, Liberal government.

[4] In particular, a series of steps came along the way which needed to be approved and there were specific steps that had to be taken by a certain date or the time and money invested to that point would be lost.

[5] As a provincial election approached in 2014, the project was the subject of great local interest and, for whatever reason, the expected approval for construction, was not granted before the applicable "drop dead" date.

[6] The plaintiff seeks damages for the losses suffered as a result of the government in power's handling of this project and its termination. The present motion seeks further production of what are asserted to be additional relevant documents.

II. Overview of Plaintiffs' Motion

[7] The Plaintiffs seek to compel answers to questions and the production of documents, alleged to have been improperly refused allowed that examinations improperly refused at the discovery of the Defendant's representative, which took place some months prior to the 2018 Ontario general election. In that election, which was held on June 7, 2018 the incumbent Liberal government only garnered 7 of the 124 seats in the province's 42nd Parliament.

[8] As elections are four years apart, when the previous 2014 election, won by the Liberals was looming, when the key events in issue in this case were taking place.

[9] In particular, I observe that the refused questions and associated documents relate to the Defendant's decisions in March through July of 2014, (which the plaintiffs allege was made for improper reasons and in bad faith), to refuse approval of the Plaintiffs' application for a Renewable Energy Approval ("REA") for the Big Thunder Windpark (the "Project").

[10] The plaintiffs plead that by March of 2014, the Plaintiffs had been advised by the Ontario Ministry of the Environment ("MOE") that the REA had been fulfilled and all necessary and other requirements to be granted the REA were completed. The plaintiffs' factum asserts:

"Based on a 2007 co-operation agreement signed with a local Aboriginal community, Fort William First Nation ("FWFN"), as well as a Feed-in Tariff contract ("FIT contract") that the Plaintiffs obtained from the Ontario Power Authority ("OPA"), the Plaintiffs heavily invested time and approximately $10 million to develop the Project from 2009 until 2014. The Defendant was aware that the FIT contract required that an REA be issued by the MOE by a specific milestone date in July 2014, or it would be cancelled. A FIT contract allowed the Plaintiff to sell electricity generated by the Project into the Ontario electrical grid at a lucrative price." (my emphasis)

[11] It appears that for a REA application to be approved, an applicant must satisfy a number of substantive technical requirements, including consultation with local Aboriginal communities and wildlife studies.

[12] Specifically, it is asserted by plaintiffs' counsel that:

"5. After substantial development and significant expenditures by the Plaintiffs, the Defendant indicated on April 23, 2013 that the Plaintiffs had satisfied all technical and substantive requirements for REA approval.

6. In the first week of March 2014, senior ministry officials confirmed to the Plaintiffs that the REA was prepared, complete with all conditions, and ready to be signed. The Defendant assured the Plaintiffs that necessary consultation with FWFN was properly completed, and that FWFN had no ability to veto the Project or its REA approval. This is confirmed by documents produced by the parties and examined on discovery.

7. By early March, the Defendant had also prepared a number of documents including a press release, which were intended to accompany a public announcement that the Plaintiffs' REA application had been approved. [my emphasis throughout]

[13] What seems clear however is that despite these assurances, the government abruptly cancelled the issuance of the REA around the time of the June 2014 general election.

III. The Campaign Activity

[14] The pith and substance of the Plaintiffs' action is summarized in these extracts from their factum, with my emphasis added:

8. "...The Defendant knew that delaying the Plaintiffs' REA application past the July 2014 milestone date on which the Plaintiffs' FIT contract would be cancelled would kill the Project. During the election campaign of May and June 2014, public statements from Bill Mauro ("Mauro"), who was the local Liberal MPP and a member of cabinet, and a letter from Jim Bradley ("Bradley"), who was the Ontario Minister of the Environment, indicate that at this time there was political interference from the Ontario government, including Premier Wynne, to delay issuance of the REA.

9. In bad faith, and in order to satisfy the short-term political objectives of the Liberal government to support Mauro in a contentious riding in the upcoming election, the government interfered and delayed issuance of the REA to the point where the FIT contract expired in July 2014. In public communications in May and June 2014, both Mauro and Bradley stated that, in consultation with the premier, the Project would eventually be blocked by a Liberal government.

[15] The plaintiffs allege that the REA was delayed on the pretence that the Plaintiffs' consultation with FWFN was not complete, and that the Project needed more technical and wildlife studies. "They knew that the local FWFN had gone back on its agreement with the Plaintiffs and were opposed to the project."

IV. Historical Background and Questions on Discovery

[16] This action was commenced on September 4, 2015, alleging negligent misrepresentation and misfeasance of public duty in response to the Defendant's notice to the Plaintiffs that the REA was about to be issued, and the then, sudden, delay and ultimate refusal to issue an REA approval for the Project.

[17] Previously in 2009, the Plaintiffs incorporated Big Thunder Windpark Inc. with the goal of constructing a renewable energy wind farm on the NorWester Mountain Range in Thunder Bay, Ontario. The Plaintiffs spent from 2009 to 2014 investing approximately $10 million, and a great deal of time and effort on the Project.

[18] The location of the Project is adjacent to the FWFN Aboriginal reserve. Apparently, FWFN had originally conceived of the Project and in 2007, entered into a mutual co-operation and support agreement with Horizon, which committed both parties to support and co-operate in the development and economic benefit of the Project.

[19] In order to proceed with the Project, Horizon needed an REA from the MOE. To satisfy all technical requirements, a REA applicant must meet certain standards, including consultation with identified Aboriginal communities, several technical reviews, and environmental impact assessments. I note, as well, that the Plaintiffs also allegedly obtained a very valuable 20-year FIT contract to sell the wind power to the Ontario Power Authourity at a very favourable rate.

[20] The plaintiffs assert that:

"Despite FWFN's original support of the Project and signed co-operation agreements, by 2011 FWFN had ceased to cooperate with Horizon. FWFN began to thwart Horizon's consultation, refused to meet or participate in further discussions with Horizon, and vocally opposed the Project.

After it became apparent that FWFN was deliberately attempting to frustrate and block the Project, Horizon spoke with Doris Dumais, a senior representative of the MOE, and was assured that FWFN had no veto over the MOE's approval of the Project and issuance of an REA.

In late 2013, the MOE informed Horizon that a decision was imminent, and the evidence suggests that the MOE was prepared to issue the REA to Horizon."

[21] The disputed discovery questions fall in seven board categories. The nature of the specific areas of dispute contained in those questions is set out in Section XVII of these reasons.

V. Fort William First Nation Proceeding

[22] The Plaintiffs further assert:

On March 3, 2014, FWFN commenced proceedings against the MOE regarding the Crown's duty to consult regarding the Project. FWFN alleged that Horizon had not fully satisfied its constitutional obligation to consult with FWFN, and therefore the MOE should not have indicated that the Plaintiffs completed all requirements for the REA. Despite this, there had been several years of consultation and the Defendant had advised the Plaintiffs that all necessary consultation obligations had been fulfilled.

[23] Apparently at that point in time, a representative of the MOE, indicated on a March 5, 2014 call with Horizon that the REA was on his desk to be signed, and would be issued within days. The plaintiffs assert:

"The MOE, at this point, had prepared a "Roll Out Notification" for the Project, and a "Status Report" for the Project that listed ongoing obligations to maintain an REA, once issued. It is clear from the record that the MOE had been preparing documentation that would accompany the Project's REA approval.

... However, the issuance of the REA, which included a condition of further consultation with FWFN, was delayed. The strong inference from the available evidence is that at this point there was political interference from the premier's office, Mauro, and Bradley."

[24] As the June 7 election approached, in a June 2, 2014 public statement, Mr. Mauro is quoted as saying that he spoke to Premier Wynne about the Project, and they agreed that no decision would be made on the project until FWFN' s concerns were resolved. In a June 4, 2014 letter from Bradley to Mauro, Bradley indicated that there are a number of outstanding issues regarding the REA application, and that no decision should be made until FWFN's issues are resolved through further consultation.

VI. Consequences:

[25] The plaintiff's materials assert:

"25. These statements were made despite earlier assurances from the MOE to the Plaintiffs that the REA was complete and ready to be issued.

26. Horizon received official notice from the OPA on July 18, 2014 that as a result of the lack of an REA, its FIT contract had been cancelled.

[26] On November 21, 2017 lawyers for the Plaintiffs sent a written request to the Defendant for all relevant Ontario government documents that reference the review and decision not to issue the REA This request was not answered at that time.

[27] On discovery, questions were asked about the communications between these two ministers and their staff, and the premier and her staff, and their communication with the MOE, which led to the suspension of the "ready to be issued" REA. Specifically, the communications being sought are between early March 2014 and July 2014, when the FIT contract was cancelled. Related government documents were also requested. The Plaintiffs submit that these questions and requested documents are relevant to the pleadings, and "are within the possession, control, or power of the Defendant".

VII. Crown's Position

[28] Her Majesty the Queen in right of Ontario ("Ontario" or the "Crown") asserts that it opposes the Plaintiffs' motion for further productions and answers to questions refused at examination for discovery "because it has met its discovery obligations under the Rules of Civil Procedure and the questions identified in Schedule "B" of the Plaintiffs' factum are res judicata."

[29] Ontario asserts that there is no evidence to support the Plaintiffs' assertions that there are any additional documents relevant to the issues in this claim in the Crown's power, possession, or control that have not been disclosed:

"All documents relating to communications by ministry officials with Ministers' offices, the Premier's Office and Cabinet Office have been produced. An order to search for additional documents at those offices would be an unwarranted fishing expedition."

[30] Their factum asserts (footnotes omitted):

"4. The Plaintiffs rely on two documents to support their request for further disclosure: a letter on Liberal Party letterhead written during the 2014 election campaign and a news report of a Liberal Party election candidate's statements made at an all-candidates meeting in his local riding during the 2014 election. Neither document supports the order requested because the Crown does not have possession, control or power over documents in the possession of the Liberal Party.

[31] Ontario also refused questions asked at discovery on the basis that the questions related to issues which were res judicata:

"It is contrary to the principle of finality of litigation and results in harassment to the detriment of Ontario to have to answer questions about matters that have been finally decided in prior judicial proceedings. No unfairness or prejudice results in these circumstances to justify further exploration of these matters in this proceeding."

[32] The Plaintiffs allege against Ontario negligent misrepresentation and misfeasance of public duty.

[33] The Crown's factum asserts that the Plaintiffs base their allegations on two circumstances:

"8. The Plaintiffs' claim of negligent misrepresentation is based on statements made by ministry officials between March 2011 and February 2014. These statements were the subject of two mandamus applications brought by the Plaintiffs seeking to compel the issuance of a Renewable Energy Approval (REA) for their proposed wind energy project. The 2013 application was settled and the Plaintiffs executed a full and final release. The 2014 application was dismissed by the Divisional Court on May 16, 2014.3 That decision is final.

9. The Plaintiffs' claim of misfeasance in public office is based on statements made by Liberal party members who were campaigning for election in June 2014. The Plaintiffs allege these statements are indicative of political interference in the Director's decision to refuse the REA which was made on October 29, 2015."

[34] The Crown's submissions continue with regard to the issue of REA approvals:

10. The development of renewable energy projects in Ontario is complex and subject to ongoing policy development. Under the Environmental Protection Act (the "Act"), the authority for issuance of the necessary approval rests with the Director pursuant to section 47.5 of the Act. The section authorizes the Director to issue or refuse a REA if he believes it is in the public interest to do so.

11. One of the public interest issues that the Director must determine is whether the Crown's constitutional duty to consult pursuant to s.35 of the Constitution Act, 1982 has been satisfied by consultations with potentially impacted Aboriginal communities. [my emphasis footnotes omitted]

[35] It appears that throughout the review of the Plaintiffs' REA application, there were issues concerning the adequacy of the consultations with Fort William First Nation. These issues caused delays prior to deeming the REA application complete. For example, on January 25, 2013, the Plaintiffs commenced their first mandamus application on the basis of statements made by ministry officials up to that date. "The application was settled on April 22, 2013, by agreement of the ministry to deem the application complete and the Plaintiffs' execution of a full and final release." On April 23, 2013, the Plaintiffs' application was deemed complete.

[36] However, the concerning the adequacy of the consultations with Fort William First Nation continued through 2013 and came to a head in the spring of 2014. In February 2014, the ministry gave Fort William First Nation one final opportunity to provide information:

14. Fort William First Nation responded by serving applications for judicial review and a notice of motion for an injunction on March 3, 2014.10 On March 5, 2014, the ministry told the Plaintiffs that a decision on the REA application would be deferred pending the outcome of the First Nation's injunction motion.

[37] On April 1, 2014, the Plaintiffs commenced an application for judicial review, seeking mandamus to force the Director to issue the REA and asked the Divisional Court for an urgent hearing date. On May 16, 2014, the Court dismissed the application.

[38] The Crown asserts that, the Court considered and dismissed the applicant's allegations that were based on representations allegedly made by the ministry. At paragraph 9 of its decision, the Court upheld the Director's decision not to render a decision on the REA application pending the outcome of the First Nation's injunction motion.

[39] It is my understanding that the mandamus application was heard while campaigning leading up to the 2014 provincial election was underway. The Plaintiffs rely on statements made in early June of 2014, by election candidates concerning the ongoing litigation by Fort William First Nation and the Crown's constitutional duty to consult the First Nation.

[40] The First Nation's injunction motion was heard by the Court (after the election) on June 23, 2014 and decided on July 28, 2014. The motion was dismissed.

[41] The Plaintiffs claim for damages is based on the expiry of a FIT contract that they had with the Ontario Power Authority. The Defendant is not a party to that contract. That contract expired in accordance with its contractual terms on July 5, 2014, while the parties were awaiting the outcome of the First Nation's injunction motion.

[42] After waiting for the Plaintiffs to respond to a request for further information, the Director released his decision on October 29, 2015, refusing the Plaintiffs' REA application. On November 13, 2015, the Plaintiffs delivered a Notice of Appeal appealing the Director's decision to the Environmental Review Tribunal. This action was put on hold pending the outcome of the appeal. On January 25, 2016, the Plaintiffs abandoned the appeal.

[43] In its Statement of Defence, Ontario relies on the two mandamus applications as bars to any claims with respect to representations that were made or events that occurred prior to May 16, 2014 on the basis that they are res judicata. Ontario also denies allegations of political interference in the Director's decision.

VIII. Discovery of the Crown

[44] I accept that the Crown complied with its documentary production obligations by collecting paper and electronic documents from the ministries that were involved with the review of the REA, the Ministry of Environment and Climate Change and the Ministry of Natural Resources.

[45] Approximately 273,000 documents [sic] were collected and reviewed for relevance and privilege. The Crown is not required to deliver an Affidavit of Documents Ontario asserts that it has disclosed all relevant documents in its Lists of Documents produced on September 19, 2017, January 2, 2018, and January 12, 2018. A total of 6,453 Schedule A documents have been produced and 2,616 Schedule B documents have been listed.

[46] Within these documents, are documents "authored or received by Ministers Mauro and Bradley as well as email exchanges with Cabinet officials." As well a further supplementary list of documents contains additional documents, which "includes communications of ministry officials with individuals at the Premier's and Cabinet offices."

[47] Ontario's representative for discovery was the Director who made the decision to refuse the REA. The Plaintiffs asked him questions about statements allegedly made during the 2014 election campaign by candidates for election (Mauro and Bradley) and requested production of documents relating to those statements. These requests were refused on the basis that the Crown has no authority to ask an MPP what he said when he was running for election or to obtain documents from a third party, specifically the Liberal Party of Ontario.

[48] The Plaintiffs also asked questions about ministry representations and discussions that took place prior to May 2014. These questions were refused on the basis that all questions concerning representations and discussions that took place prior to the decision on the mandamus application dated May 16, 2014, are res judicata.

[49] In this regard I am not satisfied District Court's decision can be used as a barrier to the production of evidence that may well have relevance in the present action.

[50] In the course of their discovery, the Plaintiffs asked the Director questions about the basis of his decision to refuse the REA in 2015. The Director gave evidence under oath that he made the decision to refuse the Plaintiffs' application for a REA based on a review of the history of the file and in consultation with the ministry's Project Evaluator. He testified that he did not receive any information from anyone else.

[51] The Crown's factum asserts that:

30. The Director answered questions about the communications with the Plaintiffs commencing May 2014 concerning the ministry's request for further information to support the REA application. He said that he did not receive further information from the Plaintiffs. The Director explained that he had two options. He could either treat the application as withdrawn or he could refuse the application. He said he decided that he would refuse the application so that the Plaintiffs would have a right to appeal his decision to the Environmental Review Tribunal.

[52] The Crown argues that the Plaintiffs' allegation that "the decision to refuse the REA was based on political interference is unsupported by the evidence."

[53] While I understand and appreciate their position, I do not think that the extent of the present factual knowledge of the plaintiff precludes this area of inquiry.

[54] The defendant's submissions continue:

The Plaintiffs have no evidence of any improper influence on the Director.

Specifically, there is no evidence of communications emanating from the Premier's Office or Cabinet Office that would warrant an order to search for documents in those offices. Documents have been obtained from minister's offices and listed.

[55] With respect, based on the information before me, I would have thought such a search was both justified and warranted.

[56] My concern is that the lack of evidence to date may be as a result of an inability to see the complete written record. Again, the lack of such disclosure to date, in my mind, does not preclude a search of the offices of those who were key players at the operative time.

[57] I therefore conclude that questions refused on discovery, on the asserted grounds of res judicata, were improperly refused. However, that was not the sole ground for refusing to provide the answers sought. The Crown also took the position that it did not have either possession or control of the documents sought.

IX. Possession and Control

[58] A party that has possession, control or power over a document relevant to an issue in an action must disclose that document to the opposing party. Ontario asserts that it has complied with its documentary disclosure and production obligations under the Rules. In particular it is asserted:

35. The motion record contains no evidence of communications emanating from the Premier's Office or Cabinet Office that would warrant an order to search for documents in those offices. Documents have been obtained from minister's offices and listed.

[59] Ontario asserts that it does not have control over any statements or documents prepared by the Liberal party and/or its members. However, in my view, if it's regular files have any such materials, they are not privileged and ought to be produced.

[60] To the extent that the Plaintiffs are searching for Liberal Party related documents, from the 2014 election campaign, it is Ontario's position that:

a. the documents are not relevant because they were not considered by the Director when he made his decision refusing the REA application;

b. Ontario does not have possession, control or power over those documents as they are the property of the Liberal party, which is not a government organization, but rather a private unincorporated association;" and

c. the request exceeds the discovery principle of proportionality and would be a fishing expedition.

Ontario does not have control over statements or documents prepared by the Liberal Party and/or its members

[61] While, apparently, the case law indicates that courts do not consider MPPs to be Crown employees. The defendant submits that, as a result, any potentially relevant documents in the possession of an MPP are not in the possession, control or power of the Crown. While case law has determined that MPPs are independent officers and not servants of the Crown based on the limited amount of control exercised by the Crown over their day to day work; that does not, in my view, end the obligation to produce or to at least document the existence of such documents in Schedule B entries.

[62] I acknowledge that political parties are private entities and not agents of the Crown. In, Galati v McGuinty; 1999 CanLII 14899 (ON SC), 88 ACWS (3d) 1165, at para. 20, the court defined the Liberal Party as a "private unincorporated association." 'Similarly, the court has also defined political parties as "independent, private organizations," whose independence is "fundamental" to the functioning of democracy. [see Longley v. Canada (AG), 2007 ONCA 852, at para. 71, 163 ACWS (3d) 402].

[63] However, I regard political parties as a necessary component to a parliamentary system that determines the right to govern by virtue of having the largest number of members of that party elected. If the plaintiff in this case was limited to seeking compensation group (in the event that it is found to have been wrongly treated) It would undoubtedly have difficulty recouping its losses from a "private unincorporated association".

[64] I am not prepared to accept the Crown's assertion (relying upon Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 at paras. 49 and 60,) that:

"A document is in the Crown's possession, control or power only if it relates to a departmental matter and the circumstances in which the document came into being show that the deputy minister or other senior officials in the department could request and obtain a copy of that document to deal with the subject-matter. Liberal Party documents do not meet this test",

[65] I am not prepared to make such a determination at the discovery stage.

X. Fishing Expeditions and Proportionality

[66] The Crown's factum asserts:

40. The general principle is that document production is meant to assist parties with a case or argument that has already been established -a fishing expedition is a request for documents with a view to determining whether a case exists at all. In Rhoades v Occidental Life Insurance Co of California, the court explained that, in discovery of a party, a request may not be made for documents in the possession of a third party because that would be a fishing expedition. (see 1973 CanLII 1610 (BC CA), [1973] 3 W.W.R.625 at para.12)

[67] To my mind, the present situation can be clearly distinguished from a fishing expedition. The plaintiffs relied upon statements made to them, which were intended to be relied upon. After the fact, approvals that had been "promised" were, somewhat inexplicably, denied. In my view it is reasonable to expect that some documentation of the nature sought by the plaintiffs ought to exist. Governments should be expected to document their activities and to be in a position to justify their actions in appropriate situations.

[68] It is submitted that the only pleaded tort to which the Liberal Party election campaign documents could be relevant is the claim of misfeasance in public office.

[69] The Crown argues that for the plaintiff to succeed the public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer. They further submit that for the plaintiffs to succeed they must prove that the Director acted in bad faith or dishonestly.

[70] The crown submits, but I do not accept that, statements made by candidates for election are not relevant to this question. The Plaintiff is entitled to a more fulsome production in this area.

[71] The Crown points out that in Ontario Federation of Anglers & Hunters v Ontario (Ministry of Natural Resources) (OFAH), [2002 CanLII 41606 (ON CA), 211 DLR (4th) 741] the plaintiffs (the Federation) alleged that the Minister of Natural Resources had cancelled the spring bear hunt as a result of political pressure from the Premier.

[72] The Court of Appeal characterized the request as a fishing expedition finding that the evidentiary record could not establish the relevance of the proposed evidence. They found that government policy is not a justiciable issue unless it raises constitutional issues.

[73] The Court also stated that "[t]here is nothing inappropriate, let alone unlawful, about the government consulting with and considering the public's reaction to a policy measure" and, "attempting to influence the government to change a practice ... is an accepted feature of our system of government." Finally, the Court clarified that whether government is motivated "by political, economic, social or partisan considerations ... are irrelevant to whether the regulation is valid.?"

[74] However, I do not accept that the only decision the court will be required to make with respect to the termination of this project, is whether the Director, when he refused the REA, acted unlawfully.

[75] I believe the impact of Campaign statements made by candidates for election are relevant to pith and substance of this action.

[76] Ultimately, we are not dealing with the interpretation of a regulation rather looking at a form of detrimental reliance which the plaintiff asserts was undermined, purely for political purposes during a general election.

XI. Are the Questions Refused by Ontario Res Judicata?

[77] The Crown argues that the Plaintiffs' claims of negligent misrepresentation tum on alleged statements made by ministry officials prior to the 2013 Full and Final Release and the May 16, 2014 decision of the Divisional Court. They assert; "As these statements were litigated or could have been litigated in those mandamus applications, they cannot be re-litigated. For that reason, they are not subject to discovery because they do not concern a factual issue that the court must decide to resolve this action."

[78] While I appreciate their argument that a matter may be res judicata on the basis of either "issue estoppel" or "cause of action estoppel." My understanding is that issue estoppel applies to individual issues or facts that the court has already decided. Cause of action estoppel arises when a complete action already decided is duplicated in new claims.[Landcraft Ventures Ltd v. TK Sales Ltd, 2008 BCSC 1417, at para. 11].

[79] However, I am far from satisfied that the present action is merely a duplication of earlier claims. There are three pre-conditions to the operation of issue estoppel:

a. the party seeking to strike the claim must show that the same question has been decided;

b. that the previous decision was final; and

c. that the previous proceedings were between the same parties or their privies.

[80] I agree with and adopt the submissions of Plaintiffs' counsel in this regard:

"3. The 2013 action was settled with no decision, as the Plaintiffs agreed to the 2013 Full and Final Release in exchange for the Defendant's declaration that the Plaintiffs' REA application was complete. The 2014 action was dismissed by the Divisional Court as being premature, however the sole issue before the court was whether the Defendant could be compelled to issue an REA

4. The basis for the Defendant's refusal is wrong for two fundamental reasons. First, the test for the propriety of a question asked on discovery is whether it is relevant to the pleaded claim and defence upon which the discovery is proceeding. The test is not whether the pleaded claim or defences have merit, as the Defendant advocates, but whether the questions are relevant to the pleadings. Most significantly, this refers to the pleadings as they are at the stage of discovery.

5. Second, the Defendant's claim that the issues are res judicata is incorrect in law. The issues of misrepresentation and bad faith in the execution of public duty by the Defendant has never been asserted, let alone adjudicated, prior to this proceeding."

[81] "Cause of action estoppel" may apply when the action arises out of the same relationship and the same subject matter. It also applies not only to the point in which the Court in the first action was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of the first litigation and which the parties, exercising reasonable diligence, might have brought forward at that time.

[82] I am simply not satisfied that in this case, the conditions for either or both of issue estoppel and cause of action estoppel have been met and thus they are not applicable to bar the questions asked of Ontario's witness being answered.

[83] The test for issue estoppel was set out by the Supreme Court of Canada in Toronto (City) v C.U.P.E., Local 79. According to the Court, in order for issue estoppel to be successfully invoked, three conditions must be met: ( 1) the issue must be the same as the one previously decided by a court or tribunal, (2) the prior judicial decision must have been final, and (3) the parties to both proceedings must be the same. [see Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79; 2003 SCC 63; [2003] 3 S.C.R. 77 ; 232 D.L.R. (4th) 385 at paras 22 to32 ]

[84] The Defendant claims that the issues on this motion are res judicata because they were previously considered in a 2013 Full and Final Release, and a May 16, 2014 decision of the Divisional Court. On further scrutiny of the issues in those cases, and by contrasting them with the issues on this motion, it is clear that the test for estoppel as set out by Justice Arbour, in Toronto, is not met.

[85] Here the 2013 application was to the Divisional Court for mandamus ordering the Defendant to "deem" the Plaintiffs' application for a REA complete in accordance with the regulatory requirements. There was no judicial decision as the parties agreed to an order "deeming" the application complete, so that is could proceed to the next stage of the process. In the 2013 Full and Final Release, the parties made an agreement that in exchange for the Defendant's declaration that the Plaintiffs' REA application was complete, the Plaintiffs would abandon their January 25, 2013 application before the Divisional Court.

[86] The Divisional Court dismissed the application as being premature. However, the sole issue before the court was significantly different than in this proceeding and was whether the Defendant could be compelled to issue an REA. It did not focus on the issues pleaded in this claim.

[87] As is argued in the Plaintiff' factum, this action deals with alleged misrepresentations by the Defendant regarding the FWFN's power to veto the Project, as well as bad faith political interference with the Defendant's decision to issue the REA between March and June 2014. This interference came from the Ontario premier's office, Bill Mauro ("Mauro"), who was the local Liberal MPP and a member of cabinet, and Jim Bradley ("Bradley"), who was the Ontario Minister of the Environment.

[88] The plaintiffs assert that "This interference ultimately delayed the Project past an essential date for the issuance of an REA, to the point where a critical and necessary Feed-in Tariff ("FIT contract") with the Ontario Power Authority expired in July 2014."

[89] I am satisfied that the issues raised on this motion are distinct from the issues considered in the 2013 Full and Final Release, or the May 16, 2014 Divisional Court decision. Those dealt with mandamus applications and Aboriginal consultation, not misrepresentations and bad faith political interference. To date, no master or judge has considered the issues raised in this motion, and therefore these issues do not meet the test for issue estoppel outlined by Justice Arbour, in Toronto (supra).

[90] Rule 31.06(1) of the Rules of Civil Procedure defines the scope of discovery on oral examination as "any proper question relevant to any matter in issue in the action. Relevancy is defined by the pleadings as they are. As held by Justice Morawetz (as he then was) in Sycor Technology Inc. v. Kiaer, "relevance is determined by reference to the pleadings." A document is relevant if it is logically connected to and tending to prove or disprove a matter in issue. [ See 2012 ONSC 5285 at paragraph 23, my emphasis added]

[91] Counsel for the Crown submits that the Plaintiffs' right of discovery "must be confined to those issues that the court finds to be properly raised in this action" and that it "would be improper" for discovery to cover issues that a court has already decided."

[92] Citing Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460, it is submitted that an order to answer these questions "is contrary to the need for finality that is at the heart of our legal system." In Danyluk, the Court said at para. 18:

... An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided.

[93] Having carefully considered this matter, I am satisfied that in this case the questions refused on discovery are relevant to the pleadings as they are. A refusals motion is not the proper venue to dispute the pleadings, or to contest the legal merits of the pleaded claim, or to assert aclaim of res judicata, issue estoppel, or cause of action estoppel.

[94] I conclude this portion of these reasons turning to yet another valuable set of reasons from Justice Perell in Canadian Imperial Bank of Commerce v Deloitte & Touche, [2013] OJ No 559, [2013 ONSC 917, 1 CBR (6th) 66, 225 ACWS (3d) 390, 2013 CarswellOnt 1264] ("CIBC "). In his decision his Honour canvassed seven categories of "improper" questions on discovery. Those categories included questions that were "(1) unanswerable, (2) immaterial, (3) irrelevant, (4) untimely, (5) already answered, (6) disproportionate, and (7) privileged."

[95] I am satisfied that the bulk of the refused questions, as set out in schedule B to the materials filed on the motion do not fall into any one of these categories.

[96] According to Justice Perell in CIBC, an allegation that issue estoppel or res judicata forecloses on some issue in the litigation is simply another pleading, and, until adjudicated, serves to widen (rather than narrow) the scope of discovery on oral examination. (ibid para 107-108]

XII. Application of Rules

[97] Returning to first principles I observe that Rule 30.02(1), outlines a mandatory disclosure of documents during discovery. All relevant documents in the possession, control, or power of a party shall be disclosed, regardless of whether privilege is claimed (MREL Group v. HMQ in Right of Ontario, et al, 2010 ONSC 6658, at para. 12).

[98] Underlying these rules is the direction of Rule 1.04(1) that courts must liberally construe the rules governing the discovery to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[99] Additionally, the principle of proportionality, under Rule 29.2.03, applies to the discovery process. Specifically, under Rule 29.2.03(1) Courts shall consider the following factors when determining whether a document must be produced:

(a) Whether the time required for the person to produce the document would be unreasonable;

(b) Whether the expense associated with producing the document would be unjustified;

(c) Whether requiring the person to produce the document would cause the person undue prejudice;

(d) Whether requiring the person to produce the document would unduly interfere with the orderly progress of the action; and

( e) Whether the information or the document is readily available to the party requesting it from another source.

[100] Thus, two issues must be addressed when determining whether a document must be disclosed and produced:

First, the court must first consider the sought after documents' relevance. This is the key consideration because if the production being sought is not relevant to the matters at issue in the pleadings the inquiry ends and the motion is dismissed (Tundra Oil & Gas Limited v. Enbridge Bakken Pipeline Company Inc., 2018 MBQB 39, at para. 30). Relevance is determined by the way the issues are framed in the pleadings. "A document is 'relevant' if it is logically connected to and tending to prove or disprove a matter in issue" (Sycor Technology Inc. v. Kiaer, 2012 ONSC 5285, at para. 23).

Second, the analysis must then consider whether the documents are in the "possession, control, or power of a party." Only those documents which the party owns, or over which the party can claim sole legal possession must be produced. Mere physical possession is not sufficient. "Sole legal possession means the right and power to deal with the documents, not just the fact of physical possession" (Taberner Investments Ltd v. Price Waterhouse, 11 C.P.C. (5th) 111, at para. 39).

[101] Accordingly, documents requested are relevant and within the party's control, power, and possession it must be disclosed. If the document is not privileged, then it must be produced.

[102] In the motion before me the plaintiffs seek Ontario documents that reference the review and decision not to issue the Renewable Energy Approval. The plaintiffs allege that the decision to delay and subsequently not to issue the Renewable Energy Approval for the project was a result of bad faith political interference. To this end, the plaintiffs contend the documents are not only relevant but the central explanation for the Ministry of Environment's sudden refusal to issue the Renewable Energy Approval.

[103] I acknowledge that the Crown argues that the documents the plaintiffs seek are not relevant because the Director did not consider them when making his decision to refuse the Renewable Energy Approval application. They submit that the documents are not relevant as they would not help the trial judge determine the ultimate question: whether the Director acted unlawfully when refusing to issue the Renewable Energy Approval.

[104] However, in my view in assessing relevance, the analysis must focus on whether the document relates to, i.e. whether it proves or disproves, a matter in issue in the action. Accordingly, the scope of discovery and the relevance of questions relates to the underlying pleading. On pathway to limit the scope of discovery is that the outline of the claim in the plaintiffs' underlying pleading must be struck or the issue needs to be decided on summary judgment (see Marupovv. Metron Construction Inc., 2014 ONSC 3535, at paras. 14-15).

[105] In my view the analysis is not whether the documents are relevant because the Director considered the documents in question in making his decision. Rather, the analysis is whether the documents are relevant to whether there was political interference with the Director's decision. In other words, whether the documents prove or disprove the presence of political interference with the Director's decision. Even if the Director did not consult or review the documents, it is conceivable that political interference from others may have had a part in his ultimate decision.

[106] Accordingly, I find the documents are relevant to a matter in issue in the action.

[107] Having addressed relevancy, I now turn to the second part of the analysis to determine whether the documents are in the Crown's possession, power, and control.

[108] The plaintiffs submit that the requested documents are in the Crown's possession, power, and control because they relate to an internal decision thus forming part of a government record. The plaintiffs also point to the Crown's original production that included internal records of the decision-making process when the Ministry of Environment indicated that the requirements for the Renewable Energy Approval application were complete and the period after the decision to deem the application insufficient. All that is missing, according to the plaintiffs, are the documents relating to the critical period during which the political inference is alleged to have occurred leading to the plaintiffs' application being deemed insufficient.

[109] The Crown argues that to the extent that the plaintiff is seeking Liberal Party documents between party members then Ontario does not have possession, control, or power. The documents are the property of the Liberal Party, which is not a government organization but rather a private, unincorporated association over which the Crown has no control over.

[110] To support its possession, the Crown relies on Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306. In that case the Information Commissioner of Canada appealed four applications for judicial review of refusals to disclose certain records under the Access to Information Act, R.S.C. 1985, c. A-1. Three of the four applications concerned refusals to disclose records located within the office of the Prime Minister, Minister of Defence, and Minister of Transport. The central question for the Supreme Court became whether the requested records held within the ministerial officers are "under the control" of related government institutions within the meaning of section 4(1) of the Act.

[111] As "control" was not a defined term in the Act, the Court affirmed a two-part test to determine what records could be disclosed from ministerial offices:

(1) Do the contents of the document relate to a departmental matter?

(2) Could the government institution reasonably expect to obtain a copy of the document upon request?

[112] The first step is a screening device, if the record does not relate to a departmental matter, then the inquiry ends (Canada (Information Commissioner), at para. 55). If, however, the records requested related to a departmental matter, the inquiry continues.

[113] Under the second steps, "all relevant factors must be considered in order to determine whether the government institution could reasonably expect to obtain a copy upon request. These factors include the substantive content of the record, the circumstances in which it was created, and the legal relationship between the government institution and the record holder." The underlying approach to the two-step analysis is that ministerial offices should not become a "black hole" to shelter sensitive records that should otherwise be produced.

[114] The Supreme Court undertook the analysis because the Access to Information Act lacked a definition of control. While the Rules of Civil Procedure also lack a definition of control, it is not necessary to adopt that test under for the discovery and disclosure process. However, even if control is approached in the above manner, the result would be the same.

[115] Under the first step, the contents of the documents sought after clearly relate to a departmental matter. The documents concern the decision to refuse the Renewable Energy Approval application. The Ministry of Environment, through the Director, made that decision. Moving to the second step, the documents would be produced if a "senior official of the government institution, based on all relevant factors, reasonably should be able to obtain a copy of the record, the test is made out and the record must be disclosed" (Canada (Information Commissioner, at para. 56).

XIII. Cabinet Privilege

[116] In my view, the nature of the policy at issue on this motion does not demand a high degree of sensitivity or confidentiality. At best, the information at issue does not relate to an important public issue, but rather to a lower-level policy decision, made on the fly and mid-election, about an advantageous change to Liberal energy policy. At worst, the information relates to a specific decision by Liberal leaders to deny this particular plaintiff its REA. Neither option supports a claim of privilege.

[117] Second, the level of the decision-making at issue does not stymie the disclosure request here. While high-level policy-setting typically attracts a higher expectation of secrecy and confidentiality, Cabinet discussions relating to lesser policies and specific transactions do not (see the holding in Carey v. Ontario 1986 CanLII 7 (SCC), [1986] 2 S.C.R. 637, 35 D.L.R. (4th) 161 (S.C.C.) [Carey] )Even if the information at issue does rise to the level of being policy-setting rather than mere deliberations about the plaintiff's REA, the policy does not seem to be of sufficient importance to attract public interest immunity.

[118] Third, and perhaps most potently, the fair disposition of the case seems to demand disclosure. The plaintiff brings serious allegations of abuse of public office against the defendant and has no other means to make its case except via disclosure. Further, it seems implausible that the Crown will be able to point to a specific public interest that would be protected by non-disclosure.

[119] The plaintiff has marshalled convincing evidence, namely the News Report and the Liberal Letter, indicating that Liberal party members (specifically Minister of the Environment Jim Bradley and MPP Bill Mauro) may have tried to influence the MOE Director's decision to deny the REA. Given the strength of this evidence and the seriousness of the plaintiff's claim against members of the executive, the plaintiff's claim of malfeasance of public office should be explored further through granting the disclosure request.

[120] In this motion, the plaintiff seeks the discovery of documents that explain the MOE Director's decision to deny the REA. The documents comprise "the internal review and ultimate decision not to issue the REA." For obvious reasons, the plaintiff is unable to identify with any precision what the documents are, what they contain, or where they are housed. The plaintiff does suggest that the documentary record "likely includes conversations between officials at the MOE, [former Minister of the Environment Jim] Bradley, [Liberal MPP Bill] Mauro, and Premier Wynne, among others." This suggests that the documents originated in the Premier's Office and were received by the MOE. I infer that the documents are currently in the possession of the MOE, i.e. the recipient of the communications, but because they originated in provincial Cabinet, it is necessary to determine whether they are covered by Cabinet privilege.

[121] The plaintiffs submit that the documents are admissible under the Rules of Civil Procedure and should be produced. The plaintiff argues that the documents fall within the proper ambit of discovery as outlined in the Rules: the documents are relevant to the pleadings, are in the possession, control or power of the defendant, and production of the documents is in line with the principle of proportionality. Regarding possession, the plaintiff contends that the documents are in the possession of the Crown "because they relate to an internal decision whether or not to issue the plaintiff's REA, and as such, form part of a government record." The plaintiff requests an order pursuant to Rules 30.02(1), 30.02(2) and 29.2.03(1) that the defendant produce the documents at issue.

[122] The Crown responds that it has already complied, in full, with its disclosure obligations under the Rules. The Crown characterizes the documents as "Liberal party documents from the 2014 election campaign," and not part of the official government record. The Crown asserts that it has no authority to obtain documents from the Liberal Party, an unrelated third party. The Crown also contends that documents are irrelevant because they were not relied upon by the Director when he made his decision to refuse the REA. They assert that the Director was not the subject of undue political interference because he did not take these communications into account. Finally, as addressed earlier in these reasons, I considered and rejected the Crown's position, that the plaintiff's request is blocked by the doctrine of res judicata.

[123] Assuming the documents at issue are relevant and are in the Crown's possession, power or control, the next question to answer is whether the documents are protected by Cabinet privilege or public interest immunity.

XIV. The Law of Public Interest Immunity

[124] Crown immunity, otherwise known as public interest immunity, is a rule of evidence that arises when evidence that is relevant is not admitted because it would be contrary to the broader public interest^, While the common law concept of Crown immunity has historically referred only to the federal Crown, in Bisaillon v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60, 7 C.C.C. (3d) 385 (S.C.C.), at 418,the Supreme Court of Canada held that the common law position also applies to the provincial Crown except in Quebec.

[125] In Carey v. Ontario, the seminal case from the high court on the scope of Cabinet privilege, the Supreme Court of Canada established that there is no absolute privilege or immunity with respect to the production of Cabinet documents. Rather, Cabinet documents, like any other evidence, must be disclosed unless such disclosure would interfere with the public interest. It is therefore incumbent upon the Crown claiming privilege to establish that the public interest in disclosing the information at issue outweighs the public interest in allowing disclosure.

[126] Speaking generally, there are three types of public interest immunity: (1) claims based on national security and related grounds; (2) general claims based on the public interest in non-disclosure; and (3) claims based on Cabinet confidences. In this instance I am addressing the latter type.

[127] In Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 5th ed. The authours address Public Interest Immunity and describe the policy rationale behind Crown immunity:

In many lawsuits, both civil and criminal, documents and information in the possession and control of the executive branch of government and various government agencies and employees are relevant to the issues in dispute. Claims for the disclosure of such documents and information can involve a conflict between public interests. The public interest in the administration of justice is promoted through full access of litigants to relevant information. The public also has an interest in protecting the country from the damage to national security and international relations that could be caused by the disclosure of state secrets. Also, damage to the process of government decision-making and functioning may be caused by disclosure of other government documents. In those areas where the public interest favours non-disclosure, the government may assert an immunity from disclosure.(my emphasis)

[128] One of the core rationales behind public interest immunity is that completeness, candour and frankness may decrease among elected representatives if it were known that government documents could be produced in litigation. (Carey, at para. 44) In turn, this may detrimentally affect the quality of government policy and the public interest. Crown immunity prevents against "inhibiting the freedom of Cabinet members to discuss matters of significant public concern and policy." In the case law, this is sometimes referred to as the doctrine of deliberative secrecy. These policy concerns must be balanced against the corresponding public interest in fairness in the administration of justice, finality of litigation, and the rule of law. In a word, this basket of interests is concerned with ensuring that parties not be stymied in their pursuit of justice simply because the opposing party is the government.

[129] Cabinet privilege is a specific form of public interest immunity. Section 39 of the Canada Evidence Act (CEA) provides for cabinet privilege in the context of federal documents. When privilege is claimed by way of certificate by a federal minister or the Clerk, it is open to the court to determine whether the certificate asserts a privilege in the terms provided for by the statute. However, there is no provincial equivalent of CEA s. 39(1), but its text is illuminating:

39(1) Where a minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying in writing that the information constitutes a confidence of the Queen's Privy Council for Canada, disclosure of the information shall be refused without examination or hearing of the information by the court, person or body.

[130] Because provincial statutes do not contain equivalents to s. 39 of the CEA., questions about disclosure must be decided under the common law of public interest immunity. At common law, the Crown is entitled to claim protection of certain documents on the basis of a specified public interest. Public interest immunity will be granted if the Crown can prove that the public interest in non-disclosure of the documents outweighs the public interest in disclosure. This balancing exercise must be undertaken by any master or judge hearing a request for disclosure of Cabinet documents.

[131] As Peter W. Hogg notes in Liability of the Crown,

[T]here is no hard-and-fast rule as to the kind of injury to the public interest that will support a claim of Crown privilege. It is for the court to which the claim is made to assess the gravity of the risk to the public interest that would be caused by disclosure, and to balance that risk against the risk to the administration of justice that would be caused by denial of the evidence to the litigants. Such a balancing process is inherently discretionary.

[132] To summarize, to successfully claim Cabinet privilege at common law, a provincial Minister must establish that (a) disclosure would be detrimental to the public interest (i.e. the public's general interest in the non-disclosure of government documents) and (b) non-disclosure would outweigh the corresponding public interest in disclosure (grounded in the principles of fairness in the administration of justice and finality of litigation). In this case, this means Ontario must establish that keeping the communications referencing the plaintiff's REA confidential, (if there were in fact such communications) serves the public interest and outweighs the corresponding public interest in the disclosure of those communications. Importantly, not all Cabinet deliberations will attract public interest immunity.

[133] As the Supreme Court commented in Carey at para 23:

The need for secrecy in government operations may vary with the particular public interest sought to be protected. There is, for example, an obvious difference between information relating to national defence and information relating to a purely commercial transaction. On the other side of the equation, the need for disclosure may be more or less compelling having regard to the nature of the litigation (e.g. between a criminal and civil proceeding) and the extent to which facts may be proved without resort to information sought to be protected from disclosure.

[134] The Supreme Court in Carey also noted that in making a claim of public interest immunity, "the Minister (or official) should be as helpful as possible in identifying the interest sought to be protected." Examples of sufficient specificity may be found in the UK case of, Burmah Oil Co. v. Bank of England, [1980] A.C. 1090, [1979] 3 All E.R. 700 (H.L.) cited by the Supreme Court in Carey. In Burmah Oil the Minister successfully claimed Cabinet privilege by arguing that the communications at issue "concerned discussions at a very high level of specific government policies, policies identified as being of the highest national and political importance" and containing circumstances of great sensitivity.

XV. The Carey v. Ontario Factors

[135] In making its determination about whether to grant Cabinet privilege over certain documents, the court should use the factors set out in Carey and clarified in Leeds to assess the balance between the public interest in Cabinet secrecy and the public interest in disclosure. The factors are:

a) The nature of the policy;

b) The particular contents of the documents;

c) The level of the decision-making process;

d) The time that has passed since the decision in question was made;

e) Any allegation of improper conduct by the executive branch toward a citizen; and

f) The importance of production of the documents to the administration of justice, with particular consideration to the importance of the case,

g) the need or desirability of producing the documents to make sure the case can be adequately and fairly represented, and

h) the ability to ensure that only the particular facts relating to the case are revealed.

[136] Clearly the Crown is more likely to succeed in a claim of Cabinet privilege if the documents at issue pertain to government policy discussions at a high level, and/or if those policies are of high political importance or contain circumstances of heightened sensitivity.

[137] I am not satisfied that that test has been met in this case.

[138] I am supported in this conclusion by the decision in Leeds v. Alberta (Minister of the Environment), another leading case on public interest immunity, outlining the current state of public interest immunity jurisprudence:

[T]he clear trend in Canada is towards the concept of extensive disclosure of Crown documents to assist in the fair administration of justice as opposed to any blanket concept of non-disclosure under the rubric of a public interest immunity concept. Since Smallwood, our Supreme Court has taken the position that "Cabinet documents like other evidence must be disclosed unless such disclosure would interfere with the public interest." [...]

This general trend towards full disclosure has been even more evident in Canadian court decisions when the Crown is a party to the litigation and has a direct interest in seeking immunity to perhaps bolster its position in the litigation. The reasoning behind this trend was given by Lord Edmund Davies in the English decision of Burmah Oil Co. Ltd. v. Bank of England, [1979] 3 All E.R. 700 (H.L.) when he stated at 720:

Accordingly, since not only justice itself but the appearance of justice is of considerable importance, the balancing exercise is bound to be affected to some degree where the party objecting to discovery is not a wholly detached observer of events in which it was in no way involved.

[139] In Carey, the Supreme Court noted that the balance of public interests will sway in favour of the party requesting production if (1) the documents are necessary for that party to make out its claim, and if (2) the claim cannot be proven by other means. The Supreme Court noted that factors to be considered in this analysis include (i) the importance of the case and (ii) the need for or desirability of producing the documents to ensure that the case can be adequately and fairly presented.

[140] Disclosure of the documents seems necessary for the plaintiff to make its case with respect to the claim of misfeasance of public office. There do not seem to be any other means by which the plaintiff can make this case absent disclosure. An allegation of misfeasance of public office is a serious one, and the public is entitled to know if it can be made out on the facts. In Carey, at para. 83, the Supreme Court indicated that members of the political executive should not be allowed to hide behind the veil of Cabinet secrecy to conceal wrongdoings:

It is important that this question [of impropriety] be aired not only in the interests of the administration of justice but also for the purpose for which it is sought to withhold the documents, namely, the proper functioning of the executive branch of government. For if there had been harsh or improper conduct in the dealings of the executive with the citizen, it ought to be revealed. The purpose of secrecy in government is to promote its proper functioning, not to facilitate mproper conduct by government.

[141] There is little, if any, public value in refusing to disclose documents that pertain to the refusal of a specific project, because it is not an issue that impacts the public at large. Rather, such discussion impacts only a very small subset of the public: the plaintiff. The lack of widespread applicability in these discussions means the Crown would likely struggle to articulate a specific public interest that would be protected by non-disclosure, beyond its own interests in deflecting the litigation. If the Crown does indeed fail to articulate the specific public interest to be protected by non-disclosure, this in itself is dispositive of the issue and disclosure should be granted. There is little if any public value in refusing to disclose the documents, but there seems to be a great deal of value in disclosure in the interest of justice and the fair disposition of the litigation. The plaintiff makes a serious allegation against government officials, backed by evidence, and lacks other means to try to prove its claim in court. Further, as the Supreme Court pointed out in Carey, this issue relates to the proper functioning of the executive branch as much as it does to the effective administration of justice.

XVI. Mauro Status

[142] The examination which gives rise to this motion took place while the Liberals were still in office. He was a Liberal member of the Legislative Assembly of Ontario from 2003 to 2018. In 2018, Mr. Mauro was defeated in the provincial general election and later that year successfully ran for mayor in the Thunder Bay municipal election He holds that office at this time.

[143] I do not believe that I'm in a position to require Mr. Mauro, based on the material before me on this motion to answer the questions that were asked while he still was a member of the Provincial cabinet. I now believe that any questions relating to matters in which he was personally involved ought to be addressed by way of either a rule 30.10 application on notice to him or by way of a motion under Rule 31.10 (1). That rule provides :

The court may grant leave, on such terms respecting cost than other matters as are just, to examine for discovery any person who there is reason to believe as information relevant to a material issue in the action, other than an expert engaged by or on behalf of party in preparation for contemplated or pending litigation.

[144] The test under rule 31.10 (1) directs that such an order should not be made unless the court is satisfied that the party has been unable to obtain information from other persons who the moving party is entitled to examine for discovery, or from the person he or she seeks to examine. As well, it is as necessary for a finding to be made that it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person.

XVII. The Specific Questions

[145] Schedule B to the crown's factum set out a number of questions which I grouped into seven categories. It is clear from the transcript extracts that two experienced counsel were working together to make efficient use of the discovery time. Various categories were raised, and the objections specified. This was not a case where specific questions needed to be addressed in these reasons but rather directions needed to be provided with respect to whether or not questions addressing components of each proposed area needed to be answered by way of further examination.

[146] The content of first group reads:

"And the issues about misrepresentations with respect to whether the First Nation would be given a veto over the project, notwithstanding their refusal to notwithstanding their refusal to consult which is well documented and the Ministry is well aware of their complete refusal to have discussions in a meaningful way and answer questions not only from the Horizon but also from Ministry people, you know, there is an allegation of misrepresentation because the Ministry has alleged, misrepresented to Horizon that the First Nation did not have a veto over this process when in fact obviously the Government changed its tune in the face of an election.

[147] Counsel for the crown indicated at the examination that the crown was not prepared to answer, "any questions about any of the discussions that occurred prior to May of 2014."

[148] In my view these questions are proper and need to be answered.

[149] The second area asked:

" ... does the Government have any information which confirms or contradicts the evidence of Horizon and the documents from Horizon that Horizon was repeatedly told from April23,2013, right through until the letter of May the 9th, 2014, in the middle of an election campaign, that no further information was required with respect to any aspects of the REA application?"

[150] The grounds expressed for this refusal was that this element of the matter was res judicata. As set out earlier in these reasons I am not satisfied that the argument of res judicata applies in this fact situation. In my view these questions are proper and need to be answered

[151] The Crown refused to respond to the next group of questions from pages, 176 and 177:

"Well, the issues that are dealt with in this draft letter have to deal with some questions relating to a letter dated October 15, 2014, which makes inquiries about information that had already been received by the Ministry. Every single piece of information requested in that October 15th letter the Ministry had had for more than a couple of years, and the Ministry had told Horizon through its representatives and directors that it had all of the necessary information .. .it appears that the letter sent October 15th, 2014, was not a legitimate request but rather was some form of a process for covering up the fact that the Ministry, for improper reasons, had killed this project as part of an election issue."

"I am just saying to you that when the Ministry takes the position after it has killed a project knowing that the timelines under the FIT contract had been exhausted because of its conduct and that of a First Nation, then it comes along after the fact knowing the project has been killed and says, by the way, we need more information about moose studies, notwithstanding that all the people that reviewed this application told us that they had adequate information because there was no impact.."

[152] I regard this is the proper area for inquiry on the discovery of the defendant.

[153] The next areas at pages 302, 314 and 457 addressed representations made by the Ministry to the proponent:

"I am simply saying as this action currently stands based on the Statement of Claim and the Statement of Defence, a very live factual issue are the representations made by the Ministry to this proponent, and one of the sets of representations that is pleaded, and there is evidence and there are documents that confirm it, is that Ministry representatives, ..., stated, represented to the proponent that the-proponent had satisfied its consultation requirements and obligations. I am simply asking if the Ministry has any knowledge, information or belief with respect to that?"

"And isn't it the case that the Ministry not only advised Horizon that it had fulfilled its duty to consult -- its, sorry, responsibility and requirements to consult with the Fort William First Nation, that the Ministry itself had made all reasonable efforts and fulfilled its duty to consult as of March 10th, 2014?"

"I'm just asking if you can confirm that Ms. Garcia-Wright understood that the MCOD date was a critical date for Horizon because if it did not get an REA approval by the relevant applicable date, which was July 2014, that the contract was subject to termination? Was she aware of that in this period of time?"

[154] The crown's position in refusing to answer these questions was that they were not going to allow the plaintiff "to re-litigate those issues" that related to the 2014 mandamus application. I find these to be relevant and proper questions with respect to inquiries into what activities the ministry was undertaking at the relevant times, as well as what was their understanding at the time.

[155] Examination for discovery of the ministry took place prior to the most recent provincial election. Three questions asked and refused on discovery were found at pages 492, 496 and 497:

"So Mr. Mauro has significant access to the Premier. What he is reported to have said at this meeting with the Fort William First Nation is that "the Crown, inclusive of the Premier and [Ministry of Environment], has agreed to not issue a REA decision or other approval", and it goes on to say until when."

"So will you undertake to ask Mr. Mauro, who is still a member of the Government, I believe, may well be a Cabinet Minister, I haven't checked, and ask him whether he made the statement that is described in this letter to the Fort William First Nation on the evening of June the 2nd, during the election? Can you ask him if he made that statement and let me know?"

"Okay, will you support an application for us to conduct a discovery of Mr. Mauro, since you are not prepared to ask him?"

[156] The crown answered "no" to the third item, which I regard as having been answered. As set out earlier in these reasons, I think examination of Mr. Mauro might well be more productive.

[157] The next questions from page 498 and 499 deal both with a request for information from the Premier's office in a number of forms.

"And secondly, I want to know what caused him to say that the Crown, inclusive of the Premier and the MOE, has agreed to not issue the REA. Had he discussed this with Premier Wynne or with the Premier's Office, and if so, what discussions did he have and what was their response. And was it recorded in documents, in emails or letters? Was it verbal? Could you please ask him?"

"And could you please make inquiries of the Premier's Office, and we have asked this before, to get all relevant communications and correspondence to Minister Mauro, to the Minister of the Environment, and to anyone else involved in this decision to not grant the REA -- to not issue the REA decision or other approval until the outcome of the JR or satisfactory resolution of the concerns of FWFN? Could you please inquire of Mr. Mauro why he made that statement? Could you please inquire of the Premier, of the Premier's Office, and produce any and all documentation?"

[158] Counsel for the crown's answer during the discovery was: "We have no authority to obtain documents from politicians they are not employees of the crown". "I have no authority to obtain any documents from a political party, the Liberal party or any other."

[159] That answer provoked this follow-up questions from page 503-4:

"Now, you are telling me that the Premier's Office is a completely separate entity that has nothing to do with the Ontario Government? Is that what you are telling me?"

And later:

"... they were Ministers of the Crown right after the election, and the Premier was certainly the Premier.....the decision to not issue the REA, that position was maintained right up until July the 16th when this contract was killed by the OPA and the project was killed economically by the OPA."

"What is alleged is that the Government, the Ministry of Environment, acted in bad faith knowing that its conduct was going to cause harm to Horizon, and the very specific harm is it knew that if it dragged this out beyond July 16th that there was a very real risk that the OPA would cancel the contract. And by the way, the OPA cancelled the contract exactly one day after the time period expired, which then raises the question of whether the Minister of Energy had any communication or whether or not the MOE had communication with the OPA."

[160] I regard the requests, contained in these extracts, to be proper questions, that ought to be answered by the defendant.

XVIII. Disposition

[161] In the result the plaintiffs have been largely successful on this motion clearly was a complex and difficult area and I am obliged to counsel for their assistance and patience.

[162] An order shall issue reflecting the above determinations.

[163] I see no reason why costs should follow the event and I am awarding them, subject to any offers made, on a partial indemnity basis, to the moving party. If the parties are unable to agree upon a form of order or an appropriate costs award, I may be contacted in order that an appropriate protocol can be established for submissions by the parties.

Released December 13, 2019

DS/R.246 Master D.E. Short