Court File and Parties

Court File No.: 20018/16 Date: 2020 01 20 Ontario Superior Court of Justice

Between: James Wallbridge, Almeda Wallbridge and Wallbridge, Wallbridge, Plaintiffs – and – Fay Brunning and Williams-Litigation Lawyers, Defendants

Counsel: Geoffrey D.E. Adair, Q.C., for the Plaintiffs Sandra L. Secord, for the Defendant Fay Brunning

Heard: January 9, 2020 in Sudbury

Decision on Motion

r.d. gORDON, j.

Overview

[1] This defamation action arises out of statements made by the defendant Fay Brunning (“Brunning”). The thrust of the statements was that the defendants were negligent in their prosecution of IAP claims for their clients, including Claimant H, and that they entered into unlawful agreements to hide documents from the IAP and national class action litigation.

[2] Despite this claim having been issued in May of 2016, the parties have been bogged down in procedural wrangling that has prevented the action from making any significant progress.

[3] The motion before me is to set the terms of a discovery plan.

Background

[4] James and Almeda Wallbridge are partners in the law firm of Wallbridge, Wallbridge, a specialized personal injury firm founded in 1993. In the late 1990’s they began acting for a number of survivors of Indian Residential Schools including St. Anne’s Indian Residential School (“St. Anne’s”). They began in excess of 60 actions in the Ontario Superior Court of Justice involving over 150 plaintiffs (hereinafter referred to as the (“Cochrane Actions”). The defendants in the Cochrane Actions were Her Majesty the Queen in Right of Canada (“Canada”) and various Catholic Church entities.

[5] On August 1, 2003, during the course of the Cochrane Actions, Canada, with the consent of the plaintiffs herein, obtained an Order from Trainor J. allowing the parties in the Cochrane Actions to inspect and copy documents related to the Cochrane Action plaintiffs that had been obtained or generated by the Ontario Provincial Police (“OPP”) during a lengthy investigation it had undertaken regarding allegations of abuse at St. Anne’s.

[6] Many of the Cochrane Actions were eventually settled by the plaintiffs.

[7] On or about May 8, 2006, the Indian Residential Schools Settlement Agreement (“IRSSA”) was entered into. It was subsequently approved by the Superior Court of Justice in Ontario on December 15, 2006. Its import, in part, was to place the unresolved Cochrane Actions into the Independent Assessment Process (“IAP”) established by the IRSSA.

[8] For those Cochrane Actions that had not been resolved, and for other claimants coming forward thereafter, the plaintiffs herein carried on their work within the IAP. Claimant H was one such client. His claim was heard before an adjudicator on May 30, 2013, with final submissions to be made on or about July 25, 2014. His claim was dismissed on September 2, 2014, without any award of compensation. The plaintiffs herein applied for a review of Claimant H’s case. That review application was dismissed on April 2, 2015.

[9] Brunning began acting for a number of former St. Anne students in 2012 or 2013. She came to learn of the OPP investigation of abuse at St. Anne’s that had resulted in criminal charges, trials and subsequent convictions. She brought a Request for Directions (“RFD#1”) on behalf of approximately 60 clients for, among other things, an order requiring Canada to obtain and produce all OPP documents in its possession regarding abuse at St. Anne’s and to revise its Narratives and Persons of Interest Reports for use in the IAP. The School Narrative that had been filed by Canada in every IAP claim relating to St. Anne’s had incorrectly stated that there were no documents about sexual abuse or student abuse there. Apparently, none of the criminal proceedings or convictions, OPP investigation documents or allegations in the Cochrane Actions had been revealed in any IAP’s relating to claimants who had attended St. Anne’s. In a decision released on January 14, 2014, Brunning was granted the requested relief.

[10] In October of 2013, Brunning alerted lawyers whom she believed represented St. Anne’s IAP Claimants, including the plaintiffs herein, of the pending RFD#1.

[11] By February of 2014, the plaintiffs herein were aware of the decision of January 14, 2014.

[12] On or about June 30, 2014, Brunning received, in purported compliance with the January 14, 2014 Order, approximately 12,300 new documents, comprising some 40,000 pages.

[13] Brunning says that the plaintiffs herein took no steps to request or review these documents and failed to act on them in any way in prosecuting Claimant H’s IAP claim or the requested review of it.

[14] In the course of her representation of Claimant H and other former St. Anne students, Brunning wrote letters and emails referencing this failure on the part of the plaintiffs and said the plaintiffs’ participated in an agreement with Canada and the Catholic Church to withhold the documents from IAP Claimants.

[15] This defamation action arises out those statements, the thrust of which are that:

1. The plaintiffs and its lawyers were negligent in failing to reveal or bring forward relevant documents in the prosecution of IAP claims for their clients, including Claimant H; and
2. The plaintiffs entered into unlawful agreement(s) to hide documents gathered during their prosecution of the Cochrane Actions both from the IAP and the national class action litigation.

[16] The plaintiffs began their action by way of statement of claim dated May 20, 2016.

[17] After considerable procedural wrangling, Brunning served her statement of defence on November 24, 2017. Brunning does not deny having made the statements attributed to her. Rather, she pleads defences of justification, absolute privilege, qualified privilege, fair comment and responsible communication as well as causation.

The Issues

[18] The main issue before me is the scope of documentary disclosure required of the plaintiffs.

[19] Brunning seeks production of virtually every file and document the plaintiffs have ever had in their possession or control relating to their prosecution of the Cochrane Actions on behalf of some 154 clients, and their prosecution of IAP claims on behalf of some 113 clients.

[20] The plaintiffs are content to disclose all relevant documents regarding the allegation of negligence in respect of their prosecution of the IAP claim of Claimant H. They are also willing to disclose all communications between them and Canada relevant to the use by them of documents obtained in the course of prosecuting the Cochrane Actions, and all communications between them and Canada regarding IAP disclosure obligations in respect the IAP Claim of Claimant H.

[21] With regard to the documents relating to all other clients they have represented in the Cochrane Actions and in IAP claims regarding St. Anne’s, they are of the view that Brunning’s defence of justification has not been sufficiently particularized to require that production.

[22] In addition to the extent of the plaintiffs’ documentary disclosure obligations the parties have been unable to agree on who will be produced for oral examination on behalf of the plaintiffs and the scope of the oral examination to which they will be subject.

The Law

[23] It determining the extent of discovery in a defamation action in which justification is pleaded the following must be considered: (1) Whether the pleadings are sufficiently particular to allow the discovery which is sought, bearing in mind relevance (Rules 30.02 and 31.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194); (2) The principle that discovery must be fairly and reasonably related to the particulars of justification provided (see Kent v. Kehoe, 2000 NSCA 3, [2000] N.S.J. No. 3 (N.S.C.A.)); (3) The general principle that persons should be discouraged from making defamatory statements if they do not have the facts to support them (see Kent, CARE Canada v. Canadian Broadcasting Corp. [1998] O.J. No. 2249, Baghai v. Bader, [2008] O.J. No. 3185); and (4) The proportionality factors set out in r. 29.2.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[24] In a broad and general sense, the documents sought by Brunning are relevant to the defences pleaded. However, more than that is required. As summarized in Libel, 3ed, Downard, s. 6.04:

6.21 The defendant is required to plead particulars of justification at the outset of a case, unless the defamatory words complained of are so specific that a simple plea that the defamatory words are true in substance and fact will be sufficient to fully inform the plaintiff of the defendant’s case. This is so, for example, where the defamatory statement is that the plaintiff committed a particular wrongful act on a particular day at a particular place.

6.22 In most cases a detailed statement of particulars is required to fairly inform the plaintiff of the defendant’s case. It has long been established that if justification is pleaded a plaintiff ought to be able to go to trial with knowledge not only of the general case to be met, but also of full particulars of the facts upon which the defence will rely. In pleading particulars of justification, the defendant should set out the facts relied upon clearly and succinctly, although not the evidence by which they are to be proved. …

6.34 The scope of discovery is also limited by the longstanding policy of the courts that persons should be discouraged from making defamatory statements if they do not have the facts to support them. Persons are to be prevented from “defaming another and then obtaining access to all his books to see whether what was said can be justified”….If justification is pleaded, discovery of the plaintiff is limited to the facts specifically pleaded by the defendant to be true, whether they are sufficiently clear from the words complained of or stated in particulars of justification provided prior to examination for discovery.

Analysis

[25] In my view, the scope of documentary disclosure sought by Brunning is overly broad and is not supported by the particulars of justification pleaded.

[26] Essentially, Brunning has pleaded the following material facts in relation to her claim of justification:

1. The plaintiffs represented students of St. Anne’s in the Cochrane Actions and in the IAP.
2. The plaintiffs obtained, in the course of the Cochrane Actions, significant documentary evidence substantiating the abuse of students at St. Anne’s.
3. The plaintiffs were made aware that this same documentary evidence had been ordered disclosed by the Government of Canada in IAP claims concerning students of St. Anne’s.
4. Notwithstanding they had the documents in their possession and knew that Canada had not met its disclosure obligations in the IAP, the plaintiffs completed the IAP and review without raising those additional documents in support of the claim of Claimant H, with the result that his or her claim did not succeed.

[27] These material facts, as pleaded and if true, can support two inferences: (1) The plaintiffs were negligent in their representation of Claimant H; and/or (2) They were parties to an agreement to conceal or withhold those documents in their prosecution of the claim of Claimant H.

[28] As noted above, the plaintiffs concede that sufficient facts are pleaded concerning the plaintiffs’ representation of Claimant H to warrant production of the documents in their possession relative to him or her.

[29] With respect to all other former students of St. Anne’s who they represented, Brunning pleads the following basic material facts in paragraph 87 of statement of defence: 87. Since the retainer of Brunning by Claimant H-15019, other St. Anne’s students have made similar or additional complaints and/or allegations with respect to professional conduct of the Wallbridge Lawyers in their representation of those students, including deficient documentary disclosure made by Canada, and not rectified by Wallbridge for the IAP claims.

[30] In my view, neither her pleading nor the allegedly defamatory statements themselves provide sufficient specificity of the negligence allegations pertaining to claimants other than Claimaint H as to entitle her to the documents she requests. Brunning does not identify what claimants have made the allegations. She does not identify when the IAP claims of such claimants were made, whether they were subject to review and what the ultimate outcome of the claims process was for them. Her pleading amounts to a bald allegation, and little more. It does not entitle her to review every file and document in the possession and control of the plaintiffs relating to the students of St. Anne’s.

[31] To the same effect, neither her pleading nor the allegedly defamatory statements themselves provide sufficient specificity of Brunning’s allegation that the plaintiffs were parties to an improper agreement with Canada as to allow her access to all files and documents in the possession or control of the plaintiffs concerning all St. Anne’s students.

[32] Furthermore, I must consider that there are approximately 40,000 pages of OPP documentation, 154 plaintiffs in the Cochrane Actions and 113 claimants in the IAP proceedings for which documentary disclosure is sought. Given the lack of specificity of Brunning’s defence of justification, the volume of documents to be produced would be excessive, the time required for the plaintiffs to produce the documents would be unreasonable, the expense would be unjustified and further significant delay would accrue.

[33] In summary, with respect to the scope of documentary disclosure, the disclosure plan for this action shall be as contained in the amended disclosure plan of the plaintiffs as contained at 2(a) of the motion record with the following amendments:

• Item 11. shall be amended to provide as follows: “All communications passing between the defendant Fay Brunning and Sue Enberg between June 1, 2014 and May 31, 2016, which touch, directly or indirectly, upon the professional activities of the plaintiffs or the Government of Canada in connection with abuse of students at St. Anne’s Indian Residential School.”
• Item 12. shall be amended to provide as follows: “All letters and other communications passing between either of the defendants and the law firm of Nelligan O’Brien during the period from June 1, 2014 and May 31, 2016 which touch, directly or indirectly, upon the professional activities of the plaintiffs or the Government of Canada in connection with abuse of students at St. Anne’s Indian Residential School.”
• Item 14. shall be amended to provide as follows: “All documents in the possession of the defendant Williams-Litigation Lawyers touching directly or indirectly upon the defendant Fay Brunning’s allegations of misconduct on the part of the plaintiffs.”
• There shall be added the documents contained in paragraphs 3 (a), (b), (ee), (ff) and (uu) of the discovery plan proposed by Brunning and contained in her supplementary motion record.

[34] The parties acknowledge that the documentary disclosure contemplated by the discovery plan will require further input from the Eastern Administrative Judge under the IRSSA. Accordingly, the time for delivery of the affidavit of documents and schedule “A” productions shall be within 45 days of the order of the Eastern Administrative Judge.

[35] With respect to oral discovery, Brunning will be examined for a period of ten hours over two days. The examination of the plaintiff shall take place over two days, with James Wallbridge subject to examination for seven hours, and Almeda Wallbridge subject to examination for three hours. Brunning has sought the examination of Ms. Courville, an employee of the plaintiff’s law firm. Rule 31.03(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that where an action is brought by or against a partnership the examining party may examine each partner but may only examine an employee of the partnership with consent or with leave of the court. At this point, there is no consent to the examination of Ms. Courville and leave has neither been sought nor granted. Accordingly, the discovery plan shall not, at this time, include provision for her examination.

[36] The scope of oral discovery will, of course, be guided by the relevance of the questions posed. In my view, this is best determined by way of motion under r. 34.15 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 once the specific questions have been posed and a refusal to answer made.

[37] To the extent the defendant Williams – Litigation Lawyers has agreed to the provisions of the discovery plan proposed by the plaintiffs, those provisions shall be included.

Conclusion

[38] The parties provided me with their bills of costs at the conclusion of argument and agreed that an order for costs should follow success on the motion assessed on a partial indemnity basis. The plaintiffs have been successful and claim partial indemnity costs totaling $17,570.57. This is more than $4,000 less than the partial indemnity costs that would have been sought by Brunning had she been successful. This leads me to conclude that the amount sought by the plaintiffs is fair and reasonable in all of the circumstances, and it is ordered accordingly.

The Honourable Mr. Justice Robbie D. Gordon

Released: January 20, 2020