Court File and Parties

COURT FILE NO.: CV-18-599126 DATE: 2020 05 08

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: STRENGTH OF TWO BUFFALO DALE, Plaintiff - and - ATTORNEY GENERAL OF CANADA, Defendants

BEFORE: Master Todd Robinson

COUNSEL: N. Qureshi and A. Ghiassi, for the plaintiff / moving party K. Watt, for the defendant / responding party

HEARD: February 10, 2020

REASONS FOR DECISION

[1] The plaintiff moves for production of a number of redacted and unproduced documents from the defendant prior to examinations for discovery. The defendant opposes on the basis that the motion is premature and, in any event, the content of certain documents is properly redacted and the remaining disputed documents should not be produced because they are privileged or raise public safety concerns.

Background

[2] This action arises from the termination of the plaintiff from his full-time position as Traditional Aboriginal Elder and Cultural Advisor with Correctional Service Canada (“CSC”). Whether the plaintiff was an employee or contractor is an issue in the litigation, but one that is not pertinent to the motion before me.

[3] Termination followed an incident at the Beaver Creek Correctional Institution in Gravenhurst, Ontario, in which the plaintiff is alleged to have exposed himself and urinated in the course of a sweat lodge ceremony held on July 12, 2017. The plaintiff disputes that characterization, maintaining that he discretely urinated behind a tree because there was no portable toilet available and he was neither permitted by indigenous protocol to leave the sacred grounds during the ceremony nor allowed to leave the inmates.

[4] A stop work order was issued to the plaintiff on July 13, 2017. The defendant alleges that, during the course of investigating the urination incident, closed circuit television (“CCTV”) footage from July 7, 2017 was discovered showing what is said to be the plaintiff sleeping on a couch in a common area of the correctional institution for approximately 40 minutes. The plaintiff’s keys and portable personal alarm are alleged to have been left lying on the floor next to him, creating a serious security risk with inmates present in the room who could have taken them. The plaintiff disputes that he was asleep and that there was any security risk.

[5] The plaintiff was terminated from his position on July 26, 2017. He disputes that the defendant had any valid grounds for termination. Documentary discoveries are is complete, except for the disputed documents that are the subject of this motion. In particular, the plaintiff seeks production of the CCTV footage, an unredacted copy of one produced email, and various other emails listed in Schedule B to the defendant’s list of documents.

Analysis

Is the motion premature?

[6] Examinations for discovery had not yet been scheduled when this motion was brought. I agree with the defendant that examiantion would allow the plaintiff to test the validity of the defendant’s productions, the claims of privilege, and to seek undertakings regarding the disputed documents. Instead of bringing this motion, it was open to the plaintiff to defer questions about the disputed documents and requests for production until examination of the defendant’s representative. However, the plaintiff was not required to do so and is entitled to seek pre-examination production of relevant documents on which he wishes to discover.

[7] In my view, the cases of White v. Winfair Management Ltd. and Kamaladdine v. Bell, 1996 ABQB 470 do not assist the defendant. Neither case holds that a plaintiff must address documentary production issues during examination for discovery. Both merely acknowledge it is an option.

[8] In this case, the CCTV footage is a key “document” as defined in Rule 30.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). That footage is the core disputed document in this motion. It was admittedly relied upon by the defendant in the decision to terminate the plaintiff. Nevertheless, it has not been produced (although prior to the motion hearing the plaintiff’s lawyers were permitted to view an excerpt of the unedited footage, but only in the presence of defendant’s counsel). Relevance of the footage is not disputed. Although solicitor-client and litigation privilege claims are noted in the defendant’s list of documents, no privilege claim is being maintained over the footage. Protecting the privacy of inmates who are identifiable from the footage is the sole objection to producing it.

[9] I do not accept the defendant’s argument that the motion is premature. In my view, given the significance of the CCTV footage in this litigation, it ought already to have been produced even if only in an edited form that addressed the defendant’s privacy concerns, such as blurring the faces of visible inmates. It follows that I see nothing premature in the plaintiff seeking production of the significant and admittedly relevant CCTV footage in a fully unedited/unredacted form before proceeding with examinations. I also see nothing premature in the plaintiff seeking pre-examination rulings, concurrently with moving for production of the CCTV footage, regarding known disputes over the defendant’s redactions and privilege claims regarding other documents.

Objections based on privacy concerns

[10] Privacy concerns are cited by the defendant as the basis for not having produced the CCTV footage and for redacting information from the produced email identified as Tab 42 in Schedule A to the defendant’s list of documents. That email was sent by the Assistant Warden of the Beaver Creek Correctional Institution and concerns a complaint made by the plaintiff regarding the conduct of a correctional officer toward him in the institution parking lot. The defendant’s privacy concerns are as follows:

(a) the CCTV footage captures not only the plaintiff, but also inmates who were present in the common area during the alleged sleeping incident, whose faces are identifiable in the footage; and

(b) based on the defendant’s affidavit evidence and cross-examination testimony, the redactions in the disputed email include the names of an inmate and a list of all staff that were on duty at the institution on the date of the parking lot incident.

[11] The dispute regarding both the CCTV footage and the redacted email is the same. The plaintiff asserts that he has a right to disclosure of the identities of the inmates and CSC employees identifiable from the CCTV footage and the names within the redacted portions of the email, since they are potential witnesses. Conversely, the defendant argues that the faces and identities of the inmates visible in the CCTV footage and the names redacted from the email are not relevant to any matter in issue.

[12] Albeit in the context of trial evidence, the Supreme Court of Canada has held that evidence will be relevant where it has “some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than the proposition would be in the absence of that evidence”: R v White, 2011 SCC 13 at para. 36. At the discovery stage, relevance is determined by the pleadings: Ontario v. Rothmans Inc., 2011 ONSC 2504 at para. 129.

[13] A party is permitted to redact irrelevant third party information from a document on the basis of privacy concerns: see, for example, Kent v. Laverdiere at para. 5. However, Rule 31.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 permits a party to obtain disclosure during examination for discovery regarding persons who might reasonably be expected to have knowledge of matters in issue. In my view, it follows that, if the inmates and CSC employees are persons who might reasonably be expected to have relevant knowledge, then the identities of those individuals is not irrelevant third party information subject to redaction from documents.

[14] Subsection 8(1) of the Privacy Act, R.S.C. 1985, c. P-21 provides that personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution, unless it falls within a listed exception. One of the exceptions expressly provided in subsection 8(2) of the Privacy Act, R.S.C. 1985, c. P-21 is “for the purpose of complying with rules of court relating to the production of information”. Rule 30.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 expressly provides for disclosure and production for inspection of every document relevant to a matter in dispute that is within the possession, control or power of a party, subject to a privileged document being exempt from production. This production requirement of the Rules falls squarely within the exception listed in the Privacy Act.

[15] Regarding the CCTV footage, the defendant points to the CSC Commissioner’s Directive 568-8, “Authority for Use of Surveillance Equipment”. The stated purpose of that directive is, in part, to ensure that surveillance respects the privacy rights guaranteed by the Canadian Charter of Rights and Freedoms and the Privacy Act, R.S.C. 1985, c. P-21. It states as follows regarding review of surveillance video recordings:

10. Only those portions of a video recording believed to contain evidence pertinent to a serious misconduct are to be viewed. Every effort will be made to respect the privacy of, and minimize the impact on, persons not specifically involved in the investigation.

[16] In my view, this portion of the directive is consistent with case law permitting redaction of irrelevant personal information. It does not suggest any derogation from or displacement of the defendant’s legal obligations regarding production and disclosure of relevant personal information, which are contemplated by the Privacy Act. The defendant does not disagree. Instead, the defendant argues that the directive supports the need for parameters from the court before the footage is produced.

[17] The defendant’s position is that the faces and identities of inmates are not relevant to the matters in dispute, since the video “speaks for itself” regarding the behavior and actions of the plaintiff. The plaintiff is alleged to have breached his contract by lying on the couch for approximately 40 minutes, leaving his keys and portable personal alarm on the floor where the inmates could access them, and invoicing CSC for that time. The defendant argues that whether or not the plaintiff was asleep is irrelevant, since the relevant conduct is leaving his keys and alarm on the floor accessible to inmates. Since the inmates cannot provide evidence to counter that proposition, their testimony is argued to be irrelevant to the dispute regarding the plaintiff’s conduct.

[18] I do not agree with the defendant. Relevance for discovery purposes and relevance at trial are distinct. The defendant specifically pleads that the plaintiff was “sleeping on the job” and by doing so exposed himself, others in the institution, and the public at large to serious harm: see paras. 16 and 20 of the statement of defence. Notwithstanding the defendant’s argument on this motion that whether or not the plaintiff was actually asleep is immaterial, it is relevant based on the pleadings. It is also a disputed fact. During cross-examination, the defendant’s affiant confirmed that she could not tell with certainty from the CCTV footage whether the plaintiff was awake or asleep while on the couch and acknowledged that the inmates in the room are in a better position than a viewer to explain what occurred.

[19] What the plaintiff was doing and whether the plaintiff was, in fact, asleep are matters that will likely need to be determined as part of assessing whether laying the keys and alarm on the ground did create a security risk, as alleged. I agree with the plaintiff that individuals present at the time when the plaintiff was on the couch are potentially relevant witnesses who may be able to confirm or deny that he was, in fact, asleep and may otherwise be able to testify regarding what he was or was not doing. Particularly since the CCTV footage is acknowledged to have no audio, being able to see which inmates may have been looking at or interacting with the plaintiff will be relevant, but cannot be known if their faces or bodies are blurred or otherwise edited/redacted.

[20] The defendant also argues that there is a public safety concern from disclosure of the footage, since knowledge of the location of the camera could post a threat to correctional staff, inmates, and the public, such as by a trespasser with knowledge of the camera avoiding detection. No evidence was tendered to support such a concern. The defendant also points out that subsection 16(1)(d) of the Access to Information Act, R.S.C. 1985, c. A-1 permits the head of a government institution to refuse to disclose any record that contains “information that could reasonably be expected to be injurious to the security of penal institutions.” However, that provision does not apply here. This motion concerns the defendant’s documentary discovery obligations, not a request by the plaintiff for access to government records under that legislation.

[21] In my view, the defendant’s various concerns are addressed by the deemed undertaking in Rule 30.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. While defendant’s counsel expressed concern that the video could “fall into the wrong hands”, no evidentiary basis was provided to substantiate any such speculative concern, which would arise only from the plaintiff or his counsel breaching the deemed undertaking rule. Otherwise, privacy and any other concerns remaining at the time of trial may be raised directly with the trial judge, who will be able to make any appropriate exclusion or other protective orders, if they are found necessary.

[22] I accordingly find no basis to support continued non-production of the CCTV footage or production in an edited/redacted form. The CCTV footage shall accordingly be produced for inspection in an unedited/unredacted form for the entire period during which the plaintiff is in the common area, including the period following 4:27 p.m.

[23] Regarding the disputed email, I am not satisfied that the subject complaint by the plaintiff regarding the parking lot incident is relevant based on the pleadings. During oral argument, I was directed only to the allegations of bad faith at para. 46 of the statement of claim in support of relevance. There is an allegation that the defendant failed to maintain confidentiality of complaints made against the plaintiff, causing reputational harm, but none of the allegations deal with investigation or handling of complaints made by the plaintiff. No other argument was made for how handling of the plaintiff’s complaint is relevant to the dispute over his termination.

[24] An unredacted version of the email accordingly need not be produced. However, my determination is without prejudice to the plaintiff moving again after examinations for discovery if evidence is obtained supporting relevance of the redacted content to any issues in dispute.

Objections based on privilege

[25] Litigation privilege is claimed over six emails, namely those identified as Tabs 4, 5, 37, 57, 58 and 59 in Schedule B to the defendant’s list of documents. Five of these emails were sent on July 13, 2017, which is the date on which the stop work order was issued to the plaintiff. The sixth email, namely that identified as Tab 37, is an email dated June 19, 2017 over which solicitor-client privilege is also claimed.

[26] Litigation privilege protects against the compulsory disclosure of communications and documents whose dominant purpose is preparation for litigation: Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52 at para. 1. Documents that were created for the “substantial purpose” of litigation will not meet the “dominant purpose” test: Blank v. Canada (Minister of Justice), 2006 SCC 39 at para. 60; Lizotte, supra at para. 23. Litigation need not have begun, or even be a certainty, but litigation must be “reasonably apprehended”, meaning that there must be a reasonable prospect of litigation that is more than a suspicion: Lizotte, supra at para. 33; Mamaca v. Coseco Insurance Company at para 13 (SCJ-Master).

[27] Regarding the five emails dated July 13, 2017, they are confirmed by the defendant’s affiant to address “the Plaintiff’s behavior and potential disciplinary outcomes”, “the meeting with the Plaintiff regarding the stop work order”, “the decision to issue a stop work order to the Plaintiff”, and “the steps and considerations made in contemplating the Plaintiff’s termination.” No other evidence was tendered by the defendant regarding the context or substance of the emails.

[28] The defendant argues that issuing the stop work order, which suspended the plaintiff’s work, raised sufficient certainty for a reasonable prospect of litigation, and thereby triggered litigation privilege. There is no evidence from the defendant supporting any actual or reasonable belief that litigation was likely to arise from issuing the stop work order. The defendant relies on the decision in Mabee v. Siemens Canada Ltd., 2019 SKQB 82. In that wrongful dismissal case, the plaintiff moved to compel answers to questions taken under advisement and refusals, including about an investigation into complaints regarding the behaviour of the plaintiff and his manager. The court held, at paras. 43-44, that the purpose of the investigation was to determine if the allegations would be borne out and, if so, that termination of both the plaintiff and his manager “would almost certainly follow.” The court was satisfied that, even though the plaintiff’s cause of action had not yet accrued at the time of the investigation, litigation was reasonably contemplated and the dominant purpose behind the investigation was to prepare for anticipated litigation.

[29] No other case law is relied upon by the defendant to support its argument that litigation privilege may accrue prior to a decision to terminate being made. While Mabee may reflect the current state of the law in Saskatchewan, in my view, it is in conflict with Ontario common law, notably the decision of Justice DiTomaso in Ernewein v. Honda Canada, 2017 ONSC 1181. In Ernewein, a “termination review document” was prepared to assist the senior management team in deciding on termination of an employee. That document was held, at para. 79, to have been prepared before the decision to terminate was made and, as a result, it could not be said that litigation was in contemplation at the point of its creation. Litigation privilege was accordingly found not to attach to the document.

[30] There is no evidence from the defendant supporting any investigation as of July 13, 2017. Evidence from the defendant’s affiant that at least some of the July 13, 2017 emails address contemplation of the plaintiff’s termination also appears to conflict with a subsequent email dated July 20, 2017 from Jamie Contois, CSC’s Regional Administrator for Aboriginal Initiatives. That email was sent in response to a July 14, 2017 letter from the plaintiff’s then-counsel requesting information on the complaint leading to the stop work order and the investigation. Mr. Contois’ responding email states, in part, as follows (emphasis added):

I’d like to answer what questions I’m able at this time, provide some clarity regarding what’s taken place and where things currently stand.

No complaint has been made, rather an Observation Report was submitted by a staff person. This is a protected document that I’m not permitted to share. You may utilize the Access to Information Act and Privacy Act to pursue if desired.

There is no investigation taking place. I’ve looked into the matter and am currently consulting with our Contracting and Legal departments concerning next steps. At this time, Mr. Dale’s contract is not terminated. I will endeavour to get back to you within 5 business days with additional information.

[31] Mr. Contois’ confirmation that no investigation was occurring and that there had been no termination was not reconciled with the statements by the defendant’s affiant regarding the subject matter of the July 13, 2017 emails.

[32] I do not accept that issuance of a stop work order itself clearly gives rise to a reasonable prospect of contemplated litigation. There is no evidence supporting an actual or reasonable belief that litigation would likely flow from issuing a stop work order to the plaintiff. There is also no evidence from the defendant regarding when the decision to terminate the plaintiff was made, although it does not appear to have been made as of July 20, 2017.

[33] A party asserting privilege bears the onus of establish the evidentiary basis for it: General Accident Assurance Co. v. Chrusz at para. 95; Mamaca v. Coseco Insurance Company at para. 28. It is thereby the defendant’s onus to demonstrate that the dominant purpose of these emails was preparation for actual or reasonably apprehended litigation. In my view, the defendant has not met that onus. The five emails shall be produced.

[34] Regarding the email dated June 19, 2017, it is described by the defendant’s affiant as “an email between Justice Canada legal counsel and paralegal, and the Correctional Service of Canada employee regarding document collection related to the plaintiff’s termination.” No other evidence has been tendered supporting the claims of litigation and solicitor-client privilege over the email exchange. However, during oral submissions, defendant’s counsel confirmed that the email is misdated in the list of documents and materials, and it is actually from June 19, 2018 (after the litigation had commenced).

[35] A copy of the email was provided to me for inspection and is, in fact, dated June 19, 2018. The email is correctly described as dealing with document collection related to the plaintiff’s termination. I am satisfied that the email is litigation privileged and accordingly it need not be produced for inspection. Based on that determination, I need not assess if it is also solicitor-client privileged. However, an amended list of documents reflecting the correct document date is required.

Objections based on public safety concerns

[36] Production of two emails identified as Tabs 18 and 63 in Schedule B to the defendant’s list of documents is opposed on the basis of public safety. The defendant also argues they are now irrelevant. Both emails concern security clearances. The first is stated by the defendant’s affiant to be an email between CSC employees regarding security clearance revocation generally and how it could apply to the plaintiff. The second is stated to be an email between security employees regarding the security clearance requirement for Elder service contracts.

[37] The defendant pleads that the plaintiff’s site security clearance was revoked as a result of his breaches of security rules, regulations and procedures, such that he posed a potential risk to the institution and could not be given further access: see para. 16 of the statement of defence. By email dated October 1, 2019, defendant’s counsel confirmed to plaintiff’s counsel that the plaintiff’s security status was administratively dismissed on October 27, 2017. The plaintiff’s position is that, accordingly, there was no revocation of the plaintiff’s security clearance, which appears undisputed by the defendant. Although pleaded, revocation of the plaintiff’s security clearance is not an issue remaining in dispute.

[38] The plaintiff argues that whether he failed to meet the criteria for his security clearance is at issue. The pleaded allegation is that the plaintiff breached security rules, regulations and procedures, not that he failed to abide by the criteria of his security clearance. Nothing in evidence correlates the plaintiff’s security clearance to the security rules, regulations and procedures. The defendant submits that distinctions between “security clearance” and “access to the property” (the terms used in para. 16 of the statement of defence) can be explained during discoveries. I agree. Discovery evidence may support the plaintiff’s position that non-compliance with his security clearance criteria is captured in the pleading that he breached security rules, regulations and procedures, but I am not satisfied by the evidence on this motion that is the case.

[39] Based on the pleadings and evidence before me, I am accordingly unable to find that emails regarding security clearance requirements or revocation are relevant to any pleaded issue actually remaining in dispute. The two emails accordingly need not be produced. However, my determination is without prejudice to the plaintiff moving again if discovery evidence supports that security clearance criteria or revocation remain relevant to an issue still in dispute.

Disposition

[40] For the foregoing reasons, I order as follows:

(a) The defendant shall produce the CCTV footage identified as Tab 1 in Schedule B to the defendant’s list of documents, in unedited and unredacted form, for the entire period during which the plaintiff is in the common area, within 30 days.

(b) The defendant shall produce the documents identified as Tabs 4, 5, 57, 58 and 59 in Schedule B to the defendant’s list of documents, within 30 days.

(c) The plaintiff’s motion for production of the document identified as Tab 42 in Schedule A to the defendant’s list of documents and the documents identified as Tabs 18, 37, and 63 in Schedule B to the defendant’s list of documents is hereby dismissed.

(d) The dismissal in subparagraph (c) above is without prejudice to the plaintiff moving again following examinations for discovery regarding Tab 42 in Schedule A and Tabs 18 and 63 in Schedule B, if evidence supporting their relevance is obtained, and without prejudice to any costs of this motion claimed in respect of Tab 37 in Schedule B.

(e) The defendant shall forthwith serve an amended list of documents correcting the date error in the document identified as Tab 37 in Schedule B.

(f) This order is effective without further formality.

Costs

[41] Costs outlines were filed at the conclusion of oral argument. The parties are encouraged to settle costs of this motion. However, if the parties are unable to resolve costs themselves, then the plaintiff shall deliver written costs submissions by May 22, 2020. The defendant shall deliver responding submissions by June 5, 2020. There shall be no reply or oral costs submissions unless I direct otherwise. Costs submissions shall not exceed four pages, excluding any offers to settle or case law.

[42] Service of all costs submissions by email is hereby authorized. All costs submissions shall be submitted by email directly to me or my Assistant Trial Coordinator with a scanned copy of proof of service. Hard copies shall not be required since the parties should not be attending the courthouse at this time. Original proof of service need only be filed if the court so directs.

[43] In the absence of receiving written submissions as directed above, the parties shall be deemed to have agreed on costs.

Impact of COVID-19

[44] As set out in the Notice to the Profession released by the Chief Justice of the Superior Court of Justice dated March 15, 2020, regular operations of the Superior Court of Justice have been suspended to protect the health and safety of all court users and to help contain the spread of the 2019 novel coronavirus (COVID-19). Currently, only urgent and consent civil applications and motions are being heard by the court in accordance with the Notices to the Profession released by the Chief Justice dated March 15 and April 2, 2020 and the Notice to Profession – Toronto released by the Regional Senior Judge dated April 2, 2020, as revised April 22, 2020.

[45] Since I am unaware of the current circumstances of the parties or their counsel, if the above ordered deadline for production of documents or the timetable for costs submissions cannot be met as a result of the ongoing pandemic, then the parties must confer on how they propose to proceed. If on consent, my ordered deadline for production of documents may be amended pursuant to Rule 3.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 without further notice to me. The parties may write to me jointly via my Assistant Trial Coordinator regarding any agreed proposed change to the costs submissions timetable. If agreement cannot be reached, then the parties shall prepare a joint letter briefly setting out their respective positions on the production deadline and/or timing of cost submissions.

[46] Counsel and parties are reminded and encouraged to consider the call for cooperation in the Notice to the Profession released by the Chief Justice, which states, “During this temporary suspension of regular operations, the Court calls upon the cooperation of counsel and parties to engage in every effort to resolve matters.”

MASTER TODD ROBINSON DATE: May 8, 2020