COURT FILE NO.: CV-19-624711 DATE: 2020 01 17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: FRANCIS ABOAGYE, Plaintiff - and - THE REGIONAL MUNICIPALITY OF PEEL POLICE SERVICES BOARD, Defendant
BEFORE: Master Todd Robinson
APPEARING: F. Aboagye, for himself J. Bruce, for the defendant D. Fedoruk, for the non-party, Canadian Human Rights Commission
HEARD: January 13, 2020
REASONS FOR DECISION
[1] The plaintiff, Francis Aboagye, seeks production orders against the defendant, The Regional Municipality of Peel Police Services Board (the “Board”), and the non-party, the Canadian Human Rights Commission (the “CHRC”). In particular, Mr. Aboagye seeks that the Board produce every document in the Board’s possession regarding the subject matter of the claim, including documents from the Ontario Police Technology Information Co-operative (OPTIC) and from a police records management system known as Niche RMS (identified as “NICHE” in Mr. Aboagye’s materials). From the CHRC, Mr. Aboagye seeks production of all police documents about Mr. Aboagye in the CHRC’s possession.
[2] This action arises out of allegations by Mr. Aboagye that various police agencies, including the Board, have been improperly surveilling, investigating, and harassing him for more than a decade since an allegedly false arrest in July 2006. The Board has brought a motion pursuant to Rule 21 of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”) to strike all or portions of the statement of claim, which is currently returnable before a judge on February 10, 2020. Pleadings have been exchanged. There does not appear to have been any discussion regarding a discovery plan. Evidence filed supports that documentary discovery has not commenced and oral discoveries have not yet been discussed.
[3] Although not the sole focus of this motion, it is clear from Mr. Aboagye’s oral submissions that he is particularly concerned with obtaining a fully unredacted copy of General Occurrence Report No. PH12003473 dated September 13, 2012 (the “Occurrence Report”), prepared by Port Hope Police Service (“PHPS”). Mr. Aboagye has only ever been provided a partially redacted version and has made numerous unsuccessful attempts through various forums over the past several years to obtain a fully unredacted copy.
Production from the Board
[4] In response to Mr. Aboagye’s motion, the Board has filed evidence confirming that all records within its possession regarding Mr. Aboagye were previously produced to him in accordance with the order of Master Abrams dated February 28, 2019 made in the separate action of Aboagye v. Her Majesty the Queen in Right of Ontario (CV-18-600871). The Board’s position is that it has no documents to produce that have not already been produced in accordance with Master Abrams’ order.
[5] During oral submissions, Mr. Aboagye clarified that what he seeks from the Board is, firstly, all documents within the Board’s possession regarding surveillance of Mr. Aboagye, including any court orders obtained authorizing surveillance, and, secondly, an affidavit confirming (i) when he was first put under investigation and surveillance, (ii) if he is still under investigation and surveillance, and (iii) if not, when the investigation and surveillance ended. The requested affidavit is not something that is properly the subject matter of a production motion. It is not a document already in existence. Questions regarding investigation and surveillance may be appropriate for Mr. Aboagye to ask during examinations for discovery. The analysis is different regarding any existing documents in respect of Mr. Aboagye’s surveillance, which would properly be included in an affidavit of documents from the Board, provided there are such documents and they are relevant to a matter in issue in this action.
[6] Relevance for both documentary and oral discovery is determined by the pleadings: Ontario v. Rothmans Inc., 2011 ONSC 2504 at para. 129. Accordingly, determination of the Board’s pending motion to strike may impact the scope of documentary production that the Board must make and that this court may properly order in this action. Even if the action is not dismissed in its entirety, should portions of the statement of claim be struck, it will directly impact the scope of relevance. Accordingly, even if the Board has additional documents in its possession, control or power not produced in compliance with Master Abrams order in CV-18-600871, relevance of those documents cannot be determined until after disposition of the Board’s pending motion.
[7] I am also mindful that there does not appear to have been any discovery plan discussed or agreed, and that the Board has not yet been given an opportunity to prepare an affidavit of documents disclosing what it believes are all relevant documents in its possession, control or power. Any motion by Mr. Aboagye for production by the Board is more properly brought after the Board’s affidavit of documents is served or the Board has failed to serve one after being given a reasonable opportunity to do so if the claim is not struck in its entirety following disposition of the Board’s pending motion.
[8] The Board, however, does not seek a full dismissal of Mr. Aboagye’s motion. Instead, the Board proposes a consent order that the Board re-produce those records produced in accordance with Master Abrams’ order in CV-18-600871 or, alternatively, that those previously-produced records may be used and relied upon by Mr. Aboagye in this action. I am prepared to order the latter, since Mr. Aboagye does not deny having received the previously-produced records and, in my view, it is not proportionate to require that they be re-produced.
Production from the CHRC
[9] Although not specifically cited by Mr. Aboagye in his notice of motion or motion materials, the production order sought against the CHRC is properly assessed as a motion pursuant to Rule 30.10 of the Rules of Civil Procedure. Rule 30.10 provides that the court may order production for inspection of a document in the possession, control or power of a non-party that is not privileged where the court is satisfied that the document is relevant and it would be unfair to require the moving party to proceed to trial without having discovery of the document.
[10] Mr. Aboagye conceded in argument that the CHRC has produced copies of all requested documents, except a copy of the fully unredacted Occurrence Report. It is undisputed that the CHRC has in its possession an unredacted copy of the Occurrence Report, which was obtained by the CHRC in the course of its investigation into a prior complaint by Mr. Aboagye against his former employer regarding workplace discrimination and harassment. It is also unconverted on the evidence before me that that the CHRC was provided the unredacted Occurrence Report by the PHPS under express condition that the unredacted version should not be provided to Mr. Aboagye. The covering letter from the PHPS initially providing the unredacted version states as follows:
I have read over the sections of the Canadian Human Rights Act which you provided to me this week. I have also looked at Sections 43, 44, 48.1 and 48.3 which together with Sections 53 and 54 deem you as law enforcement in my opinion.
Pursuant to this, I am enclosing an unedited version of the General Occurrence Report […]. I would ask however that this unedited version NOT be shared with Mr. Aboagye. He has been given the proper procedures under the Municipal Freedom of Information and Protection of Privacy Act to appeal my decision not to include certain information in his copy of the report. I think you will agree that the deleted information is of no real value to the complaint he has brought to your office.
[11] A subsequent letter from the PHPS to the CHRC in March 2015 re-affirmed PHPS’ position that the unredacted Occurrence Report should not be disclosed to Mr. Aboagye, since it was provided to the CHRC in confidence.
[12] Although the record before me does not include the particulars and specific outcomes of all of Mr. Aboagye’s efforts, Mr. Aboagye has evidently made numerous attempts to obtain the unredacted Occurrence Report since a redacted version came into his possession. These include requests through the Municipal Freedom of Information and Protection of Privacy Act, RSO 1990, c. M.56, the Access to Information Act, RSC, 1985, c. A-1, and the Federal Courts Act, RSC, 1985, c. F-7, appeals regarding disclosure provided in response to freedom of information requests, prior motions in other civil litigation, and a motion for disclosure during the judicial review of the CHRC’s decision to dismiss Mr. Aboagye’s complaint. While I sympathize with Mr. Aboagye’s frustration at the statutory and procedural roadblocks he seems to have encountered in obtaining production of the unredacted Occurrence Report, I must address his motion for production in the context of this action within which his motion has been brought and with regard to the particular party against whom relief is sought, namely the CHRC.
[13] The CHRC argues that the Occurrence Report is a privileged document in its hands that is not subject to production under Rule 30.10, that the report has not been shown to be relevant, and that it would in any event be unfair to order that the CHRC produce it as a “true stranger” to this litigation in the absence of the consent of the PHPS or the PHPS’ submissions regarding its position on the need to maintain the confidentiality of the document.
[14] As outlined above, until disposition of the Board’s pending motion to strike, relevance of the Occurrence Report cannot be definitively determined. In Ontario (Attorney General) v. Stavro, at para. 15, the Court of Appeal set out a number of factors that may be considered in deciding a production motion under Rule 30.10. In my view, with the action still in its procedural infancy and a motion to strike pending, the court is not yet in a position to properly assess whether the document is in any way necessary for Mr. Aboagye to proceed to trial or if there is any unfairness to Mr. Aboagye from not obtaining the Occurrence Report from the CHRC.
[15] In my view, though, I need not determine either relevance or fairness on this motion. I am satisfied that the unredacted Occurrence Report in the hands of the CHRC is privileged. In addition to more “standard” forms of privilege, such as solicitor-client, litigation and settlement privilege, the common law also recognizes privilege on a case-by-case basis. In Philip Services Corp. v. Deloitte & Touche, 2015 ONCA 60, in the context of an appeal from a dismissal of a Rule 30.10 motion, the Court of Appeal set out the requirements for establishing case-by-case privilege, known as the Wigmore criteria, at para. 18, as follows:
- the communication must originate in a confidence that they will not be disclosed;
- the confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
- the relation must be one which in the opinion of the community ought to be sedulously fostered; and
- the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
[16] In Philip Services Corp., the Court of Appeal upheld the motions judge’s determination that The Institute of Chartered Accountants of Ontario need not produce it investigators’ report, witness statements, interview notes and other documentation concerning its investigation of a senior partner of the defendant, Deloitte & Touche, regarding audits of the plaintiff in that case. In doing so, the Court of Appeal nevertheless overturned the motion judge’s conclusion that case-by-case privilege applied to the subject records. However, the determination that the records were not privileged turns on the specific facts of that case, which led the Court of Appeal to determine that the communications could not reasonably have originated in confidence given the Institute’s normal practices. The facts are quite different here.
[17] I have considered the Wigmore criteria with regard to the particular circumstances in which the unredacted version of the Occurrence Report came into the CHRC’s possession. In reaching my determination that the report is privileged in the hands of the CHRC, I have considered the following:
(a) The Occurrence Report is not a document created by the CHRC. It is a document created by the PHPS. The CHRC obtained the unredacted document from the PHPS as part of the CHRC’s investigation of Mr. Aboagye’s complaint regarding his former employer. It was provided to the CHRC under an express condition of confidentiality. (b) The PHPS had a reasonable understanding and expectation that the CHRC would keep the document confidential. (c) I am satisfied that confidentiality as between the CHRC and various law enforcement agencies is essential to the full and satisfactory maintenance of their relationships. Those relationships are also essential to the CHRC being able to complete its statutory mandate of investigating and screening complaints to determine which human rights complaints warrant referral to assessment and determination by the Canadian Human Rights Tribunal. I accept the CHRC’s submission that there is a public interest in maintaining transparent and trusting relationships between human rights agencies and law enforcement agencies. In my view, they are relationships of trust that must be fostered for human rights agencies to operate effectively. (d) I agree with the CHRC’s submission that there is an important public interest in maintaining the public’s confidence in the proper use and disclosure of sensitive or confidential materials that are disclosed during human rights investigations. I also accept that protecting the use and disclosure of such confidential materials in the hands of the CHRC is necessary to protect the integrity of the CHRC’s investigation process. (e) In my view, law enforcement agencies should be able to provide confidential information and documentation to human rights agencies that may be pertinent to the investigation of human rights complaints, without concern that such information and documents will become producible directly from the human rights agency. In my view, voluntary cooperation between law enforcement and human rights agencies is likely to be seriously hampered if the confidentiality of shared information and documents is not upheld.
[18] I am accordingly satisfied that the circumstances under which the unredacted Occurrence Report came into the possession of the CHRC render it privileged in the hands of the CHRC. However, that does not mean the document is privileged in the hands of the PHPS or others.
[19] Mr. Aboagye’s motion for production appears more properly brought against both the PHPS and the Hawkesbury OPP detachment. The contents of the Occurrence Report appear to be derived from their respective investigations. The redacted portion appears to have been redacted by PHPS because it was drawn from the Hawkesbury OPP’s investigation records. Bryant Wood, Chief of Police of the PHPS, previously swore an affidavit in response to a motion in Mr. Aboagye’s prior action against his former employer in CV-14-5476. Although the precise relief sought and disposition of that motion is not before me, Chief Wood’s affidavit appears to confirm that the Occurrence Report is an amalgam of information from the PHPS and information from General Occurrence Report No. RM12039235 of the Hawkesbury OPP detachment, which was obtained by the PHPS in the course of its own investigation through the Niche RMS records management system.
[20] I note also that it is the PHPS, not the CHRC, who has refused production of the unredacted Occurrence Report to Mr. Aboagye. Even after being served with Mr. Aboagye’s motion record, the CHRC sought consent from the PHPS to produce the unredacted Occurrence Report, but such consent was not given as evidenced by a letter from PHPS’ counsel dated November 13, 2019, which cites the prior positions taken by the PHPS as the reason for not consenting to production.
[21] For the foregoing reasons, I am accordingly dismissing Mr. Aboagye’s motion as against the CHRC, but without prejudice to moving against the PHPS, the Hawkesbury OPP detachment, and/or such other police service or non-party as may appear appropriate, but not before disposition of the Board’s motion to strike and, if this action continues in whole or in part following that motion, exchange of productions between Mr. Aboagye and the Board. After those steps have been taken, I encourage Mr. Aboagye to communicate with the PHPS and/or the Hawkesbury OPP detachment regarding their position on providing the unredacted Occurrence Report and what persons or agencies need to be on notice before bringing a future motion. Mr. Aboagye will also need to establish the relevance of the Occurrence Report based on the pleadings as they stand at that time and the unfairness of proceeding to trial without the unredacted Occurrence Report.
Orders
[22] I accordingly order as follows:
(a) On consent of the Board, those documents produced by the Board in compliance with the order of Master Abrams dated February 28, 2019 in CV-18-600871 may be relied upon in discoveries in this action, with issues of admissibility reserved to the trial judge or further order of this court. (b) The balance of Mr. Aboagye’s motion as against the Board is dismissed without prejudice to moving again following completion of exchange of productions, if necessary. (c) Mr. Aboagye’s motion is dismissed as against the CHRC, with prejudice. Such dismissal, however, is without prejudice to Mr. Aboagye bringing a further Rule 30.10 motion for production of the unredacted Occurrence Report against the PHPS, the Hawkesbury OPP detachment, or others following the disposition of the Board’s pending motion to strike and any subsequent exchange of productions in this action between Mr. Aboagye and the Board. (d) This order is effective without further formality.
Costs
[23] CHRC has confirmed that it does not intend to seek any costs of this motion. If Mr. Aboagye, the Board and CHRC cannot agree as to costs, then any party seeking costs may make written submissions to me served and filed within fourteen (14) days of this decision. Responding costs submissions shall be served and filed within fourteen (14) days thereafter. There shall be no reply submissions or oral submissions. Written costs submissions shall not exceed four (4) pages, excluding costs outlines and any case law. All cost submissions shall be emailed directly to my Assistant Trial Coordinator.
MASTER TODD ROBINSON DATE: January 17, 2020