Court File and Parties

COURT FILE NO.: CV-20-640061 DATE: 2020-08-05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SANCTUARY MINISTRIES OF TORONTO, ABORIGINAL LEGAL SERVICES, ADVOCACY CENTRE FOR TENANTS ONTARIO, BLACK LEGAL ACTION CENTRE, CANADIAN CIVIL LIBERTIES ASSOCIATION, and HIV & AIDS LEGAL CLINIC ONTARIO, Applicants

AND:

CITY OF TORONTO and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, Respondents

BEFORE: Sossin J.

COUNSEL: Jessica Orkin, Geetha Philipupillai Andrew Porter, Anthony Sangiuliano, Sahar Talebi and Emily Hill, Counsel for the Applicants Kirsten Franz, David A. Gourlay, Michele Brady and Alison Barclay, Counsel for the Respondent, City of Toronto

HEARD: July 24, 2020

Endorsement

Overview

[1] This is a refusals motion to compel answers to over 150 refusals given over the course of two days of examinations of six City witnesses. Five witnesses were examined pursuant to summons under Rule 39.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The sixth witness, Mr. Gordon Tanner, is the City's affiant.

[2] On April 24, 2020, Sanctuary Ministries of Toronto, Aboriginal Legal Services, Advocacy Centre for Tenants Ontario, Black Legal Action Centre, Canadian Civil Liberties Association, and HIV & AIDS Legal Clinic Ontario (collectively, “the applicants”) brought a Charter application challenging the Shelter Standards and the 24-Hour Respite Site Standards of the respondent City of Toronto (the “City”) as unconstitutional in the context of the COVID-19 pandemic, as those standards permitted the use of bunk beds and failed to require a minimum of two metre lateral spacing between beds. The applicants subsequently added the respondent, Ontario, to its application.

[3] On May 4, 2020, the applicants sought an interim injunction restraining the City from continuing to permit the operation of sites within the City’s shelter system with bunk beds and less than two metres lateral spacing between beds. The applicants’ motion for an injunction was adjourned on terms when the applicants and the City reached an Interim Settlement Agreement (the “Agreement”) on May 15, 2020.

[4] On June 15, 2020, the City informed the applicants that it had reached compliance with the Agreement, and as such the Agreement would reach its “termination date” within two months.

[5] The applicants’ notice of motion, dated July 3, 2020, raises three issues as the basis for the applicants' requested relief: first, that the City did not achieve physical distancing within its shelter system as of June 15, 2020; second, the City did not achieve the level of capacity for clients seeking shelter beds under the Interim Settlement Agreement; and third, that the City failed to address the applicants' questions about the weekly reports that the City was delivering pursuant to the Interim Settlement Agreement.

[6] On July 8, 2020, counsel for the applicants served summonses pursuant to Rule 39.03 on five witnesses pursuant to Rule 39.03. These witnesses are Mr. Samonas (the delegate of William Johnston of Buildings Toronto); Ms. Wainberg (Manager, Quality Assurance (“QA”), Shelter, Support and Housing Administration (“SSHA”)), Ms. McDonald (Manager of the City’s Central Intake line); Mr. Medhekar (Manager of Information Technology at SSHA, who was cross-examined in relation to the City’s Shelter Management Information System and Open Data) and Ms. Decker (Manager of Streets to Homes). Each summons identified a list of documents that the witness was required to produce at the examination.

[7] The witnesses were cross-examined on July 10, 2020. The cross-examinations resulted in a number of refusals.

[8] On Thursday July 9, 2020, counsel for the applicants served a notice of examination on the City’s affiant Mr. Tanner. On July 11, 2020, counsel for the applicants cross-examined Mr. Tanner on his affidavit. The cross-examination resulted in a number of refusals.

[9] The questions and documents which the City has refused to answer or produce in respect of the Rule 39.03 witnesses and Mr. Tanner, were identified in a chart labeled as Schedule “A” of the applicants’ notice of motion. The chart sets out 176 specific refusals.

[10] On July 21, 2020, the applicants filed their notice of motion to order the City to provide the requested answers to questions and production of documents (the “refusals motion”).

[11] The applicants request an order directing that the questions set out in the refusals and undertaking chart be answered and the documents requested be produced. The applicants also seek an order for the further cross-examination of Mr. Tanner and the Rule 39.03 witnesses.

[12] The hearing of the refusals motion was conducted via Zoom on July 24, 2020.

[13] At the outset of the hearing of the refusals motion, the parties advised the Court that an agreement had been reached relating to eighteen of the original refusals: specifically, questions 6, 7, 12, 30, 31, 32, 33, 37, 40, 42, 61, 74, 75, 127, 164, 168, 173 and 174.

[14] In the analysis below, I address the governing principles in a refusals motion, apply those principles to the main categories and themes identified by the parties, and provide a specific ruling in relation to each remaining refusal.

Analysis

[15] The applicants bring this motion to address a large number of refusals by City witnesses and the City’s affiant, Mr. Tanner.

[16] For the most part, the parties do not disagree on the legal principles to be applied in a refusals motion.

[17] For example, both parties rely on Ontario v. Rothmans Inc., 2011 ONSC 2504, at para. 143, leave to appeal denied, 2011 ONSC 3685 (Div Ct), where Justice Perrell helpfully summarized the principles regarding the scope of cross-examination:

[143] The case law has developed the following principles about the scope of the cross-examination of a deponent for an application or motion:

• The scope of a cross-examination of a deponent for an application or motion is narrower than an examination for discovery: BOT Construction (Ontario) Ltd. v. Dumoulin, [2007] O.J. No. 4435 (S.C.J.) at para. 6.
• A cross-examination is not a substitute for examinations for discovery or for the production of documents available under the Rules of Civil Procedure: BOT Construction (Ontario) Ltd. v. Dumoulin, supra at para. 7; Westminer Canada Holdings Ltd. v. Coughlan, [1989] O.J. No. 252 (Master), aff’d [1989] O.J. No. 3038 (H.C.J.).
• The examining party may not ask questions on issues that go beyond the scope of the cross-examination for the application or motion: Thomson v. Thomson, [1948] O.W.N. 137 (H.C.J.); Toronto Board of Education Staff Credit Union Ltd. v. Skinner, [1984] O.J. No. 478 (H.C.J.) at para. 12; Westminer Canada Holdings Ltd. v. Coughlan, [1989] O.J. No. 3038 (H.C.J.).
• The questions must be relevant to: (a) the issues on the particular application or motion; (b) the matters raised in the affidavit by the deponent, even if those issues are irrelevant to the application or motion; or (c) the credibility and reliability of the deponent’s evidence: Superior Discount Limited v. N. Perlmutter & Company; Superior Finance Company v. N. Perlmutter & Company, [1951] O.W.N. 897 (Master) at p. 898; Re Lubotta and Lubotta [1959] 0.W.N. 322 (Master); Wojick v. Wojick, , [1971] 2 O.R. 687 (H.C.J.); Toronto Board of Education Staff Credit Union Ltd. v. Skinner, [1984] O.J. No. 478 (H.C.J.) at para. 11; BASF Canada Inc. v. Max Auto Supply (1986) Inc., [1998] O.J. No. 3676 (Master) at paras. 6, 10-11; Caputo v. Imperial Tobacco Ltd., [2002] O.J. No. 3767 (Master) at paras. 14-15; BOT Construction (Ontario) Ltd. v. Dumoulin, [2007] O.J. No. 4435 (S.C.J.) at para. 4; Shannon v. BGC Partners LP, 2011 ONSC 1415 (Master) at para. 8.
• If a matter is raised in, or put in issue by the deponent in his or her affidavit, the opposite party is entitled to cross-examine on the matter even if it is irrelevant and immaterial to the motion before the court: Wojick v. Wojick and Donger, , [1971] 2 O.R. 687 (H.C.J.), at p. 688; Ferring Inc. v. Richmond Pharmaceuticals Inc. [1996] O.J. No. 621 (Div. Ct.) at paras. 14 and 15; Logan v. Canada (Minister of Health), [2001] O.J. No. 6289 (Master); Guestlogix Inc. v. Hayter, 2010 ONSC 5570 at para. 16.
• The proper scope of the cross-examination of a deponent for an application or motion will vary depending upon the nature of the application or motion: Blum v. Sweet Ripe Drink Inc. (1991), 47 C.P.C. (2d) 263 (Ont. Master); Moyle v. Palmerston Police Services Board (1995), , 25 O.R. (3d) 127 (Div. Ct.).
• A question asked on a cross-examination for an application or motion must be a fair question: Superior Discount Ltd. v. N. Perlmutter & Co., [1951] O.W.N. 897 (Master) at p. 898; Canadian Bank of Commerce (CIBC) v. Molony, [1983] O.J. No. 221 (H.C.J.) at para. 3; Seaway Trust Co. v. Markle, [1988] O.J. No. 164 (Master); BASF Canada Inc. v. Max Auto Supply (1986) Inc., [1998] O.J. No. 3676 (Master) at para. 6. (See discussion below.)
• The test for relevancy is whether the question has a semblance of relevancy: Re Lubotta and Lubotta [1959] O.W.N. 322 (Master); Rodriques v. Madill, [1985] O.J. No. 1666 (Master).
• The scope of cross-examination in respect to credibility does not extend to a cross-examination to impeach the character of the deponent: Moyle v. Palmerston Police Services Board (1995), , 25 O.R. (3d) 127 (Div. Ct.).
• The deponent for an application or motion may be asked relevant questions that involve an undertaking to obtain information, and the court will compel the question to be answered if the information is readily available or it is not unduly onerous to obtain the information: Bank of Montreal v. Carrick (1974), , 1 O.R. (2d) 574 (Master), aff’d ibid p. 574n (H.C.J.); Mutual Life Assurance Co. of Canada v. Buffer Investments Inc. (1985), , 52 O.R. (2d) 335 (H.C.J.) at paras. 9-13; Caputo v. Imperial Tobacco Ltd., [2002] O.J. No. 3767 (Master) at paras. 42, 56; BOT Construction (Ontario) Ltd. v. Dumoulin, [2007] O.J. No. 4435 (S.C.J.) at para. 8; Hinke v. Thermal Energy International Inc., 2011 ONSC 1018 (Master) at paras. 36-37.
• The deponent for a motion or application who deposes on information and belief may be compelled to inform himself or herself about the matters deposed: Rabbiah v. Deak, [1961] O.W.N. 280 (Master); Caputo v. Imperial Tobacco Ltd., [2002] O.J. No. 3767 (Master) at paras. 42, 46.

[18] Since Rothmans, courts have confirmed that the standard of a “semblance of relevance” no longer has application. Consequently, the point of departure for refusals on this motion is the threshold of “relevance”; Mars Canada Inc. v. Bemco Cash & Carry Inc., [2013] O.J. No. 5639 (Master), at para 12, aff’d 2014 ONSC 4172.

[19] With respect to determining whether a question asked is relevant, the key factor is whether an answer could be relied on by a trier of fact to determine an issue on the motion. In other words, relevance and probative value are closely related factors in addressing refusals. As Master Haberman stated in Romspen Investment Corporation v. Woods et al., 2010 ONSC 30005, at para. 16:

[16] In view of recent amendments to the Rules, the degree of connection between the question asked and the matters in issue is now relevance, rather than “semblance of relevance”. I am of the view that, in most instances, there is no significant difference between the two standards of disclosure. At the end of the day, regardless of whether the test is relevance or semblance thereof, the approach comes down to this: subject to privilege, if the question asked could elicit a response that the trial judge could rely on to resolve a matter in issue before him, the test has been met – the question asked is relevant. (Emphasis added.)

[20] There are important differences, however, between a Rule 39.03 examination, where the witnesses are only required to provide information that is within their personal knowledge, and an examination for discovery, where witnesses who have provided an affidavit may be required to obtain information not within their personal knowledge.

[21] The parties disagree as to the application of these principles to the circumstances of this case.

[22] Generally, the applicants argue that the questions and requests for documents are relevant and that the refusals are improper. The City argues that the refusals are proper, based on well established principles of relevancy and proportionality, and characterizes the applicants' request for information as a fishing expedition designed to bolster a thin record.

[23] First, I examine relevance within the scope of the applicant’s motion to enforce the Interim Settlement Agreement.

[24] Second, I examine relevance within the scope of Mr. Tanner’s affidavit.

[25] Third, I consider the principle of proportionality in relation to this refusals motion.

[26] Fourth, I consider the pandemic context in relation to this refusals motion.

[27] Fifth, in light of the principles set out above, and my conclusions on these four issues, I provide rulings on the various categories of refusals.

1. Relevance and the Scope of the Motion

[28] As set out above, in order to rule on whether refusals are proper, I must determine what questions are relevant to the pending motion.

[29] Rule 39.03 examinations are limited to questions that are relevant on the pending motion. Therefore, relevance in this context must arise from the motion to enforce the Interim Settlement Agreement specifically (as opposed to the issues in dispute in the broader application and motion for an injunction which was adjourned in light of this Agreement); Magnotta Winery Corporation v. Ontario (The Alcohol and Gaming Commission), 2020 ONSC 561, at para 4.

[30] With respect to the scope of relevance on the motion to enforce the Interim Settlement Agreement brought by the applicants, the dispute between the parties is clear.

[31] The applicants view the concerns with the City’s compliance with the Interim Settlement Agreement in a global fashion, and the cited instances of non-compliance as illustrative of these system-wide concerns.

[32] In other words, while an instance of an observed lack of physical distancing in one shelter facility was described by the applicants in detail in their notice of motion, the applicants argue that questions relating to physical distancing across all shelters in the City’s shelter bed system are relevant and within scope of this motion.

[33] The City takes the position that, since the applicants raised an instance of non-compliance in one of the shelters, they may ask relevant questions only about that instance. Asking broad questions about the entire shelter bed system, however, lies beyond the scope of this motion.

[34] Both parties agree the applicant’s notice of motion, dated July 3, 2020, serves as the point of departure for this analysis.

[35] The applicants rely on the breadth of the relief sought as a basis for the relevance of the questions and information sought from the City. In its notice of motion, the applicants seek the following relief:

(a) A declaration that the Respondent, the City of Toronto did not achieve compliance on June 15, 2020, within the meaning of the Interim Settlement Agreement dated May 15, 2020; (b) A declaration that the City of Toronto has not achieved compliance on any other date prior to the hearing of this motion; (c) An Order that the City of Toronto deliver to the Applicants all Progress Reports required by the Interim Settlement Agreement that have not been provided since June 15, 2020; (d) An Order that the City of Toronto provide Progress Reports on a weekly basis as required by the Interim Settlement Agreement until such time as compliance is achieved; (e) A declaration that the City of Toronto has not met its obligations under the Interim Settlement Agreement to use best efforts to achieve without delay and thereafter sustain Physical Distancing Standards in the Shelter System and to make Beds available to Clients that meet Physical Distancing Standards, as required; and (f) an Order requiring the City to comply with its obligations under the Interim Settlement Agreement to the extent the Court finds that it has not done so; (g) An order that there shall be no costs of this motion; and (h) Such further and other relief as this Honourable Court may deem just.

[36] The City argues that the focus with respect to relevancy are the grounds set out by a moving party for bringing a motion, not the relief sought.

[37] For this reason, it is important to reproduce those grounds in the notice of motion in their entirety:

THE GROUNDS FOR THE MOTION ARE

(a) The Applicants filed an application challenging, among other things, the bed spacing provisions in the Toronto Shelter Standards and the 24-Hour Respite Site Standards, and brought a motion for an injunction seeking interim relief as part of the application; (b) On May 15, 2020, the Applicants and the City of Toronto (the “City”) entered into an Interim Settlement Agreement pursuant to which the Applicants’ pending motion for an injunction was adjourned sine die on terms;

The Interim Settlement Agreement

(c) The primary components of the Interim Settlement Agreement include substantive commitments by the City relating to the subject matter of the application and motion for injunction and a reporting process pursuant to which regular Progress Reports are provided by the City to the Applicants with respect to its progress in achieving those substantive commitments and in which the Applicants are entitled to ask questions and receive responses to those questions from the City; (d) The substantive obligations of the City are set out in paragraph 2 of the Interim Settlement Agreement, and are as follows:

The City of Toronto (the “City”) shall use best efforts, until the Termination Date to:

(a) to achieve without delay and thereafter sustain Physical Distancing Standards in the Shelter System; (b) to provide shelter to Clients by making available such Beds as is necessary to achieve Physical Distancing Standards across the Shelter System; (c) to ensure that any new capacity developed to respond to encampments will meet the Physical Distancing Standards; and (d) to continue to publish the following Shelter System occupancy and capacity information online consistent with its past practices, as follows: (i) the shelter occupancy Excel spreadsheet on the City’s website tracking daily occupancy and capacity, typically updated at least three times per week; and (ii) the occupancy data for each respite, 24-hour women’s drop-in, and 24-hour temporary response site and/or other sites established or funded by the City in response to the COVID-19 Pandemic, on a weekly basis.

(e) The obligations provided for refer to and rely upon certain defined terms set out at paragraph 1 of the Interim Settlement Agreement, which include:

(a) “Shelter System” means the shelter, respite and overnight drop-in sites operated or funded by the City of Toronto, and includes the 24-hour temporary response sites, hotel rooms, isolation/recovery sites, Streets to Homes satellite temporary housing program and such other sites as have been or may be established or funded by the City in response to the COVID-19 Pandemic; (b) “Clients” means individuals who are, or who have been at any time since March 11, 2020, in receipt of any kind of support services provided by the Shelter System; (c) “Beds” means beds, mats or cots in the sites within the Shelter System; and (d) “Physical Distancing Standards” means: (a) lateral separation of at least 2 metres between beds or alternative sleeping arrangements; and (b) no use of the upper bunks of bunk beds; (e) "Termination Date" means the date after which the City has achieved compliance with Physical Distancing Standards across the Shelter System and has sustained compliance for a two-month period. In this regard, during the two-month period following the date at which the City first achieves compliance with Physical Distancing Standards, de minimus noncompliance of a merely transient nature shall not amount to noncompliance for the purposes of determining whether the Termination Date has been reached.

(f) The process and frequency with which the City is required to delivery Progress Reports to the Applicants, their prescribed contents, and the process by which the Applicants are permitted to deliver questions in writing regarding any matters arising out of the Progress Reports is set out at paragraphs 3-7. (g) Under the terms of the Interim Settlement Agreement, once the City asserts that it has achieved compliance with the Physical Distancing Standards, Progress Reports are delivered on a monthly rather than weekly basis for a period of two months until the Termination Date (para. 7). (h) Upon the Termination Date being reached, the City’s substantive and reporting obligations under the Agreement are of no force and effect (para. 12).

The City’s Failure To Achieve Compliance And Meet Its Obligations

(i) On June 15, 2020, the City asserted that it had achieved compliance with the obligations set out in the Interim Settlement Agreement as of the effective date of June 14, stating that the June 15, 2020 Progress Report would be the City’s final Progress Report delivered on a weekly basis; (j) The City has failed to achieve compliance on June 15, 2020 and meet its obligations in accordance with the terms of the Interim Settlement Agreement in that:

(i) The City has failed to discharge its obligation to comply with the Physical Distancing Standard of at least 2.0 m lateral separation between all Beds within the Shelter System as required by paragraph 2(a) of the Agreement, including in the following way(s): (1) On Tuesday June 16, 2020, the City informed St. Felix that the capacity of the respite site at 69 Fraser Street was to be reduced from 50 to 41, effective immediately; (2) As of June 14, 2020, the reported occupancy at the 69 Fraser Street respite was 50, and the occupancy at this site remained at 50 on June 16, 2020; (3) On June 14, 2020 and for at least some time thereafter, the occupancy at the 69 Fraser Street respite exceeded the capacity of that site;

(ii) The City has failed with respect to its obligation to make best efforts to make Beds available to Clients (anyone who has received support services from the Shelter System since March 11, 2020) as required by paragraph 2(b) of the Agreement. The City has failed in the following way(s): (1) To the extent that the City has achieved compliance with Physical Distancing Standards within the sites making up the Shelter System, this compliance has been achieved via a reduction in the overall capacity of the Shelter System, as compared to the capacity of the Shelter System prior to the COVID-19 pandemic; (2) The total number of Clients served by the Shelter System has declined substantially over the course of the COVID-19 crisis; (3) Clients entitled to a Bed under the terms of the Interim Settlement Agreement have been unable to secure Beds, despite repeated calls to Central Intake. The Shelter System is generally operating without sufficient capacity to accommodate individuals who have left the Shelter System since March 11, 2020, who are entitled to a Bed under the terms of the Agreement, and who request a Bed;

(iii) The City has failed to discharge its obligations to provide meaningful information and responses to the Applicants’ questions, including in the following ways: (1) Failing to provide the information relied upon to determine target capacities at each site; and (2) Failing to provide the instructions provided to SSHA’s Quality Assurance teams.

(k) The Rules of Civil Procedure, R.R.O. 1990, Reg. 194; (l) Such further and other grounds as the lawyers may advise and this Court may permit.

[38] The City argues in its factum that, “The Notice of Motion in this case does not indicate that the City's achievement of physical distancing across all 72 shelter sites, and the management of its shelter intake process for a four month period is in issue in this motion.” (at para. 104)

[39] Even if relevance is limited to the grounds for the pending motion set out in the notice of motion, I am not persuaded by the City’s narrow reading of those grounds.

[40] While the applicants cite specific instances of alleged breaches of the Interim Settlement Agreement, in each case, the applicants make clear that these instances are illustrations rather than the extent of the applicants’ basis for the motion.

[41] For example, with respect to the physical distancing standard, the Notice of Motion alleges that, “The City has failed to discharge its obligation to comply with the Physical Distancing Standard of at least 2.0 m lateral separation between all Beds within the Shelter System as required by paragraph 2(a) of the Agreement, including in the following way(s): …” (Emphasis added.)

[42] With respect to the shelter bed capacity, the grounds for the Notice of Motion are set out in system-wide language: “The City has failed with respect to its obligation to make best efforts to make Beds available to Clients (anyone who has received support services from the Shelter System since March 11, 2020) as required by paragraph 2(b) of the Agreement. The City has failed in the following way(s): …” (Emphasis added.)

[43] The City argues that the applicants seek to rely on the word including to suggest that these narrow issues are examples of broader, unspecified issues not supported by the affidavit evidence. The City characterizes these allegations are bald pleadings that should not be used as “a wedge” to open the door to a more generalized discovery process.

[44] While I do not accept the City’s narrow characterization of the applicants’ grounds for the pending motion as a constraint on relevance, to the extent the concern over an open-ended discovery process arises, I address it through a proportionality analysis in the context of specific requests for information, as set out below.

[45] In these circumstances, and in light of the test set out in Rothmans, I find that the applicants’ questions and request for information on the City’s compliance with the Interim Settlement Agreement on a system wide basis meet the threshold for relevance on the pending motion.

2. Relevance and the Scope of Mr. Tanner’s Affidavit

[46] The applicants argue that the scope of Mr. Tanner’s affidavit represents separate grounds for relevancy for many of the questions which have been refused. In other words, questions may be relevant if they test specific claims or statements in Mr. Tanner’s affidavit, even it those claims or statements fall outside the four corners of relevancy on the pending motion.

[47] On this question, the parties once again differ.

[48] The applicants submit that Mr. Tanner gave evidence as to the design and operation of the City’s shelter bed system as a whole, and therefore questions about physical distancing and capacity on a system wide basis are proper.

[49] The City argues that Mr. Tanner’s reference to the shelter bed system as a whole was by way of general background so as to provide context for the evidence he then gave about the specific allegations of non-compliance by the applicants.

[50] I do not accept the City’s characterization of Mr. Tanner’s evidence.

[51] In his affidavit, Mr. Tanner makes the following broad claims (at paras. 10 and 11),

10. Throughout these challenges, SSHA used best efforts to achieve physical distancing standards across its shelter system, which we accomplished on June 14, 2020.
11. Importantly, physical distancing was achieved across the shelter system while maintaining capacity. SSHA has always made maintaining its system capacity an imperative, as we believe that reducing capacity or closing beds would leave many people without housing. SSHA accomplished this task despite having limited resources at its disposal.

[52] Elsewhere, Mr. Tanner gave evidence that, “As of the June 15 Progress Report, we were, and still are, confident that we have made best efforts to achieve 100% physical distancing across the shelter system.” (at para. 78)

[53] In my view, the plain meaning of this evidence is that Mr. Tanner’s view is that the City “accomplished” its mandate with respect to best efforts to achieve physical distancing standards without reducing capacity across the entire Toronto shelter system.

[54] I reject the City’s argument that Mr. Tanner’s affidavit was focused primarily on responding to the specific allegations of the applicants. I note that Mr. Tanner’s responses to specific allegations begin only at para. 94 of his 139 paragraph affidavit.

[55] I also reject the City’s argument that Mr. Tanner’s claims convey only general background on the shelter system. Rather, Mr. Tanner’s assertions address the very subject-matter in dispute in the applicants’ motion. I find that the applicants are entitled to test those claims in their cross-examination of Mr. Tanner on his affidavit evidence, subject to the principle of proportionality, as discussed below.

3. Proportionality

[56] Rule 29.2.03(1) of the Rules of Civil Procedure sets out the factors a Court shall consider in a motion for refusals on an examination for discovery:

29.2.03 (1) In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether, (a) the time required for the party or other person to answer the question or produce the document would be unreasonable; (b) the expense associated with answering the question or producing the document would be unjustified; (c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice; (d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and (e) the information or the document is readily available to the party requesting it from another source. O. Reg. 438/08, s. 25.

Overall Volume of Documents

(2) In addition to the considerations listed in subrule (1), in determining whether to order a party or other person to produce one or more documents, the court shall consider whether such an order would result in an excessive volume of documents required to be produced by the party or other person. O. Reg. 438/08, s. 25.

[57] As the Court held in Ravenda Homes v. 1372708 Ontario Inc., 2011 ONSC 4277, at para. 29, similar considerations of proportionality apply on refusals in the context of a cross-examination on an affidavit; see also Price v. H. Lundbeck A/S, 2018 ONSC 2483, at para 27.

[58] Additionally, Rule 1.04 (1) of the Rules of Civil Procedure sets out that the Rules are to be liberally construed in order to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. Rule 1.04(1.1) specifically requires that proportionality be considered in applying the Rules.

[59] Having addressed the question of relevance both with respect to the notice of motion, and with respect to Mr. Tanner’s affidavit, I must also address whether the City should be ordered to answer the questions put to the witnesses by the applicants, even if relevant.

[60] Relevancy, in other words, does not end the analysis. As Master MacLeod (as he then was) stated in St. Lewis v. Rancourt, 2011 ONSC 5923, at para. 15 “In these matters the question of relevance is a question of law. The question of whether the court ought to order answers to be given is a matter of discretion.”

[61] Proportionality is a well-recognized factor in exercising the Court’s discretion over whether parties will be required to respond to questions and requests for documents.

[62] In Warman v. National Post Co., 2010 ONSC 3670, at paras. 84-85, Master Short stated, “Proportionality must be seen to be the norm, not the exception -- the starting point, rather than an afterthought... The "broad and liberal" standard should be abandoned in place of proportionality rules that make "relevancy" part of the test for permissible discovery, but not the starting point.” (Emphasis added); see also Berry v. Scotia Capital Inc., 2014 ONSC 5244, at para 13.

[63] Proportionality, however, must also be measured against the principle of fairness to the parties. As Justice Perrell stated in Rothmans, at para. 163, “…the proportionality principle allows the court to downsize the procedure and still do justice for the parties. If downsizing is not procedurally fair then the normal rules should apply to the proceedings without augmentation.”

[64] The City takes the position that many of the refusals are based on proportionality considerations, and that the applicants’ request for information amount to “a forensic audit of all City records.” In its factum, the City summarizes this argument as follows:

86. The Applicants set out why they disagree that the City has met the terms of the agreement in their Notice of Motion and supporting materials. They point to three specific bases for their disagreement – that physical distancing at 69 Fraser was not achieved on June 15, that 2 Clients were not offered a shelter space in June and that the City has not answered two questions they asked in relation to the Progress Reports.
87. What these examinations and this refusals motion are attempting to do is conduct a forensic audit of all City records relating to all aspects of the physical distancing in the shelter system and all records of any person who may have used the system since March 11 to see if there might be anything else that the Applicants can point to as an additional source of their disagreement. Despite not having any basis for saying that the City has not complied with the agreement, other than what is noted above, they claim entitlement to a complete investigation of the City's compliance with respect to all sites, and all shelter users. And they are using the court process to accomplish this.

[65] The City submits that a number of refusals represent attempts by the applicants to obtain more information from the City than negotiated through the Interim Settlement Agreement.

[66] Mr. Tanner expresses a similar view in his affidavit (at para. 135):

I note that when the Interim Agreement was finalized, the parties had negotiated what information would be reported on and the form of the Progress Report was agreed to. There was no agreement to provide data that was created prior to the Reports, nor any agreement to provide documentation related to the verification process. Responding to all of the subsequent communications from the Applicants is taking a tremendous amount of staff time that is keeping us away from the important and urgent work we are doing in other parts of the system. We have tried to provide reasonable and measured explanations but many of the questions would require us to compile information and data that may or may not exist, or create new documents.

[67] In oral submissions, counsel for the applicants acknowledged the City’s proportionality concerns in some instances, and stated that they were no longer looking to the City to create data in a form which does not already exist. Rather, their focus is on data already generated or in the possession of the City, but which they have refused to produce.

[68] As a general proposition, I accept that it is not proportionate for this motion to require City staff to manually generate new data or information which are not already in existence. The focus of this refusals motion, therefore, will be on data and information which already exist, but which the City has refused to provide to the applicants.

[69] Not all relevant data or information which already exists must be provided to the applicants given the focus and purpose of the pending motion. The applicants’ pending motion is premised on the argument that the City has not met the criteria set out in the Interim Settlement Agreement as of June 15, 2020. Therefore, the adjudication of this dispute will turn in large measure on the accuracy and sufficiency of the data on which the City actually relied to determine that its obligations under the Agreement had been met. In other words, the focus and purpose of the pending motion will inform the proportionality analysis as well.

[70] Another context for proportionality is the length of time covered by a number of questions and requests for information which the City has refused.

[71] A number of refusals deal with information requests covering the period of the COVID-19 response prior to the Interim Settlement Agreement (between March 11, 2020 and May 15, 2020). This period has significance under the Agreement (for example, in the identification of “clients” of the shelter system).

[72] Information pre-dating the Interim Settlement Agreement, however, will be of more limited probative value in determining the City’s compliance with that Agreement as of June 15, 2020. Therefore, absent specific and clear relevance to the City’s compliance under the Interim Settlement Agreement, refusals to questions and information requests for the period prior to May 15, 2020, will be upheld.

[73] Similarly, a number of refusals relate to information on ongoing compliance with physical distancing standards in the shelter system in the post-June 15, 2020 period.

[74] The applicants argue that to the extent that new information has been acquired and/or new target capacities determined since June 15, 2020, these records and information are relevant to testing the City’s assertion of compliance as of June 14, 2020.

[75] While it is true that a reduction in capacity subsequent to June 15 could cast doubt on the occupancy level as of June 14, I am not persuaded that the applicants request for information concerning the period after June 15, 2020 is proportionate for purposes of this motion.

[76] To the extent the applicants wish to show discrepancies between the City’s assertion of compliance on June 15, 2020 and subsequent reporting, the applicants may use the ongoing monthly data already provided under the terms Interim Settlement Agreement, and other information in the record. Indeed, the applicants already argue such a discrepancy exists based on the City’s monthly report on July 15, 2020.

[77] In light of these proportionality concerns with the pre-May 15 and post-June 15 periods, some of the specific rulings in the refusals chart set out that a particular question asked was refused improperly and must be answered, but only for the May 15-June 15, 2020 period. In this way, I have sought to take into consideration both relevance and proportionality.

[78] Finally, there is also a time-sensitivity factor to consider as part of the proportionality analysis. The applicants have sought an expedited time-frame for the hearing of the motion on the City’s compliance with the Interim Settlement Agreement. This expedited time-frame will necessarily require some constraint on the extent of the examination and cross-examination process as well.

[79] For these reasons, I find that proportionality dictates some limits on the questions posed and records requested by the applicants, even where such questions and records request meet the threshold of relevance on the pending motion.

[80] The refusals upheld on the basis of proportionality are set out in greater detail below.

4. The Pandemic Context

[81] The City also argues that a related and further context which ought to play a role in this motion is the COVID-19 pandemic context.

[82] Counsel for the City emphasized that the very same City officials who were examined at length by the applicants, and may need to re-attend a further examination if the applicants are successful, are also responsible for the operation of the City’s shelter bed system and its ongoing response to the pandemic. The City argues (at para. 8 of its factum):

Pursuant to Rule 1.04, the court ought to consider the broader context in which this motion is brought. It is not in the public interest for the City to be ordered to produce, and in some cases, create, what amounts to a forensic audit of its shelter system in the midst of a pandemic. Responding to these records requests will take weeks of staff time and will require the City to pull staff away from the essential work that they are performing in the shelter system in order to respond these requests. This is not a just, nor expeditious, nor fair method of resolving the issues raised by this motion.

[83] I accept that the pandemic represents an important context in all aspects of this dispute, including the initial application and motion for an injunction, the Interim Settlement Agreement and the adjournment of that motion, and most recently, the motion to enforce the Agreement and this refusals motion.

[84] The pandemic context, however, cuts both ways.

[85] On the one hand, it is important to bear in mind the practical challenges that City staff face in responding to questions and records requests given the many other calls on City staff to respond to the unprecedented demands of the pandemic.

[86] It is equally important to bear in mind, however, that the very issue over which the applicants seek accountability is the health and safety of vulnerable shelter clients in the midst of the pandemic.

[87] In my view, the pandemic context does not assist one party more than the other in determining whether the City’s refusals were proper. Rather, the pandemic context underscores the arguments both parties have advanced to justify their positions.

5. Rulings

[88] In light of the analysis presented above, I turn now to the refusals themselves. I address the refusals by category. The organization of the refusals by the parties into different themes and categories, while differing in number and detail, provides a useful resource for clustering the refusals around common issues. I draw on these common issue clusters in setting out my rulings below.

[89] For greater certainty and clarity, to the extent the rulings below do not dispose of all of the refusals at issue, I provide specific a ruling for each question in the refusals chart appended to this decision.

(i) Refusals of questions and records requests relating to the City's development and implementation of physical distancing across the entire shelter system.

[90] A broad cluster of refusals arise from questions on the City’s actions to achieve physical distancing standards in the shelter system.

[91] Many of the refusals in this cluster relate to the position the City has taken that the pending motion concerns only the specific instances of non-compliance set out in the applicants’ notice of motion.

[92] I find the City improperly objected to questions concerning compliance with physical distancing standards at sites within the shelter system other than 69 Fraser Ave. These questions are both relevant to the motion and relevant to testing the claim in Mr. Tanner’s affidavit that the City has used “best efforts” to achieve these standards.

[93] While the City must provide the information actually relied on by Mr. Tanner or others involved in determining that the City had met its obligations under the Interim Settlement Agreement, there remain proportionality concerns with some of the applicants’ questions and the granular nature of the information sought.

[94] The implications for the overall space required to meet a specific level of capacity are significant within the context of the pending motion. The applicants need to be able to obtain answers to questions and production sufficient to document the City’s practice in this regard, including the reports of the QA teams based on site visits, on which the City relies for its position with respect to compliance with the Interim Settlement Agreement.

[95] The applicants state that during the cross-examinations of Ms. Wainberg and Mr. Tanner, counsel to the City improperly refused to provide responses or copies of any documents setting out any QA processes implemented to ensure compliance with the Agreement, other than the records relating to the three sprung structures at 69 Fraser, 1A Strachan and 351 Lakeshore Blvd East.

[96] I agree.

[97] Notwithstanding the importance and relevance of the QA process to this motion, proportionality concerns means that the City should not be required to provide every detail relating to the QA process sought by the applicants. For example, I find that the refusal of the City to provide QA reports on a system wide basis was improper. The refusal to provide all the follow up correspondence from each QA team, however, will be upheld.

[98] While granular detail on the QA process may meet the threshold of relevance on the pending motion, I find that this greater level of detail has diminishing probative value, and it would not be proportionate to require the City to provide this level of detail for purposes of this motion.

[99] For example, with respect to questions and requests for documents concerning the layout of the various shelters, to the extent the City has such layouts in their possession or readily available, I find these are relevant to the key issue of compliance with physical distancing standards in the Agreement and are proportionate. On the other hand, if the City does not have such layouts in its possession or readily available, it would not be proportionate to require the City to obtain them.

[100] The Applicants also seek all building plans records in relation to all sites in the shelter system, including respites, since 2010. This information, while potentially relevant, is more diffuse and was characterized by the City as an example of a fishing expedition. This level of detail (dating back well before the pandemic) has little probative value, could be time consuming to obtain, and is not proportional to the questions to be determined on this motion. Therefore, this refusal will be upheld.

[101] The applicants also seek detailed information on the City’s shift from practices on physical distancing that equated 2 metres with 6 feet, to a directive which exclusively used 2 metres. In his affidavit, Mr. Tanner acknowledges this change occurred in the midst of the implementation of the Interim Settlement Agreement (at para. 64):

On June 4, 2020, Directive 2020-01 was amended to remove the reference to 6ft and impose a requirement of 2m of lateral spacing between beds. Between the time of the initial issuance of Directive 2020-01 and the amendment, the provincial Ministry of Health and Long Term Care had revoked its previous guidance for shelter settings and issued a new guidance document for all congregate living facilities, which includes homeless shelters. The new guidance removed the reference to 6 feet.

[102] Given this acknowledgment of the problematic reference to 6 feet in shelter physical distancing standards prior to June 4, 2020, I find that it would be of limited probative value and is not proportionate to require the City to provide significant, additional detail on precisely when, and how, and to whom this change was communicated.

(ii) Refusals relating to the capacity of the overall shelter system.

[103] Another cluster of refusals relate to the capacity of the overall shelter system, and the City’s claim that it has been able to achieve physical distancing standards without reducing overall capacity.

[104] The applicants seek information relating to the global total of individuals who received beds in the shelter system over the course of the pandemic, and also information regarding the individuals who received beds at each shelter facility, and in each category of client (i.e. men, women, mixed adult, youth, and family).

[105] I find that this information (for the more focused time period of the Interim Settlement Agreement May 15-June 15, 2020) is directly relevant to the question at issue regarding compliance with the Interim Settlement Agreement, and the applicants are entitled to responses to these questions and information requests.

[106] The applicants also seek daily information on occupancy capacity and percentage occupancy for the shelter system as a whole.

[107] Daily information through the examination process may be relevant to the calculation of capacity figures, but in my view, this level of granular detail is not proportionate for purposes of this motion and also extends beyond the disclosure which the parties themselves negotiated in the Interim Settlement Agreement. Refusals of this request for data on a daily basis, therefore, will be upheld.

(iii) Refusals of questions and record requests relating to SSHA records about internal processes taken and/or policies developed to ensure compliance with Interim Settlement Agreement

[108] According to the applicants, the City’s compliance with its various best-efforts obligations as set out in the Interim Settlement Agreement depends upon a coordinated response by many individuals, spread across many shelter sites and across many departments of SSHA, and including both City employees and employees of City funded service providers.

[109] Therefore, the applicants argue they are entitled to information about steps taken by the City, if any, to develop and implement processes and policies aimed at ensuring compliance with its obligations under the Interim Settlement Agreement.

[110] The applicants argue that its cross-examination of the summonsed witnesses revealed that key senior staff within SSHA had no knowledge, or had only very recently become aware, of the existence of the Interim Settlement Agreement or of the City’s obligations under the Agreement.

[111] The City does not specifically address the issue of internal processes for advising SSHA staff with respect to the obligations under the Agreement, though this area falls within its broader bases for refusals on grounds of relevance and proportionality.

[112] I find that questions to the witnesses regarding any QA process(es) implemented to ensure compliance with the Interim Settlement Agreement, including any relevant correspondence to QA teams or Streets to Homes outreach teams and staff, are relevant and not disproportionate in the context of this motion, and should be answered.

[113] However, the applicants also seek additional and more granular information about the QA process, such as the dates of every QA site visit to every shelter facility, and all records generated as part of each QA site visit. While such information is potentially relevant, I find this level of detail is not proportionate for purposes of this motion, and therefore this refusal will be upheld.

[114] Additionally, the request for copies of all instructions and updated instructions provided to the QA site visit teams goes beyond the scope of QA process(es) implemented to ensure compliance, and is the subject of the motion itself as to the scope of disclosure required under the Interim Settlement Agreement. If the instructions were required to be produced as part of these examinations, this relief on the motion effectively would be moot. For this reason, this refusal will be upheld.

[115] Similarly, the City refused to provide the information relied upon by the City to determine target capacities at each shelter site. The question of whether the City is obliged under the Interim Settlement Agreement to provide this information also is the subject of the pending motion. For this reason, this refusal will be upheld.

(iv) Refusals relating to whether the City was meeting its commitment to use best efforts to obtain shelter beds for clients

[116] A number of refusals relate to requests for information about the City’s use of the Central Intake phone service as a means of ensuring clients could obtain shelter beds.

[117] According to the applicants, the information requested is directly relevant to whether the City has failed with respect to its obligation to make best efforts to make beds available to clients under the Interim Settlement Agreement.

[118] The applicants argue that, in his affidavit, Mr. Tanner asserted that the City’s goal was to move people who had left the system for encampments back into indoor shelter space and that various efforts were taken by the City to move individuals from encampments back into indoor spaces.

[119] As a result, the applicants submit they are entitled to test Mr. Tanner’s evidence in this regard, including what efforts the City made to offer shelter to clients within the meaning of the Agreement.

[120] According to the City, when a person calls the Central Intake, the call taker searches the Shelter Management Information System (“SMIS”) for an available shelter space that meets that person's needs and makes a referral. If a shelter space is not available, the person is placed within a service queue until a bed becomes available. This call is generally recorded in the person's individual client file.

[121] However, the City’s submits that it does not maintain records identifying and tracking the number of clients who seek shelter beds through the Central Intake service. First, the City has no way of globally determining whether calls to Central Intake were from “clients” as defined under the Interim Settlement Agreement. Second, the City has no way of determining whether an individual in the Service Queue found accommodations elsewhere, or chose not to pursue accommodations in the shelter system. As a result, City staff would have to generate such data manually to respond to the applicants’ request, which the City argues is not proportionate for purposes of this motion.

[122] In short, The City’s position is that data with respect to how many calls are received, or put in the service queue, or are called back, does not shed light on whether the City met its obligations under the Interim Settlement Agreement.

[123] In response, the applicants argue that if the City has apparently chosen not to maintain records identifying and tracking the number of clients, and as a result, the best information is not available then they should be provided whatever information is available, including data regarding the total number of calls to Central Intake, or the total number of active files maintained by Streets to Homes.

[124] If, as the City claims, it is not possible to disaggregate such global data from the Central Intake service to yield the number of clients who called and were not provided with shelter beds, then this global data has limited probative value. Alternatively, if the City is required manually to disaggregate the data to determine how many actual clients were not able to obtain shelter beds, the logistics required are disproportionate for purposes of this motion.

[125] For these reasons, on this issue, I find the City’s refusals to provide the requested information relating to the Central Intake service will be upheld, though the applicants, of course, may raise the absence of reliable data from the City on this question in the pending motion.

(v) Refusals of information and records that are based on information and belief and not personal knowledge

[126] A further cluster of refusals are based on whether the City’s witnesses can be examined on matters beyond their personal knowledge, and if so, to what extent.

[127] The City’s position is that witnesses summonsed under Rule 39.03 can be examined only on matters within their personal knowledge.

[128] I agree. These refusals will be upheld.

[129] Additionally, the parties differ on the extent to which Mr. Tanner must provide the basis for claims in his affidavit on matters beyond his personal knowledge.

[130] The City’s position is that Mr. Tanner is not required to produce all documents that may relate to general descriptions of steps the City has taken to comply with the agreement where those steps are not at issue in the motion, including general references to non-specific documents. The City relies on Ravenda Homes, at para. 28, for the proposition that such general references are not sufficient to give rise to a right to inspect.

[131] The applicants’ position is that Mr. Tanner’s affidavit is “replete with evidence based on information and belief, including numerous conclusory statements purporting to summarize the substance of work undertaken by other SSHA employees who report to Mr. Tanner.” (at para. 69 of the applicants’ factum) For example, in his cross-examination, Mr. Tanner referred to reports (written and oral) received from other SSHA employees. The applicants argue that it is appropriate that Mr. Tanner be required to answer these questions and provide this information.

[132] I agree. I find refusals on this basis in the context of Mr. Tanner’s cross-examination were not proper.

(vi) Additional Refusals

[133] The rulings above with respect to clusters of refusals do not deal with all the refusals set out in the chart labeled as Schedule A of the applicants’ notice of motion.

[134] For example, there is a group of refusals which relate to questions which were answered by the City witnesses or Mr. Tanner, but not as fully as the applicants requested, or where one witness was asked a question, which according to counsel for the City, should have been put to another witness or Mr. Tanner.

[135] Some of these additional refusals already have been resolved by the parties.

[136] Generally, on proportionality grounds, the remaining refusals of this type will be upheld.

Should Any Witnesses be Re-Examined?

[137] If successful on this motion, the applicants seek further examinations of the witnesses.

[138] Rule 34.15 of the Rules of Civil Procedure provides the Court with discretion to require a witness to reattend for a continued cross-examination. The Court has recognized that, in practice, the question of whether to require a continued examination under the Rules depends on whether the original examination was completed and whether further examination is necessary and proportionate; Senechal v. Muskoka (Municipality), , at paras. 6-7.

[139] The applicants seek that the witnesses summonsed pursuant to Rule 39.03, and Mr. Tanner all attend further cross-examination.

[140] I find that further examination of Mr. Tanner is necessary and proportionate, given the refusal of the City to permit Mr. Tanner to address issues of compliance throughout the shelter system.

[141] Mr. Tanner was examined for over seven hours on July 11, 2020. Further examination of Mr. Tanner must be proportionate to the questions and requests for information that have been improperly refused. In other words, while Mr. Tanner must answer the system wide questions and requests for information which were improperly refused, further cross-examination should not be treated as an opportunity to elicit detailed information from Mr. Tanner on every shelter site in the system, or with respect to each QA report on a site visit.

[142] It is expected that Mr. Tanner’s further examination will be considerably shorter in duration than his initial examination.

[143] I find further examination of the summonsed witnesses would not be necessary or proportionate in the context of this motion.

[144] To the extent that refusals and requests for information relating to these witnesses have been found to be improper, answers may be provided by the summonsed witness in writing.

Conclusion

[145] For the reasons stated above, I find that many of the City’s refusals based on relevance were improper, particularly with respect to shelter system wide data on compliance with the physical distancing standards set out in the Interim Settlement Agreement for the May 15-June 15, 2020 period.

[146] There remain many other refusals by the City based on proportionality, however, that I find were proper, particularly with respect to the Central Intake service, daily capacity data and requests for information in the pre-May 15 and post-June 15, 2020 periods.

[147] Therefore, this refusals motion is granted, in part.

[148] There will be no order as to costs given the outcome and context of this motion.

[149] The parties should schedule a case conference call to complete the scheduling of the motion.

[150] I wish to express my gratitude to counsel for the clarity and helpfulness of their submissions, notwithstanding time pressures, and the volume and complexity of issues arising on this motion.

[151] This judgment and resulting order are effective from the date indicated below and are enforceable by law without any need for entry and filing. Either party may nonetheless submit a formal order for original signing, entry and filing when the Court returns to regular operations.

Sossin J. Released: 2020-08-05