COURT FILE NO.: CV-19-68129

DATE: 2020/08/28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Carmelo D’Angelo, Plaintiff and Responding Party

AND

Regional Municipality of Niagara, Defendant and Moving Party

BEFORE: Madam Justice L. Sheard

COUNSEL: Stephen Wolpert and Nadia Halum Arauz, Counsel for the Plaintiff/Responding Party

Robert W. Weir and Kate Dearden, Counsel for the Defendant/Moving Party

Glenn P. Christie for Niagara Peninsula Conservation Authority

HEARD: In Writing

DECISION ON MOTION

Overview

[1] The defendant (the “Region”) brings this motion under Rule 30.10 of the Rules of Civil Procedure for an order compelling the production of certain non-party records (the “Records”) from the Niagara Peninsula Conservation Authority (the “NPCA”).

[2] By letter dated March 31, 2020, from its counsel to counsel for the Region, the NPCA acknowledged that it is in possession of the Records and takes no position on this motion.

[3] The plaintiff opposes the order. He asserts that the Region has failed to satisfy the test that must be met under r. 30.10.

Background

[4] The plaintiff has sued the Region for wrongful dismissal as the Region’s Chief Administrative Officer (“CAO”). The Region has defended the plaintiff’s claim, in part, on the basis that it had cause to terminate the plaintiff’s employment by reason of the plaintiff’s pre-employment wrongdoing (the “Pre-Employment Allegations”).

[5] In its amended statement of defence and counterclaim, the Region asserts that when employed by the NPCA, the plaintiff had access to and provided input into confidential memos prepared by or on behalf of the Region relating to its search for a new CAO. The Region states that the plaintiff then used this confidential information and documents to gain an unfair advantage when applying for the position as CAO.

[6] In his fresh as amended reply and defence to counterclaim, the plaintiff acknowledges that his input was sought by, or on behalf of the Region, concerning the traits and skills that would be important to have in a CAO, but denies that he knew the details of or played a role in the Region’s recruitment for a CAO.

[7] The plaintiff also acknowledges that during the Region’s recruitment process, he received emails from Region personnel who had some knowledge of the recruitment process, but he denies that he relied on information in those emails.

[8] Through its counsel, the NPCA has confirmed that it has the electronic records and corresponding metadata, stored on the NPCA’s computer(s), including the computer used by the plaintiff (the “Records”). While the Records are not privileged, the NPCA requests a court order authorizing their release, as the Records appear to contain personal information, which is impractical to redact. The NPCA advises that if a production order is made, it anticipates being able to comply with the order.

The Law

[9] Rule 30.10(1) reads as follows:

The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,

(a) the document is relevant to a material issue in the action; and

(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.

Positions of the parties

[10] Both parties refer to the Court of Appeal decision of Ontario (Attorney General) v. Ballard Estate (1995), 1995 CanLII 3509 (ON CA), 26 O.R. (3d) 39 (C.A.)[^1], which sets out the principles to be applied on this motion at paras. 4-6:

4. The motion judge found that the documents were relevant to material issues in the litigation. He then proceeded to consider whether it would be unfair to require the appellants to proceed to trial without having discovery of those documents. After alluding to a number of factors relevant to that determination, the motion judge turned to the importance of the documents in the litigation. He referred to this consideration as the "most important factor" in the fairness assessment. After reviewing the authorities he said:

... The evidence sought must be vital or crucial and such that the moving party cannot adequately prepare its case for trial without access to such documents.

5. The appellants submit that in holding that the documents must be "vital" or "crucial" to their preparation for trial, the motion judge departed from the test set out in Rule 30.10(1).

6. We agree. The fairness assessment required by Rule 30.10(1)(b) is made only after the documents are found to be relevant to a material issue. By requiring that the documents be "vital" or "crucial" before it could be said that it would be unfair to refuse their production, the motion judge combined the separate considerations identified in Rule 30.10(1)(a) and Rule 30.10(1)(b) into a single test which imposed a higher standard of materiality than that contemplated by the Rule. The Rule envisions cases where it will be unfair to require a party to proceed to trial without the production of relevant documents even though those documents are not crucial or vital to that party's preparation for trial. By limiting the production of documents to those found to be vital or crucial, the trial judge elevated the materiality standard in Rule 30.10(1)(a) and effectively neutered the fairness assessment demanded by Rule 30.10(1)(b).

[11] The Region submits that the Records are relevant to its Pre-Employment Allegations, which, if established, would i) justify the Region’s termination of the plaintiff for cause; ii) disentitle the plaintiff from damages for wrongful dismissal; and iii) provide grounds for the Region’s counterclaim. The Region submits that it would be unfair to require it to proceed to trial or to the examination for discovery of the plaintiff without production of the Records.

[12] The plaintiff submits that the Region has failed to meet the requisite test for production of the Records in that the Region has failed to demonstrate i) the importance of the documents to the issues in the litigation; ii) that the discovery process would be inadequate to obtain the necessary information; iii) that efforts have been made to obtain the information before seeking production from the NPCA; and iv) that not having the Records would cause unfairness to the Region.

[13] The plaintiff expands on his four points beginning at page 8 of his factum. I follow this helpful framework in these reasons.

Question 1: Are the documents relevant?

[14] The plaintiff suggests that the order sought by the Region would give it “a sneak peek at documents that should be available to all parties.”

[15] The Region asserts that the documents are relevant to a material issue in this action and point to their pleadings in which the subject records are referenced.

[16] It is trite law that relevance is defined by the pleadings[^2]. Given the issues raised in the amended statement of defence and counterclaim, including the admissions in the fresh as amended reply and defence to counterclaim, I find that the documents requested are relevant.

Question 2: Would it be unfair to require the Region to proceed to trial without having discovery of the documents?

(i) Are the records important to the litigation?

[17] The plaintiff asserts that the Region has failed to meet the threshold articulated in Ballard and in Tofetsky (see FN 1.) and has failed to put forth any evidence of unfairness. The plaintiff argues that, because the Region pleaded that it had been aware of the Pre-Employment Allegations since April 2018, and learned the truth of those allegations in November 2019, this Court ought to presume that the Region already has evidence to support its allegation of after-acquired cause. Therefore, it is in doubt as to whether the Records are of any importance to the Region.

[18] The Region relies on Ballard and asserts that the Records relate to the core issue of the liability of the defendant i.e. was there after-discovered just cause?

[19] I do not accept the Plaintiff’s arguments that because the Region expresses a belief in the truth of the Pre-Employment Allegations, it does not need, nor should be entitled, to look at the Records themselves. It should go without saying that, at trial, parties must prove their case, and merely asserting that they believe that their allegations are true is not enough.

[20] I find that the subject documents are important to the determination of the litigation.

(ii) Is production of the Records necessary at the discovery stage?

[21] The plaintiff submits that the Region could use the provisions of r. 53.04 to allow the Region to serve a summons to witness on a representative of the NPCA who might then bring the Records to trial, at which time the Region would have an opportunity to review them.

[22] Having concluded above that the Records are relevant to the issue of liability of the Region, it follows that it would be unfair to require the Region to proceed to trial without having discovery of the subject documents. Moreover, it is in the best interests of all parties and to the administration of justice for them to understand the case they have to meet. The plaintiff’s suggestion that these key documents should not be produced until the trial would defeat those important objectives.

[23] The Region submits that it requires the Records to prepare for examinations for discovery and/or for the purposes of obtaining an expert opinion. The Region submits that it should be entitled to put the Records to the plaintiff on his examination in order to determine the validity of the Pre-Employment Allegations. The plaintiff’s answers on that examination will assist both parties to prepare for trial and may narrow the issues that must be determined at trial.

[24] The plaintiff submits that allowing production of the Records would create unfairness to him. He points to paragraphs 46-47 of his reply and defence to counterclaim in which the plaintiff alleges that the Pre-Employment Allegations are untrue, and that the Region has made the Pre-Employment Allegations with no legitimate belief in their truth and based on documents that they have never seen.

[25] The plaintiff also argues that allowing production of the Records could make it more difficult for the plaintiff to establish what information and documents the Region had at the time it terminated his employment, which might also put into question the legitimacy of the Region’s belief in the Pre-Employment Allegations.

[26] I do not accept the plaintiff’s arguments. The plaintiff’s arguments above would seem to support the early disclosure of the Records. A court order would offer a transparent trail of what records were produced and when, leaving no uncertainty as to when the Region obtained the Records. That observation is especially true, given that the Records are expected to include metadata that shows when and by whom the Records were accessed.

(iii) Is discovery of the Plaintiff adequate and, if not, who is responsible for that inadequacy?

[27] The plaintiff submits that he has never denied receiving the Region’s documents but disagrees with the conclusions the Region seeks to draw from his having viewed them. For that reason, the plaintiff says that the Region does not need to see the Records themselves.

[28] The Region submits that the discovery of the plaintiff will not yield the information it seeks that is contained in the Records, nor will it provide the Region with adequate information relating to the Pre-Employment Allegations.

[29] Given that the Records are not in the possession, power or control of the plaintiff, I conclude that both parties would be at a disadvantage if the plaintiff were asked about the Records without having the benefit of seeing the Records. Likewise, the Region would be asking questions about Records it had not seen. Moreover, were this matter to proceed to trial, it would undermine the reliability and usefulness of answers given on discovery about Records that were not produced nor put to the witness.

[30] I conclude that discovery of the Plaintiff would not be adequate to explore the issues raised in the litigation.

(iv) What is the position of the non-party, the NPCA?

[31] The NPCA has confirmed that it is in possession of the Records and that it is prepared to provide them. It was open to the NPCA to resist production, including that it would cause undue inconvenience, expense or liability. However, aside from requesting the protection of a court order, the NPCA has chosen to take no position on the motion.

(v) Are the records available from other sources?

[32] The plaintiff submits that the Region has failed to show whether the Records are available to the parties through other sources. The plaintiff also advances an argument that the NPCA has no right to insist on a court order and that disclosure should be made by the NPCA under the Municipal Freedom of Information and Protection of Privacy Act (“MFIPPA”), with the appropriate reactions.

[33] I accept that the NPCA understands its obligations respecting production of the Records, even if the request for a court order goes beyond what the plaintiff believes is needed.

[34] The Region submits that there is no other source for the Records, particularly with respect to the metadata confirming usage history, which can be found only on the NPCA’s servers.

[35] I conclude that the Records are only available from the NPCA.

(vi) Is the NPCA a “true stranger” to the litigation.

[36] The plaintiff submits that as a “true stranger” to the litigation as described by the court in Raponi v. John Doe, 2010 ONSC 3632, the NPCA should be less susceptible to a production order than would be a true stranger to the litigation. The plaintiff asserts that there is no evidence that the NPCA has a relationship to the parties or to the litigation and is a true stranger.

[37] The Region argues that the NPCA is not a “true stranger” to the litigation. The Region points out the Records relate to documents containing information that had been confidential to the Region and provided to the NPCA respecting the Region’s search for a CAO. The documents came to be seen by the plaintiff by virtue of his (then) employment with the NPCA. These events led to an investigation conducted by the provincial Ombudsman. The NPCA participated in that investigation and, as a result, is aware of the matters in issue in this litigation. In any event, the Region submits that any documents produced will be protected by the deemed undertaking found at rule 30.1.01.

[38] While I cannot conclude on the evidence that the interests of the NPCA are allied with the plaintiff, nor can I conclude that the NPCA is a “true stranger” to the litigation.

Disposition

[39] I conclude that the Region has met its onus on this motion and grant the relief sought as follows:

1. Pursuant to Rule 30.10 of the Rules of Civil Procedure, and subject to the conditions and limitations set out in paragraph 2, below, the NPCA shall produce to the lawyers for the moving party the following electronic documents, including metadata:

(a) Revised proposed organizational chart or structure for the Region that included a new Deputy CAO position;

(b) Memorandum setting out the short-list of five identified candidates for the position of CAO;

(c) Memorandum called “Messaging” identifying four candidates for the CAO position;

(d) Set of revised interview questions that the CAORC would pose at the CAO interview stage;

(e) Q&A document with suggested answers to the CAO candidate questions; and

(f) Document containing further questions under four headings and proposed answers to those questions.

2. The production of such records held by NPCA under paragraph 1, above, shall be subject to the following conditions and limitations:

(a) The records shall only be used by the parties directly involved in the litigation of this matter for the full and fair disposition of the issues in the civil proceeding;

(b) The parties directly involved in the litigation of this matter, including any retained experts, shall not disclose the records or any information contained therein to any person who does not have a direct interest in this civil proceeding;

(c) The NPCA will only produce those records in its possession and control, and nothing in this Order shall require the NPCA to search or obtain documents from any other agency or person;

(d) Any records or portions thereof over which a claim of privilege is asserted will be redacted. However, a list of such records will be provided to the lawyer for the moving party and shall include the basis upon which privilege is being asserted for each record or portions thereof; and

(e) Within 30 days following receipt of a copy of this Order, the NPCA shall assemble and produce to the lawyer for the moving party, an electronic copy of the records so ordered. The NPCA shall be entitled to charge the moving party reasonable fees for copying and delivery of the records, which fees may be required prior to delivery.

3. There shall be no costs of this motion as against the NPCA.

Costs of other parties

[40] The Region/moving party is presumptively entitled to its costs of this motion as against the plaintiff. I urge the parties to attempt to resolve the issue of costs of this motion. If they are unable to do so, the Region is to serve and file its costs submissions of no more than three pages, double spaced, within 14 days of the date of the release of this decision. The plaintiff’s responding submissions are to be served and filed within seven (7) days after service on him of the Region’s costs submissions.

[41] If I receive no costs submissions by September 18, 2020, I will assume that the parties have resolved the costs of this motion, and I will make no order as to costs.

L. Sheard J.

DATE: August 28, 2020

[^1]: See also Raponi v. John Doe, 2010 ONSC 3632 and Tetefsky v. General Motors Corp., 2010 ONSC 1675

[^2]: see Popov v. Jones, 2011 ONSC 665, at paras 56 – 60