MOTION HEARD: 20201022
REASONS RELEASED: 20201027
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
SERENA THADANI-ANTHONY
Plaintiff- and-
CANADIAN BROADCASTING CORPORATION
Defendant
BEFORE: MASTER D. E. SHORT
COUNSEL: Kristie Jennings
-for the Plaintiff (Moving Party) kjennings@ksllp.ca
Trevor Lawson and S. Sahdra tlawson@mccarthy.ca
-for the Defendant ssahdra@mccarthy.ca
RELEASED: October 27, 2020
Reasons for Decision
I. OVERVIEW
1This motion is brought virtually on the eve of trial in an action that was commenced in 2016. The issue before me is whether or not the plaintiff is entitled to seek production of further documents, long after the matter was set down for trial.
2Thus, the Plaintiff, Serena Thadani-Anthony (“Serena”), brings a motion for an Order compelling the Canadian Broadcasting Corporation (the “CBC”) to produce within five (5) days all communications referenced in its counsel’s September 14, 2020 correspondence. The CBC has asserted privilege over said communications and otherwise asserts that the motion has been brought too late in this proceeding. Ac
3Serena commenced the within action for wrongful dismissal. The dismissal arose from complaints ostensibly against Serena by two CBC employees (her direct superior and an individual who reported to Serena).
4The CBC referred the complaints to an outside investigator, Sonia Regenbogen (“Regenbogen”), who is a partner in the employer side, employment law, oriented firm.
5Regenbogen delivered a report to the CBC dated May 26, 2016 (the “Regenbogen Report”), setting out her findings, conclusions and opinions. Importantly, the Regenbogen Report contains no legal advice.
6Following the delivery of the Regenbogen Report, the CBC terminated Serena’s employment. Serena commenced the within Action asserting that her dismissal was improper and wrongful, undertaken in bad faith and challenging the methodology and independence of the Regenbogen Report.
7The CBC delivered a redacted version of the Regenbogen Report and originally asserted that the balance of the report is privileged. The Plaintiff brought a motion on April 12, 2019 to, inter alia, challenge the claim that any portion of the Regenbogen Report is privileged.
8On consent of the parties, my colleague Master McGraw ordered the CBC to produce the entirety of the Regenbogen file and an unredacted version of the Regenbogen Report on or before April 23, 2019 (subject to redacting portions that are not relevant to the within litigation) (the “McGraw Order”). Pursuant to the McGraw Order, if the CBC were to make a claim of privilege, it was to advise as to the specific document being withheld or redacted and the nature of the privilege asserted in relation to each document, which Serena reserved her right to challenge. [My emphasis]
II. Procedural History
9Counsel for the plaintiff asserts that:
“Despite the McGraw Order and numerous requests from Plaintiff's counsel, the CBC failed to produce the entirety of Regenbogen’s file in a timely manner. On September 14, 2020 counsel for the CBC sent the voluminous missing portions of the Regenbogen file and advised, for the first time, that the CBC was asserting privilege over a number of communications between Regenbogen and the CBC’s internal legal counsel.
In contravention of the McGraw Order, the CBC has failed to advise the specific documents being withheld and the nature of the privilege asserted in relationto each document. Serena disputes that privilege of any kind attaches to any of the communications being withheld by the CBC.”
10The Plaintiff brings the within motion for an Order compelling the CBC, within five (5) days of the hearing of the within motion, to:
“Deliver all of the communications referenced in Mr. Lawson’s September 14, 2020 correspondence, as the same are not privileged or protected from disclosure in the within litigation.”
11Subsequent to receipt of the Statement of Defence, the Plaintiff set down a Motion for particulars to obtain from the CBC certain reports and documents, including the Regenbogen Report, referenced in its Statement of Defence. That Motion was resolved when the CBC delivered a redacted copy of the Regenbogen Report, sufficient to permit Serena to deliver her Reply.
12In September 2017, the Plaintiff delivered a Reply, in which she inter alia disputed the termination and questioned the propriety and fairness of the external investigation and the Regenbogen Report. Her factum further asserts:
The Plaintiff delivered her Affidavit of Documents in September 2017. The CBC failed to deliver its Affidavit of Documents on a timely basis. The Plaintiff brought a further Motion for the delivery of the CBC’s Affidavit of Documents and dates for examination for discovery. That Motion was also resolved, prior to it being heard. The CBC delivered its Affidavit of Documents and Schedule “A” productions in November 2018. The Affidavit of Documents did not include a Schedule “B” or Schedule “C”.
13On April 12, 2019, a further Motion was brought before Master McGraw, which, was ultimately resolved on consent and on the basis that the CBC would pay the Plaintiff’s costs fixed at $5,000. The factum continues:
Pursuant to the Order, the CBC delivered a Schedule “B” to its Affidavit of Documents.9 Serena disagreed that privilege attached to any of the documents listed in the CBC’s Schedule “B”. On August 14, 2020, the Plaintiff brought a further Motion for delivery of the Schedule “B” documents before Master Jolley, which, was ultimately resolved on consent and on the basis that the CBC would pay Serena’s costs fixed at $5,000.
On August 14, 2020, pursuant to Master Jolley’s endorsement, the CBC produced all the documents that it had listed in its Schedule “B”.
III. Seeking Completeness
14Counsel for the plaintiff further asserts:
- In accordance with the McGraw Order, the CBC also delivered what it purported to be the entirety of the Regenbogen file on or about April 25, 2019; however, it was apparent to Serena it did not represent the complete file.
For example:
a. There was no unredacted copy of the Regenbogen Report;
b. There were no drafts of the Regenbogen Report;
c. There was no communication, letter or email, between the CBC and Ms. Regenbogen;
d. There were no invoices respecting the investigation or the preparation of the Regenbogen Report;
e. There was only a draft, unsigned copy of the engagement letter between the CBC and Ms. Regenbogen; and
f. Ms. Regenbogen’s notes from two (2) of twelve (12) interviews she conducted were missing from the file. [my underlined emphasis]
15Apparently, Serena’s legal counsel wrote to Regenbogen on June 21, 2019 requesting that she review the file produced by the CBC and confirm whether it represented the entirety of her file and, if not, to produce the missing portions. “Serena’s legal counsel followed up with Regenbogen on July 21, 2019; October 23, 2019; December 20, 2019; January 24, 2020; February 10, 2020; and February 28, 2020. CBC’s legal counsel was copied on each occasion. On May 28, 2020, Regenbogen responded, advising for the first time, that the request should be made through the CBC and not to her directly.”
16Despite being copied on the numerous requests made by Serena’s legal counsel over almost a year’s time, the request was specifically directed to the CBC’s legal counsel on May 28, 2020. On June 1, 2020 the CBC’s legal counsel advised they would contact Regenbogen and request this information from her.
IV. Time Line Continues
17On September 14, 2020, approximately eighteen (18) months after the request was first made, the CBC delivered correspondence enclosing “the voluminous missing portions of the Regenbogen file.” Counsel asserts that for the first time, “the CBC advised that it was asserting privilege over a number of communications between its internal legal counsel and Regenbogen.”
18Contrary to the McGraw Order, the correspondence fails to advise as to the specific documents being withheld and the nature of the privilege being asserted in relation to each document withheld:
- Notably, four (4) of the documents that were listed in the CBC’s Schedule “B”, which were ultimately disclosed as per Master Jolley’s Endorsement, were likewise communications between the CBC’s internal legal counsel and Regenbogen.
Trial Date
19On or about January 15, 2020 the Plaintiff set the within Action down for trial.
20A trial date is scheduled for the week of November 9, 2020 for six (6) days.
21A pre-trial conference was heard before Her Honourable Justice J. Wilson on September 21, 2020 and a second pre-trial conference is scheduled to be heard before Her Honour on November 2, 2020.
V. What is to be done?
22Against that background I turn to a consideration of the applicable rules.
23I begin with Rule 1, which sets out the overriding elements of the philosophy underlying the Rules:
INTERPRETATION
General Principle
1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
Proportionality
(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
Matters Not Provided For
(2) Where matters are not provided for in these rules, the practice shall be determined by analogy to them.
24I first consider whether the Plaintiff needs leave to bring the within motion. Pursuant to Rule 48.04, any party who has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the Court.
25The Rule addresses the “Consequences of Setting Down or Consent”
48.04 (1) Subject to subrule (3), any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court.
(2) Subrule (1) does not,
(a) relieve a party from complying with undertakings given by the party on an examination for discovery;
(b) relieve a party from any obligation imposed by,
(0.i) rule 29.1.03 (requirement for discovery plan),
(i) rule 30.07 (disclosure of documents or errors subsequently discovered),
(ii)rule 30.09 (abandonment of claim of privilege),
(iii)rule 31.07 (failure to answer on discovery),
(iv)rule 31.09 (disclosure of information subsequently obtained),
(v)rule 51.03 (duty to respond to request to admit),
(vi)rule 53.03 (service of report of expert witness); or
(vii)REVOKED: .
(c) preclude a party from resorting to rule 51.02 (request to admit facts or documents).
(3) Leave of the court is not required for a motion to compel compliance with any obligation imposed by a rule listed in clause (2) (b). (my emphasis}
- In Ginkel v. East Asia, Mr. Justice P. M. Perell held that:
“If before setting an action down for trial, a party obtains an order compelling his or her adverse party to answer undertakings or any unanswered or refused questions from the examination for discovery, the party may set the action down for trial and he or she will not require leave to bring a motion to compel compliance with the court’s existing Order requiring answers. […] In these circumstances, the motion is, in effect, a motion to enforce a Court order and not a motion to initiate or continue discovery within the meaning of Rule 48.01(1).” Ginkel v. East Asia, 2010 ONSC 905 at ¶17
- I agree and accept the plaintiff’s assertion that the within motion is, in effect, a motion to enforce the McGraw Order which was obtained by the Plaintiff in April 2019 (prior to setting the Action down in January 2020). The McGraw Order required production of the entirety of the Regenbogen file subject only to relevancy. The McGraw Order stipulates that if a claim of privilege is made by the CBC it was to advise as to the specific document being withheld or redacted and the nature of the privilege being asserted in relation to each document withheld. The CBC specifically acknowledged that Serena was reserving her right to challenge any claim of privilege (Schedule “B” to the McGraw Order).
26If I am in error, and leave is required, I have no doubt that the test for leave is met under the circumstances. For leave to be granted under Rule 48.04 it must be established that there has been a substantial change in circumstances such that a refusal to grant leave would be manifestly unjust and/ or the motion is necessary in the interest of justice. I have difficulty imagining a clearer entitlement than in this case. I accept the position of plaintiff’s counsel that:
“33. Serena made every effort to verify, in a timely manner, whether the entirety of the Regenbogen file had been produced in accordance with the McGraw Order. Unfortunately, Serena’s only reasonable means of obtaining verification was to have Regenbogen, the CBC’s third party investigator, review the file and confirm her suspicion that it was incomplete.
Serena has been seeking this information, through her legal counsel, since June of 2019. Despite knowledge of this request, the CBC chose to sit idly for over a year before providing the missing documentation and asserting its claim of privilege. The blame for the timeliness of Serena’s request falls squarely on the CBC’s shoulders.”
It would be manifestly unjust and prejudicial to Serena if the CBC was entitled to now estop Serena from bringing the within motion on the basis of its timing, when the CBC is the sole cause of the delay.
27I confess that it is somewhat unclear to me whether this CBC is maintaining a privilege claim with respect to any of the documents that I am now about to view that they ought to be produced to the plaintiff. It is my understanding that at some stage the CBC claimed privilege as it relates to communications exchanged between its internal legal counsel (Mr. Gordon Woods and/or Ms. Linda Facchin) and Regenbogen.
28Rule 30.06 provides:
30.6 Where the court is satisfied by any evidence that a relevant document in a party’s possession, control or power may have been omitted from the party’s affidavit of documents, or that a claim of privilege may have been improperly made, the court may,
(a) order cross-examination on the affidavit of your documents;
(b) order service of a further and better affidavit of documents;
(c) order the disclosure or production for inspection of the document, or a part of the document, if it is not privileged; and
(d) inspect the document for the purpose of determining its relevance or the validity of a claim of privilege.
29Protection of a document from disclosure by virtue of privilege is the exception and requires adequate justification or the document is to be disclosed. ( Howard v. London (City), 2015 ONSC 156 affirmed at 2015 ONSC 3698.) A party cannot claim privilege to underlying facts, but only the advice, which is provided.( ibid, Howard at ¶53)
30The onus of proving that communications are privileged lies on the party who refuses to produce them. To demonstrate they are privileged, an affidavit setting out the privilege claimed must not only recite that the communications consist of privileged materials but must also refer to their content to prove that the communications are privileged. However, the resisting party need not reveal so much content that the privilege is destroyed.
31Steele J.A. in Gower v. Tolko Manitoba Inc. held:
18 Thus, the onus is on the person seeking to claim the privilege to establish three factors in connection with any particular document:
that the document was the giving or obtaining of legal advice;
the presence of a solicitor and the presence of a client; and
the existence of the solicitor-client relationship.
54Justice Steele does address the nature of the assignment in evaluating the availability of an enforceable privilege claim:
22 Last, the communication between the client and the lawyer must take place within a solicitor-client relationship. When the solicitor deviates from his or her role as a solicitor, the communication to the client is no longer "legal advice." Of course, the question of whether the communication was for the purposes of obtaining legal advice is closely related to whether the solicitor was acting in a professional legal capacity as a solicitor.
Litigation Privilege
32Litigation privilege is contextual and unlike solicitor-client privilege, which protects a relationship, litigation privilege exists to protect the adversarial process. The test to be applied in assessing litigation privilege is, therefore, whether or not the material over which privilege is claimed is material prepared for the dominant purpose, and in contemplation, of the specific litigation at hand and not some other litigation. I accept counsel’s observations that:
There is no evidence that either Serena or the CBC contemplated this litigation at the point in time when Regenbogen was retained to undertake her investigation and/ or when the Regenbogen Report was prepared. The within Action was not commenced until September 19, 2016. The Regenbogen Report is dated May 25, 2016.
With respect to the communications between the CBC and Regenbogen, Regenbogen herself confirms that her report was not commissioned for the dominant purpose of litigation.
VI. Conclusion
33In view of the foregoing, I am clearly of the view that the plaintiff should be granted the relief sought on her behalf.
34The exigencies of time precluded an outlining of my concerns with the Defendant’s arguments; but I assure them that their professionally presented arguments were considered carefully by me.
35The Plaintiff, Serena Thadani-Anthony seeks an Order that the CBC deliver all communications referenced in its September 14, 2020 correspondence, which it has improperly asserted privilege over, within five (5) days hereof.
36I now make that Order.
37I am satisfied in the present overall situation I had jurisdiction to determine this issue. Neither side raised any issue of my ability to make this determination, which I expect they will provide to the pretrial judge.
38Unless there were offers to settle this motion were exchanged, I see no reason why costs on a partial indemnity basis, payable within 30 days, in any event of the cause, should not be awarded.
39If the parties are unable to agree upon a form of order or an appropriate costs award, I may be contacted in order that an appropriate protocol can be established for submissions by the parties.
Master D. Short
Released: October 27, 2020,
DS/R.330