COURT FILE NO.: 272/14 (Guelph)
DATE: 2020 11 18
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: SEELSTER FARMS INC. WINBAK FARM OF CANADA, INC, STONEBRIDGE FARM, 774440 ONTARIO INC., NORTHFIELDS FARM INC., JOHN MCKNIGHT, TARA HILLS STUD LTD., TWINBROOK LTD., EMERALD RIDGE FARM, CENTURY SPRING FARMS, HARRY RUTHERFORD, D10041NE INGHAM, BURGESS FARMS INC., ROBERT BURGESS, 453997 ONTARIO LTD., TERRY DEVOS, SONIA DEVOS, GLENN BECHTEL, GARTH BECHTEL, 496268 NEW YORK INC., HAMSTAN FARM INC., ESTATE OF JAMES CARR, deceased, by its executor Darlene Carr, GUY POLILLO, DAVID GOODROW, TIMPANO GAMING INC., CRAIG TURNER, GLENGATE HOLDINGS INC., KENDAL HILLS STUD FARM LTD., ANY KLEMENCIC, TIM KLEMENCIC, STAN KLEMENCIC, JEFF RUCH, BRETT ANDERSON, DR. BRETT C. ANDERSON PROFESSIONAL VETERINARY CORPORATION, KILLEAN ACRES INC., DECISION THEORY INC., 296268 ONTARIO LTD., DOUGLAS MURRAY MCCONNELL, QUINTET FARMS INC., KARIN BURGESS, BLAIR BURGESS, ST. LAD’S LTD., WINDSUN FARM INC., SKYHAVEN FARMS, HIGH STAKES INC., 1806112 ONTARIO INC., GLASSFORD EQUI-CARE, JOHN GLASSFORD, GLORIA ROBINSON and KEITH ROBINSON
-AND-
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and ONTARIO LOTTERY AND GAMING CORPORATION
BEFORE: EMERY J.
COUNSEL: J. Lisus, I. Matthews, V. Milat and P. Underwood for the Plaintiffs
R. Ratcliffe, L. La Horey and E. Machado for Her Majesty The Queen in Right of Ontario
A. Sinha, H. M. Rosenberg and Jacob Klugsberg for Ontario Lottery and Gaming Corporation
HEARD: In writing
RULING ON PRODUCTION OF THE cooperation and common interest AGREEMENT between defendants
[1] In the wake of the judgment of this court on three summary judgment motions released at 2020 ONSC 4013, the costs claimed by two of the parties are substantial in amount, and significant to all three sides. The plaintiffs successfully opposed the motion of Her Majesty The Queen in right of Ontario (Ontario) seeking the dismissal of the action entirely, with the court finding Ontario liable for breach of contract on the plaintiffs’ own motion. The other defendant, Ontario Lottery and Gaming Corporation (OLG) was successful on it’s motion for summary judgment to have the plaintiffs’ action dismissed, with the court finding no liability for breach of contract as against it.
[2] The plaintiffs now seek costs of the motions as between themselves and Ontario. That claim for costs at this stage is opposed by Ontario. OLG seeks the costs of it’s motion to have the plaintiffs’ claims dismissed, even though it was the party that made the submissions with respect to the breach of contract claim on behalf of both defendants on the motions. The plaintiffs oppose OLG’s claim for costs, arguing OLG is not entitled to costs having lost that argument. Alternatively, the plaintiffs submit that the court should make a Bullock order or a Sanderson order to flow any liability for OLG’s costs through to Ontario one way or another.
[3] In order to take those defensive positions on costs, the plaintiffs are intent on establishing an evidentiary basis to argue that Ontario and OLG formed an agreement to mount a joint defence, so that the loss of Ontario on the breach of contract issue is shared by OLG. The plaintiffs now bring this motion in writing to obtain production of the Cooperation and Common Interest Agreement (the “Agreement”) entered by the defendants on July 18, 2014. The plaintiffs seek production as they suspect the Agreement will prove the defendants agreed to a joint litigation strategy. A copy of the Agreement will be placed in a sealed envelope and attached as Exhibit “A” to the original of this Endorsement for identification purposes.
[4] I have reviewed the Agreement as it was provided to the court by OLG to review in camera, with the consent of all parties. In my Endorsement dated September 2, 2020, I wrote that if I considered that such a document required further submissions from all parties on it’s relevance or admissibility, I would make that requirement known and I would schedule an appointment for argument. I went on to write that if any such Agreement was found relevant and admissible, the parties would be given a further opportunity to file additional submissions as to its effect.
[5] For further reasons that will follow in a later Decision on Costs, the plaintiffs’ motion is dismissed for reasons of privilege. I have reached this conclusion after reviewing the Agreement, the evidence filed on the motion, and on applying the principles found in the authorities, among them Aviaco International Leasing Inc. v. Boeing Canada Inc., 2000 CanLII 22777 (SCJ). However, this decision to exclude the Agreement from consideration when determining costs on the three motions shall not prevent or preclude me from considering all relevant evidence, relationships between the parties, positions taken during the litigation, or findings I might otherwise make.
[6] It follows that, subject to any request for further information, I do not require additional submissions to those materials on costs the parties have already filed.
[7] The costs of the motion for production of the Agreement are reserved to a later time, as the court may direct.
Emery J.
Released: November 18, 2020
COURT FILE NO.: 272/14 (Guelph)
DATE: 2020 11 18
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SEELSTER FARMS INC. WINBAK FARM OF CANADA, INC, STONEBRIDGE FARM, 774440 ONTARIO INC., NORTHFIELDS FARM INC., JOHN MCKNIGHT, TARA HILLS STUD LTD., TWINBROOK LTD., EMERALD RIDGE FARM, CENTURY SPRING FARMS, HARRY RUTHERFORD, D10041NE INGHAM, BURGESS FARMS INC., ROBERT BURGESS, 453997 ONTARIO LTD., TERRY DEVOS, SONIA DEVOS, GLENN BECHTEL, GARTH BECHTEL, 496268 NEW YORK INC., HAMSTAN FARM INC., ESTATE OF JAMES CARR, deceased, by its executor Darlene Carr, GUY POLILLO, DAVID GOODROW, TIMPANO GAMING INC., CRAIG TURNER, GLENGATE HOLDINGS INC., KENDAL HILLS STUD FARM LTD., ANY KLEMENCIC, TIM KLEMENCIC, STAN KLEMENCIC, JEFF RUCH, BRETT ANDERSON, DR. BRETT C. ANDERSON PROFESSIONAL VETERINARY CORPORATION, KILLEAN ACRES INC., DECISION THEORY INC., 296268 ONTARIO LTD., DOUGLAS MURRAY MCCONNELL, QUINTET FARMS INC., KARIN BURGESS, BLAIR BURGESS, ST. LAD’S LTD., WINDSUN FARM INC., SKYHAVEN FARMS, HIGH STAKES INC., 1806112 ONTARIO INC., GLASSFORD EQUI-CARE, JOHN GLASSFORD, GLORIA ROBINSON and KEITH ROBINSON
-AND-
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and ONTARIO LOTTERY AND GAMING CORPORATION
RULING ON PRODUCTION OF THE COOPERATION AND COMMON INTEREST AGREEMENT BETWEEN DEFENDANTS
Emery J.
DATE: November 18, 2020