Court File and Parties

Court File No.: CV-17-574448 Date: 2021-02-19 Ontario Superior Court of Justice

Re: Landry et al., Plaintiffs -and- HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES et al., Defendants

Before: FL Myers J

Counsel: H Mackay and V Glasser, for the defendants D Green, for the plaintiff

Heard: February 18, 2021

Endorsement

[1] This is an appeal and cross-appeal from an order made by Case Management Master Brott dated March 13, 2020.

[2] I agree with all of the Case Management Master’s rulings in both the appeal and the cross-appeal for the reason given by her except one. I also need to comment on one argument made by counsel.

[3] First, the comment. The action relates to a claim of negligent investigation by the police and their failure to warn of a sexual predator of whom they were aware.

[4] The police received a complaint about the alleged predator in 2007 and another in 2012.

[5] The complaint in 2012 was made by one of the plaintiffs. The defendants refused to answer questions about the 2012 complaint because there is case law that the victim of a crime cannot sue the police for failing to charge the perpetrator. Therefore, counsel submits, as a matter of settled law, he can only sue on the 2007 complaint.

[6] However, para. 102 of the Amended Statement of Claim provides, in part:

But for the intentional actions or negligence of Ontario and Breault, and the negligence of Dr. Blount, and Dr. Legge, Dr. Pace would have been charged criminally and the sexual abuse of the plaintiffs would have ceased in 2007, rather than continue until at least 2012.

[7] The scope of discovery is determined by the issues joined in the pleadings. This claim expressly puts in issue abuse that continued to 2012. The making of further complaints in the period 2007 to 2012 is relevant or probative of the allegation as pleaded.

[8] The argument that a party is likely to succeed on an issue is not a basis to refuse to answer a question that is relevant to an issue joined in the pleadings. If a claim is improperly pleaded or does not state a reasonable cause of action, it can be struck out. However, until that happens, the pleadings as they exist set the scope of discovery.

[9] This is not to be taken as a call for more pleadings motions. The day of their utility has long since passed. One of the very few remaining good reasons to bring a pleadings motion in this day and age however, is to limit the other party from increasing the scope and cost of discovery by pleading matters that are not properly in issue as a matter of law. This is a relatively rare and narrow basis for moving. The rest of the pleadings motions that we see week-in and week-out just serve to delay, increase cost, and ultimately to teach the opposite party how to plead a better case.

[10] The holding that I find in error concerns the scope of lawyer client privilege. The Case Management Master described the issue this way:

Under advisement #10 - Were Mr. Scott's medical records obtained prior to the OPP obtaining the opinion of Crown counsel Regimbal. The answer given is that the records were obtained pursuant to a Production Order in 2013. This does not answer whether they were obtained prior to the OPP obtaining a legal opinion and it shall be answered. On the question of whether the medical records of Mr. Scott were provided to Crown counsel, the defendant refuses to answer on the basis of solicitor/client privilege. These records are not communications between solicitor and client. The plaintiffs are entitled to know whether the non-privileged evidence had been provided to Ms. Regimbal as the question is seeking the determine whether she had sufficient information upon which to provide an opinion to the OPP. This information is in relation to the quality and soundness of the OPP investigation.

[11] The defendants have not relied on legal advice as a defence to the claim. There has been no finding that they have waived privilege.

[12] I agree with the Case Management Master that the question of whether a file was received before advice was obtained is not covered by privilege. The plaintiffs could have asked for the date that counsel gave advice and then asked if the evidence was obtained before that date.

[13] But I respectfully disagree with the Case Management Master’s view that just because the evidence itself was not privileged, the plaintiffs were entitled to know if the police provided it to the Crown to seek her opinion. The fact that the evidence itself is not privileged means that the plaintiffs are entitled to ask questions about it and to be told whatever it says to the extent it is relevant. But the question is not asking about non-privileged information in the file. It asks whether the information in the file was communicated to counsel in order to obtain counsel’s advice.

[14] Information communicated to counsel for the purposes of obtaining legal advice is privileged and protected from disclosure. In Mandeville v. Manufacturers Life Insurance Co., 2004 CarswellOnt 9988 (Ont. S.C.) at para. 6, Nordheimer J (as he then was) set out the basic rules relating to privilege as follows:

(i) a communication between solicitor and client which entails the seeking or giving of legal advice; and which is intended to be confidential by the parties is privileged — Solosky v. Canada, supra;

(ii) advice given by lawyers on matters outside the solicitor-client relationship is not protected — R. v. Campbell, supra;

(iii) whether solicitor-client privilege attaches depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered — R. v. Campbell, supra;

(iv) the privilege not only attaches to the advice itself, it may attach to materials that are incidental to the obtaining and giving of that advice if the production of such materials would tend to reveal the advice — Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 27 (Can. Ex. Ct.);

(v) the privilege attaches to the communications by which the advice is sought and given but it does not extend to facts that may be referred to in those communications if they are otherwise discoverable and relevant — General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321 (Ont. C.A.);

(vi) if legal advice given in a document cannot be separated from other information contained in the document, then the entire document may be privileged — Canadian Pacific Ltd. v. Canada (Director of Investigation & Research), [1995] O.J. No. 4148 (Ont. Gen. Div. [Commercial List]);

(vii) the privilege extends to legal advice given whether that advice is given on the laws of Ontario or Canada or elsewhere — Mutual Life Assurance Co. of Canada v. Canada (Deputy Attorney General) (1988), 28 C.P.C. (2d) 101 (Ont. H.C.);

(viii) privilege may be waived if the legal advice over which the privilege attaches has not been kept confidential, for example, if it is widely disseminated to others — Toronto Dominion Bank v. Leigh Instruments Ltd. (Trustee of) (1997), 32 O.R. (3d) 575 (Ont. Gen. Div. [Commercial List]);

(ix) communications that have the purpose of furthering unlawful conduct are not privileged — Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] S.C.J. No. 16 (S.C.C.).

[15] Subparagraph (v) above is applicable here. The advice in the file is not privileged and can be asked about independently. But what the plaintiffs are not entitled to know is what the defendants told their lawyer in order to seek her advice.

[16] I am not aware of any law that says that where a party conveys non-privileged information to a lawyer to obtain an opinion, the communication is discoverable. It is almost always the case that when clients tell lawyers their problems, the facts underlying the problems are not themselves privileged. Moreover, it makes no difference that the file was in writing. The clients could have read the file to their lawyer or provided it to her in writing or electronically. Regardless of the form, it is information being conveyed by client to lawyer.

[17] The question sought by the plaintiffs is tantamount to asking, “Did you tell your lawyer X, Y, and Z when you sought her advice”. And that is a privileged communication.

[18] In my view, the Case Management Master erred in law in ordering the defendants to disclose whether the evidence in issue was provided to Crown counsel. That refusal is upheld.

[19] The plaintiffs may deliver cost submissions no later than February 26, 2021. The defendants may deliver cost submissions no later than March 5, 2021. Both parties shall deliver Costs Outlines. In addition, the parties may deliver copies of any offers to settle on which they rely. Submissions shall be no longer than three pages (not counting the Cost Outlines and offers to settle). All material is to be filed through the Civil Submissions Online portal and shall also be sent to me in searchable PDF format as an attachment to an email to my Judicial Assistant. No case law or statutory material is to be submitted. References to case law and statutory material, if any, shall be embedded in the parties’ submissions as hyperlinks to.

F.L. Myers J. Date: February 19, 2021