Court File and Parties

COURT FILE NO.: CV-21-00000002-0000 DATE: 2021/03/09 SUPERIOR COURT OF JUSTICE

RE: Roger Anthony Paul, Danielle Marie Paul and Madvalley Media, Plaintiffs AND The Corporation of the Township of Madawaska Valley, Kim Love, Carl Bromwich, Ernest Peplinski, David Shulist and Mark Willmer, Defendants

BEFORE: Justice A. Doyle

COUNSEL: Plaintiffs: Self represented Nuala M. Kenny and Tim J. Harmar, Counsel for the Defendants

DATE: March 4, 2021 via Videoconferencing

Decision

[1] The Plaintiffs move for the following Orders:

• Dismissing the Defendants’ application under s. 137(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”);
• In the alternative:
  • Striking out the Affidavits of Suzanne Klatt;
  • Or in the alternative:
    • Requiring Suzanne Klatt to re-attend for cross-examination on her affidavits at her own expense; and
    • produce the documents enumerated in the Notice of Appointment dated September 28, 2020;
    • be required to answer questions she refused to answer on her cross-examination including questions on the contents of the Plaintiffs’ Affidavits;
    • prior to any such re-attendance that she answer the undertakings she gave during her cross-examination held on November 4, 2020.
• That the Defendant Carl Bromwich attend examination as witness in a pending motion pursuant to Rule 39.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”);
• An Order requiring the Defendants to produce all documents relating to instructions given to, and generated by, Paul Cassan which resulted in his letter to the Defendants dated August 27, 2019 pursuant to r. 30.04(5);
• An Order that the Defendants comply with the Notice to Inspect Documents dated December 30, 2020; and
• Costs of this motion.

Background

[2] The individual Plaintiffs, Roger Paul (“Mr. Paul”) and Danielle Paul (“Mrs. Paul”) run a not-for-profit community newspaper known as the Madawaska Valley Current (“The Current”).

[3] The Plaintiffs indicate that the Current’s objective is to provide local community news and act as a “watchdog” over local government and other institutions.

[4] The Defendant, The Corporation of the Township of Madawaska Valley (“Township”) is a municipal corporation in the County of Renfrew, the Defendant Kim Love is the mayor of the Township and the Defendants Ernest Peplinski, David Shulist and Mark Willmer are members of the Township Council.

[5] The Plaintiffs’ Statement of Claim dated December 13, 2019 alleges that, among other things:

• Defendant’s counsel letter from Mr. Cassan dated August 27, 2019 (“Cassan letter”) presented at the council meeting questions Mr. Paul’s honesty concerning public statements which was an attack on his reputation;
• Prior to the Cassan letter, the Plaintiffs’ allege that the Defendants’ sole motivation was to damage the Plaintiffs reputation in the communication thereby hindering the viability of their paper, the Current; and
• The Plaintiffs have not been afforded the opportunity to respond to the Defendants’ position.

[6] The Statement of Claim was brought against the Township and its individual councilors for, among other things, damages:

• For misfeasance in public office;
• Defamation under the Libel and Slander Act, R.S.O. 1990., c. L.12; and
• Resulting from the Defendants’ malicious, oppressive and high-handed conduct.

Procedural History

[7] On January 13, 2020, the Defendants brought a motion to dismiss the Plaintiffs’ action under s. 137.1 of the CJA which provides for an expedited procedure for screening out claims that are without merit arising out of litigation dealing with expressions of public interest.

[8] On March 3, 2020 the Plaintiffs forwarded to the Ottawa Trial Coordinator a “Proposed Notice of Motion” requesting, among other things that the Defendants’ s. 137.1 motion be dismissed. The Ottawa Trial Coordinator responded with a request that she be removed as a recipient of communications between the parties.

[9] On August 11, 2020, Justice Gomery declined the Plaintiffs’ request for a hearing of the Plaintiffs’ motion to strike and directed that a case conference be held.

[10] At the September 10, 2020, case conference, Master Kaufman endorsed, among other things: “I decline to schedule the motion as well because the Defendants concerns can be addressed at the hearing of the s. 137.1 motion and because scheduling another interlocutory motion would add further delay”.

[11] No appeal has been filed of any of these endorsements.

[12] The Defendants’ Anti-SLAPP motion made pursuant to s. 137.1 (3) of the CJA is scheduled for a full day hearing on May 19, 2021.

Issue #1: Should the Court proceed with the Plaintiffs’ motion requesting a dismissal of the Plaintiffs’ motion under s. 137(3)?

Plaintiffs’ Position

[13] The Plaintiffs submit that given that the s. 137 motion is without merit, the Court should exercise its discretion in a manner consistent with the objectives of due administration of justice provided for to s. 146 of the CJA and a most expeditious and least expensive manner pursuant to r. 1.04.

[14] The Plaintiffs submit that the s. 137 motion should be dismissed because of:

• The Defendants’ conduct in refusing to attend mediation; and
• The Defendants’ conduct during the proceedings including the delay in moving forward the s. 137 motion and not following timelines for filing of their Reply evidence.

[15] In addition, the Defendants’ s. 137 motion is also defective on its face as the Statement of Claim alleges four discrete expressions amounting to intentional torts and the Defendants’ evidence in support of the s. 137 motion is limited to only two of them. Also, there is no evidence regarding their “public interest” posture.

[16] It is prejudicial to the Plaintiffs and contrary to the interests of justice to entertain an application for only half of the Plaintiffs’ claim.

Defendants’ Position

[17] The Plaintiffs submit that this motion should be dismissed because:

• Both Justice Gomery and Master Kaufman have previously denied this request;
• These previous denials amount to res judicata and issue estoppel; and
• A motion date for a full day hearing to deal with the merits of the s. 137 motion has been set and the hearing before this Court is scheduled for only 1 hour and the full merits of the s. 137 cannot be explored.

Analysis

[18] For the reasons that follow, I decline to hear the Plaintiffs’ motion on this issue.

[19] Firstly, it has already been decided on two previous occasions that the Plaintiffs’ motion to dismiss is not permissible.

[20] The Plaintiffs argue that the issue of whether the s. 137 motion has merit was never decided. They are correct.

[21] However, what is really the issue and has been decided on two occasions is whether the Court will permit this type of motion.

[22] In my view, this issue engages the principles of res judicata and issue estoppel.

[23] Justice Gomery’s August 11, 2020 endorsement stated that: “I decline to grant the Plaintiffs’ request for hearing of their motion to strike. In my view, it is improper for the Plaintiffs to bring a motion seeking to strike another pending motion.”

[24] In addition, Master Kaufmann, at a case conference held on September 10, 2020, stated in his endorsement: “the plaintiff wishes to bring a motion to strike the defendants’ motion but Justice Gomery has already declined to grant the Plaintiff hearing and I will not revisit that issue.”

[25] Generally, the principle of res judicata comes into play where: (i) it is in the public interest that there should be an end to litigation; and (ii) no party should be subjected to proceedings more than once for the same cause. See: Las Vegas Strip Ltd. v. Toronto (City), [1996] O.J. No. 3210, 30 O.R. (3d) 286.

[26] Issue estoppel is narrower. It applies to prohibit the re-litigation of an issue that has already been decided in an earlier proceeding, even where the cause of action is different in the two proceedings.

[27] In Dosen v. Meloche Monnex Financial Services, 2021 ONCA 141, the Ontario Court of Appeal recently summarized the law of issue estoppel. Reference was made to the Supreme Court of Canada’s decision in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460.

[28] At para. 13, the Court sets out the four requirements of issue estoppel:

• There is a final decision of a court of competent jurisdiction in a prior action. This is conceded by the responding parties and is not at issue here;
• The second requirement is the parties to the subsequent litigation were parties to, or in privy with the parties to the prior action;
• The third requirement, the cause of action in the prior action is not separate and distinct and;
• Fourthly, the basis of the cause of the action and the subsequent action was argued or could have been argued in the prior action, if the parties had exercised reasonable diligence.

[29] At paras. 34-35, the Ontario Court of Appeal stated:

[34] The re-litigation of issues that have been before the courts in a previous proceeding may create an abuse of process. That is because re-litigation carries serious detrimental effects and should be avoided unless the circumstances dictate that re-litigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 52. [35] The law seeks to avoid re-litigation primarily for two reasons: first, to prevent overlap and wasting judicial resources; and second, to avoid the risk of inconsistent findings: C.U.P.E., at para. 51; Donald J. Lange, The Doctrine of Res Judicata in Canada, 4th ed. (Markham: LexisNexis Canada Inc., 2015), at pp. 217-18.

[37] Applying the four requirements to this case, I find that:

• The first requirement has been met as there are two final decisions by Justice Gomery and Master Kaufman regarding whether this motion could be heard;
• The second requirement that the parties are the same is satisfied here; and
• I find that the third requirement has been met as the request in the prior two occasions is not separate and distinct for the request before me.

[30] Regarding the fourth requirement that the basis of the cause of the action and the subsequent action were argued or could have been argued in the prior action, if the parties had exercised reasonable diligence, Mr. Paul, even though he is self-represented, is an experienced lawyer with a great deal of litigation experience in England. He would have been expected to ensure the proper information was before them to allow the court to make an informed decision regarding his request. However, he is not a member of the bar of Ontario and not trained in the practice of law here.

[31] Nevertheless, based on the above findings, I find that issue estoppel is engaged here and that the four requirements have been made.

[32] However, even if issue estoppel does not apply, I would not grant the Plaintiffs’ request on the basis of the general philosophy of s. 137. Pursuant to s. 137.1(5) of the CJA, once an anti-SLAPP motion is initiated, no further steps may be taken in the proceeding until the anti-SLAPP motion has been fully adjudicated.

[33] I would expect this does not preclude motions that are necessary such as compelling answers to undertakings or questions refused during cross-examinations but it would seem to me that the Court must keep a close eye on motions lest they prolong the matter.

[34] Otherwise, the filing of an anti-SLAPP motion could create further mischief or litigation, which is the whole purpose of s. 137.

[35] Therefore, I find that the Plaintiffs’ motion to dismiss the Defendants’ s. 137 is not a necessary part of the proper adjudication of this matter and in my view, frustrates the objective of this statutory process which is to streamline the process with efficient. This motion is not a necessary step for the proper adjudication of the anti-SLAPP motion. The Plaintiffs’ motion can be dealt with at the same time as the s. 137 motion.

[36] The Plaintiffs also argue that the Defendants have delayed in the moving this motion forward given that there is a statutory requirement that it be heard in 60 days.

[37] A number of various events have occurred and based on the record before me, I find there have been a number of procedural delays including:

• March 4, 2020, one week before the return of the Defendants’ motion to strike, the Plaintiffs were served with a supplementary affidavit which led the Plaintiffs to request an adjournment and the Plaintiffs demand particulars;
• the postponement of the anti-SLAPP motion which was originally scheduled for March 12, 2020 adjourned on consent to May 15, 2020 and was not heard on that day due to the pandemic which resulted in suspension of court proceedings; and
• Delay in the transfer of this matter from Ottawa to Pembroke as ordered by Justice MacLeod on November 24, 2020 and a further date of January 21, 2021 was missed so now it is scheduled for May 2021.

[38] The delays in this matter do not rise to the level that would be considered egregious that would require that this s. 137 motion be dismissed.

Issue #2: Should this Court strike the affidavits of Suzanne Klatt or should she reattend cross-examinations with ancillary orders?

Introduction

[39] Ms. Klatt, the Clerk for the Township, was cross-examined on her affidavits of January 10, 2020 and March 3, 2020 which were filed in support of the Defendants’ s. 137.1 motion.

[40] The Plaintiffs request an order striking out the affidavits of Suzanne Klatt as they submit that there have been breaches of r. 34.15 including:

• Ms. Klatt did not respond to questions during cross-examination;
• Ms. Klatt did not bring documents relevant to the matter with her to the cross-examinations despite being served with a list of documents attached to her Notice of Examination; and
• Undertakings have not been fulfilled despite these undertakings being given during examinations held in November 2020.

[41] Rule 34.15 sets out the sanctions for failure to comply with r. 34 requirements.

[42] This request is a draconian measure that is unwarranted at this time. Rather, I will deal with each of the concerns set out above.

Questions

[43] There are a number of questions that Ms. Klatt refused to respond to that are in dispute.

[44] The parties have not filed portions of the transcript that are relevant for my determination required under r. 34.18.

[45] In any event, based on the record before me, I can deal with each objection individually based on the summary provided by the parties. Also, no objection was taken by either side of how the questions and answers were described by opposing parties in their materials.

Question 40: “Okay, And, therefore, if that is the case do you agree that if a Court finds in the favour of the Plaintiffs in this case on the basis of the allegations that are made against the Council, that they would not have resort to the indemnification by-law?” Objection: “I think that you are asking for a legal conclusion and I’m going to advise my client not to answer the question.”

[46] With respect to questions 40 and 41, I find that these questions elicit answers from the witness to provide her interpretation of the township’s indemnity by-law as to whether council members could resort to the by-law if it had acted in bad faith.

[47] With respect, her interpretation is essentially irrelevant. It is for the court to interpret the various terms and phrases.

[48] As stated by the court in Donaldson Travel Inc. v. Murphy et al, 2014 ONSC 5, and Bot Construction v. Dumoulin, 2010 ONSC 6569, a witness need not answer questions that call for a deponent to provide her legal definition of various words, terms and phrases.

Question 99: That you were not to answer questions other than what was in your own Affidavit, and specifically not to answer questions about anything in my or my wife’s Affidavits, is that correct? Objection: “We’re objecting to that question. You’re asking for solicitor/client privileged advice Mr. Paul, and you know it.”

[49] I find that this is a question that falls within the sacrosanct solicitor/client privilege as it is asking Ms. Klatt to answer questions about the advice the witness received from their lawyer. The question need not be answered.

Question 104: I’m going to ask you some questions about some matters contained in the Plaintiffs’ Affidavits. Objection: For the record, I’m going to take the position that it’s not proper for you to put your Affidavit to my client. That said, if you have a proposal or a proposition to the motion, you can put that to her, but not from your Affidavit.

[50] I agree that the question could be reframed to put certain positions to the witness and ask her to comment on them rather than referring her to the Plaintiffs’ affidavit and suggesting she speculate on their veracity, reliability and accuracy of statements deposed to therein.

Question 110: The reference, Ms. Klatt, is that you have given evidence in support of a motion, the intent of which is to strike out the Plaintiff’s claim on the grounds that I wasted the resources of the Township. You- Surely you remember that. Objection: Mr. Paul, that’s not a fair question. She doesn’t have in any place, and you can’t show her, where she said you wasted anything. That word was not used. What she said is that there were high expenditures of money and there was voluminous correspondence. And it’s the word “wasted” and the negative connotation to that, that you’re putting in her mouth that she didn’t say. So, I am objecting to that question on the basis of the fairness for that reason.”

[51] Regarding question 110, the Court finds that this question was improperly framed as its premise was incorrect. The record before me suggests that Ms. Klatt did not use the word “wasted” and this question could have been rephrased without imputations based on inaccurate interpretation of her previous answer.

Question 255: But it must be fault, Ms. Klatt, because it was used to make what we say was a derogatory resolution public about me. How do you answer that? Basically it says to the public at large I was a naughty boy, I did all these voluminous things and spent all these legal costs. Objection: “Don’t answer that….I am objecting to that question that’s –That’s not an appropriate question. You can ask her why she attributed to –to you in the Affidavit, that’s appropriate. But getting into the inflammatory imputations is—is not what she ever said, that’s not a proper question.”

[52] Again, as in question 110, this question was improperly framed with an inaccurate premise.

Question 276: Okay. But you see the problem is that I, looking at the ledger, cannot tell whether that is properly related to me, or my wife, or whatever, because there’s no information behind it. So that is why I have requested, and have so far been denied, access to the accounts that went formally line item in the ledger so that I can see. Objection: No, We’re not going to produce the solicitor’s invoices, Mr. Paul, because those of course would be privileged.

[53] I agree that these invoices are usually covered by solicitor/client privilege but if, at trial, the Defendants assert that Mr. Paul was the cause of some financial resources for legal costs, the Defendants will have the onus to establish the same with proper evidence.

Question 459: “But the inference to be drawn from what Mr. Cassan said, putting it at its highest, was that there was doubt that I had been honest when I said I had practiced law in Ontario.” Objection: Don’t answer that.

[54] I find like Questions 40 and 41, this is asking Ms. Klatt to interpret by Council’s counsel’s letter and whether the letter inferred that Mr. Paul was been dishonest about his legal qualifications.

Question 762: Well, I’m afraid, Mr. Cassan, that the law says otherwise in these circumstances. And the law says from my research, that if you use confidential information as a sword, particularly if it is in pursuit of talking 5 about, or criticizing the reputation of somebody, then you waive the privilege not only of having in case voluntarily waived it, you waive the privilege of the information that gave rise to it. That’s my position. The defendants’ counsel indicated “If you – If you send me that law, I’ll take that under advisement.”

[55] The Plaintiffs submit that there is an implied loss of solicitor/client privilege if it is in pursuit of the reputation of a body.

[56] This question was not addressed in the Defendants’ factum although it is part of their overall objection to the production of these documents.

[57] These documents were also referred to as #5 in the list of documents to the Notice of Examination dated September 28, 2020, regarding the cross-examination of Ms. Klatt:

With reference to paragraph 7 of the Affidavit of Suzanne Klatt and the statement ‘the Township referred the matter to Paul Cassan of Wishart Law Firm for his legal opinion’ all documents that formed part of or recorded and reported on the said referral.

[58] Since this question deals with disclosure of documents and is a discrete prayer of relief in the Plaintiffs’ notice of motion, I will deal with it below.

Documents to be brought by Ms. Klatt

[59] Rule 34 governs procedure on oral examinations including what is required from the parties. I have reviewed the list of documents included in the Notice of Examination served for Ms. Klatt.

[60] In their factum, the Defendants indicate that the documents in Ms. Klatt’s possession which were requested to be brought to her examination relate to the correspondence that she had with the Plaintiffs, which, naturally would be in possession of the Plaintiffs.

[61] The Plaintiffs indicate that the list is much more extensive. Ms. Klatt did not arrive with any other documentation which would permit full cross examination.

[62] Subject to my comments below regarding #5 on the list, I found that the documents listed are broad, general and lack specificity such as timelines.

[63] I refer to Bregman v. Bregman, 1985 Carswell Ont. 247, at para. 17, where the court was dealing with a family law case stated that:

In my view, a person seeking an order for production should be prepared to show: (a) That, in the balance of probabilities, the document sought exists. Fishing expeditions characterized by the demand for production of "any and all documents relating to ..." are improper and should be prevented by the court. (b) That the document is relevant; and (c) That [production] is not available by some simpler and cheaper procedure.

[64] Ms. Klatt should attend cross-examination again. I understand that the parties have agreed on a tentative date. At least 14 days before the examination, an amended list of documents will be provided with specific timelines, and documents requested should not be covered by any solicitor/client or litigation privilege.

Undertakings

[65] With respect to undertakings, the Plaintiffs complain of the tardiness of their answers.

[66] I understand that the Defendants just received the transcript approximately two weeks ago and they intend to comply and address the responses as soon as the municipality is able.

[67] The Court orders that the Defendants make best efforts to have the answers to the undertakings before the continued cross-examination of Ms. Klatt.

Conclusion

[68] In conclusion, the Court orders that:

• Ms. Klatt re-attend for cross-examinations and the issue of who will be ultimately responsible for the costs will be reserved to the Trial Judge;
• That the Defendants will use best efforts to ensure that the undertakings to the previous cross-examinations be produced to the Plaintiffs before the resumption of cross-examinations; and
• That, at least 14 days before the examination, the Plaintiffs provide a revised list of documents to be attached to the Notice of Examination that complies with my directions above.

Issue #3: Should the Court order Carl Bromwich to be examined pursuant to r. 39.03?

[69] Mr. Bromwich is a councillor and did not swear an affidavit.

[70] Pursuant to s. 137.2(4) cross-examinations of the documentary evidence from each party is limited to 7 hours each.

[71] This provision manifests the purpose of the section which is to screen out lawsuits that limit matters of public interest and deal with early identification.

[72] As stated by the Supreme Court in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, this process, unlike summary judgments which require a full record, a s. 137.1 motion contemplates limited cross-examination.

[73] Therefore, I am adjourning this request which can be revisited once the s. 137.1 motion has been determined.

Issue #4: Should the Court require the Defendants to produce all documents relating to instructions given to, and generated by, Paul Cassan which resulted in his letter to the Defendants dated August 27, 2019 pursuant to r. 30.04(5?)

Positions of the Parties

[74] The Plaintiffs request production of documents pertaining to communications between the Defendants and their lawyer which resulted in the Cassan letter.

[75] The Plaintiffs submit that there was an implied waiver of privilege attaching to the materials that generated the lawyer’s opinion given that it would be in the public domain. Considering the nature of the letter under the principle of fairness, it must be disclosed.

[76] These communications between the Township and their lawyer, according to the Plaintiffs may have “been tailored so as to elicit a response that would be used to attack the Plaintiffs.” According to the Plaintiffs, the Cassan letter was disparaging of the Plaintiffs, and stated that were unable to confirm that Mr. Paul had been called to the Bar or practised in any province or territory in Canada.

[77] This letter was distributed to the council prior to the public council meeting held on August 27, 2019. The Plaintiffs submit that they were never given an opportunity to refute the contents of that letter before it was made public and discussed the letter in an open forum affecting the reputation of the Defendants.

[78] The Township passed a resolution to interfere with Mr. Paul’s right of access to the Township and ensured the widest distribution of the Cassan letter.

[79] The municipality’s resolution 2019-25-0827 states the following:

THAT council accept the recommendation from Wishart and Law and not pursue legal action for costs against Templeman Menninga and; and THAT council direct the CAO/Clerk to forward all future correspondence from Mr. Roger Paul to Council for Consideration at a Regular Council so council can decide what public resources will be allocated to Mr. Paul. Carried.

[80] Furthermore, the municipality requested that Mr. Paul provide an apology to the taxpayer and “write a cheque for $60,000”.

[81] The Defendants object to this production of these documents that are covered by solicitor/client privilege. They submit that these documents would fall into the general category of solicitor/client privilege and are not producible.

Analysis

Legal Framework of Implied Waiver of Solicitor/Client Privilege

[82] Waiver of privilege is ordinarily established where it is shown that the possessor of the privilege: (1) knows of the existence of the privilege; and (2) voluntarily evinces an intention to waive that privilege. However, waiver may also occur in the absence of an intention to waive, where fairness and consistency so require. Thus, waiver of privilege as to part of a communication will be held to be waiver as to the entire communication. Similarly, where a litigant relies on legal advice as an element of his claim or defence, the privilege which would otherwise attach to that advice is lost Rogers v. Hunter, [1982] 2 W.W.R. 189.

[83] In that case, the B.C. Supreme Court quoted from Wigmore on Evidence, McNaughton revision (1961), vol. 8, pp. 635-36:

What constitutes a waiver by implication? Judicial decision gives no clear answer to this question. In deciding it, regard must be had to the double elements that are predicated in every waiver, i.e., not only the element of implied intention, but also the element of fairness and consistency. A privileged person would seldom be found to waive, if his intention not to abandon could alone control the situation. There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point his election must remain final.

[84] The Plaintiffs rely on the Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555.

[85] What is noteworthy is what the court stated at paras. 34-35:

[34] It is indisputable that solicitor-client privilege is fundamental to the proper functioning of our legal system and a cornerstone of access to justice (Blood Tribe, at para. 9). Lawyers have the unique role of providing advice to clients within a complex legal system (McClure, at para. 2). Without the assurance of confidentiality, people cannot be expected to speak honestly and candidly with their lawyers, which compromises the quality of the legal advice they receive (see Smith v. Jones, [1999] 1 S.C.R. 455, at para. 46). It is therefore in the public interest to protect solicitor-client privilege. For this reason, “privilege is jealously guarded and should only be set aside in the most unusual circumstances” (Pritchard, at para. 17). [35] Further, solicitor-client privilege belongs to the client, not to the lawyer (Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20, [2016] 1 S.C.R. 336, at para. 48; Blood Tribe, at para. 9). Seen through the eyes of the client, compelled disclosure to an administrative officer alone constitutes an infringement of the privilege (Blood Tribe, at para. 21). Therefore, compelled disclosure to the Commissioner for the purpose of verifying solicitor-client privilege is itself an infringement of the privilege, regardless of whether or not the Commissioner may disclose the information onward to the applicant.

[86] However, the Alberta case can be distinguished from the case at bar. The Supreme Court was dealing with the express language and the full context of s. 56(3) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, which abrogates solicitor‑client privilege to the extent of permitting the Commissioner to order production of records over which solicitor‑client privilege is asserted when necessary to adjudicate the validity of that claim.

[87] In addition, there may be a waiver of privilege by implication e.g. where the bank in defending a suit by a customer after it put the customer into receivership. If the bank claimed they relied on the receiver’s advice in putting the customer into receivership, it waives privilege over legal advice it may have obtained from its counsel on that issue. See Rogers v. Bank of Montreal, [1985] 4 WWR 508 (B.C. C.A.), at p. 513.

[88] In ordering production, the judge said the following:

"All that must now be produced are documents, or portions of documents, communicating or recording advice given to the bank by its solicitors, at any time prior to the receiver taking possession, concerning the right of the bank to have a receiver put in under the debenture without notice, or the timing of demand or length of notice which might be regarded as appropriate or advisable. No other party will be entitled to such disclosure except by special order."

[89] The judge found that "the Bank's assertion that it relied on legal advice given by the Receiver necessarily puts in issue the rest of the Bank's knowledge of the relevant law and, therefore, the nature of the legal advice it received from others."

[90] In Re Toronto Police Services Board; it was argued that because the chief and the deputy chief made reference to the opinions at a public meeting, any privilege over the opinions were waived. In that case, the production of documents exchanged between counsel and the police chief’s office was not granted as it was found that the police chief did not suggest that the legal opinion constituted a justification for its policy.

[91] The case of S. & K. Processors Ltd. v. Campbell Ave. Herring Producers Ltd., [1983] B.C.J. No. 1499 (S.C.), was distinguished where a public institution references legal advice sought and received in the context of making decisions on matters of public policy.

[92] In Campbell, the RCMP relied on the advice of the Department of Justice in court to support its position that its actions were in good faith. The RCMP were found to have engaged in illegal conduct, and the accused argued there had been an abuse of process and sought to stay the proceedings. In resisting the requested remedy, the RCMP claimed to have acted in good faith based upon advice from Crown Counsel. The legal advice had been obtained specifically for the investigation at issue, and the RCMP’s reliance on that advice in asserting their good faith was explicit and there was implication of a waiver of solicitor-client privilege.

[93] In the Toronto Police Services Board, the Ont. I.P.C. found that the legal opinion advice was one component of the process undertaken by the board to make the decisions it did. In addition, the references by the police chief to the “bottom-line” advice by these individuals is insufficient to support a finding of implied waiver of solicitor-client privilege as found in Campbell.

[94] As a result, the Ont. I.P.C. found that the principle of fairness did not result in a finding that privilege in the legal opinions was waived by implication.

[95] However, just referring to legal advice does not constitute waiver. If the legal advice underlies the state of mind pleaded in the claim or defence, implied waiver may arise.

Ruling

[96] As noted above, this area of law is complex. A legal analysis must be based on the facts of the case and the evidence before the Court.

[97] Unfortunately, I am not in a position to rule on this issue.

[98] I do not have a proper evidentiary record before me, such as the statement of defence, the filed affidavits or the transcripts. I am not in a position to rule that the municipality has implicitly waived its privilege.

[99] Without a full evidentiary record, I am not prepared to rule on whether there should be production of the documents exchanged between the municipality and their counsel.

[100] If the parties are not able to resolve this issue when the revised list of documents is prepared for the continued cross-examination of Ms. Klatt and the fulfilment of undertakings, the parties may return before me to deal with this discrete issue: i.e. whether the documents exchanged between the municipality and their counsel that led to the Cassan letter need to be produced to the Plaintiffs.

[101] A date can be set through the trial coordinator and must be done expeditiously to ensure that the s. 137 motion proceeds on May 19, 2021.

Issue #5: Should the Court make an Order regarding inspection of documents pursuant to r.30.02(2).

[102] Rule 30.02(2) states:

Production for Inspection (2) Every document relevant to any matter in issue in an action that is in the possession, control or power of a party to the action shall be produced for inspection if requested, as provided in rules 30.03 to 30.10, unless privilege is claimed in respect of the document. R.R.O. 1990, Reg. 194, r. 30.02 (2); O. Reg. 438/08, s. 26.

[103] A copy of the notice has not been filed for the Court to determine the merits of this request.

[104] This issue has not been dealt with by the parties in either factum.

[105] Suffice to say that the Rules provide for documentary disclosure. Defendants should comply with document disclosure and produce relevant documents that are not protected by privilege.

[106] If the parties cannot resolve the issue of costs, the Plaintiffs may file their two-page costs submissions along with their Bill of Costs and any offers to settle by March 30, 2021. The Defendants may file their two-page costs submissions along with their bill of costs and any offers to settle by April 13, 2021 and the Defendants may file a one-page reply by April 27, 2021.

Justice A. Doyle Date: March 09, 2021