COURT FILE NO.: CV-13-488748
MOTION HEARD: 20210308
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Patrick Whitty, RPR Environmental Inc., 1049585 Ontario Inc. o/a RPR Environmental Services, and 876947 Ontario limited, Plaintiffs
AND:
Edward Nicholas Wells, Edward Glenn Wells, Diana Ball, Luke Cayley, Rob Fortin, Erin Gilmer, Jeffrey Green, Melanie Gregorich, Julie Horvath, Rebecca Huehn, Doug Laing, Bradley May, John Miller, Amrick Shergill, Mark Vanderlaan, Sandra Antoniani and Attorney General of Canada, Defendants
BEFORE: Master Jolley
COUNSEL: Jacqueline Dais-Visca and Wendy Wright, Counsel for the Moving Parties, the Defendants other than Sandra Antoniani
Vilko Zbogar, Counsel for the Responding Party Plaintiffs
HEARD: 8 March 2021
REASONS FOR DECISION
[1] The defendants other than Sandra Antoniani (the “defendants”) bring this motion for an order that the plaintiffs answer certain questions refused on discovery, for a declaration that the plaintiffs have improperly asserted privilege over legal advice they received from their former counsel Dianne Saxe in relation to the second prosecution action, a declaration that they have waived privilege over documents of Tony Bratschitsch and an order that certain of the documents over which privilege is claimed are admissible at trial.
Waiver of privilege
[2] The defendants argue that the plaintiffs have put the legal advice they received from their previous counsel Dianne Saxe in issue in these actions, both through their pleadings and through the evidence they gave on examination for discovery and have waived privilege as a result. Additionally, they have waived privilege by publicly filing the advice they received from their lawyer in an action against her for negligence.
Waiver of privilege through pleading
[3] The defendants first allege that the plaintiffs have put their statement of mind and the legal advice they received in issue in their pleadings and have waived privilege as a result.
[4] The third amended statement of claim in CV-13-488748 alleges that, in an effort to resolve the charges laid by the defendants, RPR entered into a plea arrangement. The defendants point to paragraphs 124, 128 and 155 of the pleading in support of their position that privilege has been waived. Paragraph 124 of the claim states:
- RPR Environmental Inc. agreed to plead guilty to count #42 under duress, because Environment Canada's actions had left the company in an impossible position in which it was pressured to accept a guilty plea or face further wrongful enforcement activity and defamation. There was no reasonable prospect of conviction. The charge was laid against the wrong company and barred by the limitation period in CEPA section 275, and there was a compelling substantive defence. However, the wrongful actions of Environmental Enforcement officials had caused significant business disruption, instability, and loss of profits to the RPR Group. Among other things, the RPR Group suffered a major blow when it lost a major American receiver in January 2009 after E.N. Wells sought out American regulatory authorities, wrongfully told them that the RPR Group companies were repeat environmental offenders, and caused the receiver to cut off business with the RPR Group.
[5] The plaintiffs repeat the allegation of duress in paragraph 155, which states:
- RPR Environmental Inc. pleaded guilty to one charge of failing to submit confirmation of disposal pursuant to section 36 of EIHWHRMR only under duress as the price of attempting to buy peace from Environmental [sic] Canada whose harassment, intimidation, defamation, and other wrongful conduct had caused substantial harm to the RPR Group.
[6] Paragraph 128 pleads:
- Prior to the plea arrangement, E.N. Wells, Bradley May and Sandra Antoniani had undertaken efforts to intimidate Dianne Saxe, the lawyer for RPR Environmental Inc. and Patrick Whitty, and to compromise the integrity of those parties' legal representation. In particular, they attempted to use the fact that Ms. Saxe had been awarded a contract by Environment Canada some years earlier as leverage against her, even though that contract had nothing to do with the charges against RPR Environmental Inc. and Patrick Whitty.
[7] The defendants argue that by alleging that they pled guilty under duress and that the defendants intimidated and attempted to co-opt their lawyer, the plaintiffs have waived privilege over the advice provided by their lawyer.
[8] I do not see that any of these paragraphs puts in issue the legal advice that Ms. Saxe gave the plaintiffs. The issue of duress deals with the pressure the defendants allegedly put on the plaintiffs. The issue of intimidation deals with pressure the defendants allegedly put on Ms. Saxe. Neither calls into question the advice Ms. Saxe gave the plaintiffs. I do not find that the plaintiffs have waived privilege through their pleading.
Waiver through evidence given on examinations for discovery
[9] The defendants argue that the plaintiffs put the legal advice Ms. Saxe gave them in issue on multiple occasions during their examination for discovery and waived their privilege over that advice as a result.
[10] The defendants did ask Mr. Whitty a number of questions about the legal advice he was given and whether he believed that advice was compromised by the defendants’ alleged intimidation of Ms. Saxe. In each instance, his lawyer took the position that, to the extent that Mr. Whitty answered the question, he was not waiving privilege over the legal advice he was given. Further, he made it clear that they were not raising that legal advice in this case.
[11] I give but two examples of the plaintiffs’ lawyer’s position on waiver during his clients’ examination. The first instance is from the examination for discovery held 11 July 2019. When the plaintiff was asked about the potential consequences of the charges laid, he stated:
A642 MR. WHITTY … Basically the only reason I pleaded is I knew they weren't going to give up. And Dianne Saxe said, if you don't plead you will go to jail. These guys are going for jail. So that was the advice of my lawyer was to go into a plea. To this day I don't believe I've done anything wrong.
MR. ZBOGAR: We're not going to disclose legal advice.
BY MS. DAIS-VISCA: I'll take that under the 37.12 because I will be bringing a motion at some point to have a ruling on whether or not solicitor-client privilege has been waived, and I'll deal with you on that separately, but I hear your caution on that right now.
MR. ZBOGAR: Yeah, any questions that go to privilege are going to be refused outright, not under rule 34.12 but refused outright.
MS. DAIS-VISCA: Understood.
[12] The second excerpt is from Mr. Whitty’s continuing examination held on 15 July 2019, starting at Question 1656.
Q1656 MS. DAIS-VISCA: Is it your position that none of the plaintiffs should have pled guilty to any charges in relation to the second search?
A. If there was cause for an investigation on RPR Inc., I would maybe agree with you, but RPR Inc. has no manifests, no pre-notes, doesn't handle waste. So I do not agree that any of these continued investigations which went on for well over two years, almost three years, should have ever been launched against RFR Inc.
1657 Q. And yet, on the advice of your lawyer, a plea deal was negotiated, an Agreed Statement of Facts was prepared, and an authorized representative on behalf of the corporations pled guilty to a charge on behalf of RPR Environmental correct?
A. Yeah, there was -- there was a bilateral agreement entered and approved by or ratified by a Court, which your client did not honour.
1660 Q. Okay. And, Mr. Whitty, you authorized that to be done on behalf of RPR Environmental Inc.?
Reluctantly, yes.
1661 Q. And why do you say “reluctantly”?
A. Because I was – can I talk about the legal advice?
1662 Q. Yes, I think you can.
MR. ZBOGAR: He will answer as best he can, but you will have to appreciate that part of the answer is protected by privilege, and he won’t be speaking to that part.
1663 Q. Okay. Speak to what you can, and then we’ll have a ruling on whether or not privilege has been wholly waived in this.
1664 Q. Dianne Saxe told you that you’d be put in jail?
MR. ZBOGAR: We’re not getting into legal advice, Counsel. Again, please be careful to avoid questions of privilege. We’re not going there.
[13] It is a fundamental principle of our legal system that solicitor-client privilege must be carefully guarded and must be “as close to absolute as possible to ensure public confidence and retain relevance” (Goodis v Ontario (Ministry of Correctional Services 2006 SCC 31, [2006] 2 S.C.R. 32 at paragraph 35).
[14] As noted by the Supreme Court of Canada in Blank v. Canada (Minister of Justice) [2006] 2 SCR 39 at paragraphs 26:
“Much has been said in these cases, and others, regarding the origin and rationale of the solicitor-client privilege. The solicitor-client privilege has been firmly entrenched for centuries. It recognizes that the justice system depends for its vitality on full, free and frank communication between those who need legal advice and those who are best able to provide it. Society has entrusted to lawyers the task of advancing their clients’ cases with the skill and expertise available only to those who are trained in the law. They alone can discharge these duties effectively, but only if those who depend on them for counsel may consult with them in confidence. The resulting confidential relationship between solicitor and client is a necessary and essential condition of the effective administration of justice.”
[15] Given the importance of solicitor client privilege to the working of the justice system, it is axiomatic that only a party can waive his privilege. Any express waiver must be a conscious decision of the client (see Leggat v. Jennings, 2015 ONSC 237 at paragraph 16). The party opposite cannot strip the protective cloak of privilege by asking the party opposite questions on otherwise privileged issues, over the objections of the party being questioned or with the party being questioned attempting to circumscribe his answer to avoid waiver.
[16] That is what the plaintiffs attempted to do here. They answered questions put to them to the extent they could, while advising that they were not waiving solicitor client privilege. I do not find that the plaintiffs voluntarily waived their privilege when their lawyer was on the record expressly attempting to protect that privilege. Even if that were imperfectly done, I err on the side of upholding the protection of the privilege to ensure it is “as close to absolute as possible”.
[17] The plaintiffs were also questioned extensively about a complaint they filed with Public Prosecution Service Canada (“PPSC”) in 2012 in which they alleged that Ms. Saxe was less vigorous in their defence and failed to protect their interests after the defendants had threatened her.
[18] The defendants attempted to question Mr. Whitty about his statement in the PPSC letter that read: ”As a result [of this suborning attempt], with unrelenting pressure from my lawyer, combined with more threats of punitive investigations, I relented to agreeing to a guilty plea in lieu of an absolute discharge and a promise of relief from further debilitating prosecutions.” The exchange commenced at Question 1665:
MS. DAIS-VISCA: 1665 Q. You have indicated in this complaint in 2012 [the PPSC complaint] that you were – you believe you did not receive the legal advice that --- effectively, you didn’t receive the legal advice and representation that you believed you were entitled to, is that fair, following this allegation about her having trained Environment Canada?
MR. ZBOGAR: He can speak to what his understanding is. He’s not going to speak to the privileged communications he had, though.
MR. ZBOGAR: Q 1671 “There was a plea agreement, and the parties were represented by counsel on both sides, and the plaintiffs are not alleging that – the basis for their claim against EC is not bad legal advice from their own counsel”.
[19] While the plaintiffs did answer questions about their view of the impact of the defendants’ alleged pressure on their lawyer, Mr. Whitty did so in the context of attempting to answer questions put to him about the PPSC letter, not directly in reference to an issue in the pleadings. While doing so, the plaintiffs made it clear that they were not waiving privilege in answering any of the questions posed.
[20] There is no question that Ms. Saxe’s legal advice was front and centre in the PPSC complaint. If the plaintiffs were basing this case on having received poor legal advice from Ms. Saxe, the content of that advice would be in play. But their lawyer has said on the record that the legal advice they received from Ms. Saxe is not being relied on as part of this claim.
[21] As set out at paragraph 57 of the plaintiffs’ factum on the issue of the alleged influence by the defendants on Ms. Saxe:
“There is no allegation whatsoever that “their lawyer failed to follow their instructions on the terms of the guilty plea because she had been suborned by ECCC.” The allegation is that certain defendants undertook efforts to compromise the Plaintiffs’ legal representation. This is an allegation that goes to the Defendants’ state of mind rather than legal advice received.”
[22] The defendants argue that the plaintiffs’ have impliedly waived the privilege by raising their statement of mind, if they did not expressly waive the privilege. In discussing implied waiver, Perell, J. stated in Creative Career Systems v Ontario 2012 ONSC 649:
“27. … The subtle and profound point is that there is no waiver of the privilege associated with lawyer and client communications from the mere fact that during the events giving rise to the claim or defence, the party received legal advice, even if the party relied on the legal advice during the events giving rise to the claim or defence. For a party to have to disclose the legal advice more is required.
29 … To justify a party being required to answer questions about the content of privileged communications, the party must utilize the presence or absence of legal advice as a material element of his or her claim or defence. The waiver of privilege occurs when the party uses the receipt of legal advice as a material fact in his or her claim or defence. While the waiver is a deemed waiver, it requires the intentional act of that the party makes legal advice an aspect of his or her case.”
- Thus, a deemed waiver and an obligation to disclose a privileged communication requires two elements; namely: (1) the presence or absence of legal advice is relevant to the existence or non-existence of a claim or defence; which is to say that the presence or absence of legal advice is material to the lawsuit; and (2) the party who received the legal advice must make the receipt of it an issue in the claim or defence.”
[23] The plaintiffs have stated definitively that the presence or absence of legal advice from Ms. Saxe is not relevant to their claim and that they are not making the receipt of that advice an issue.
[24] This is akin to Leggat v. Jennings, supra where the plaintiff challenged his settlement agreement with the defendants on the basis that they had made significant misrepresentations to him in the lead up to the settlement. The defendants brought a motion for production of the plaintiff’s solicitors’ files concerning the settlement. They argued that, by pleading that he had acted on the basis of misrepresentations, the plaintiff made his legal advice relevant, as it was important to know whether he acted on the basis of legal advice or on the basis of the alleged misrepresentations.
[25] Gray, J. held that “It is for the client to waive the privilege and no one else. Ordinarily, that requires a deliberate, conscious decision on the part of the client. In my view, anything that purports to be a waiver that does not involve a conscious, deliberate decision must be narrowly construed and applied.” In this case, the plaintiffs have put their motivation behind pleading guilty in issue by pleading duress. But Gray, J. noted that putting one’s state of mind in issue is not sufficient in most cases to waive privilege. His Honour held that the plaintiff did not waive privilege over his solicitor client communications by pleading that he relied on misrepresentations by the defendants, even if he also relied on legal advice. To waive the privilege, hey would have had to raise reliance on that legal advice as an issue in the case., which he had not done.
[26] I find similarly here that the plaintiffs have not raised reliance on the legal advice they received or did not receive from Ms. Saxe. They have expressly stated that her legal advice to them does not form part of their case against the defendants. The corollary, of course, is that the plaintiffs cannot lead evidence at trial that they were prejudiced in any way as a result of the advice or actions of Ms. Saxe. They can plead, as they have done, that the defendants attempted to intimidate her in her representation of the plaintiffs. What they cannot say is that those efforts in fact resulted in the plaintiffs receiving anything other than proper legal advice from Ms. Saxe. They have confirmed that that issue is not on the table.
[27] Whether the defendants attempted to compel a plea under duress and whether they attempted to co-opt Ms. Saxe are in issue; the advice from Ms. Saxe to the plaintiffs is not.
[28] I find that the plaintiffs did not waive their privilege through the evidence they gave during their examination for discovery.
Waiver of privilege through public filing
[29] The plaintiffs sued Ms. Saxe in small claims court in May 2015, claiming she had given them negligent advice and had been negligent in failing to move to quash the search warrants obtained by the defendants. They also alleged that Ms. Saxe may have been influenced by Environment Canada’s attempts to silence her. In support of their claim, they filed a copy of their retainer with Ms. Saxe and a number of the legal opinions she had provided as well as copies of her invoices outlining the work she did. They also appended the response from the Law Society of Ontario to their complaint filed against Ms. Saxe, which itself set out also the complaint allegations in detail. Ms. Saxe appended many of the same documents to her defence. She also included the full LSO complaint and her detailed response.
[30] The plaintiffs refused to produce the small claims court pleadings or any of the documents filed in it. The defendants thereafter obtained the documents directly from the Hamilton Small Claims Court and advised the plaintiffs in November 2019 that they had done so. They also obtained the court’s decision granting Ms. Saxe’s motion to strike the claim, which itself reiterated much of the legal advice Ms. Saxe had given the plaintiffs. The plaintiffs took no steps to obtain a belated confidentiality order, even when the defendants advised them in January 2020 that they intended to rely on the court decision and on copies of the documents both sides had publicly filed. Other than writing to request that the defendants destroy all the documents they had obtained from the court file, the plaintiffs took no steps to protect those documents until 21 December 2020 when they brought a motion in small claims court seeking a sealing order. Disappointingly, the plaintiffs did not advise the defendants that they were bringing this motion.
[31] The motion was heard on an emergency basis on 25 February 2021 and dismissed. The decision was released the day before this motion was argued and the plaintiffs filed an appeal that same day. In dismissing the motion for a confidentiality order, the court held, first, that any determination it made could not tie the hands of this court with respect to the use of the documents. Second, it found that solicitor client privilege was waived as a result of the allegation of solicitor negligence and the disclosure of the documents in the small claims court proceeding. The court held:
“the fact is [the documents] have been in the public domain for a considerable number of years which militates against the concerns for disclosure to the general public. In other words, I believe that if there had been a genuine concern about the public access to the documents, as opposed to the potential use in the Superior Court proceedings, such a motion would have been brought much earlier than now…. Therefore, I do not believe that the interests of justice are such that the sealing order ought to be granted at this time with respect to documents that have been in the public domain for such a lengthy period of time.”
[32] I agree that the plaintiffs waived their privilege over the documents in the small claims court file. While their materials before me described that action as a “private dispute”, it was not. The plaintiffs knew or should have known both their documents and those filed by Ms. Saxe were publicly accessible. On discovery, they told the defendants in which jurisdiction they could find the documents, so clearly understood that the defendants could attend and obtain copies themselves, if they chose to. They cannot be said to have demonstrated a “continuing intention to keep their communications with counsel confidential” (Cameron v. Nova Scotia (Attorney General) 2019 NSCA 38, aff’d 2020 CanLII 13153 (SCC) at paragraph 50).
[33] However, that does not end the matter. For the reasons set out above, I do not find these documents to be relevant to this action. The plaintiffs have put in issue two matters – their guilty plea under duress as a result of the defendants’ actions and the defendants’ attempts to influence their lawyer. They have not put their legal advice from Ms. Saxe in issue here and have confirmed that they are not relying on the quality of the advice they received from Ms. Saxe to support any part of their claim in these actions.
[34] This was similar to the outcome in Chemtrade Electrochem Inc. v. Stikeman Elliott LLP 2019 ABQB 562. While the court accepted that solicitor-client privilege may be waived when a client sues its former counsel, it affirmed that it does not necessarily follow that third parties may mine that information. The advice of the lawyer still must be a relevant issue in the proceedings involving the third party. The court quoted the related case of Froates v Spears [1999] OJ No.77 (Gen. Div.), at paragraph 25, which stated:
“A party is taken to waive solicitor-client privilege by voluntarily injecting into the proceeding the question of its state of mind and, in so doing, using as a reason for its conduct the legal advice it received. To displace privilege, however, there must be an affirmative allegation which puts the party’s state of mind with respect to its legal knowledge clearly in issue.”
[35] Following that line of reasoning, the court in Chemtrade concluded at paragraph 30 that:
“Chemtrade has not put its state of mind, or the legal advice that helped form its state of mind, at issue in the Main Action. Filing the Contingent Action against its former solicitors does not therefore amount to a waiver of solicitor-client privilege in respect of the Main Action.”
[36] The quality of Ms. Saxe’s legal advice to and her representation of the plaintiffs were in issue in the small claims court action, indeed the only issue. It was also the issue in the PPSC letter and the LSO complaint. In these actions, the pleadings centre on the conduct of the defendants and specifically the allegation that the plaintiffs pled guilty as a result of duress from Environment Canada and the allegation that the defendants intimidated and attempted to influence Ms. Saxe. Ms. Saxe’s legal advice is not in issue.
[37] I find the contents of the small claims court action are not relevant.
Refusals that involve issues of privilege
[38] Refusal 2 – For the reasons set out above, the plaintiffs need not produce a copy of their statement of claim against Ms. Saxe.
[39] Refusal 3 – The defendants asked the plaintiffs whether Ms. Saxe told Ms. Whitty that she would be able to get a commitment from PPSC and Environment Canada to not only not prosecute the RPR Group but also to not investigate the RPR Group. The plaintiffs have not waived privilege over their legal advice and have confirmed that they are not relying on any advice that Ms. Saxe gave or did not give them as part of these cases. The refusal is upheld.
[40] Refusal 4 – For the reasons set out above, the plaintiffs need not produce the small claims court pleadings nor a copy of their complaint to the Law Society.
Refusals that do not involve privilege
[41] With respect to the refusals that do not involve issues of privilege, the parties agree on the law with respect to the purposes of examinations for discovery and the scope of questioning, as set out in the plaintiffs’ factum at paragraphs 30-34, which I do not repeat here but which I have applied.
[42] Refusal 1 - The plaintiffs argued that they had answered this question. The answer was not responsive. They then argued that the question was irrelevant. I agree. Mr. Whitty indicated that he did not receive a report on the December 2008 pre-trial until April 2009. It is unclear from the transcript whether Ms. Saxe even reported on it then or whether the report came through an Access to Information and Privacy request. I do not see how whether or not Mr. Whitty was upset about not receiving a report on the pre-trial advances the issues in the litigation. The refusal is upheld.
[43] As for this and all refusals that follow, if the plaintiffs are not ordered to answer the question, they must live with the consequence of that refusal and it is not open to them to answer either now or at trial.
[44] Refusal 5 - In an earlier decision in these actions on privilege, Myers, J. ordered that an email in the defendants’ productions (AGC00872) be redacted. In their productions, the plaintiffs produced an email chain (RPR139) that included AGC00872, without redacting AGC00872 from the chain. On discovery, they were asked to take steps to redact the information in AGC00872 that was contained in document RPR139 to comply with the earlier redaction order. The plaintiffs refused on two bases: first, that Myers, J. did not deal with the specific RPR139 production but only the AGC00872 production; second, that it was not a proper discovery question as it compelled the plaintiffs to take specific steps rather than answer questions based on their knowledge, information and belief.
[45] I order the plaintiffs to redact the RPR139 in the manner ordered by Myers, J. for AGC00872. It was a proper question on discovery as it dealt with a production listed in the plaintiffs’ Schedule “A” productions on which they purport to rely. It would be improper to allow the very same information that Myers, J. ordered redacted to appear elsewhere in the same document just because the document is reproduced as part of an email chain. A party cannot be allowed to avoid the consequences of a redaction order simply by including the document as part of another document. Second, parties are often asked to take certain steps on discovery, such as obtaining documents from non parties. That does not make those questions improper. Lastly, it would be an inefficient use of the parties’ time to require the defendants to bring a further motion on this one issue when it has already been dealt with at length. I order that RPR139 be subject to the same restrictions set out by Myers, J. in Whitty v. Wells 2016 ONSC 7716.
[46] Refusal 6 – In CV-11-442307 and CV-13-488748, Mr. Whitty seeks general, aggravated and special damages, damages for harm to his reputation and for emotional distress and nervous shock as well as Charter damages. The defendants sought production of his personal income tax returns for the period 2005 – 2014 in relation to those damages claims.
[47] Mr. Whitty first refused to produce these documents on the basis that his claim was derivative of the corporate plaintiffs. He has now changed that position, affirming that he is advancing a separate personal claim. He is prepared now to produce some foundational documents for his claim but not his income tax returns, which he argues would not include relevant information. He has agreed to produce any T-slips issued by RPR Environmental Inc. to him along with his relevant RRSP statements and other record of payment and will seek any missing documents from CRA. He will also produce credit card statements and logs recording shareholder loans made to RPR.
[48] The defendants argue that it is too late for Mr. Whitty to answer this question and that an order should issue under Rule 31.07(2) barring him from producing any documents to support his general damages claim.
[49] I do not find Rule 31.07(2) to be applicable. That Rule provides that if a party does not answer a proper question, it may not introduce at trial the information that it had earlier refused to provide, except with leave of the trial judge. In this regard, I make four points: First, the plaintiff is not refusing to answer the question. He has indicated that he will answer by providing the information set out above. Second, the defendants included this question in their motion for an order to compel Mr. Whitty to answer it. Him having agreed to answer it, the defendants cannot now argue that they do not want the answer. Third, Rule 31.07(2) does not provide a basis on which this court could bar a party from providing an answer to a refused question. It simply sets out the consequences of a party’s refusal to answer. Fourth, this Rule expressly leaves it to the trial judge to determine whether evidence can or cannot be introduced at trial.
[50] I find the documents that the plaintiffs propose to produce to be sufficient to enable the defendants to deal with Mr. Whitty’s general damages claim. If they determine that production of the income tax returns is still needed after they receive the information noted above, they can renew this portion of the motion before me.
[51] Refusal 7 - The plaintiffs have claimed that several highly skilled and experienced staff resigned as a result of the stress, uncertainty and fear caused by the defendants’ conduct, including the manner in which they executed the search warrants. The defendants seek production of the pleadings and Ontario Human Rights complaints filed by a former employee Todd MacNinch against RPR as well as his HR file. Although the plaintiffs confirmed during their examination for discovery that Mr. MacNinch is not one of the people whom they allege left due to the actions of the defendants, the defendants argue that these documents may still shed light on the working environment at RPR and provide evidence that employees were resigning for other reasons.
[52] I uphold the refusal for two reasons. First, RPR has confirmed that it is alleging that only Frances Scandinavo left its employ due to the actions of the defendants, so the claim of Mr. MacNinch is not on its face relevant. Second, the evidence before me is that Mr. MacNinch left RPR’s employ due to health issues. There must be something more than the fact that he was a former employee of RPR before his HR file, his pleadings and his OHRC claim would be relevant to the overall working conditions at RPR.
[53] Refusal 8 –The plaintiffs claim damages for customers they lost allegedly due to the defendants’ conduct. The defendants have now identified 28 customers that RPR alleges it lost. RPR has now agreed to confirm that these are the only customers it alleges it lost. If RPR discloses that there are more than these 28 customers, it shall advise of the names of any other customers and produce any relevant information about them.
[54] Refusal 9 – The defendants seek production of the billings or anything in a general ledger regarding projects done by Mr. Bratschitsch between 2006 and 2010. They also wish the plaintiffs to advise whether Mr. Bratschitsch is being called at trial as a fact witness or as an expert witness. Having sought an answer to this refusal on this motion, the defendants also argue that it is too late for the plaintiffs to provide this information and they seek an order prohibiting Mr. Bratschitsch from testifying at trial. For the reasons set out in paragraph 49 above, I decline to make such an order.
[55] RPR has agreed to produce relevant billing records pertaining to the services Mr. Bratschitsch provided in relation to the matters in issue. It has advised that it proposes to redact some or all of those documents for privilege. If it does so, it shall list each redacted document in schedule B and outline the reason for the redaction. The defendants are free to bring a motion if they are of the view that privilege has been improperly claimed.
[56] Refusal 10 – The plaintiffs initially refused to produce all documentation that Mr. Bratschitsch has relating to any of the four actions. They then said they had produced everything, other than copies of what they received from Mr. Bratschitsch and will produce in answer to Refusal 9. With the same proviso that it is not open to the plaintiffs to produce additional documents at some future date, this refusal will be satisfied upon the documents being provided as referenced in Refusal 9.
Cross Motion
[57] The plaintiffs brought a cross motion seeking an order that any documents found privileged are to be subject to the same terms and conditions as set out in the Myers, J. order, referenced above. The defendants agreed that those terms should apply to any document found to be privileged.
[58] However, I note that I did not find the documents filed in the Hamilton small claims court action against Ms. Saxe to be privileged. Privilege was waived over those documents when they were publicly filed, referenced in the decision of the court dismissing the action and left in the public file for years.
Conclusion
[59] The plaintiffs shall deliver all documents ordered produced within 30 days of the date of this order. If requested by the defendants, the plaintiffs shall attend at their own expense to be examined on these additional productions.
[60] The record should also note that the plaintiffs advised during the course of argument that they are no longer pursuing any damages from the defendants for malicious prosecution or for conspiracy as set out in paragraphs 148 - 162 of the third amended statement of claim.
[61] If, after good faith efforts, the parties are unable to agree on costs by 23 April 2021, they may file costs submissions no more than three pages in length to my assistant trial coordinator at Christine.Meditskos@ontario.ca.
[62] I have reported this matter in Action CV-13-488748 but it is also applicable to Actions CV-13-488119, CV-11-442307 and CV-13-488659. Pursuant to the order of Myers, J. of 22 February 2017 undoing the earlier consolidation of these actions, the parties have filed a set of materials in CV-31-488748 and are responsible for ensuring that a copy of all endorsements and orders are filed in each of the four actions.
Master Jolley
Date: 22 March 2021