COURT FILE NO.: CV 19-30 (Owen Sound)
DATE: 20210413
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Melanie McGraw, Plaintiff
AND:
Township of Southgate and David Milliner, Defendants
BEFORE: Justice R. Chown
COUNSEL: John Tamming, for the plaintiff
Sabatina Vassalli and Taylor Carson, for the defendants
HEARD: By video conference, April 9, 2021
Ruling on Disclosure of Recording of February 6, 2019 Closed Meeting of Council
[1] The plaintiff was employed as the Fire & Emergency Services Administrative Assistant for the defendant Township of Southgate. She was also a Volunteer Fire Captain with the defendant. Her employment was terminated on February 7, 2021, the day after a closed meeting of council at which her termination was discussed.
[2] During the trial testimony of former Township Clerk Joanne Hyde on day three of this trial, it came out that there may be a previously undisclosed recording of the closed meeting. On Friday, Ms. Vassalli confirmed that there is such a recording. The plaintiff seeks an order that the recording be disclosed. The defendants resist disclosure based on solicitor-client privilege, without prejudice settlement communications privilege, litigation privilege, and confidential communications privilege.
[3] A copy of the recording has been received as a lettered exhibit and sealed, subject to argument on whether or to what extent it is subject to privilege, confidential and/or not admissible. I have listened to the recording in the absence of counsel, the parties, and the public, and have heard argument regarding whether it should be produced.
[4] The minutes of the closed meeting have been produced. These indicate that seven councillors were present, as well as the Chief Administrative Officer of the defendant township, being the defendant David Milliner, as well as Ms. Hyde and Treasurer William Gott. The minutes do not disclose the substance of the discussions.
[5] It is convenient to divide the recording into four parts. There is some overlap regarding what was discussed but the overlap turns out to be immaterial based on my decision. For the reasons below, I am ordering that only part 2 of the recording be disclosed.
[6] Part 1 is the first 5 minutes and 24 seconds of the recording. The discussion is about an unrelated potential litigation matter and is irrelevant. This does not need to be disclosed.
[7] Part 2 runs from 5:24 to 11:19. Mr. Milliner states at the outset of that discussion, “This is about a fire department employee that we are proceeding to terminate.” It is apparent that the decision to terminate the plaintiff’s employment had been made and Mr. Milliner was informing the council. He was not seeking council’s approval. This further confirmed at the end of the recording, when Mr. Milliner says, “I’m just telling you this so there’s no surprises. Everybody knows what’s around the corner, but we’ll be in touch.”
[8] Mr. Milliner describes what the issues were and what information he had gathered which led to the termination decision.
[9] Part 3 runs from 11:19 to 12:42 on the recording. Mr. Milliner describes anticipated negotiations with the plaintiff.
[10] Part 4 runs from 12:42 to the end at 27:18. Mr. Millner starts receiving and answering questions from council members. I refer to this as “the question and answer session.” Mr. Milliner references HR advice and legal advice received. And there is discussion among Mr. Milliner and the councillors about what impact the termination may have on the fire department.
Law
[11] Ms. Vassalli has referred me to Kalen v. Brantford (City), 2011 ONSC 1891, where the plaintiff deputy fire chief had been fired based on a report prepared by the Fire Chief and a general manager of the defendant. The full report was ruled to be privileged, in part based on solicitor-client privilege, and in part based on privilege for confidential communications (following a Wigmore analysis).
[12] Mr. Tamming has referred me to Nova Scotia Human Rights Commission v. Annapolis (County), 2005 NSSC 310, where a municipal council had terminated the membership of a volunteer unpaid citizen on a municipal advisory committee. Council had voted on the issue. The Nova Scotia Human Rights Commission requested an order that the municipality provide information and records regarding the termination. There was an allegation of discrimination based on political beliefs, affiliation or activities. No Wigmore analysis was performed. The court ordered production of the information.
[13] In M. (A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157, at para. 19, Justice McLachlin (as she then was) said:
[E]veryone owes a general duty to give evidence relevant to the matter before the court, so that the truth may be ascertained. To this fundamental duty, the law permits certain exceptions, known as privileges, where it can be shown that they are required by a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” [Citation omitted.]
[14] In the same case, Justice McLachlin further indicated, at para. 33:
…an order for partial privilege will more often be appropriate in civil cases where, as here, the privacy interest is compelling. Disclosure of a limited number of documents, editing by the court to remove non-essential material, and the imposition of conditions on who may see and copy the documents are techniques which may be used to ensure the highest degree of confidentiality and the least damage to the protected relationship, while guarding against the injustice of cloaking the truth.
[15] On this basis I have concluded that not every part of the recorded discussion needs to be treated the same.
Solicitor-Client Privilege
[16] All the discussions regarding advice received from counsel are protected from disclosure by solicitor-client privilege. These discussions are only found in brief parts of part 4.
Privilege for Without Prejudice Settlement Communications
[17] Ms. Vassalli argued that the recording includes discussion about settlement offers and this supports the claim for privilege.
[18] The offer made to the plaintiff upon her termination is referred to in part 2. However, it is pleaded in the statement of defence that the plaintiff was offered a severance package commensurate with her years of service, age and nature of her employment. In her opening statement, Ms. Vassalli referenced the details of the offer made to the plaintiff on termination. The termination letter which contains the offer, although marked without prejudice, has been filed within exhibit 1. As such, any claim for settlement communication privilege attaching to Mr. Milliner’s description of the offer in his remarks to council cannot stand. The defendants cannot both use the offer as part of their defence and claim it is privileged.
[19] Subsequent discussion on the recording in part 3, about anticipated negotiations, is not without prejudice communication with an opposing party and is not caught by settlement privilege. However, as I will discuss below, I have concluded that confidential communications privilege applies to part 3.
Litigation Privilege
[20] It cannot be fairly said that litigation was reasonably anticipated at the time of the closed meeting. “Litigation privilege cannot be founded on a suspicion of the possibility of litigation. … privilege will come into play at some point in between mere suspicion and a conclusion that litigation will result” [Citations omitted.]: Kavanagh v. Peel Mutual Insurance Co., 2009 CanLII 92128, at para. 16. Something must arise to give reality to litigation: General Accident Assurance Co. v. Chrusz (1999), 1999 CanLII 7320 (ON CA), 45 O.R. (3d) 321 (C.A.).
[21] In any event, no part of Mr. Milliner’s recorded communication with counsel meets the requirement that the communication was for the dominant purpose of assisting with anticipated litigation, as is required for litigation privilege to apply: Chruz, supra.
Confidential Communications Privilege (Wigmore criteria)
[22] I will now proceed with the four-part Wigmore analysis to assess the claim for confidential communications privilege for parts 2, 3 and 4 of the recording.
(1) The communications must originate in a confidence that they will not be disclosed.
[23] I have no doubt that all parties involved in the closed meeting intended for all the discussions to remain confidential.
(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties.
[24] Justice Turnbull held, at para. 25:
In my view, the council of every municipality in this province must have confidence that its employees can fairly and accurately report matters of concern to the elected representatives where it is felt that Council must know and act upon those concerns. If every municipal employee who attempts to fulfill his/her professional and/or fiduciary duties to his/her employer by preparing and communicating confidential information to Council faced the spectre of being personally named as a defendant in an ensuing lawsuit, the chilling effect on good municipal governance is evident.
[25] Ms. Vassalli argues that these remarks are precisely applicable here.
[26] One difficulty I have is that based on the opening statements and the evidence to date it is fair say that the plaintiff’s position will be that Mr. Milliner did not fairly and accurately report the matters of concern. That is precisely what her case is about. Ms. Vassalli argues that this argument will always be available to a party seeking to intrude on this relationship. I agree with this point, but it means that no determination is possible at this stage. The issue, though, is whether confidentiality with respect to the conversation is essential for the full and satisfactory maintenance of the relationship among council and staff.
[27] In my view, the reasons for maintaining confidentiality over part 2 (Mr. Milliner’s justification of the plaintiff’s dismissal) are not compelling but they are compelling for part 3 (the anticipated negotiations) and part 4 (the question and answer session, which includes the legal advice).
[28] In Kalen, the report in question was a recommendation to council, and council made the decision (see para. 4 and 11 of the decision). The report informed council’s deliberations on the issue. In the case before me, the decision to terminate the plaintiff was already made. In part 2, Mr. Milliner advises council of the decision and justifies the decision. I see no reason why confidentiality over his justification is essential to the full and satisfactory maintenance of the relationship among township staff and township council. Council and citizens should expect a worthy justification not based on discrimination. In the normal course it could and should remain confidential, but not in the face of a claim of discrimination in litigation over that justification brought by the subject of the discussion.
[29] The foregoing comments should not be taken as any indication as to the merits of this case. I have not made up my mind on the question of whether there was any prohibited discrimination involved in the plaintiff’s termination or whether her termination was justified.
[30] The discussion in part 3 of the recording about anticipated negotiations is demonstrably more worthy of protection. Without protection for this type of discussion, municipalities would face an untenable disadvantage in many types of negotiations. Municipalities should not operate in fear that closed meeting discussions about anticipated negotiations are subject to disclosure.
[31] Confidentiality of “the question and answer session” is also worthy of protection. Municipal councillors and township staff need to be able to speak freely and candidly at closed council meetings, to allow for a fulsome discussion and understanding of the issues.
[32] I conclude that the “essential to the relationship” factor in the Wigmore test favours the defendants for parts 3 and 4 of the recording, but not part 2.
(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.
[33] Justice Turnbull held at para. 27:
Clearly, a municipal employee must be able to honestly and fully inform Council of a matter of concern to the effective administration of the municipal corporation. It is a relationship which should be sedulously fostered. After all, it is the taxpayers of the community who fund the municipal corporation.
[34] In contrast, it has been held in a wrongful dismissal case that the Wigmore criteria do not protect the communications between an HR department and management: Guthrie v. St. Joseph Print Group Inc., 2018 ONSC 1411. Master Champagne said at para. 20:
I am not persuaded that in this case, or as a general rule the relationship between HR and management is one in which confidentiality is essential or that the community would say “ought to be sedulously fostered.”
[35] The relationship between a municipal counsel and municipal staff is significantly different, so Guthrie is distinguishable on that basis, whereas Kalen is not distinguishable from the case before me on this point. I follow Kalen on this point and conclude that the relationship here is one which meets the required criteria.
(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation.
[36] Justice Turnbull held at para. 29 and 30:
I am satisfied that this criteria is fulfilled in the present case. There will be circumstances in which it is necessary that employees of a municipality are able to communicate to Council, in writing or orally, in a confidential manner. Otherwise, the business of the Corporation would be impossibly hindered. There is an indirect recognition of this fact in Section 239(2) of the Municipal Act, 2001, S.O. 2001, c. 25, which provides that certain meetings of Council may be closed to the public if certain subjects are to be discussed. Relative to the case at bar, subsections (d), (e) and (f) of Section 239(2) provide that meetings involving labour relations or employee negotiations, litigation or potential litigation, and advice that is subject to solicitor-client privilege, including communications necessary for that purpose are all matters which can be discussed “in camera.”
I have read the report to Council in its entirety. The first portion which relates the facts upon which the legal opinion is ultimately based does not contain information which is prima facie defamatory or written in such a way as to evidence an intention to interfere with the contractual relationship between Brantford and the plaintiff. In other words, I am not satisfied that the correct disposal of this litigation is dependent on the disclosure of the contents of the confidential report. On the other hand, I have no doubt that the injury to the relationship of Council and its employees in this case would far exceed any benefit to a fair disposition of this litigation.
[37] Mr. Milliner’s justification for the termination of the plaintiff is at the centre of the case before me. Mr. Tamming said in his opening that the main issues are the plaintiff’s “entitlement to moral damages, punitive damages, human rights damages and compensation for defamation.” Both parties’ opening statements addressed the reasons for the plaintiff’s termination. In her case so far, the plaintiff has advanced her allegation of gender-based discrimination as the real reason for her termination. In response, the defendants have challenged the claim of discrimination and have put forth evidence to support valid reasons for her termination.
[38] In the circumstances of this case, the harm that disclosure of part 2 of the recording would cause to the relationship among municipal councillors and municipal staff is not substantial. Again, it is only Mr. Milliner’s justification for the termination decision that I am ordering disclosed. To allow this to remain cloaked in secrecy where it is not necessary to do so would give rise to a legitimate concern as to the fairness of this trial. In contrast, disclosure will be of significant benefit for the fair adjudication of the plaintiff’s claims. On this basis, part 2 should be disclosed.
[39] The same cannot be said of parts 3 and 4 of the recording. For these parts – the legal advice, the anticipated negotiations, the discussion about how the plaintiff’s termination will impact the fire department – the considerations are different. They are not of such central relevance to this litigation. Compelled disclosure of this type of communication could significantly injure the relationship among municipal councillors and staff. On this basis, I decline to order disclosure of parts 3 and 4 of the recording.
Disposition
[40] Ultimately, I must consider whether the public interest in the proper administration of justice outweighs in importance any public interests that might be protected by upholding the claim for privilege: Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018) at §14.21. I conclude that the public interest in the proper administration of justice requires disclosure of part 2 of the recording, but not parts 1, 3 or 4.
[41] The section of the recording from 5:24 to 11:19 shall be disclosed to the plaintiff.
[42] I wish to emphasize again that this ruling should not be taken as any indication as to my views on the merits of this case.
___________________________ Chown J.
Date: 2021 April 13