COURT FILE NO.: CV-13-488748
MOTION HEARD: 20210414
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: Vilko Zbogar, Counsel for the moving party plaintiffs
Wendy Wright and Jacqueline Dais-Visca, Counsel for the responding defendants other than Sandra Antoniani
HEARD: 14 April 2021
REASONS FOR DECISION
[1] The plaintiffs bring this motion for an order that the defendants answer fifteen refusals to questions asked on examination for discovery, as follow up written interrogatories or as further follow ups to the answers given to those written interrogatories.
[2] By way of context, I note that, to date, there have been 17 days of examinations for discovery and six rounds of documentary disclosure by the Attorney General of Canada between February 2016 and September 2020. There have been many undertakings and, I am advised, in excess of 600 questions and sub-questions by way of written interrogatories and follow ups. Proportionality is a real consideration.
[3] The parties agree on the law governing the scope of questions on examinations for discovery, as set out in the both parties’ facta, which I adopt without repeating here.
Refusal 1
[4] The defendants included two pages of mostly illegible handwritten notes of Bradley May, manager, investigation section at Environment Canada and also a personal defendant, as part of their Schedule “A” productions. The notes were also delivered to the plaintiffs as part of the Crown disclosure brief during the course of its prosecution. When Mr. May was asked to read the notes into the record during his examination, he indicated the notes referred to his meeting with Public Prosecution Service Canada (“PPSC”) and he had written “SCP” at the top of the notes to indicate “solicitor client privilege” Mr. May answered the non-privileged questions concerning these notes but the defendants refused to have Mr. May read the notes into the record or answer any other questions about them.
[5] Although there has been no motion to claw back the disclosure in this action or in the Crown brief disclosure, the defendants did assert on the transcript that there was no intentional waiver and I agree. The defendants’ counsel advised on the record that they were unaware of the meaning of the small SCP notation prior to Mr. May’s testimony. The notes are clearly privileged; the meeting took place in the lawyer’s lounge in the Hamilton courthouse and they concern Mr. May’s meeting with Ms. Antoniani, the Crown Prosecutor retained by PPSC to prosecute RPR.
[6] The further concern is that having Mr. May read or provide a typed version of these specific notes just opens the door to the plaintiffs asking follow up questions about this meeting between Mr. May and the Crown Prosecutor, which will then be refused on the basis of solicitor client privilege. This refusal is upheld.
Refusal 2
[7] Mr. May advised that he could not answer about the position of the investigations branch on whether the RPR prosecution should move forward, without breaching solicitor client privilege as the branch was having discussions about the prosecution with the Crown Prosecutor at the time. While the plaintiffs argue that the defendants can answer this question without disclosing privileged information, it is reasonable that Mr. May cannot advise of the investigations branch’s position, as it was informed by his discussions with branch counsel. Further, if, for instance, his answer was that the branch wanted to move forward and the evidence was the investigation did not move forward, his answer would likely disclose by implication the legal advice the investigations branch was given. This refusal is upheld.
Refusal 3
[8] After argument, the plaintiffs withdrew this request for production of documents belonging to the defendants over which they claimed solicitor client privilege and which the plaintiffs had filed in one of their small claims court actions.
Refusal 4
[9] This arises from a follow up question to an undertaking the defendants gave to produce Mr. Edward N. Wells’ application to the RCMP. The plaintiffs then asked “did you [Mr. Wells] inform “Bradley May, in or around October 2007, that you had applied or were applying to the RCMP?” They asked a similar question concerning Edward Wells Sr.
[10] The defendants’ position is that they answered the questions. They advised that Mr. Wells Jr “does not remember when he informed Mr. May of his application to the RCMP” and “does not remember when or if he informed E.G. Wells of his application to the RCMP”. The plaintiffs now wish to clarify the question to ask whether E.N. Wells ever advised E.G. Wells or Mr. May.
[11] I am mindful of the admonishment of Myers, J. in his direction to the parties’ refusals motions that “discovery has to end at some point and it is never perfect.” The questions that were asked have been answered. The proposed questions are not sufficiently relevant or important to permit a follow up to the follow up.
Refusal 5
[12] Part way through the plaintiffs’ examination of E.N. Wells, he produced notes he had kept for the relevant period. Rather than recommencing the examination with the benefit of the notes, the plaintiffs asked that Mr. Wells review his notes against his transcript and advise of any discrepancies.
[13] In response, the defendants advised, first, that if there is any discrepancy, Mr. Wells’ contemporaneous notes should be taken as the best evidence. Second, they advised that Mr. Wells would review the transcript and provide any correction “in due course and prior to trial”.
[14] Given the predicament was caused by the late delivery of Mr. Wells’ notes, it is not unreasonable that he be asked to review his transcript against his notes and advise of any discrepancies and that he not wait until some indefinite future date to do so. Mr. Wells is to review his transcript against his contemporaneous notes and advise of any discrepancies or clarifications needed.
Refusal 6
[15] This refusal arises from a follow up question to a follow up question to an undertaking the defendants gave about whether an investigation plan was prepared for the first and second searches. They advised that no plan could be located. They were then asked whether a plan could not be located because it had been lost or because one was never created. The defendants advised that a plan was never created. The plaintiffs then suggested by way of further follow up question that this answer may be incorrect as they had since received a printout of an email in answer to another undertaking that contained the words “investigation plan” in a handwritten side notation. They argue that there was, at least, consideration of an investigation plan and that the witnesses should be asked to conduct a further search for any such plan, to ask additional people about it, to advise what became of that plan and to produce any other information about it.
[16] The defendants advised that they conducted a search on ‘investigation plan” and “investigation approach” and no plan was located. Further, they asked Mr. May, the author of the handwritten note, about it. He advised that the note referenced a future date for a plan to be developed.
[17] The defendants take the position that they have conducted appropriate searches and no additional documents were located. Further, they have asked the two people who were most closely involved in the investigation, Mr. May and E.G. Wells, whom the plaintiffs understood had not been asked, and provided their information. The other individuals suggested by the plaintiffs were not involved in the investigation. I find the question about the existence of any investigation plan has been sufficiently answered.
Refusal 7
[18] The plaintiffs asked the Attorney General of Canada to advise if it believes that any of the evidence given by any of the other witnesses is incorrect.
[19] The defendants’ advised that have answered the question by advising that the Attorney General had reviewed any corrections made by the individual defendants and adopted them. The Attorney General further advised that in the event of any apparent conflict between the recollections of various personally named defendants and the evidence provided by the Attorney General, the evidence of the Attorney General best represents its position. To otherwise ask this defendant to review the transcripts of 17 days of discovery and hundreds of answers to undertakings and answers to follow questions asked in writing would be disproportionate.
[20] The plaintiffs advised that Mr. Bell, the Attorney General’s representative could answer this question from his own recollection of the evidence but then advised that, if he had to review the transcripts, he should. This leaves him in an impossible situation that really requires that he review all the transcripts or be criticized for not doing so.
[21] If, in the course of any review of the transcripts that he does undertake in preparation for trial or otherwise, Mr. Bell discovers any testimony of the other defendants that he believes is factually incorrect, he shall advise the plaintiffs at that time. The follow up question is otherwise overly broad and refused.
Refusal 8
[22] This refusal follows a series of in writing questions and follow up questions, which the defendants say they have adequately answered. The first question asked whether, prior to the adoption of the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations (“EIHWR”), there was a need to update the document used for tracing international movements of hazardous waste and hazardous recyclable material. The defendants advised that Environment Canada did not have any information that would indicate that the form was defective. Further, while there were complaints by the plaintiffs that the form lacked a place for Notice Numbers, Environment Canada was satisfied that a careful reading of the EIHWR signaled the requirement to provide WMD notice numbers regardless of whether there was a place on the manifest to specifically record it.
[23] This answer gave rise to a number of further questions, including but not limited to, which Environment Canada official was satisfied with the form, whether there was a document articulating that satisfaction and, if there was not a document, what or who was the source of the information that Environment Canada was satisfied. The plaintiffs also asked whether the defendants had any record of any movement document officer ever advising anyone from RPR to write the permit number in the comment box of the form prior to September 2005. The defendants revised their response to indicate that “Environment Canada determined that the EIHWR signaled the requirement to provide WMD notice numbers regardless of whether there was a place on the manifest to specifically record it was enforceable [sic].” They also advised that the satisfaction would have come from management and gave the name of one person who was consulted. Lastly, they advised that “Environment Canada” referred to a department and not any one official.
[24] The plaintiffs move on the refusal of the defendants to identify the source of the satisfaction statement and a refusal to advise of any record of advice to the plaintiffs concerning adding the permit number in the comment box. The defendants advised that “If a regulatee asked where the permit number should go, it was the Manifest Officers’ practice to advise the regulatee that it should be provided in the box, which the AGC referred to as a “comment box”, located in the lower left hand portion of the manifest. Ms. Krose cannot specifically recall whether she had direct contact with RPR on this issue between 1997 and November 2005.”
[25] I find the question, follow up question and sub-question have been sufficiently answered. Being given the answer that there was no need update the form, the addition of the name of the specific person who advised Environment Canada was satisfied would not assist the plaintiffs in preparing for trial or knowing the defence they will meet, In any event, the defendants advised it is the department that is satisfied, not any one person, and has also provided the name of someone who was consulted. While the plaintiffs may disagree that this person was of a level to have signaled satisfaction, that is the answer the defendants have provided. The second question has also been sufficiently answered and a search for a record of a potential conversation with RPR more than 15 years ago is disproportionate. That refusal is upheld.
Refusal 9
[26] The plaintiffs asked in a written interrogatory for confirmation that Environment Canada closed its review of any matters concerning RPR Environmental and Wainwright in 2001, without recommending any investigation.
[27] The defendants advised in response that they found no evidence that a file was opened and so there was nothing to close. It is common ground that there were never was an investigation opened in or around 2001, but this question was focused on the review phase, not an investigation file. The defendants are to answer whether Environment Canada closed its review (as opposed to any investigation) concerning RPR and Wainwright in 2001, without recommending any investigation.
Refusal 10
[28] The defendants produced in their supplementary documents a note about the file closure of a section 17 request concerning the fire at Wainwright. In a written interrogatory about that document, the plaintiffs asked why further steps were taken following November 3, 2008 when Environment Canada knew that the section 17 complainant had died on that date.
[29] The defendants advised the decision was taken in consultation with counsel, which gave rise to a further supplementary interrogatory asking who decided to continue with the investigation beyond November 3, 2008. While the plaintiffs contend the follow up question has not been answered, the defendants have advised that no singular person would have made the decision but that it was made among Environment and Climate Change Canada (“ECCC”) Ontario Region in communication with Legal Services Unit, PPSC and Crown Prosecutors and Headquarters. Their answer also named specific individuals from those entities. The question has been sufficiently answered.
Refusal 11
[30] The defendants produced certain documents pursuant to a written interrogatory. Among the additional productions was a note referencing an email from Brian May sent 16 May 2007 concerning the closure of a number of investigations, including against RPR. The plaintiffs followed up with a request for that specific email asking that the search include not only the Attorney General’s files but also the source departments files.
[31] The defendants conducted further searches of source departments including ECCC Ontario Region, ECCC WMD, Crown Prosecutor records, ECCC HQ, documents collected for the purposes of Access to Information requests and ECCC HQ electronic records. These searches did not locate the May email or any other relevant document that had not already been produced. The plaintiffs now request particulars of the search undertaken, an order that a broader search be undertaken and production of any document in this email chain or relevant database.
[32] I am not prepared to order a wholesale search but, given the relevance of this email, the defendants are to either confirm they searched the email archives or search them now and produce the May email, if found, and any related emails.
Refusal 12
[33] The plaintiffs asked in a follow up to a follow up to a written interrogatory why the RPR file remained open after it was directed to be closed and why the RPR file was treated differently from the other files that were closed when they had been so ordered. The plaintiffs note that this directive to close the files, including RPR, came in May 2007, yet the first search of RPR took place in August 2007.
[34] In answer, the defendants advised that every file has a different set of facts, diligence or lack thereof and the facts in the RPR first search supported the opening and continuing of an investigation.
[35] I do not find this sufficiently responsive. It might be responsive if the defendants advised that they reviewed all the files they were told to close and continued those they felt were warranted. It might also be responsive if they said that the RPR file was at a different stage than all the others, which is implied in an answer from Mr. Vanderlaan. Absent this or some further information, the plaintiffs can only guess why their file remained open after there was a direction that it and others be closed.
[36] The defendants argued that this issue did not just arise as a result of this email reference but that it was a live issue and explored during the defendants’ discovery. They stated that Mr. Vanderlaan, the individual at whose direction the files were closed, was questioned extensively about these other 40 companies during his examination for discovery. I am advised that it was suggested that RPR was an open investigation, which inferred that the others were not. If this is the answer, it requires clarification, given the companies were all listed together as files to be closed, without that distinction being made. Without the benefit of Mr. Vanderlaan’s transcript, I cannot say if he answered if, why and how the RPR file was treated differently from the other files ordered closed. If he did, then the defendants are to direct the plaintiffs to the transcript questions and answers where those answers were provided. If he did not, he is to advise if, why and how the RPR file was treated differently from the other files that were ordered closed.
Refusal 13
[37] The plaintiffs requested documents related to four other companies that were purportedly ‘on the radar’ in 2005 or 2006 for alleged manifest delinquencies. Without prejudice to their position that the documents were not relevant, the defendants agreed to look for and did produce a number of reports, some of which referenced interviews being conducted in 2006 with or about these companies. The plaintiffs then requested notes of those interviews on the basis that they would be relevant to their argument that RPR was treated differently from the other companies being interviewed about similar alleged violations. The defendants again maintained that the documents were irrelevant but did undertake a further search of their document collection, as well as ECCC Ontario Region, ECCC WMD, Crown Prosecutor records, ECCC HQ, documents collected for the purposes of Access to Information requests and ECCC HQ electronic records. They were unable to find any records about any interviews.
[38] The plaintiffs challenge the scope of the search and seek particulars of the searches conducted, the types of records searched, the manner of the searches and whether email archives or backups exist and were searched. They also request that a further search of archives and backups be undertaken. The defendants have already produced a number of documents and I am not satisfied that documents concerning interviews of other companies in other investigations are sufficiently relevant to warrant additional searches. What may be relevant is addressed in refusal 12, above and has been ordered. This refusal is upheld.
Refusal 14
[39] The defendants have pleaded that “the RPR Group’s (including 1049/RPR Service’s) deliberate decision to operate these related companies in a misleading and confusing manner … caused or contributed to any damages it alleges it suffered.” The plaintiffs asked by way of written interrogatory whether that was based on the companies having similar names or whether there was something else alleged. The answer provided does not provide any information about how the company decided to operate, as requested. At best, it notes that others, including RPR’s own counsel, were confused or made errors with the plaintiffs’ names. The question is to be answered.
Refusal 15
[40] In its defence, the defendants plead that they believed RPR Environmental Inc. to be “the corporate entity responsible for the operations of 1049/RPR Services and 8769/RPR Environmental.” The plaintiffs asked by way of written interrogatory which defendants believed that to be so and when. The answer provided addresses what happened after the charge but is not responsive to the question asked. The defendants are to advise which defendants believed RPR Environmental Inc. to be the corporate entity responsible for the operations of 1049/RPR Services and 8769/RPR Environmental and when they formed that belief.
Conclusion
[41] The defendants shall answer the questions ordered within 60 days of the date of this order.
[42] The plaintiffs have requested that the defendants re-attend to answer these questions and follow up questions. Given the lengthy examinations to date over multiple days and of multiple parties, I am not prepared to order any further examinations.
[43] The parties have uploaded their costs outlines to caselines. If, after good faith efforts, the parties are unable to agree on costs by 14 May 2021, they may file costs submissions no more than three pages in length to my assistant trial coordinator at Christine.Meditskos@ontario.ca.
[44] 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, the moving parties are responsible for ensuring that a copy of all endorsements and orders are filed in each of the four actions. It is agreed for the ease of any further motions that materials uploaded to caselines will be done exclusively in CV-13-488748.
Master Jolley
Date: 23 April 2021