COURT FILE NO.: CV 17-576062

HEARING DATE: 20210824

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RENE BREWER, Plaintiff

-AND-

ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO, and IRWIN FEFERGRAD, Defendants

BEFORE: Associate Justice J. Josefo

COUNSEL: A. Winton and M. Lightowler, for the plaintiff, moving party

M. Shortreed and D. Rosenbluth, for the defendant, Royal College of Dental Surgeons of Ontario, responding party

J. Campbell, for the defendant Fefergrad, not participating in this motion

HEARD: August 24, 2021

DECISION RELEASED: September 1, 2021

ENDORSEMENT

What This Motion is About – The Issue & The Process Agreed Upon:

What This Motion is About – The Issue & The Process Agreed Upon

1The plaintiff Rene Brewer (“plaintiff” or “Brewer”) moves for a further and better Affidavit of Documents, which discloses within Schedule “A” certain documents currently listed in Schedule “B” of the April 15, 2021 Affidavit of Documents of the defendant, the Royal College of Dental Surgeons of Ontario (“College” or “defendant”). As Mr. Fefergrad, the other defendant in this within action, is not participating in this motion, when I reference “defendant” in this Endorsement it only means the College.

2The issue which I must decide is whether the College improperly claimed either solicitor-client privilege, or litigation privilege, over certain documents identified in the above-referenced Schedule “B”.

3Mr. Winton and Ms. Shortreed agreed that, following oral argument, Ms. Shortreed would send me the documents through Assistant Trial Coordinator, Mr. Magnante. I would review the documents and ultimately conclude if some, all, or none met the criteria for either (or both) of the privilege claims asserted by the College. Mr. Winton was content that he would not see these documents for which the claim of privilege was upheld, with those not forming part of the public record. I would also only identify the documents for which a claim of privilege was upheld by their tab numbers, and by using a generic description.

4This agreed-upon process of my inspecting the contested documents and ruling thereon is consistent with Rule 30.06, which reads in part as follows:

“Where the court is satisfied by any evidence that a relevant document in a party’s possession, control or power may have been omitted from the party’s affidavit of documents, or that a claim of privilege may have been improperly made, the court may,

(d) inspect the document for the purpose of determining its relevance or the validity of a claim of privilege.”

Overview of the Facts in the within Action and Leading to this Motion:

Overview of the Facts in the within Action and Leading to this Motion

5A succinct summary of the facts is excerpted from the September 3, 2019 decision of my colleague Associate Justice Graham in Brewer v. Royal College of Dental Surgeons of Ontario; 2019 ONSC 5102. That earlier decision addressed the College’s then motion to compel answers to questions refused at discovery:

[1] The plaintiff René Brewer claims damages arising out of the termination of her employment as the manager of the Professional Liability Program (“PLP”) of the defendant Royal College of Dental Surgeons of Ontario (“RCDSO” or “the College”). The defendant Fefergrad was the registrar and CEO of the College. Ms. Brewer occupied her position from November 7, 2011 until her termination without cause on January 23, 2017. She alleges that she was wrongfully terminated in reprisal for “continuously challenging Fefergrad and imploring him and [RCDSO] Council to address the toxic and inappropriate work environment at the RCDSO”.

6Counsel helpfully tendered a joint chronology of events along with a “Cast of Characters”. The chronology, excerpted herein, contextually situates this motion:

• November 7, 2011 Brewer accepts an offer of employment from the College to lead the Professional Liability Program.
• November 7, 2016 Executive Committee meet and Fefergrad mentions that he might have to dismiss Brewer.
• December 22, 2016 Executive Committee meet and Fefergrad reports his decision to terminate Brewer's employment.
• January 11, 2017 Brewer learns that Fefergrad intends to terminate her employment on January 23, 2017.
• January 12, 2017 Brewer meets with Dr. Turchet [Vice President of Council] to discuss her pending termination.
• January 18, 2017 Brewer emails Dr. Yarascavitch [President of Council] and Dr. Turchet regarding allegations about meetings between investigators and PLP staff in 2006.
• January 23, 2017 College terminates Brewer's employment.
• January 23, 2017 Executive Committee of the College meet to discuss Brewer's January 18, 2017 email to Dr. Turchet and Dr. Yarascavitch.
• January 24, 2017 Fefergrad meets with members of Council via teleconference to discuss Brewer's termination and allegations.
• February 10, 2017 Tanya Pagliaroli, [overall case wrongful dismissal counsel] counsel for Brewer, writes to the College Council (the "Pagliaroli Letter").
• February 13, 2017 Executive Committee meets and passes a motion to investigate certain allegations raised in the Pagliaroli Letter.
• February 23, 2017 Executive Committee meets to receive a report from Mr. Donahue [College HR Director] regarding allegations raised in the Pagliaroli Letter.
• April 7, 2017 Memorandum from the Executive Committee to Council confirming the decision of the Executive Committee on February 23, 2017 not to take any further action in respect of the allegations raised in the Pagliaroli Letter.
• May 29, 2017 Brewer commences the action.
• May-June 2018 Affidavits of documents are exchanged and examinations for discovery take place
• July 26, 2019 Brewer receives the Package.
• August 6, 2019 Brewer delivers the Package to her counsel.
• August 9, 2019 Brewer alerts the College to the existence of the Package and serves a motion for directions.
• August 12, 2019 College demands return of the Package.
• August 13, 2019 Brewer's counsel returns the Package to the College.
• October 4, 2019 College delivers its Second Supplementary Affidavit of Documents.
• December 20, 2019 Brewer requests a detailed Schedule B to the Second Supplementary Affidavit of Documents.
• January 26, 2020 College delivers a detailed Schedule B to its Second Supplementary Affidavit of Documents.
• February 5, 2021 Brewer seeks dates for her motion for a further and better Affidavit of Documents.
• April 15, 2021 College delivers a Third Supplementary Affidavit of Documents and a further and better Schedule B thereto.
• May 15, 2021 College delivers another further and better Schedule B to its Third Supplementary Affidavit of Documents.

7Important for my purposes is the reference in the above chronology to the “Package”. That refers to what plaintiff describes at paragraph three of her factum as “…delivery to Brewer of an anonymous package of the College’s documents, many of which were relevant to matters in issue in this action and had not been previously disclosed…if not for this package, those relevant documents would not have been disclosed.”

8The College asserts a different position, excerpted from paragraphs one, three, and four of its factum:

“Brewer received an anonymous package in the mail containing a large number of stolen, confidential documents (the Package") belonging to the College. Many of the documents in the Package were privileged. All of them had been printed from the College's servers by one or more unauthorized individuals. It remains unknown who prepared the Package, or how they obtained access to the materials. Upon receiving the Package in July 2019, Brewer - an experienced litigation lawyer - reviewed the entire Package before notifying the College that she was in possession of its stolen documents. She did this despite realizing that the documents were stolen and that many of them were privileged. Brewer claims that she skipped any privileged documents during the course of her review. Her decision to unilaterally screen for privilege without even notifying the College was reckless and improper. Moreover, Brewer failed to answer questions about how she did or could screen for privilege. It is clear that her methodology for identifying privileged documents was completely inadequate.”

With these differing perspectives, I understand why this issue has become important to the parties.

My Function - What I will and will not do:

My Function - What I will and will not do

9Pursuant to Rule 30.06, I view my function as to review and consider the challenged documents, consider the claims of privilege, and determine which documents are or are not covered by either solicitor-client or litigation privilege. Counsel for defendant, in eloquently arguing that Brewer has acted improperly vis-à-vis the Package, urged that, even if I find some of the documents to not be covered by either claim of privilege, to nevertheless deny access to these to the plaintiff. This was described as an appropriate “remedial approach” in these circumstances.

10In support of this approach, I was referred to the Supreme Court of Canada decision in Celanese Canada v. Murray Demolition Corp., 2006 SCC 36 (“Celanese”) , as well as to Firemaster Oilfield Services Ltd v. Safety Boss (Canada) (1993) Ltd, 2000 ABQB 932, (“Firemaster”). Yet, these decisions address, in my view, improprieties by counsel who, while acting as counsel in an action, obtained, reviewed, and attempted to make use of privileged communications. In the Firemaster decision, the court makes clear that “the documents should not have been looked at and should have been returned…”. The Alberta Court of Appeal, when Firemaster was appealed, was even more emphatic regarding counsel’s misdeeds: “The plain duty of the recipient counsel was to seal them up, not read them further, take no copies, take no notes and return…[them].”

11In this matter, however, there are no allegations made against Ms. Pagliaroli, the plaintiff’s wrongful dismissal counsel. Ms. Shortreed specifically confirmed that fact. It thus seems accepted that Ms. Pagliaroli did not read the contents of the Package and, pursuant to the chronology, she returned the Package to the College.

12Tilley v. Hails 1993 8557, seemingly goes somewhat further than Celanese and Firemaster. Justice Chapnik therein concluded that:

“it is an established principle of law that a person who has obtained confidential information is not allowed to use it as a springboard for activities detrimental to the person who made the confidential communication” [emphasis added].

13Arguably, a “person” would include the client, not only her lawyer, being enjoined from using improperly obtained confidential information. Yet, the remedy offered by Justice Chapnik in that case was as follows:

“Where documents have been disclosed without the consent of the client, the court will intervene to order the inspecting party to return all copies of the privileged documents and restrain the use of information contained in or derived therefrom.”

14I agree that Brewer, an experienced lawyer, would have been wise to have stopped reading the Package immediately, instead of purportedly attempting to parse out which of the documents therein were or were not privileged. Rule 7.2-10 of the Law Society Ontario Rules of Professional Conduct applies to:

“a lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably out to know that the document was inadvertently sent shall promptly notify the sender.”

15In this matter, however, as she is the client, it is not clear to me that Brewer on this occasion is bound by this Law Society rule. In any event, if the defendants, either of them, had felt strongly about the matter in 2019, they could have then taken a complaint to the LSO, or have brought a cross-motion herein. In this matter, I also note that the documents were long ago returned, which is specifically the remedy which Chapnik, J., ordered in Tilley, above. The College brings no cross-motion specifically seeking any other remedy herein.

16On the evidence before me, moreover, while there is not unreasonable speculation, there is nothing specific which would lead me to conclude that plaintiff has actually made use of any of the information in the documents, which the College asserts that she has seen and remembers. Of course, at trial, should counsel become aware that the plaintiff is attempting to make use of such documents, a motion to the trial judge would be apt. For my purposes, however, if the documents are not privileged, then they must be produced.

Summary of the Applicable Law pertaining to Privilege:

Summary of the Applicable Law pertaining to Privilege

17There are two branches of privileged communications which counsel agree apply in this case: solicitor-client privilege and litigation privilege. The College relies on both branches to exclude eight email chains, plus four additional email chains which Brewer seeks and for which litigation privilege is claimed.

Solicitor-Client Privilege—Brief Overview:

Solicitor-Client Privilege—Brief Overview

18I begin with this overview of solicitor-client privilege. As discussed in Sky Solar (Canada) v. Economical Mutual Insurance Co., 2015 ONSC 4714, solicitor-client privilege is basically stated as applying to “confidential communications between a client and solicitor where such communications are for the purpose of giving or receiving legal advice”. Yet, I agree with defendant that it goes further than that. It also applies to what is described as a “continuum of communication within which the legal advice is sought or offered”. That quote is taken from 578115 Ontario Inc. o/a McKee’s Carpet Zone v. Sears Canada Inc., 2013 ONSC 4135. The complete and relevant excerpt from McKee’s reads as follows:

[28] I adopt the principle as stated by Henderson J. in No. 1 Collision Repair & Painting (1982) Ltd. v. Insurance Corp. of British Columbia, 1996 CarswellBC 167 (S.C.) at para. 5:

Moreover, I am satisfied that a communication which does not make specific reference to legal advice is nevertheless privileged if it falls within the continuum of communication within which the legal advice is sought or offered: see Manes and Silver, supra, p. 26. If the rule were otherwise, a disclosure of such documents would tend in many cases to permit the opposing side to infer the nature and extent of the legal advice from the tenor of the documents falling within this continuum. Thus, the intent of the rule would be frustrated. [Emphasis added.]

19There is no doubt that solicitor-client privilege is of fundamental importance. It must be assiduously fostered in order to allow, and to encourage, candid communications between clients and lawyers, including in-house counsel or, as in this case, outside counsel who are seemingly very regularly consulted by those within the organization, as is the College’s outside “General Counsel”, Alan Bromstein. I discuss Mr. Bromstein’s evidence ahead in these reasons.

20Justice Major emphasized the importance of solicitor-client privilege in the Supreme Court of Canada decision of Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31 at para. 17:

Solicitor-client privilege describes the privilege that exists between a client and his or her lawyer. This privilege is fundamental to the justice system in Canada. The law is a complex web of interests, relationships and rules. The integrity of the administration of justice depends upon the unique role of the solicitor who provides legal advice to clients within this complex system. At the heart of this privilege lies the concept that people must be able to speak candidly with their lawyers and so enable their interests to be fully represented. The privilege is jealously guarded…

21The Supreme Court more recently reiterated these fundamental principles in its 2016 decision of Alberta (Information & Privacy Commissioner) v. University of Calgary, 2016 SCC 53 at para 34. Therein the Court stated:

…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. 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”.

22Finally, it is not in doubt that the solicitor-client privilege applies to communications between a client and his or her lawyer pertaining to the asking for or the providing of legal advice. Such communications extend beyond the actual advice itself. In that regard, see Kingspan Insulated Panels Ltd v. Brantford (City), 2010, ONSC 782, para. 24. Following from the Kingspan decision, I agree that communications, whether by email or by telephone (or in person, dropping into someone’s office) which broadly pertain to the asking for or provision of legal advice, would be privileged.

23In my view, when there is an ongoing counsel relationship, it is fair to conclude that such easily accessible lawyers are often embedded with the management team. They are typically trusted partners, who are often consulted early, providing advice and guidance to their clients, including as matters evolve from almost “nothing” to “something”. From the evidence, Mr. Bromstein fits that criteria with his client, the College. It is likely in those circumstances of familiarity with counsel that advice tendered, be it “off the cuff” during a phone call, email exchange, or in-person chat, or offered in a more structured fashion, would be covered by privilege.

24Yet, there must be reliable and probative evidence that such legal advice was actually sought or given for the privilege to arise in the first place. The party seeking to assert the privilege as a basis for not producing a document which would otherwise be producible pursuant to the civil litigation Rules (in this case, Rule 30.02) has the onus to establish that the privilege applies. In other words, in this case it is for the defendant to establish on the balance of probabilities that legal advice was sought and provided. I keep that onus in mind when I review the documents.

Litigation Privilege—Brief Overview:

Litigation Privilege—Brief Overview

25“Litigation privilege” applies when litigation was contemplated when a document was written, with the document created for the “dominant purpose” of litigation (Blank v. Canada (Minister of Justice), 2006, SCC 39, paragraphs 27, 34, 59). This privilege can exist when documents are created by parties, not lawyers, even before the parties retain a lawyer, so long as the document was created when litigation was contemplated, and was for the dominant (yet not sole) purpose of the expected litigation. A document may also be created for other purposes unrelated to the litigation. Yet so long as the dominant purpose in creating it was the litigation, then the document will be covered by litigation privilege and shall not be produced. In that regard, see Thomson v. Berkshire Investment Group Inc, 2007, BCSC, 50, paragraphs 48-49.

26The reason for this privilege, its purpose, is to establish a “zone of privacy” in which the parties can freely communicate upon the topic of the expected, anticipated, or feared, litigation.

Applying the Law to the Facts:

Applying the Law to the Facts

27While the plaintiff arguably, if I accept the submissions of the defendant, took a (slightly) narrower approach to the definition of the two branches of privilege, there really was not much daylight between these very experienced lawyers. As is often the case, the issue is the facts, and how the law applies to the facts of the particular case.

28As I apply the law, I have reviewed the Schedule “B” list at exhibit V to Brewer’s June 23, 2021 affidavit (beginning at page 571 of the plaintiff’s motion record, Caselines page A571), as well as the documents themselves, to consider if either claim of privilege justifies the exclusion of any of the documents in the email chains, beyond those which have Mr. Bromstein providing advice. To be clear, such initial, legal-advising email is not what plaintiff seeks. Rather, what are sought are, essentially, the “begats”: the emails which flow or follow from the one from legal counsel; perhaps, as an example, from the Registrar to and then from members of the executive committee or between the Registrar and members of the council of the College.

29For litigation privilege in particular, a key question is, by what point was litigation in this matter contemplated? When would that zone of privacy be expected to cloak the communications of the parties so they could freely discuss the issues? As I address this question, it must be stated that many of the individuals involved in this case can fairly and accurately be described as knowledgeable, experienced, and sophisticated. Mr. Fefergrad, the Registrar of the College, and Ms. Brewer, are both lawyers. Members of the executive committee of the College are dentists or/and other skilled professionals. Moreover, as members of the College’s governing bodies (the executive committee, Council), such individuals are likely knowledgeable of and have experience with governance and HR issues which typically could arise in an organization. It is in that context that I assess the relevant communications.

30To answer the question posed above, I begin with the July 19, 2021 affidavit of Mr. Bromstein. Relevant excerpts are as follows (beginning at paragraph 4):

4. In my capacity as General Legal Counsel, I provide advice to many departments within the College as a body corporate created by s. 2 of the Health Professions Procedural Code being Schedule 2 to the Regulated Health Professions Act, 1991. I also advise the College's governing Council and the Executive Committee of Council, the College's Registrar, and other committees and staff in the College, when requested.

5. At paragraph 42 of her affidavit, Ms. Brewer states: ‘Erin Kuzz of Sherrard Kuzz is the College's employment lawyer, and communications involving her are likely solicitor-client privileged. However, Alan Bromstein of WeirFoulds is the College's General Counsel, not employment or litigation counsel. In his role, Mr. Bromstein participates in communications with the College that do not involve giving or seeking legal advice, as is evidenced by the fact that many of the documents previously produced by the College in the litigation were copied to Mr. Bromstein’.

6. Ms. Brewer is correct that I am the College's General Legal Counsel and that I have participated from time to time in communications with various members of the College which do not involve giving or seeking legal advice.

7. However, my role is not as narrow as Ms. Brewer suggests. In my capacity as General Legal Counsel, I have often provided legal advice to the College on matters concerning employment law and litigation, in addition to a variety of other subject matters.

8. In this case, I provided legal advice to and engaged in litigation privileged discussions with respect to issues which would later form the subject matter of this action, with the College's Council, its Executive Committee, the Registrar, College staff, and employment and litigation counsel. Each of these individuals or entities was involved in some aspect of the decision-making on the issues raised by Ms. Brewer in this action.

9. More specifically, I have reviewed the communications in issue on this motion over which the College claims solicitor-client privilege. In each case where I am the sender of an email, I confirm that the email contains my legal advice to the College. In every other case, I confirm that the email relates to obtaining and discussing my legal advice or forwarding my legal advice to members of the Council or Executive Committee.

10. I understand that it is Ms. Brewer's position in this motion that the College has inappropriately asserted litigation privilege over certain documents. My response to that position is as follows.

11. I first learned of the College's intention to terminate Ms. Brewer's employment from Irwin Fefergrad, then the College's Registrar, at a meeting of the Executive Committee of Council on December 22, 2016.

12. As is my custom, I provided advice on the basis that Ms. Brewer's termination could or would be the subject of litigation. In my experience as a lawyer, litigation is contemplated any time an employee is dismissed.

13. Based on my conversations with Mr. Fefergrad shortly after the December 22, 2016 Executive Committee meeting, I understood that he shared the views described in paragraph 12 above. The College sought and obtained legal advice from both myself and Ms. Kuzz, with a view to possible litigation concerning Ms. Brewer's pending termination, from and after December 22, 2016.

14. Ms. Brewer was given notice of the termination of her employment on January 23, 2017. However, I am now aware, according to her affidavit, that she learned of her upcoming termination on January 11, 2017.

31Mr. Bromstein was cross-examined on his affidavit earlier in August 2021. Yet, from my review, no earth-shattering revelations emerged from that.

32In any case, what Ms. Brewer did, based on her advance knowledge of her pending dismissal, is germane to answering the question I posed above. On January 18, 2017, Ms. Brewer sent an email to two members of the executive committee of the College: one the President and one who, unbeknownst to her, had just become the Vice President of the College. In her email, she claimed that Mr. Fefergrad was guilty of breaching ethical boundaries between the college and PLP, back in 2006. Ms. Brewer asserted that she did not know what to do with this information but “received legal advice that it is Council’s to receive and deal with”. Ms. Brewer next stated in her email as follows:

“I have shredded my copies of the documents and will not refer to them or rely on their contents in discussing settlement of the employment matter arising from my impending termination, which I consider to be a separate issue”.

33Again, Ms. Brewer is a sophisticated lawyer. She presumably knows well enough not to make an outright, or overt, threat of litigation. Yet, this is, in my view, while subtle, still a threat, nonetheless. In her email Ms. Brewer first makes clear that, ostensibly as related to a 2006 incident, which occurred prior to her employment by the College, and which was never previously disclosed by her until 11 years after-the-fact, and only disclosed when she learned of her pending dismissal, she has obtained legal advice. While averting that her termination is a “separate issue”, Ms. Brewer offers a conditional promise to not refer to or rely on the 2006 documents that she turned over to the two members of council when she is “discussing settlement of the employment matter… .” Yet there is found no promise to not refer or rely on these documents, or such issues, at all, “full stop”.

34Moreover, referring to “settlement of the employment matter” in my view makes clear that there was going to be a “matter”; something, in other words, to settle. Or, if it did not settle, then such a matter proceeds, with issues joined—as indeed happened in this case—to litigation. After all, the opposite of settling is fighting. The words in this email, in my view send a subtle and refined, yet nevertheless clear, signal of someone softly saber-rattling.

35I thus agree with Mr. Bromstein wherein he deposed as follows in his affidavit (paragraphs 19 and 20):

19. For one, Ms. Brewer's express reference to the "settlement of the employment matter arising from my impending termination" was a clear reference to a claim she intended to assert for wrongful dismissal or other relief.

20. More generally, despite Ms. Brewer's stated intention not to refer to the 2006 meeting minutes in connection with the dispute about her "employment matter," it was my belief at the time that Ms. Brewer very likely did intend to rely on these allegations of impropriety in her planned lawsuit against the College, and that she was raising them for that purpose. I was correct; ultimately, Ms. Brewer did indeed plead these very allegations in her Statement of Claim.

36In my view, a key purpose of that January 18, 2017 email was to begin to lay a foundation for what was, only a few months later, ultimately asserted in the Statement of Claim. That there were discussions about this email amongst the Registrar, Mr. Bromstein, and the Executive Committee is unsurprising. Yet, I find that the emails which arose as a result are clearly covered by at least the first branch of Litigation privilege (as well as possibly by solicitor-client privilege, if such was claimed for the specific documents as I review ahead). These emails were written and exchanged when litigation was clearly contemplated to arise. Such contemplation, in my view, by the various sophisticated actors involved in this matter, was not only reasonable at the time, it ultimately, a very few months later, proved to be quite prescient.

37As to whether the second branch of litigation privilege applies, that awaits my discussion, in generalities so to not reveal the content if these are privileged, of the particular emails.

38If I am incorrect that a zone of privacy was necessary following receipt of the January 18, 2017 email, then surely such need arose after receipt of the February 10, 2017 correspondence from Ms. Pagliaroli. In this lengthy letter to council members, while professing that Ms. Brewer instructed it be written only for altruistic reasons, that assertion no longer holds up once plaintiff’s counsel asserts that it is reasonable to infer that Ms. Brewer was terminated in retaliation for “blowing the whistle on a hostile work environment…”. Tellingly, she adds, that this “would be actionable”. While again professing that Ms. Brewer is not seeking money or gain, but rather an investigation, I find that a clever attempt to have one’s cake and eat it at the same time. Clever it may be, yet it is unconvincing, especially with the final sentence of the letter:

My client currently has no intention of doing anything further with this information in the expectation that some action will be taken by Council.

39This is a clear quid-quo-pro offered. First, while Ms. Brewer “currently” has no intention to do anything with this information, this is again a qualified and conditional statement. It is not an absolute disavowal of intent to act, only a temporary one, until she concludes otherwise, if her expectations are not met. To avoid anything being done, Council must meet her condition of “some action taken”. Otherwise, the corollary is that action, in the form of litigation, will be taken. As indeed it was, a few months later.

40In my view, Mr. Bromstein analyzed quite reasonably in the circumstances when he concluded, as sworn to in his affidavit, as follows (paragraph 28 and 30):

28. I reviewed this letter at the time and was involved in considering the College's response to it. It contained a clear statement that her allegations "would be actionable", which I took seriously, as did my client. It was always our belief that the allegations Ms. Brewer advanced both in her January 18, 2017 email and the Post-Termination Letter were for the purpose of laying the foundation for a lawsuit against the College. As set out below, that belief was subsequently vindicated.

29. A number of Ms. Brewer's allegations described above later came to form part of her pleadings in this action, despite her earlier claims that there was no connection between those allegations and any lawsuit.

Review of the Documents:

Review of the Documents

41I now turn to the documents themselves. As I do, I consider not only whether either or both privileges apply. I also consider if what, if anything, is left is intelligible on its own or if it is no longer relevant as it would be meaningless out of context of the surrounding messages.

42I begin with the bundle of documents which Ms. Shortreed sent to me for which litigation privilege is asserted.

• Tab one: this involves a discussion amongst the Registrar and various members of the Executive, pertaining to what advice or guidance will be received from Alan (Bromstein). It is covered by Litigation Privilege as such discussions take place in the zone of privacy. The dominant purpose was also pertaining to the expected action, or, if preferred, also described as the “arising dispute”, given the circumstances.
• Tab two pertains to emails between the Registrar and several members of the Executive, referring to issues arising out of the dismissal of Ms. Brewer. Again, I find such were written within the zone of privacy to be expected in such circumstances. Clearly, the dominant purpose was the expected adversarial context. Litigation privilege applies.
• Tab three touches on discussion of these various issues between two members of the Executive and the Registrar. The dominant purpose of these communications in the zone of privacy all pertain to the expected case. Again, for reasons above, I find such are covered by litigation privilege.
• Tab 4 involves emails between the Registrar, the Executive, and Mr. Bromstein following receipt of the February 10, 2017 correspondence from Ms. Brewer’s lawyer. Again, such emails are sent and received within the zone of privacy, and the dominant purpose was the threat of litigation. These are also litigation privileged.

43None of these accordingly need be produced. They all meet the test of litigation-privileged documents. If it is any comfort to the plaintiff, it is my view that these are in the main quite innocuous in any event. There are no smoking guns.

44I now turn to the documents for which solicitor-client privilege is claimed. These begin at tab 12 (which is the start of what was sent to me by Ms. Shortreed in this group, proceeding to tab 23):

• Tab 12: the first document is the email from Mr. Bromstein to Registrar, Mr. Fefergrad. It is clearly solicitor-client privileged and I doubt that counsel for plaintiff would take a different view. Rather, Mr. Winton wants what I earlier described as the “begats” or the off-shoots from that initial email. Yet in my view, while these subsequent communications from and to the Registrar, from and to members of the executive or council, are not likely solicitor-client privileged (other than the initial one forwarding advice from Mr. Bromstein), all of these off-shoots are clearly within the above-described zone of privacy established by litigation privilege. These emails involve the parties expressing their views on the then subject at hand: the messy (since she got wind of it before-hand and wrote the subtly threatening email) exiting of a senior manager. These are all within the zone of privacy, and the dominant, indeed, sole purpose of these communications are the issues pertaining to Brewer’s dismissal and what is reasonably expected to happen next. None of these, accordingly, need be produced.
• Tab 13-18: clearly, the first email in this chain from Mr. Bromstein, copied to Ms. Kuzz, is legal advice covered by solicitor-client privilege. The remainder involve forwarding that advice and receiving questions thereon from certain members of the Executive or council in the subsequent tabs through to tab 18. Mr. Fefergrad forwarded the advice received to “all” yet asked that the recipients not use “reply all”, rather, only reply to him if desired to avoid, presumably, cluttering up everyone’s in-box. I find that solicitor-client privilege applies to all these discussions surrounding legal advice given. Moreover, I find that all these discussions also again occurred in the zone of privacy afforded by litigation privilege and were written for the dominant purpose of the expected litigious developments. None of these needs be produced.
• Tabs 14-18 are mirrors of tab 13. It is the same email advice from Mr. Bromstein forwarded to different members of the executive by the Registrar, and the responses back (and forth) to the Registrar.
• I am missing tabs 19, 20 and 21. The next tab in the bundle I received is tab 22. If I was supposed to have these three other tabs, these can be sent, and I can adjudicate thereon, subsequently.
• Tab 22: these emails follow receipt of the February 10, 2021 letter from counsel for Ms. Brewer. These emails are copied to Mr. Bromstein, who weighs in with what I find is advice to the Registrar on a course of conduct, as well as regarding an approach or response to the allegations made by plaintiff’s counsel. These are both solicitor-client as well as litigation privileged and need not be produced. The same reasons of zone of privacy and meeting the dominant purpose applies for the litigation privilege finding.
• Tab 23: this involves email between the College HR Director and the Registrar, again pertaining to the February 10, 2021 allegations made by counsel for Brewer, and whether Ms. Kuzz, the employment counsel, had all the relevant background or if she required additional information. Again, these are likely solicitor-client privileged, given the discussion pertains to the sufficiency of information for the legal advisor to the College. Yet, even if not (if I am wrong), there is no doubt that these are litigation privileged, as the point is to discuss privately the allegations made, with no other purpose then that to these emails. None of these needs be produced.

45I have no additional documents in the bundle provided to me. I thus presume that the parties themselves addressed those from Tab 24 to 28. Again, if I am incorrect, these may be sent to me.

46Accordingly, my conclusion is that none of these documents which I have reviewed need be produced.

47I thank counsel for the helpful presentation of this case. If the parties have not yet had mediation, they should give that approach a genuine try. There is a time to fight, and a time to settle. After the passage of years since the events in question, I suggest that it is now time to try to settle this action. I wish the parties well in that effort.

Costs:

Costs

48I am hopeful that the parties can resolve costs amongst themselves, given they exchanged cost outlines (which are filed on Caselines). Yet, if not, then a tele-conference can be arranged with ATC Mr. Magnante. If additional documents are to be filed, or submissions, such are to be limited to three pages using normal font and spacing.

Associate Justice J. Josefo