COURT FILE NO.: CV-20-455
DATE: 20210831
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
David Bacchus
Norman Groot and Ashley Ferguson, for the Plaintiff
Plaintiff
- and -
Sara Lorraine Munn
Howard Cohen and Sabrina Waraich, for the Defendant
Defendant
HEARD: July 26th, 2021. Additional Written submissions completed August 24, 2021.
REASONS FOR DECISION
LEMAY J
[1] I have been case managing this civil litigation file since August of last year. I have released decisions on the scope of pleadings (2020 ONSC 6650) and the scope of pre-discovery production (2020 ONSC 6548). The parties have now concluded questioning, and I am required to address a number of issues relating to undertakings, under advisements and refusals as well as one issue relating to whether the Plaintiff’s wife should be examined as a witness. Mr. Groot, counsel for the Plaintiff, was also counsel to Ms. Bacchus on the issues relating to her participation.
[2] As part of their submissions, the parties provided me with charts outlining the questions that were in dispute. Those charts are attached as Appendices to the copies of the decision that were provided to the parties as well as the copy that was placed in the Court file. Those charts are not attached to the published reasons as they contain confidential financial information.
[3] I have set out the background to this litigation in my previous decisions. However, to provide context for the decisions I am making in this case, I will briefly set out the most relevant facts. I will then deal with a series of general issues that arose during the argument of this motion and provide my general disposition of those issues. The charts set out my specific directions on certain issues that are not addressed in the body of these reasons.
Background Facts
[4] I start with the parties. The Plaintiff is a businessman in his mid-50s. At the time the relationship started, he was married. He has two children. The Plaintiff alleges that he was having marital difficulties prior to the commencement of the parties’ relationship. The Plaintiff separated from his wife, Chandra Bacchus, in 2017. Their separation agreement was finalized in 2018. However, at some point since that separation agreement was signed, the Plaintiff and Ms. Bacchus have reconciled and are now living together again.
[5] The Defendant is in her early 30s, and was working in the sex trade when she met the Plaintiff. The Defendant alleges that she had a difficult childhood, including having been sexually assaulted when she was twelve years old.
[6] The parties have a dispute about when their relationship started. The Plaintiff says it was sometime in 2017, while the Defendant says it was sometime in 2014. The parties agree, however, that the relationship started with the Plaintiff paying the Defendant for sexual services.
[7] The Plaintiff alleges that the relationship quickly turned into a traditional relationship. The Plaintiff alleges that the Defendant told him, in mid-2017, that she had fallen in love with him and wanted to leave the escort business. The Plaintiff alleges that he had proposed to the Defendant in 2018 and provided her with an engagement ring, and that the Defendant had accepted this proposal.
[8] The Defendant alleges that, at some point in 2017 or 2018, the Plaintiff asked for an exclusive relationship and agreed to pay the Defendant an annual wage, plus expenses, for that exclusivity. The Defendant claims to have agreed to this exclusivity as it provided her with some stability. As a result of this arrangement, the Defendant gave up her other escort clients. With respect to the engagement ring, the Defendant alleges that she never wore it and that she ultimately rejected the Plaintiff’s proposal. In other words, from the Defendant’s perspective, the relationship remained a business transaction throughout.
[9] The Plaintiff alleges that, once the parties entered into an exclusive relationship and agreed to eventually get married, he provided the Defendant with a series of what he refers to as specific purpose loans. The total sum of money that was allegedly loaned by the Plaintiff to the Defendant is in excess of $800,000.
[10] Some of these funds were used for the purchase of a property in Stoney Creek. The purchase of that property closed in the summer of 2020. The Plaintiff alleges that both he and the Defendant were supposed to be on the title for the Stoney Creek property. The Defendant disagrees and says that it was never intended that the Plaintiff be on title to the property.
[11] Since the relationship ended, it has come to light that the Defendant was in an on-again off-again relationship with a Madison Pleasant. Mr. Pleasant may have been the Defendant’s boyfriend at some of the material times in this case and they have had (and continue to have) financial dealings over an investment property. The Plaintiff had originally sought to have Mr. Pleasant discovered pursuant to Rule 31.10. However, the Plaintiff has now received a draft Affidavit from Mr. Pleasant and has advised that the Rule 31.10 motion is no longer necessary.
[12] In any event, the relationship between the Plaintiff and the Defendant started to deteriorate in early 2019. It is not necessary to explore the reasons for that deterioration as the parties have different views on this issue that are best left for a trial.
[13] I do note that the parties had a long-distance relationship in 2019. In that year, the Plaintiff thought that the Defendant was working for Carnival Cruises based out of Miami. He ultimately discovered that the Defendant had remained in the Hamilton area and had not been working for Carnival Cruises. The Plaintiff ended the relationship shortly after discovering this fact.
[14] Ultimately, the Plaintiff commenced this action in 2020. The Plaintiff is claiming damages in fraud or, alternatively, in breach of contract on the basis of the Defendant’s false representations respecting their relationship. In particular, the Plaintiff alleges that the significant monies that he provided to the Defendant between 2017 and 2019 were loans, and that the purchase of the Stoney Creek property was for their mutual benefit.
[15] In essence, the Plaintiff claims that the Defendant engaged in a “nefarious and years-long campaign of a fake and false relationship…. to extract significant funds from him”. The claims the Plaintiff advances are based on fraud and presumably fraudulent misrepresentation. There are a whole series of other causes of action, both in tort and in contract, that are advanced by the Plaintiff in his claim.
[16] The Defendant, on the other hand, claims that the relationship was only ever a financial one. As a result, she claims that all of the monies she received from the Plaintiff were either payments for sexual services that were provided or gifts. The Defendant asserts that these amounts do not need to be repaid. Therefore, the Defendant alleges that the claim should be dismissed.
[17] After the claim was served in March of 2020, there were a series of motions in respect of a preservation order and a Mareva injunction. A Mareva injunction was originally granted by Bielby J. on an ex parte basis on June 3rd, 2020. However, Bielby J. ultimately ended that Order by way of an endorsement issued on June 24th, 2020. Bielby J. did provide some relief requiring inter alia, certain productions to be provided by the Defendant as well as a Certificate of Pending Litigation to be registered against the Stoney Creek property.
[18] Since that time, we have been proceeding to complete discoveries and move forward with the litigation. A jury notice has been served and the trial is going to be listed to proceed in January of 2023. The motion before me was to address various issues flowing from the discoveries.
Issues
[19] The specific issues that I am required to deal with are as follows:
a) A process for completing undertakings that have not been completely fulfilled.
b) Obtaining the Defendant’s doctor’s file.
c) The provision of witness contact information.
d) Whether the notes that were used by the Plaintiff during his discovery should be produced to the Defendant.
e) The extent that the Plaintiff is obligated to produce documentation relating to the negotiation of his separation agreement with Ms. Bacchus.
f) Whether additional financial disclosure is required from the Plaintiff based on either the litigation or on my previous orders.
g) Whether the Plaintiff is required to disclose when he first sought the advice of counsel in this matter.
h) Whether Ms. Bacchus should be discovered as a witness in this case.
[20] I will deal with each issue in turn. In considering the issues on this motion, I am mindful of the principles that govern discovery. I have outlined the most relevant of those principles in my previous decisions in this case on production. I adopt those same principles for this motion.
[21] I should also note that, after reviewing the parties’ submissions and factums, I required additional written submissions on the issue of common interest privilege. I have now reviewed those submissions and have incorporated them into my analysis.
Issue #1 – Undertakings
[22] Both sides were seeking further information on some of the undertakings that had been given. After some discussion with the parties, I am ordering (on consent) that the parties adopt the following process:
a) The party that has given the undertaking is required to provide a letter outlining the details of what has been done to obtain the information requested. The parties are to attach any correspondence (including e-mails) that they have sent and/or received in their efforts to fulfill the undertaking. These letters are to be completed within thirty (30) days of the release of these reasons.
b) The party who receives a letter pursuant to paragraph (a) has thirty (30) days from the receipt of the letter to advise in writing by way of a responding letter whether they are requesting anything further from the other party, including whether they want that party to take any further steps.
c) A party who receives a letter pursuant to paragraph (b) has ten (10) days from the receipt of the letter to provide a response outlining what further steps that party is prepared to take.
[23] I advised the parties that they should presume that these letters will be reviewed by me if there are any disagreements that flow from them. As a result, the letters should contain an explanation of both what the party’s position is and why the party is taking that position.
[24] If there are any disputes remaining about these issues, then we will address them in the case management process.
[25] The Defendant had also given some undertakings to analyze documents and/or provide her position on those documents. I am of the view that the Defendant is obligated to respond to those questions within sixty (60) days of the release of these reasons.
Issue #2 – The Family Doctor’s File
[26] Finally, the Defendant had given an undertaking to produce records from her family doctor. The Defendant had not had any response to these requests for information from the doctor. As a result, I am ordering as follows:
a) Defendant’s counsel is to produce the documentation demonstrating their efforts to obtain the file from the doctor.
b) Defendant’s counsel is to provide a copy of this endorsement to the doctor’s office with a further request for the documents.
c) In the event that the doctor does not provide the documents within thirty (30) days of receipt of this endorsement, then a third party records motion may be brought by either party pursuant to Rule 30.10 of the Rules of Civil Procedure. That motion would proceed before me. In the event that a third party records motion is required, then there is a real risk that I will both order costs against the doctor and prohibit the doctor from charging any fees for producing the records.
[27] In the event that this issue has not been resolved by our next case conference, we will address the procedure for resolving it at that time.
Issue #3 – The Provision of Witness Contact Information
[28] Based on the undertakings charts that I have been provided with, the Defendant is seeking the disclosure of the name of the Plaintiff’s best friend in 2017. The Plaintiff is seeking the disclosure of contact information for the Defendant’s mother, Monique Munn, as well as the phone numbers for Shayna Willis.
[29] The starting point for all three of these requests is the Rules of Civil Procedure. Rule 31.06(2) permits a party to obtain disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of the transactions or occurrences in issue. Rule 31.06(2) also permits the Court to “order otherwise”, which gives the Court discretion in deciding whether to order disclosure of the information.
[30] The Plaintiff argues that the name of his best friend is not relevant as the Plaintiff will not be calling any other witnesses at trial. However, the test for producing the names and addresses of witnesses is broader than merely whether the side that has the contact information for the witness is going to call that witness at trial. The question is whether the Plaintiff’s best friend might reasonably have knowledge of facts and circumstances relating to this case. This case involves the question of whether the Plaintiff gave gifts and/or paid money to the Defendant or whether the monies he transferred to her were loans. This question is wrapped up in the relationship between the Plaintiff and the Defendant. It is, therefore, not difficult to infer that the Plaintiff’s best friend may have been aware of relevant facts at the time that the relationship was going on. His name and address are to be produced within sixty (60) days of today’s date.
[31] This brings me to the witnesses that the Defendant has been asked to provide addresses for. The Defendant does not oppose the production of this information but argues that this information should not be produced until discovery is completed. I reject the Defendant’s position on this issue for three reasons:
a) Having reviewed the Rules, I see no basis for the Defendant to argue that they can withhold this information until the completion of discoveries.
b) Discovery is an ongoing process. It is difficult to know precisely when it ends. Withholding this information until after discoveries have concluded will add a layer of uncertainty.
c) The Plaintiff is entitled to get on with preparing his case. As a result, if the information is in the possession of the Defendant, there is no reason for it to be withheld.
[32] Again, the information sought by the Plaintiff is to be produced by the Defendant within sixty (60) days of today’s date.
[33] In addition, the Plaintiff is seeking the names and contact information for the clients that the Defendant provided cleaning services to in 2019. This request was refused by the Defendant. The argument on this point seemed to be based, in part, on the fact that these individuals were the Defendant’s escort clients.
[34] I have reviewed the examination for discovery transcripts in some detail, as the page and question numbers in the Plaintiff’s chart do not match up precisely with the question that they have included as an undertaking. The Plaintiff did ask the Defendant about the names of the escort clients that she was working with in 2017 and following. A clear undertaking was given to answer this question and provide the names. On this point, see question 1135 and following of the discovery transcript, commencing at page 227.
[35] When an undertaking is given to provide information, then the Court expects that the information will be provided if the Defendant can find it. As a result, I am ordering that this undertaking be answered and I am also ordering that, if the Defendant has no information to answer the undertaking with, she provide the Plaintiff with details on the efforts that she has made to find this information.
[36] If there is an issue about the names of the clients from the cleaning business, I may be spoken to in that respect.
[37] As a final issue on this point, I raised questions about witness statements. For the parties’ assistance, I generally expect that will-say statements from any non-expert witness (other than the parties) will be produced well in advance of trial. We will discuss this issue at the next case conference.
Issue #4 – The Notes Used by the Plaintiff at Discovery
[38] In order to determine whether these notes should be produced, I must first consider the extent to which the Plaintiff used the notes at discovery. Both parties agree that the Plaintiff arrived at discovery with some notes in his possession. The Defendant asked to see the notes, and the Plaintiff refused to produce them. At that point, the parties diverge on whether the notes were referred to again by the Plaintiff.
[39] I have reviewed the Plaintiff’s discovery transcript. First, the document was not prepared in contemplation of the litigation. Instead, it was identified as an aide memoire by Plaintiff’s counsel. When Defendant’s counsel asked for it to be produced, counsel for the Plaintiff stated that it was not going to be produced as it was the Plaintiff’s own preparation notes for the examination. After some discussion, the Plaintiff put his notes away behind a screen where he could not see them and the Defendant’s counsel accepted that as sufficient.
[40] Later in the examination, however, the Plaintiff specifically asked to refer to his aide memoire in order to identify specific emails that identified the Defendant’s agreement to add the Plaintiff as an owner of the Stoney Creek Property.
[41] Given this second reference to the aide memoire, I am of the view that the Plaintiff should be compelled to produce this document. The Plaintiff used the document to assist him in answering questions during the discovery. Given the Plaintiff’s reliance on these notes to answer questions during discovery, the Defendant’s counsel is entitled to see what was in the notes, just as he would have been if the evidence had been given at a trial and the Plaintiff had used the notes in the same way on the witness stand. The notes are to be disclosed with one caveat. Any comments or information in the notes about legal advice that the Plaintiff received do not have to be disclosed.
Issue #5 – Disclosure of Separation Agreement Related Documents
[42] As I have noted above, the Plaintiff had separated from his wife in 2017 and was engaged in negotiating a separation agreement with his wife. These negotiations were apparently conducted through the same lawyer, although independent legal advice was provided.
[43] One of the allegations made by the Defendant is that the Plaintiff was attempting to hide assets, including an inheritance, from his wife. In the Statement of Claim, the Plaintiff has acknowledged that he was concerned about his wife making a claim to inheritance money that the Plaintiff was going to receive from his parents. As a result, the Plaintiff transferred certain funds to the Defendant to hold while the negotiations continued.
[44] The Defendant is seeking, inter alia, information on whether the Plaintiff prepared or provided a statement of financial information and property during the negotiation of the separation agreement and whether the Plaintiff knew that he did not have to hide the inheritance money from his wife. The Plaintiff objects to disclosing this information on the basis of both relevance and privilege. Neither objection can succeed on the facts of this case.
[45] I start with relevance. The Plaintiff asserts that the negotiations over his separation agreement are entirely irrelevant to this litigation. I disagree. The Plaintiff has acknowledged that he transferred a sum of money to the Defendant because he was concerned about his wife making a claim to that money. The issue of why the Plaintiff transferred money to the Defendant is central to this litigation. Therefore, the Defendant is entitled to explore both the Plaintiff’s knowledge about the rules surrounding inheritances and what representations the Plaintiff made to his wife about the inheritance.
[46] More generally, I note that the Defendant has attached a blank version of the Financial Statement that is routinely used (and mandated by the Family Law Rules) in family law proceedings. Given the length of the negotiations over the separation agreement, it is not unreasonable for the Defendant to infer that a document of this nature would have been prepared by the Plaintiff. This document would outline the financial circumstances of the Plaintiff in 2017 and 2018.
[47] The Plaintiff’s financial circumstances is one of the issues in this litigation. I have previously accepted it as such (see 2020 ONSC 6548 at para. 71). As a result, the documentation outlining what the Plaintiff’s financial circumstances were at a material time is clearly relevant and producible. In that respect, I reject the Plaintiff’s assertion that the questions being asked are a fishing expedition. The Defendant is seeking information, inter alia, on whether the Plaintiff made contemporaneous representations to Ms. Bacchus about the existence of the money and/or why it was given to the Defendant that are inconsistent with the positions that he is now taking in this litigation.
[48] This brings me to the issue of privilege. The lawyer who was involved in the negotiation of the separation agreement acted for both sides. As a result, there is a presumption of privilege that attaches to the communications between both clients and the lawyer that they retained. See R. v. Dunbar 1982 3324 (182) 138 D.L.R. (2d) 221 at paras 56 and 59. I accept that this privilege might still apply even though the Plaintiff and Ms. Bacchus clearly did not have identical interests when they retained counsel. See Barclays Bank PLC v. Metcalfe and Mansfield 2010 ONSC 5519 at para. 12.
[49] More generally, Ricchetti J. (as he then was) identified the test for common interest privilege in Milicevic v. T Smith Engineering Limited 2016 ONSC 2166 as requiring the following three conditions to be met (see para. 137):
a) That the communication is subject to solicitor-client privilege or litigation privilege; and
b) That the party with whom the communication was shared with or originated from has a common objective or interest with the party who has solicitor-client privilege over the communication; and
c) That the privilege has not been lost through waiver, disclosure or otherwise at law by or with the consent of the parties who hold privilege over the document(s).
[50] The first two criteria are met in this case. While I acknowledge that the Defendant has argued that the privilege was void ab initio due to fraud, I do not have enough information on the record to make a finding of fraud, even on a civil standard and I decline to make that finding. The Defendant does not dispute that the second criterion has been met.
[51] The question then becomes whether there has been a waiver of the privilege by the Plaintiff and Ms. Bacchus. Both parties must have waived the privilege for the waiver to be effective. See Milicevic, supra at para 144.
[52] Waiver of privilege has been described by Winkler J. (as he then was) in Toronto Dominion Bank v. Leigh Instruments Ltd. 1997 12113 (Ont. S.C.J.) (1997) 32 O.R. (3d) 575 at paras 46 and 50, where he stated:
- As was noted by McLachlin J. (as she then was) in S & K Processors Ltd. v. Campbell Avenue Herring Producers Ltd. (1983), 1983 407 (BC SC), 35 C.P.C. 146, 45 B.C.L.R. 218 (S.C.), waiver may occur in the absence of an intention to waive the privilege, where the interests of fairness and consistency dictate. She explained the concept of implied waiver at pp. 148-50:
Waiver of privilege is ordinarily established where it is shown that the possessor of the privilege (1) knows of the existence of the privilege, and (2) voluntarily evinces an intention to waive that privilege. However, waiver may also occur in the absence of an intention to waive, where fairness and consistency so require. Thus waiver of privilege as to part of a communication, will be held to be waiver as to the entire communication. Similarly, where a litigant relies on legal advice as an element of his claim or defence, the privilege which would otherwise attach to that advice is lost.
- Placing state of mind in issue will not amount to a waiver in every case. The guiding principles must be fairness and consistency. In a case where a party has placed its state of mind in issue, and has given evidence that it received legal advice which, in part, formed the basis of that state of mind, the distinction between state of mind and the legal advice giving rise to it cannot be maintained.
[53] These principles were adopted in Barclay’s Bank, supra. In this case, it appears that the privilege has been waived by the Plaintiff to at least some extent because he has put his state of mind in issue.
[54] One example will suffice to demonstrate how the Plaintiff has put his state of mind in issue in this case. At discovery, the Plaintiff stated as follows:
BY MR. COHEN:
Q. Okay. Somewhere in April, 2018. Be that as it may, it's clear that you transferred your equalization payment on May 29th, 2018 to Sara Munn in the amount of $175,000. Is that right?
MR. GROOT: That...he is making a statement. Do you agree with that statement?
THE DEPONENT: Yes, I... Sara Munn asked me to put the money into her account, that she would hold in trust.
BY MR. COHEN:
- Q. Where was the money between the time that it was advanced to you from your wife up until the time that you gave it to Ms. Munn?
A. It was sitting in my TD bank account.
- Q. For how long?
A. It was sitting in there for a few...three, four weeks.
- Q. So you had already made the deal with your wife. It was in your TD bank account. Why did you have to transfer it to Sara Munn to hold in trust for you if the deal was already made? What possible reason could you have for transferring it to Sara Munn?
A. The reason that Sara gave me was she wanted to hold the money in trust in her account in case there would be anything contesting my separation because she was worried that I was seeing her while I was still technically married to my wife, and that my wife could come back and say because I was seeing someone while I was married to her, that she didn't even owe me that amount of money. So Sara convinced me and told me that she wanted to hold it independently in trust for me until things had settled and some period of time had gone by upon the conclusion and after my separation.
[55] Two points are clear from this passage. First, the Plaintiff claims that he had already reached a separation agreement with Ms. Bacchus when he transferred significant sums to the Defendant. Second, the Plaintiff’s understanding of why he was transferring the monies to the Defendant is an issue in this case.
[56] This brings me to Ms. Bacchus’s evidence. She has sworn an Affidavit in this case. Paragraphs 6, 8 and 11 of that Affidavit state:
At no time was our separation and pursuit of a divorce predicated on any such “discovery” or “revelation” of “illicit use of trust funds” as described by Munn, and at no time did I threaten to make a police complaint about the Plaintiff. While I was generally aware that the Plaintiff was involved in caring for his elderly parents, I was not aware of the particulars of any inheritance, transfers or financial arrangements between the Plaintiff and his parents. And while I was generally aware that the Plaintiff was in another relationship in 2017 and thereafter, I was not aware of Munn’s identity, and I was not aware of the particulars and quantum of the financial transfers from the Plaintiff to Munn. In other words, Munn’s allegations that the Plaintiff’s transfers to her, and the propriety of those transfers, were the cause of our separation, are simply not true.
I did not become aware of the particulars of the Plaintiff’s transfers to Munn until they were disclosed to me by the Plaintiff in approximately [June], 2019. At that time we had been formally separated and living our separated lives for approximately 18 months. The allegations of Munn’s counsel of ‘severe marital discord’ caused by the Plaintiff’s financial transfers to Munn are simply not true, as we had long been separated when I learned of the Plaintiff’s transfers to Munn.
The only fact that is covered in our separation agreement that is in any way relevant to this action is the portion of our separation agreement that covers the $175,000.00 payment that I agreed to make to the Plaintiff, and that the Plaintiff agreed to accept, in exchange for the transfer of full ownership of our matrimonial home to my name only. This fact is only relevant because it is described by the Plaintiff in his Statement of Claim and affidavit, as the Plaintiff alleges that Munn induced the Plaintiff through fraudulent means into transferring the $175,000.00 proceeds into an account controlled by Munn, and which Munn has since made-off with. Given that the fact of the $175,000.00 transfer is attested to by both myself and the Plaintiff, and the general irrelevancy and privileged nature of the document, there is no reason or need to produce the separation agreement itself.
[57] Paragraph 11 is particularly troubling. In that paragraph, Ms. Bacchus makes a claim about the contents of a privileged document while asserting privilege over it. She goes on to say, in essence, that given that the Plaintiff and I are both giving the same evidence, there is no need to disclose the document itself.
[58] There are two problems with this statement. First, the Defendant is not obliged to accept a witness’s evidence about what is in a document without seeing the document. Second, Ms. Bacchus’s interests in this case now appears to be aligned with those of the Plaintiff. As a result, the Defendant has additional reason to subject Ms. Bacchus’s evidence to scrutiny.
[59] Privilege over the separation agreement, and perhaps other documents, have been waived. The scope of the waiver appears to me to be in relation to the payment of various sums of money as well as the reasons for those payments and the understanding of the Plaintiff (and his wife) in respect of the inheritance the Plaintiff was to receive from his parents.
[60] That does not end the matter, however. There may still be an argument over the scope of the waiver of privilege. To that end, I would adopt the same approach as was used by Wein J. in Airst v. Airst 1998 14647 (1998) 37 O.R. (3d) 654. In that decision, Wein J. reviewed the documents in a voir dire before determining that they were privileged. If there are any documents that the Plaintiff (or Ms. Bacchus) is still claiming might be privileged, I am prepared to review those documents in a voir dire without disclosing them to the other side.
[61] For clarity, I expect that documents in this case will include any notes that the Plaintiff made on the issues where privilege has been waived, even if those notes were not shared with Ms. Bacchus.
[62] I understand from the submissions of Plaintiff’s counsel that there may not be any actual documents that were exchanged on these issues. If that is the case, then the requirements I have set out elsewhere about the efforts to obtain documents must be laid out by the Plaintiff. I also expect that the Plaintiff will make inquiries of Ms. Bacchus to see what documentation she has on these issues that relate to the issues where I have found that privilege was waived. Finally, I note that there may be an issue as to the scope of the questions asked on discovery. If that remains an issue I can be spoken to at the next conference.
Issue #6 – Additional Financial Disclosure
[63] There are two refusals given by the Plaintiff in relation to financial disclosure that remain in issue. Both of them have to do with the origins of a transfer of $200,000.00 from the Plaintiff to the Defendant.
[64] The Plaintiff argues that these questions are both irrelevant on the basis that the fact that the funds came from a joint account means that they were the Plaintiff’s property. The Plaintiff argues that he has provided evidence to establish that these are joint accounts. On the Plaintiff’s view, nothing more is required.
[65] The Defendant argues that these questions should be produced for two reasons. First, that this production has already been ordered by way of my previous decisions. Second, that the information that the Defendant is seeking is relevant. The relevance flows from the fact that the funds in these accounts were the Plaintiff’s funds and that the Plaintiff’s financial circumstances during the parties’ relationship is a key part of this litigation. I accept both arguments.
[66] First, in an endorsement dated December 10th, 2020, I ordered that the records of all the Plaintiff’s bank accounts (including those where he was a joint account holder) were to be produced. Implicit in that ruling is a requirement that the source of funds transferred to the Defendant be identified by the Plaintiff.
[67] Second, the question is relevant to the issues in dispute between the parties. Since the Plaintiff has put his financial circumstances in issue in this litigation, information about where funds came from and who was the owner of those funds is relevant. As a result, these questions are to be answered by the Plaintiff.
Issue #7 – Advice of Counsel
[68] Counsel for the Defendant is seeking to have the Plaintiff confirm the date that he first sought advice from his current counsel. The Defendant does not wish to know what the advice was. However, the Defendant may seek to use this information to infer that the Plaintiff went to the police to complain about the Defendant as part of a strategy to boost his position in this litigation as well as whether the Plaintiff first started referring to the monies that he provided to the Defendant as loans after he had received legal advice.
[69] The Plaintiff objects to answering this question on the basis that the information is privileged and irrelevant. I reject the Plaintiff’s claim that the information was irrelevant. The fact that the Plaintiff engaged in a particular litigation strategy may very well be relevant to the issues in this case, and particularly in assessing the Plaintiff’s claim of whether the funds he advanced to the Defendant were loans instead of gifts.
[70] This brings me to the issue of privilege. Counsel for the Defendant relies on Pritchard v. Ontario (Human Rights Commission) 2004 SCC 31. In that case the Court articulated a three-part test for determining whether solicitor-client privilege protects specific information. That test requires the communication to be:
a) A communication between solicitor and client;
b) That entails the seeking or giving of legal advice; and,
c) Which is intended to be confidential by the parties.
[71] Counsel for the Defendant concedes that the third criterion in this case is met. There is more of an issue over the first two criteria. However, the mere date that someone went to see a lawyer does not necessarily involve the seeking or giving of legal advice. Law of Privilege of Canada (Robert W. Hubbard et al, Law of Privilege, Vol 1, at p 401 (Chp 11, s 123 on Proview), Blue Line Hockey Acquisitions v. Orca Bay Hockey Ltd. 2007 BCSC 143 at paras 23-26.
[72] Similarly, not everything that happens in a solicitor-client relationship is privileged. The privilege protects communications between a solicitor and client as distinct from evidence of acts or transactions. Re: Ontario Securities Commission and Greymac Credit Corp. (183) 41 O.R. (2d) 328 1983 1894 (Div. Ct.).
[73] In the result, I do not view the disclosure of the date on which the Plaintiff went to see Mr. Groot as being privileged. It is to be disclosed. The discussions that took place on that date and thereafter remain privileged.
Issue #8 – Examination of Ms. Bacchus
[74] The Defendant has requested an Order requiring Ms. Chandra Bacchus to attend and be questioned. The relief was described in the notice of motion as “[a]n Order permitting the Defendant Munn to cross-examine, [sic] Chandra Bacchus, a non-party to this action on a pending motion.” This would be an examination pursuant to Rule 39.03 of the Rules of Civil Procedure.
[75] The test for when an examination will be permitted under Rule 39.03 is set out in Clarke v. Madill 2001 28089 (ON SC), [2001] O.J. No. 3256 (Master). In that decision, Master Dash noted that the Court must determine that the evidence sought to be elicited must be relevant to the issue on the motion. It is the moving party that bears the onus of demonstrating that the examination is necessary.
[76] In this case, I am not persuaded that an examination of Ms. Bacchus is necessary for the purposes of this motion. I reach that conclusion because I have already determined that at least a significant portion of the evidence that the Defendant has asked for in respect of the separation agreement that is not otherwise privileged is to be produced. As a result, it is not at all clear to me as to what would be gained by examining Ms. Bacchus for this motion.
[77] In argument, however, counsel for the Defendant also sought an Order to require Ms. Bacchus to be examined more broadly as a third party. A non-party to an action may only be examined if all the conditions in Rule 31.10(2) are met, and if the Court grants leave to conduct the examination. See, for example, Fischer v. I.G. Investment Ltd. 2016 ONSC 4405.
[78] Counsel for the Defendant argued that I had all the information necessary to determine whether a non-party should be examined. Counsel for the Plaintiff was opposed to me even considering this issue as it was not part of the original motion record.
[79] I have concluded that I should not yet consider the question of whether Ms. Bacchus should be examined under Rule 31.10. I have reached that conclusion because there are still outstanding undertakings and refusals that have to be answered, and some of the outstanding refusals relate directly to the issue of the separation agreement between Mr. and Ms. Bacchus. Given that there is still outstanding information about the separation agreement to come, I cannot yet determine whether the Defendant has been unable to obtain the information from the Plaintiff. We will revisit this issue if necessary at the next case conference.
Conclusion and Costs
[80] For the foregoing reasons, the parties are to provide the information set out in the charts in accordance with the timelines I have set out herein. As case management judge, I remain seized to deal with any outstanding issues that may remain.
[81] As I have noted above, this case is scheduled to proceed in the blitz in January of 2023. As part of this motion, the Plaintiff had originally asked that the jury notice served by the Defendant in this case be struck. The Plaintiff did not proceed with that relief when I advised as to the trial date in this matter. However, the Plaintiff may still wish to proceed with that date.
[82] There are also other issues that will have to be addressed in this case as we move towards a trial date. To that end, a further case conference should be scheduled in this matter. I am available for that case conference on October 12, 13, 14 or 15, 2021 at 9:15 a.m. for a forty minute appointment. The parties are to agree on a date and advise my judicial assistant.
[83] Then, there is the subject of costs. On a preliminary basis, it would appear to me that success in this case was divided. Therefore, it would seem reasonable for both sides to bear their own costs of this motion.
[84] However, if either party is claiming costs, then they may make costs submissions of no more than three (3) double-spaced pages exclusive of bills of costs, case-law and offers to settle, within seven (7) calendar days of today’s date. Those submissions are to be filed electronically with the Court and a copy is to be provided to my judicial assistant.
[85] Any party who receives costs submissions as set out in the previous paragraph may respond by providing submissions of no more than two (2) double-spaced pages exclusive of bills of costs, case-law and offers to settle, within seven (7) calendar days of receiving the initiating submissions. Those reply submissions are to be filed electronically with the Court and a copy is to be provided to my judicial assistant.
[86] Finally, an Order will need to be taken out reflecting the decisions that I have made in this case. The parties are to discuss the form and content of the Order between them. If they can agree on the Order’s form and content, it may be submitted to me for signature. If the parties are unable to agree on the Order’s form and content, we will discuss the issue at the next case conference.
LEMAY J
Released: August 31, 2021
COURT FILE NO.: CV-20-455
DATE: 20210831
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
David Bacchus
Plaintiff
- and -
Sara Lorraine Munn
Defendant
REASONS FOR DECISION
LEMAY J
Released: August 31, 2021