COURT FILE NO.: CV-17-576756
DATE: 20211025
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LAYNE MORRIS, LEISL MORRIS and TABITHA SPEER, in her personal capacity and as EXECUTRIX OF THE ESTATE OF CHRISTOPHER SPEER and on behalf of the minor children, T.S. AND T.S.
Plaintiffs/Respondents
– and –
OMAR AHMED KHADR
Defendants/Appellant
James S. Schacter and Neil Searles, lawyers for the Plaintiffs/Respondents
Frank Addario and Zachary Al-Khatib, lawyers for the Defendant/Appellant
HEARD: October 18, 2021
ENDORSEMENT
DIAMOND J.:
Overview
[1] In this proceeding, the respondents seek to enforce a default judgment obtained in the State of Utah against the appellant.
[2] By way of brief background, in or around 2010 the appellant entered into a plea agreement with U.S. authorities and signed a Stipulation of Fact in which he admitted that, inter alia,
(a) during a firefight that occurred on July 27, 2002, he threw a grenade that killed FSC Christopher Speer, an American soldier; and,
(b) the appellant helped construct and plant improvised explosive devices (IEDs).
[3] The Utah Complaint commenced by the Respondents referenced and relied, in part, upon the Stipulation of Fact. It is common ground between the parties that the Stipulation of Fact and the appellant’s confessions therein, were improperly obtained. At the time the Utah Complaint was served, the appellant was in a Canadian prison. When the appellant did not defend the Utah Complaint, a Utah court granted the default judgment in favour of the respondents.
[4] The appellant now defends the within proceeding on the primary basis that the Utah judgment is contrary to public policy, and that he was denied natural justice. After the appellant was examined for discovery in this action, the respondents brought a motion seeking answers to various questions refused at the appellant’s discovery. That motion proceeded before the learned Associate Judge on November 8, 2019. By Endorsement released that same day, the learned Associate Judge ordered various questions to be answered by the appellant.
[5] The appellant now appeals the learned Associate Judge’s decision. That appeal was argued before me on October 18, 2021. At the conclusion of the hearing, I took my decision under reserve.
Standard of Review
[6] As held by Justice McArthur in Hassoun v. Molu 2018 ONSC 6781, “a Master’s [now Associate Judge’s] decision should not be interfered with unless the Master made an error in law, exercised his/her discretion on the wrong principles, or misapprehended the evidence such that there was a palpable and overriding error.”
[7] This Court will also grant an Associate Judge deference in deciding discovery issues, as an Associate Judge has significant expertise dealing with the discovery process.
Decision
[8] For the purpose of this appeal, the learned Associate Judge ordered eight specific questions to be answered by the appellant. Counsel for the parties divided the eight questions into two categories:
(a) questions which raise concerns of solicitor/client privilege; and,
(b) questions concerning the veracity of the Stipulation of Fact.
[9] The first category is comprised of six questions. The second category consisted of two questions. All eight questions ordered to be answered by the appellant were as follows:
Category #1
#4 To advise if the appellant was told by anybody, including a lawyer, about his ability to attend the Utah court by teleconference or videoconference
#5 To advise what steps the appellant took to get legal advice (in relation to the Utah claim)
#6 To advise if the appellant spoke with Mr. Edney while in prison
#7 To advise if the appellant spoke with Mr. Whitling while in prison
#8 To advise if the appellant’s lawyers in Canada and the U.S. were being paid
#9 To advise if the appellant consulted or retained counsel to go to Utah to set aside the default judgment
Category #2
#11 To advise of what actions taken by signatories to that protocol were contravened
#13 To allow the appellant to be questioned on the contents of the Stipulation of Facts derived from the interrogation
[10] During argument of the appeal, counsel confirmed that this Court did not have to adjudicate upon two of the eight refusals.
[11] Refusal #9 has apparently already been answered by the appellant (i.e. he has confirmed that no steps were carried out to set aside the Utah judgment), and counsel for the appellant has agreed to provide further clarification that those “steps” included consulting and/or retaining counsel.
[12] In addition, counsel for the parties also confirmed that refusal #11 has already been answered by the appellant
[13] Accordingly, I shall now address the remaining six refusals.
#4: To advise if the appellant was told by anybody, including a lawyer, about his ability to attend the Utah court by teleconference or videoconference
[14] The learned Associate Judge held that as the appellant pleaded in his Statement of Defence that he was “legally prohibited” from appearing before the Utah court (either personally or through legal counsel), this question was proper as it sought to explore the appellant’s position that he was denied an opportunity to participate in the Utah proceedings at a time when he had lawyers in both Canada and the United States working for him.
[15] The appellant argues that the question is proper save and except for the words “including a lawyer”, as the appellant’s answer to that particular inquiry relates to advice about attending and defending the Utah Complaint which may have emanated from a lawyer (ie. legal advice). While the fact of receiving legal advice is not privileged (as it reveals nothing about the content of any such legal advice), the appellant relies upon the decision of Master Glustein (as he then was) in 578115 Ontario Inc. v. Sears Canada Inc. 2013 ONSC 4135 (S.C.J.). It was held in that case that where questions about whether legal advice was provided in a particular area would reveal aspects of the subject matter about which the advice was sought, answers to such questions amount to a breach of solicitor/client privilege.
[16] The respondents rely upon the decision of Justice Perell in Creative Career Systems v. Ontario 2012 ONSC 649, and in particular the finding that questions about the content of solicitor/client communications are proper if the party utilizes the presence or absence of legal advice as a material element of his/her claim or defence.
[17] The respondents point to paragraphs 35-36 of the appellant’s Statement of Defence in support of their position:
“35. At the time of being served with the Complaint, the Defendant was imprisoned in Bowden Institution, being a federal penitentiary located in the Province of Alberta, serving the sentence imposed by the military commission in GTMO, was totally impecunious, and was prohibited by the terms of the PTA from entering Utah or any other U.S. state or territory for the purposes of defending the action commenced by the Complaint.
- The rules of natural justice at least required the Defendant to be accorded an opportunity to appear before the Court determining the Utah action, both personally and through legal counsel. Since the Defendant was legally prohibited from doing so, the Defendant was not accorded natural justice in the Utah proceedings.”
[18] In my view, the learned Associate Judge exercised her discretion on an incorrect principle. On my reading of paragraphs 35-36 of the appellant’s Statement of Defence, he did not utilize the absence of legal advice as a material element of his defence. It was the terms of a Pre-Trial Agreement (executed in furtherance of the Stipulation of Fact) which the appellant contends precluded him from appearing before the Utah court.
[19] This question, and in particular the inclusion of words “including a lawyer”, is overreaching and seeks to obtain information, even impliedly, about the nature of any communications between the appellant and his lawyer(s).
[20] I do not find that the appellant’s Statement of Defence goes as far as the respondents submit, and in my view the question inclusive of the words “including a lawyer” is improper.
[21] Accordingly, this question as posed need not be answered by the appellant.
#5: To advise what steps the appellant took to get legal advice (in relation to the Utah claim)
[22] The appellant argues that this question goes beyond the issue of whether he could access legal advice. The appellant submits that this question seeks information about the “specific activities involved in his seeking of that advice”, which the appellant contends is privileged information.
[23] I do not accept this argument. Any steps the appellant may have taken in order to seek out legal advice are not protected by solicitor/client privilege. Those steps pre-date any possible retainer of counsel, and the potential exchange of privileged communications. The appellant has squarely put the defence of a lack of natural justice before this Court. While it is true that the appellant was prohibited from appearing in Utah to respond to the Complaint, there is nothing improper in asking the appellant what steps, if any, he took to potentially secure legal advice in relation to the Complaint. Answering that question does not risk disclosure of any solicitor/client communication(s).
[24] Accordingly, this question was properly ordered to be answered.
#6: To advise if the appellant spoke with Mr. Edney while in prison
#7: To advise if the appellant spoke with Mr. Whitling while in prison
[25] The appellant submits that these questions ask about specific conversations with individual lawyers. I disagree. Both questions seek to confirm whether the appellant spoke, or not, with specific lawyers while the appellant was in prison. The fact that the appellant may have spoken with a lawyer at that time is not protected by solicitor/client privilege.
[26] I do not find that answering these questions would reveal anything, directly or indirectly, about the content of any legal advice which may have been imparted to the appellant while in prison. These questions seek to discover whether the appellant had access to legal advice or not while in prison, and that inquiry is relevant to the appellant’s defences raised this proceeding, and not protected by solicitor/client privilege.
[27] Accordingly, this question was properly ordered to be answered.
#8: To advise if the appellant’s lawyers in Canada and the U.S. were being paid
[28] As stated above, the appellant has pleaded that he was “totally impecunious” at the time of being served with the Utah Complaint. The learned Associate Judge held that by claiming to be “totally impecunious”, the appellant brought his financial situation (including his ability to raise and/or access funds) into question. As such, the learned Associate Judge held that the respondents were entitled to test his plea of impecuniosity, which the appellant “used as a shield” in defending this proceeding.
[29] The appellant argues that his ability to pay a lawyer for services rendered is presumably privileged information. He relies upon the Court of Appeal for Ontario’s decision in Re Kaiser 2012 ONCA 838. However, on my reading of the Kaiser decision, it is not the client’s ability to pay that is presumptively privileged, but “administrative information relating to the solicitor/client relationship including the identity of the person paying a lawyer’s bills”.
[30] In Kaiser, disclosure of the identity of the individual paying Mr. Kaiser lawyer’s fees was sought. On the facts of that case, knowledge of that individual’s identity could have prejudiced Mr. Kaiser’s position in his overall bankruptcy dispute.
[31] Such concerns are not present in this proceeding. The appellant claims impecuniosity as a pillar of his defence of a lack of natural justice. The respondents are entitled to test that allegation, and the question seeks confirmation of whether the appellant’s lawyers in Canada and the United States were being paid or not. The question does not seek to learn of the identity of any third party who may or may not have been assisting in the payment of legal fees, if such assistance was even required.
[32] Accordingly, this question was properly ordered to be answered.
#13: To allow the appellant to be questioned on the contents of the Stipulation of Facts derived from the interrogation
[33] In Canada, evidence obtained through torture cannot be subsequently used in legal proceedings. As the parties do not seemingly quarrel with the fact that the Stipulation of Fact was coerced through torture, questions about the Stipulation of Fact should generally be refused.
[34] However, that does not end the injury. While the Stipulation of Fact (and whether its contents are true or not) is generally irrelevant to the issues joined in this proceeding, the appellant nevertheless chose to make it arguably relevant by pleading the following in paragraph 22 of his Statement of Defence (my emphasize in bold):
“22. All of the factual statements contained in the Stipulation were derived from written reports of statements supposedly made by the Defendant to government interrogators, all of which were derived from torture, and/or obtained under the conditions found by the Supreme Court of Canada to offend the most basic Canadian standards about the treatment of detained youth suspects. The great majority of the factual statements contained in the Stipulation were and are false.”
[35] In the face of this contention by the appellant, the respondents asked him which portions of the Stipulation of Fact were true, and which were false. The learned Associate Judge held that notwithstanding that the Stipulation of Fact was derived from clearly abusive interrogations, according to the appellant not all of the factual statements contained in the Stipulation of Fact were false. That issue was raised by the appellant himself in his Statement of Defence, and he has not brought any motion to seek leave to withdraw any admissions or further amend his Statement of Defence.
[36] As pleadings govern the relevant issues to be examined upon, I do not find that the learned Associate Judge made any palpable or overriding error, or exercised her discretion on an incorrect principle. While the respondents may not be able to use the Stipulation of Fact in this proceeding, they are entitled to test the appellant’s position that at least some of the contents of that Stipulation of Fact may be true.
[37] Accordingly, this question was properly ordered to be answered.
Costs
[38] I would ask counsel for the parties to exert the necessary efforts to try and resolve the costs of this appeal. If such efforts prove unsuccessful, they may serve and file written costs submissions, totaling no more than five pages including a Costs Outline, in accordance with the following schedule:
(a) the respondents may serve and file their written costs submissions within ten business days of the release of this Endorsement; and
(b) the appellant may serve and file his responding written costs submissions within ten business days of the receipt of the respondents’ written costs submissions.
Diamond J.
Released: October 25, 2021
COURT FILE NO.: CV-17-576756
DATE: 20211025
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LAYNE MORRIS, LEISL MORRIS and TABITHA SPEER, in her personal capacity and as EXECUTRIX OF THE ESTATE OF CHRISTOPHER SPEER and on behalf of the minor children, T.S. AND T.S.
Plaintiff/Respondents
– and –
OMAR AHMED KHADR
Defendants/Appellant
ENDORSEMENT
Mr. Justice Diamond
Released: October 25, 2021