COURT FILE NO.: CV-19-00615933
MOTION HEARD: 20210827
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kathy Milsom v Toronto Community Housing Corporation and Andrew McKenzie
BEFORE: Associate Justice L. La Horey
COUNSEL: Sean Dewart and Brett Hughes, Counsel for the Moving Party Plaintiff
Jason M. Berall and Adam Zur, Counsel for the Responding Parties Defendants
HEARD: August 27, 2021 via videoconference
REASONS FOR DECISION
OVERVIEW
[1] The plaintiff brings this motion to compel answers to questions refused at an examination for discovery in this wrongful dismissal action and a related defamation action commenced by her against Toronto Community Housing Corporation (“TCHC”) and Kevin Marshman (Court File No. CV-19-00618005, the “Defamation Action”).
[2] The plaintiff moves on three questions refused at the common discoveries in the actions that engage the issues of solicitor-client privilege and waiver of privilege.
[3] For the reasons that follow, I conclude that the questions are properly refused on the basis of privilege and need not be answered.
BACKGROUND
[4] The plaintiff, Kathy Milsom, was employed by TCHC as President and Chief Executive Officer from September 2017 to February 2019. TCHC is Canada’s largest social housing provider, providing homes for nearly 60,000 low and moderate-income households across the City of Toronto. It is wholly owned by the City of Toronto.
[5] In September 2018, a former TCHC employee alleged that a procurement process had not been properly conducted. It is not disputed that TCHC then retained Rubin Thomlinson LLP (“RT”) to conduct an investigation. RT released a report on its investigation dated December 12, 2018 (the “RT Report”).
[6] Ms. Milsom was interviewed as part of the investigation by RT, as was the defendant Andrew McKenzie, a former TCHC executive who reported directly to Ms. Milsom, along with others. On December 17, 2018 both Ms. Milsom and Mr. McKenzie were placed on paid administrative leave.
[7] It is not disputed that TCHC retained the law firm of Bennett Jones LLP (“Bennett Jones”) in connection with this matter and that they conducted an investigation commencing in December 2018. As part of its investigation, Bennett Jones interviewed Ms. Milsom, Mr. McKenzie and others and arranged for a forensic document review. They prepared a report dated February 20, 2019 (the “Bennett Jones Report”) in the form of a slide presentation that was presented to the board of directors of TCHC at the in camera board meeting on February 20, 2019.
[8] The day after the February 20, 2019 board meeting, TCHC terminated Ms. Milsom’s employment for cause. TCHC alleges that the plaintiff interfered with a competitive public procurement process. Specifically, TCHC alleges that Ms. Milsom interfered with a request for proposal (“RFP”) process which resulted in TCHC engaging a company called Orchango and its principal Edward Mellina, with whom she had a pre-existing relationship, at an inflated price. TCHC also asserts that the plaintiff did not fully cooperate in the investigation of the allegations against her.
[9] Ms. Milsom commenced this action on March 11, 2019, against TCHC for wrongful dismissal and against Mr. McKenzie for unlawful interference with economic relations. Ms. Milsom denies the allegations of cause made by TCHC in her statement of claim. She alleges that Mr. McKenzie committed the tort of fraudulent misrepresentation when he told TCHC, through its investigators, that Ms. Milsom had directed Mr. McKenzie to act improperly in soliciting feedback from Mr. Mellina on the RFP.
[10] In their statement of defence, the defendants plead that TCHC had ample grounds to terminate Ms. Milsom’s employment for cause and they deny that Mr. McKenzie was untruthful when he told TCHC that Ms. Milsom had directed him to solicit feedback from Mr. Mellina. TCHC counterclaims against Ms. Milson seeking $2 million in damages for breach of fiduciary duty and breach of her employment agreement.
[11] In the Defamation Action, Ms. Milsom sues TCHC and Kevin Marshman, the Chair of the TCHC board at the relevant time. The plaintiff alleges that the defendants made misleading and false statements to the media in connection with the procurement process, investigation, and Ms. Milsom’s termination with TCHC.
[12] Mr. Marshman was examined for discovery in both actions, in his personal capacity and on behalf of TCHC, on September 9, 2020. The plaintiff moves on three questions refused by the defendants in connection with the Bennett Jones investigation on the grounds of solicitor-client privilege. At the hearing the parties agreed that the three refusals stand or fall together.[^1]
[13] The first refusal[^2] seeks production of Bennett Jones’ unredacted fee accounts to TCHC. TCHC’s counterclaim for damages against Ms. Milsom seeks “costs incurred by TCHC to investigate and deal with the consequences of the wrongful conduct of Milsom and Orchango.” Bennett Jones produced its redacted accounts, “without waiving privilege” showing the dates of services (November 22, 2018 to February 21, 2019), timekeepers, hourly rates, hours and amounts billed. The description of services has been redacted.
[14] After the examinations for discovery, TCHC produced a copy of the Bennett Jones Report “without waiving privilege”. TCHC has also produced documents uncovered by Bennett Jones, including those obtained through a forensic document investigation under its direction. TCHC maintains privilege over the remainder of the Bennett Jones’ file relating to the investigation. The second refusal[^3] seeks production of any documents relating to the Bennett Jones investigation including notes, transcripts, recordings of witness interviews, and communications between investigators, witnesses and TCHC representatives and/or the board (the “investigation file”).
[15] The third refusal relates to the February 20, 2019 board meeting when the TCHC board decided to terminate Ms. Milsom’s employment.[^4] Mr. Marshman was asked to produce any minutes or notes of that meeting. In response, the defendants have produced a redacted version of the “In Camera Meeting Minutes” of the meeting of the February 20, 2019 board meeting. These minutes indicate that four members of Bennett Jones were present at the meeting in addition to Mr. Marshman and 10 other directors. Bennett Jones is noted as serving as recording secretary for the meeting. The document contains a redacted section which is said to be redacted for solicitor-client privilege. Immediately following the redacted section is a record of a board resolution directing Bennett Jones to give Ms. Milsom until 9:00 a.m. the following day to submit her resignation, failing which she will be terminated for cause. The next item recorded in the minutes is the appointment of Mr. Marshman as CEO. The final item in the minutes records that the board discussed the conduct of Mr. McKenzie in relation to the RFP and a motion was passed that Mr. McKenzie be returned from paid administrative leave. The plaintiff seeks production of the unredacted minutes.
PRELIMINARY ISSUE
[16] In the plaintiff’s factum (and in oral argument), the plaintiff takes the position that there is no evidence that TCHC retained Bennett Jones to conduct anything other than an independent fact-finding investigation. The plaintiff says that TCHC has not led evidence demonstrating that it retained Bennett Jones to provide legal advice to it. In particular, the defendants have not tendered an affidavit from TCHC that asserts privilege with respect to the Bennett Jones investigation and they have not provided a copy of any retainer letter between TCHC and Bennett Jones. In similar cases, the party claiming privilege has tendered such evidence in support of its privilege claim.[^5]
[17] In its responding factum, TCHC submits that the Bennett Jones Report (contained in the plaintiff’s motion record) makes it clear that Bennett Jones’ mandate involved making legal recommendations to TCHC based on Bennett Jones’ findings. It also states in its factum: “To further satisfy this Court that Bennett Jones’ [missing word] involved providing legal advice, TCHC is willing to provide this Court with an unredacted copy of the meeting minutes on a confidential basis.”
[18] At the hearing, I invited submissions on whether I should receive the unredacted board meeting minutes. After hearing submissions, I declined to do so. Mr. Dewart, on behalf of the plaintiff, took the position that TCHC was not offering to tender the unredacted minutes solely in connection with a claim for privilege over the redacted portion of the meeting minutes pursuant to Rule 30.04(6), under which a court is entitled to review a document to determine the validity of a claim for privilege; rather TCHC was asking the court to receive secret evidence in an attempt to establish a solicitor-client relationship in circumstances where it had failed to provide a retainer letter or affidavit evidence. Counsel for TCHC took the position that it would be helpful for the court to have this evidence in determining the validity of the privilege claim.
[19] While I agreed that it would be helpful for the court to see the redacted portions of the minutes, I concluded that it would be unfair to the plaintiff for me to review this evidence which goes both to the nature of the relationship between TCHC and Bennett Jones as well as to whether the unredacted version of the document should be produced. TCHC could have filed an affidavit attesting to the retainer and could have produced a retainer letter (if one exists). It chose not to do so, and it is unfair to the plaintiff for me to make a decision on evidence about which her counsel cannot make submissions. This is especially so as the parties have agreed that all three refusals stand or fall together: that is, I need not specifically determine whether the document is properly redacted.
LAW AND ANALYSIS
Issue 1 – Whether the Bennett Jones Investigation Documents are Subject to Solicitor-Client Privilege
[20] The Supreme Court of Canada has explained that the solicitor-client privilege is fundamental to the justice system and has said that “the privilege must be nearly absolute and that exceptions to it will be rare.”[^6]
[21] Solicitor-client privilege applies to “(i) a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice; and (iii) which is intended to be confidential by the parties”.[^7]
[22] The plaintiff says the defendants have not established that solicitor-client privilege attaches to the Bennett Jones investigation documents they resist producing. The plaintiff points to the fact that there is no affidavit attesting to the nature of the relationship between TCHC and Bennett Jones in respect of the investigation. Nor have the defendants produced any retainer letter.
[23] The defendants have characterized the RT investigation solely as a fact-finding mission and have agreed to produce relevant documents relating to the RT investigation. They assert privilege with respect to the Bennett Jones investigation on the basis that Bennet Jones was engaged in providing legal advice to TCHC in connection with its findings. The plaintiff maintains that there is no evidence that Bennett Jones’ retainer was different to that of RT.
[24] The plaintiff relies upon a letter from Bennett Jones to the plaintiff’s former counsel dated January 8, 2019. In this letter, Bennett Jones provides responses to counsel’s earlier letter which was not included in the motion materials. The Bennett Jones letter responds to enumerated items in the letter from the plaintiff’s former counsel. The first such response, under the heading “Mandate”, says that their investigation covers the same subject matter as the investigation undertaken by RT, sets out three issues being investigated and says that their focus is on two of those issues. It further notes that they are undertaking a review of electronic records that was not part of the RT investigation.
[25] The plaintiff says that this document supports her position as there is no mention of Bennett Jones providing legal advice under the heading, “Mandate”. The plaintiff also says that it is noteworthy that there is no mention of Bennett Jones providing legal advice in a paragraph in the letter on confidentiality in which Bennett Jones states that they intend to report confidentially to the board which will decide what steps, if any, to take in response to the investigation and that it will be up to the board to decide to whom, if anyone, Bennett Jones’ report is to be shown. It is difficult to draw any conclusion about the letter without seeing the correspondence to which this letter responds. In any event, the letter is not inconsistent with Bennett Jones also being retained to provide legal advice, even if Bennett Jones chose not to specifically advert to that fact in correspondence to the plaintiff’s lawyer.
[26] The plaintiff emphasizes that TCHC repeatedly and publicly stated that the Bennett Jones investigation was “independent”. For example, on December 17, 2018, TCHC posted a statement on its website regarding its retainer of Bennett Jones saying that it had “engaged an external firm to conduct an independent, third-party review” into the procurement process. Mr. Dewart argued that the fiduciary relationship between lawyer and client is inconsistent with the representation that Bennett Jones was taking on an independent role and therefore, the use of the word “independent” by TCHC in describing Bennett Jones contradicts the current assertion of solicitor-client privilege. Moreover, TCHC described Bennett Jones as a third-party, not as its lawyer.
[27] The defendants rely on Howard v London (City)[^8] to rebut the assertion by the plaintiff that calling an investigation by a lawyer “independent” is inconsistent with a solicitor-client relationship. Their position is that this case stands for the proposition that privilege will attach to an investigation conducted by an independent investigator where legal advice is involved.
[28] Howard involved a request for production of a report made by a lawyer in a wrongful dismissal action. The lawyer was retained to investigate the death of a resident at a long-term care home. The lawyer prepared a report which contained findings of fact, and legal advice and recommendations based on the advice. The plaintiff was terminated from her employment as a result of improper conduct discovered during the lawyer’s investigation.
[29] The evidence before the court in Howard included a copy of the retainer letter between the defendant employer and the lawyer. On reviewing the retainer letter the court concluded that the lawyer was being retained to provide legal advice and the retainer was subject to solicitor-client privilege. The retainer letter provided that the lawyer was to conduct an “independent external investigation” and that the resulting report will “contain findings of fact and independent privileged recommendations, opinions and advice.”[^9]
[30] In response, the plaintiff says that the issue of whether an “independent” investigation by a lawyer is inconsistent with a solicitor-client relationship was not directly argued in Howard and there is no analysis in the case on this point. However, what is clear from Howard is that the court considered and reviewed the questions that the lawyer was retained to provide advice upon and concluded that they were questions “which necessarily require legal analysis.”
[31] I do not accept that the public description of Bennett Jones as independent is incompatible with a solicitor-client relationship. The label “independent” in public-facing documents ought not to be determinative in the characterization of the legal relationship between TCHC and Bennett Jones in the same way that labelling a document “without prejudice” or “privileged and confidential” is not determinative of whether it is privileged. Indeed, the Bennett Jones Report is labelled “privileged and confidential” but that does not determine the point either. Further, it is certainly possible that “independent” and “third-party” was being used in this context to refer to an external law firm as opposed to an internal investigation by in-house counsel or others within TCHC.
[32] The defendants also rely on the decision of the Manitoba Court of Appeal in Gower v Tolko Manitoba Inc.,[^10] which is similar in a number of respects to the case at bar. In Gower, a lawyer was retained by a company to investigate a harassment complaint against one of its employees, the plaintiff. The lawyer investigated the complaint and recommended that the plaintiff be terminated. The issue for the court was whether the report prepared by the lawyer was solicitor-client privileged and whether it was required to be produced to plaintiff in her wrongful dismissal action. The court held that the report was covered by solicitor-client privilege.
[33] In the course of its decision, the court in Gower commented on the importance of the investigation of facts as part of the process of providing legal advice, stating:[^11]
…legal advice is not confined to merely telling the client the state of the law. It includes advice as to what should be done in the relevant legal context. It must, as a necessity, include ascertaining or investigating the facts upon which the advice will be rendered. Courts have consistently recognized that investigation may be an important part of a lawyer's legal services to a client so long as they are connected to the provision of those legal services.
[34] In considering the case before them, the Manitoba Court of Appeal held:
37 In the situation at hand, it is clear from the evidence that Janzen was asked to investigate and perform a fact-finding function. If that is all she was asked to do then, regardless of the fact that she is a lawyer, she would not have been providing legal advice and would have been acting as an investigator, not as a lawyer. Consequently, legal advice privilege would not have been available.
38 However, there is strong evidence that she was asked to do more. The investigation to determine the veracity of the allegations made against the plaintiff was only one part of her tasks. It is clear that the client requested Janzen make recommendations based on the facts that she gathered and provided advice with respect to the legal implications of those recommendations. Thus, the fact gathering was inextricably linked to the second part of the tasks, the provision of legal advice.
[35] In Gower, the “strong evidence” referred to included a retainer letter which explicitly provided that the investigator/ lawyer would provide legal advice based on her findings of facts and conclusions as well as affidavit evidence from the manager of the defendant who retained the lawyer. The plaintiff correctly points out that the defendants have not submitted this type of evidence in the case at bar.
[36] In Slansky v Canada (Attorney General),[^12] the Federal Court of Appeal considered whether a report prepared by a law professor about a complaint made against a judge was covered by solicitor-client privilege. Notwithstanding that the engagement letter between the Canadian Judicial Council and the law professor did not expressly include the provision of legal advice as part of the retainer, the court held that:[^13]
…a lawyer and client relationship will be established held if the lawyer had been engaged to provide services in a legal context for which a lawyer's skills and knowledge are necessary, even if the services might not be regarded as the provision of legal advice in the ordinary sense, because, for example, the lawyer neither informs the client about their legal rights or duties, nor expressly advises on action to be taken by the client given the client's legal position.
[37] The court in Slansky went on to consider the affidavit filed on behalf of the Canadian Judicial Council as well as the context of the retainer to determine whether solicitor-client privilege protected the law professor’s report.
[38] In determining whether privilege arises in this case, I do not have either a retainer letter (if it exists) or an affidavit from TCHC on the issue. What I do have is the entire Bennet Jones Report. Before turning to the Bennett Jones Report, it is worthwhile to review the mandate of RT, as described in its report.
[39] Underneath the title “Introduction and Mandate” the RT Report states:
On September 21, 2018, we were retained by Ismail Ibrahim, General Counsel and Corporate Secretary, [TCHC], to conduct an investigation into allegations put forward by …, a former TCHC employee, against Kathy Milsom, the TCHC Chief Executive Officer (CEO). In a meeting held on September 13, 2018, with a member of the TCHC Board of Directors, Ms. Murray alleged that Ms. Milsom had engaged in improper hiring and procurement processes and had interfered with an ongoing investigation by Rubin Thomlinson LLP into TCHC on another unrelated matter.
We were asked to make factual findings in relation to the allegations and measure those findings against TCHC’s Hiring Policy, Conflict of Interest Policy, Procurement Policy and the associated procurement procedures and protocols. We were advised by Mr. Ibrahim that he intended to rely on our report to assist him in providing TCHC with legal advice in respect of this matter.
[40] Thus it is clear that RT was not engaged to provide legal advice.
[41] The Bennett Jones Report is titled “Investigation Report: In Relation to TCHS’s RFP 18046 for Change Management Consulting Services” . The authors are stated to be two partners at Bennett Jones and the report is “Presented to the Board of Directors of Toronto Community Housing Corporation.” It is dated the same day as the board meeting and is in the form of a slide deck. The words “Privileged and Confidential” appear on the cover page and throughout the document. As I have said, marking the document “privileged and confidential” does not make it so.
[42] The first slide after the title page is the Table of Contents which states:
Milsom’s Engagement of Orchango
Bennett Jones Investigation
Finding 1: Milsom Improperly Influenced the RFP Process
Finding 2: Milsom Withheld Information Regarding Orchango from the Board
Recommendations
[43] The report concludes with a slide stating “Recommendations” followed by two slides each headed “Recommendations”. The first recommendation slide simply states: “Whistleblower Policy.” The second recommendation slide reads:
Employment
Kathy Milsom
Andrew McKenzie
Others
[44] The minutes of the February 19, 2019 board meeting list the attendees as being Mr. Marshman, ten other directors and four lawyers from Bennett Jones. TCHC’s general counsel is not recorded as being present. As set out in paragraph 15 above, the minutes record that at this meeting a motion was carried directing Bennett Jones to give the plaintiff until 9:00 a.m. the following day to resign, failing which she will be terminated for cause.
[45] Based on the evidence before me, I find that Bennett Jones was providing legal advice to TCHC. As is clear from the introduction to the RT Report quoted above, RT was not engaged to provide legal advice; rather its report was going to be used by General Counsel to provide legal advice to the Board. TCHC retained Bennett Jones which conducted a further investigation (including a forensic document review) and provided “recommendations” to the TCHC board at its board meeting on February 20, 2019 (which was not attended by general counsel). These “recommendations” related to a “whistleblower policy” and the “employment” of Ms. Milsom, Mr. McKenzie and others. During that meeting the board decided to direct Bennett Jones to give Ms. Milson the option to resign, failing which she would be terminated for cause. I conclude that Bennett Jones was providing legal advice to TCHC including with respect to Ms. Milsom’s employment with TCHC.
[46] The plaintiff argues that even if the Bennett Jones Report was solicitor-client privileged, the privilege does not extend to the underlying documents, in particular the interview notes taken by Bennett Jones.
[47] In Camp Development Corp v South Coast Greater Vancouver Transportation Authority the court held:[^14]
…privilege extends to more than the individual document that actually communicates or proffers legal advice. The reality is that in order for a lawyer to provide advice, he or she will often require history and background from a client. The lawyer will often be asked to provide legal advice that best advances a particular business strategy or objective. He or she may repeatedly contact the client asking for clarification of some issue that is salient to the retainer and to the advice being sought. The first expression of an opinion prepared, whether in a letter or in a commercial document, may elicit further comment from the client and require revision. It is this chain of exchanges or communications and not just the culmination of the lawyer’s product or opinion that is privileged.
[48] Reis v CIBC Mortgages Inc.[^15] is also a case involving a workplace investigation and a claim for wrongful dismissal. The plaintiff commenced an action for wrongful dismissal against the defendant bank and also initiated a human rights complaint in connection with her termination. A bank employee was instructed by in-house counsel to conduct an investigation. The employee used her investigation notes in preparing a draft response to the Human Rights Commission. The court found that the letter to the Human Rights Commission that was composed using the notes was not privileged, as it had been forwarded to the Commission. However, the court held that the notes themselves were protected by privilege as they were prepared for confidential communications between the defendant and its in-house lawyer for the purposes of receiving legal advice about the human rights complaint. The court further held that the facts relevant to the issues in the action must be revealed, notwithstanding that the parties’ source of information was contained in a privileged document. The court said that if asked, the defendant would be obliged to provide names and addresses of persons interviewed if such persons had relevant knowledge, as well as a summary of the substance of relevant evidence.
[49] In his submissions, Mr. Berall agreed that the defendants would have had to provide summaries of the witness investigations if asked, but said that the question was not asked on discoveries and the motion is for production of the interview notes, not a summary of the interviews. Mr. Dewart notes that the defendants delivered the Bennett Jones Report only after the discoveries and suggested that I should order production of the summaries now, “in the interest of justice”, rather than making the plaintiff wait to the next round of discoveries, even if I accept the defendants’ arguments that the notes are protected by privilege and the privilege has not been waived.
[50] I agree with the defendants that the solicitor-client privilege extends to the investigation file including the interview notes. As the plaintiff did not ask for summaries of the interviews at the examination for discovery, I decline to order that the defendants provide them. The plaintiff will have an opportunity to ask for such summaries at the continued examinations.
Issue 2 – Whether the privilege was waived.
[51] The plaintiff argues that TCHC has waived any privilege associated with the Bennet Jones investigation.
[52] An express waiver occurs “where the holder of the privilege (1) knows of the existence of the privilege; and (2) voluntarily evinces an intention to waive it.”[^16] Nonetheless, an implied waiver of solicitor-client privilege may occur where “fairness requires it and where some form of voluntary conduct by the privilege holder supports a finding of an implied or objective intention to waive it.”[^17]
[53] The Divisional Court has elaborated on the concept of implied waiver, stating in part:[^18]
[82] Winkler J. in Leigh Instruments, at para. 46, quoted with approval from the decision by McLachlin J. (as she then was) in S. & K. Processors Ltd. v. Campbell Ave. Herring Producers Ltd., 1983 CanLII 407 (BC SC), [1983] B.C.J. No. 1499, 45 B.C.L.R. 218 (S.C.):
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 the 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.
As pointed out in Wigmore on Evidence (McNaughton rev., 1961), vol. 8 . . . double elements are predicated in every waiver -- implied intention and the element of fairness and consistency. In the cases where fairness has been held to require implied waiver, there is always some manifestation of a voluntary intention to waive the privilege at least to a limited extent. The law then says that in fairness and consistency, it must be entirely waived.
[84] The principles of fairness and consistency temper and guide when waiver of privilege is deemed to occur. Whether fairness and consistency require implied waiver of privilege is case specific and factually dependent. The court provides an important gatekeeper function to avoid inappropriate requests for disclosure, balancing fairness with the importance of solicitor-client privilege. Deemed waiver and disclosure will be limited to circumstances where the relevance of the evidence in question is high, and the principles of fairness and consistency require disclosure to allow a party to adequately defend.
[54] As noted by Justice Sharpe (as he then was) in Transamerica Life Insurance Co. of Canada v Canada Life Assurance Co:[^19]
It is plainly not the law that production of one document from a file waives the privilege attaching to other documents in the same file. It must be shown that without the additional documents, the document produced is somehow misleading [citation omitted].
[55] In Cromb v Bouwmeester,[^20] a motor vehicle action, the defendants produced two surveillance reports and related DVDs regarding two rounds of surveillance on the plaintiff but claimed litigation privilege over a later surveillance report and DVD. The court held that by producing the earlier surveillance reports and DVD, the defendants waived privilege over the later surveillance and report. The selective disclosure of surveillance evidence amounted to ‘cherry-picking’ of favourable evidence which could be misleading. However, the court refused to order the production of the foundational materials upon which the investigators relied, finding that in the circumstances, such production was not necessary in the interests of fairness and consistency. The court noted that the analysis of whether production is necessary in the interests of fairness and consistency is a very case-specific exercise.
[56] The plaintiff contends on various grounds that TCHC has waived privilege over the Bennett Jones investigation documents which I discuss below.
[57] The plaintiff contends that privilege was waived when the defendants pleaded facts related to the investigation. In their statement of defence, the defendants pleaded that during the course of the Bennett Jones investigation, TCHC learned that the plaintiff used her personal email account to conduct TCHC-related business. The defendants also pleaded that the plaintiff did not fully cooperate in the investigation. Through these pleadings the defendants have made the facts and documents related to these allegations relevant and producible. However, the defendants cannot be said to have waived solicitor-client privilege. The defendants do not, for instance, plead that they relied on legal advice from the investigators in terminating Ms. Milsom.
[58] The plaintiff takes the position that by publicly disclosing certain findings from the investigation, the defendants have waived privilege. If the defendants had refused to disclose the entirety of the Bennett Jones report when portions of it were in the public domain, this may very well have been a case where consistency and fairness called for the whole report to be disclosed. However, I do not have to decide this as the defendants have produced the entirety of the Bennett Jones Report. The fact that portions of the report have been made public does not mean that the privilege has been waived over the investigation files or legal advice.
[59] The plaintiff also argues that the defendants waived privilege when they disclosed the results of the investigation to the plaintiff in her termination letter and relied upon them in terminating her employment. The termination letter states in part: “The Board has since reviewed the results of the investigation and concluded that…” At discovery the plaintiff is entitled to ask what results from the investigation the board relied upon in terminating her and is entitled to ask about the underlying facts, but the defendants’ reference to the investigation in the termination letter does not waive privilege over the entire investigation file. The letter says that the board relied upon the results of the investigation, not the legal advice provided by Bennett Jones based on their findings.
[60] The plaintiff submits that the defendants waived privilege by producing the Bennett Jones Report. This document refers to evidence given by the witnesses to the investigators. As noted above, production of the report does not amount to waiver of privilege over the entire file. Moreover, although the investigator notes of witness interviews are privileged, the plaintiff is entitled to obtain a summary of the witness interviews at the examinations for discovery.
[61] During the examinations for discovery Mr. McKenzie and Mr. Marshman answered questions on discovery about what the witnesses told the investigators. The plaintiff argues that privilege has thereby been waived. Reponses to examinations for discovery and questions on cross-examination generally cannot amount to waiver.[^21]
[62] The defendants have already produced the entire Bennett Jones Report “without prejudice” which sets out in some detail the findings regarding the plaintiff’s conduct. The plaintiff is entitled to obtain a summary of the evidence of the witnesses interviewed during the course of its investigation on examination for discovery (provided they have relevant evidence). Further, she is entitled to production of relevant documents uncovered by the investigation, such as documents retrieved from TCHC’s server and the plaintiff’s personal email account, which are said to have already been produced. However, I do not find that it is necessary that the investigation file (including investigator notes of witness interviews and correspondence between TCHC and Bennett Jones) be produced in order for the plaintiff and the court to receive a complete and non-misleading picture of the relevant evidence. I find that that the interests of fairness and consistency do not require that the three questions refused be answered.
DISPOSITION AND COSTS
[63] The motion is dismissed.
[64] If the parties cannot agree on the costs of this motion, they may file written costs submissions not to exceed three pages (double-spaced) excluding costs outlines. The defendants shall deliver their costs submissions by November 15, 2021, and the plaintiff shall deliver her costs submissions within two weeks thereafter.
L. La Horey, A.J.
Date: 20211025
[^1]: The plaintiff originally moved on a longer list of questions refused but by the time the matter was reached for hearing, the parties had resolved all but three related questions.
[^2]: Question 497, page 145
[^3]: Question 630, page 177
[^4]: Question 631, page 177-178
[^5]: See for example, Slansky v Canada (Attorney General), 2013 FCA 199, Gower v Tolko Manitoba Inc., 2001 MBCA 11, Camp Development Corp. v South Coast Greater Vancouver Transportation Authority, 2011 BCSC 88, and Howard v London (City), 2015 ONSC 3698.
[^6]: Pritchard v Ontario (Human Rights Commission), 2004 SCC 31 at paras 17 - 18
[^7]: Pritchard v Ontario (Human Rights Commission), 2004 SCC 31 at para 15 quoting from Solosky v The Queen (1979), 1979 CanLII 9 (SCC), [1980] 1 SCR 821 at p. 837.
[^8]: 2015 ONSC 3698
[^9]: Ibid at para 6 (emphasis in original)
[^10]: 2001 MBCA 11. This decision was cited as “the leading authority on legal advice privilege respecting a report by a lawyer who has been instructed by a client to investigate a complaint of improper conduct” in Slansky v Canada (Attorney General), 2013 FCA 199 at para 80.
[^11]: At para 19
[^12]: 213 FCA 199
[^13]: Ibid at para 89
[^14]: 2011 BCSC 88 at para 40
[^15]: 2011 ONSC 2309 (Master)
[^16]: R v Youvarajah, 2011 ONCA 654 at para 146
[^17]: R v Youvarajah, 2011 ONCA 654 at para 147
[^18]: Roynat Capital Inc. v Repeatseat Ltd., 2015 ONSC 1108 (Div Ct) at para 82, 84
[^19]: 1995 CanLII 7258 (ON SC), [1995] OJ No 3886 (Gen Div) at para 41
[^20]: 2014 ONSC 5318
[^21]: Davies v American Homes Assurance Co., 2002 CanLII 62442 (ON SCDC), [2002] OJ No 2696 at para 26 - 27 (Div Ct)