COURT FILE NO.: CV-15-542991

DATE: 20211126

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jardine Lloyd Thompson Canada Inc., Marsh Canada Limited, and Marsh & McLennan Holdings (Canada) ULC

AND:

Terrence Patterson, Paul Dorman, Aon Reed Stenhouse Inc., Mark Thom, RT Partners Executive Search Consultants Inc. c.o.b. RT Partners Inc., Betty Singh, Kyle David, Judith Daniels, Amanda Stockfish, Jeff McIntosh and Jeff Musser

BEFORE: W.D. Black, J.

COUNSEL: Mark Veneziano, Jonathan Chen and Sean Blakeley for the Plaintiffs Matthew P. Gottlieb, Lars Brusven and Connia Chen for the Defendants

HEARD: November 25, 2021

ENDORSEMENT

Overview of Motion

[1] This is a preliminary motion brought by the plaintiffs (“JLT”) on the eve of a trial, which was scheduled to start at the beginning of this week. The start of the trial was delayed, in part, to accommodate this motion.

[2] JLT maintains that as a result of receiving answers as late as a week ago to questions previously refused (during examinations for discovery several years ago), and as a result of the potential significance of that evidence, that it is entitled to further productions and/or discovery of one or more of the individual defendants in relation to the new information.

[3] There is no doubt that the defendants (“Aon” and the “Individual Defendants” — collectively the “Defendants”) provided answers to a handful of questions they had refused to answer at discovery, and that this information was provided on September 16, October 4, and November 18, 2021 (the “Recent Answers”), in the face of a trial which was scheduled to commence on November 22, 2021.

[4] Defendants’ counsel candidly acknowledges that this was not done entirely altruistically — i.e., not on the basis that previously undisclosed relevant information had just come to the Defendants’ attention — but rather was done, in part, to allow the Defendants to present certain evidence without concern for objections and potential delay. Counsel also fairly acknowledges that the very act of providing the additional information confirms, at least in a general way, the relevance of that information to the issues in this proceeding. Counsel says, though, that although the information has relevance in the abstract, it has little to no relevance to issues framed in the pleadings.

[5] JLT takes the position that the law is clear that new responses to questions asked on discovery, particularly when those questions have been the subject of refusals, gives it a right to additional discovery relative to those answers.

[6] JLT points to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and to the decision of Master MacLeod (as he then was) in Senechal v. Muskoka (Municipality), 2005 11575 (Ont. S.C.), as well as other cases, as support for its request for further discovery. As a general proposition, it is clear that the provision of new information by one side may give rise to further rights of discovery and follow-up by the other side.

[7] JLT also submits that it is unfair for the Defendants to point to the imminent trial currently hanging over the parties as a basis to preclude further discovery. It says that doing so would effectively reward the Defendants for the eleventh-hour delivery of new information, and allow them to benefit from the lateness of that delivery.

What JLT Seeks

[8] In terms of what JLT seeks by way of further discovery, the requests in its motion record range from very broad to somewhat more specific. However, paragraph 12 of JLT’s Notice of Motion appears to capture the essence of its request. That paragraph states that “[T]he Plaintiffs are entitled, at the very least, to documentary production relevant to the answers that Aon has now decided to provide at this late juncture.”

[9] I raised concerns with JLT’s counsel, both at the outset of his submissions and then again during his reply, about the impact of any additional discovery order I might make on the commencement of the trial and, relatedly, the ability to complete the trial in the available time. While (understandably) hedging his bets a bit in terms of remedy, counsel’s bottom line was that JLT should immediately receive a reasonable array of documents from the Defendants linked specifically to the new answers. While his submissions (consistent with the motion record) also at times contemplated the idea of limited additional oral examinations for discovery of several Individual Defendants, he ultimately acknowledged that this would inevitably lead to further disputes about the proper scope of such further discovery, and would undermine any prospect of proceeding to trial now. While all of this is subject to his fundamental point that JLT ought not to be punished for the Defendants’ late production, he is also practical about the need to get on with the trial.

Defendants’ Position

[10] The Defendants, for their part, argue that, while notionally relevant in a broad sense, the “new information” provided is not really new, and not relevant to, or at least probative of, issues framed by the pleadings.

[11] They argue that JLT’s requests, particularly those contained in paragraphs 1 and 2 of their motion record, seeking as they do production of the entirety of various Aon files, are exceedingly broad, and out of proportion to any reasonable scope of additional discovery in relation to the late-breaking answers (which, as set out above, the Defendants say should be non-existent).

The Recent Answers in Issue

[12] Both parties referred in their submissions to a chart reproduced from the affidavit (of Sean Blakeley) in JLT’s motion record.

[13] In three charts in his affidavit, combined into a single handout for the purposes of argument, Mr. Blakeley sets out questions asked of the Individual Defendants on discovery, and then, where information has been provided in the Recent Answers, sets out that information as well.

[14] JLT’s counsel uses the Recent Answers to illustrate discrepancies and inconsistencies between the Recent Answers and other evidence in the record. He says that, as such, in addition to being unacceptably late, the Recent Answers also create confusion in the record, which requires clarification.

[15] He argues that the Recent Answers confirm the involvement of certain Individual Defendants in responses to requests for proposal (“RFPs”) once at Aon, which is at odds with previous representations about their involvement or, at the very least, inconsistent with earlier representations about the timing of such involvement. He points out that if the Recent Answers had been provided earlier, he would have had the right to further discovery and further productions to clarify the timing, nature, and extent of the Individual Defendants’ involvement in various Aon files and mandates.

[16] In response, the Defendants argue that virtually all of the information encompassed by the Recent Answers is information known to JLT from earlier productions.

[17] Moreover, they say that the requests for information go beyond the time frames during which the relevant employment agreements of the Individual Defendants precluded them from: (a) recruiting other JLT employees or (b) soliciting on behalf of Aon known customers or potential customers of JLT with whom an Individual Defendant worked or to which he or she submitted a proposal (or participated in the submission of that proposal). In seeking information beyond those parameters, the Defendants say that JLT is repeating its unsuccessful attempt (albeit with prior counsel at the helm) to compel answers to questions refused on discovery by way of a refusals motion.

Procedural History of Refusals and Productions

[18] That refusals motion was brought before Master Jolley (as she then was) in December 2017. It was wholly and comprehensively unsuccessful, with the Master upholding each and every refusal with respect to each and every Individual Defendant.

[19] Master Jolley’s decision was appealed to Justice Myers, who saw no reversible error and dismissed the appeal.

[20] Both Master Jolley and Justice Myers specifically noted that the questions refused had been overly broad; as Justice Myers put it, “they did not ask for documents that are probative of an issue”, but “[r]ather they sought whole groups of documents to cull in hopes of finding relevant documents” and that it was inappropriate to “make bold sweeping allegations of unparticularized conclusory wrongdoing then then ask for every document produced by a business for all time.”

[21] It is evident that both Master Jolley and Justice Myers allowed for the possibility that narrower and more focused questions might fairly elicit relevant evidence, but that the broad scope of the questions turned them into “fishing expeditions pure and simple.”

[22] Perhaps taking a cue from the respective jurists’ suggestion that there may still be relevant information available, JLT’s then counsel next brought a motion, in 2018, for a further and better affidavit of documents (the “2018 Productions Motion”). In its motion record, JLT sought production of records, including RFP records, relative to a number of JLT and/or Aon customers, to whom one or both firms had submitted proposals at various points. The 2018 Productions Motion was ultimately settled on the basis of the Defendants’ agreement to produce its RFP responses for a subset of the customers in issue, maintaining refusals to produce RFP responses for other customers, and continuing to refuse to produce Broker of Record (“BOR”) information with respect to another category of customers.

[23] The Defendants argue that the net effect of the failed refusals motion before Master Jolley, the unsuccessful appeal before Justice Myers, and the settlement of the 2018 Productions Motion, is that JLT is now estopped from seeking any further production of documents that were previously sought in those proceedings or (in the case of the settlement of the 2018 Productions Motion) foregone in those proceedings.

[24] They allege that the 2018 Productions Motion sought “broad categories of documents previously sought on [the plaintiffs’] refusals motion, as well as documents [the plaintiffs] now seek in their current motion.”

[25] They say that applying issue estoppel would create no prejudice to the plaintiffs, “as they have now had numerous opportunities to seek the documents requested, including at discovery, on the refusals motion, and on the 2018 AOD Motion, which was settled by the parties.”

[26] In response, JLT argues that the Defendants, having now provided answers to various questions previously refused, have created new circumstances than those present in the refusals motion and the 2018 Productions Motion. They say that it is irrelevant that this court previously upheld refusals made at discovery because by now choosing to answer some of the initially refused questions, the Defendants have triggered JLT’s right to further discovery properly arising from those answers.

Conclusion on Issue Estoppel

[27] I agree that issue estoppel does not apply in these circumstances. If JLT was simply moving, again, in relation to the questions refused, there is no doubt that the decisions of Master Jolley and Justice Myers would prevent such a further attempt. But that is not what is happening before me. By choosing, for what I accept to be legitimate tactical considerations (albeit very late in the day), the Defendants have altered the litigation landscape. JLT is not moving against refusals; rather, it is requesting additional discovery with respect to newly produced information.

[28] In that regard, I also do not accept the Defendants’ submission that the information is not really new, nor probative of any issue in play. The Defendants did not produce the Recent Answers for no reason. They clearly saw a tactical advantage in having that information in the fray. Again, apart from the timing, I have no particular quarrel with that determination, but having elected to put the information in play, the Defendants must live with the consequences. In my view, those consequences are a modicum of additional production obligations in relation to the Recent Answers.

[29] The trick now is to determine what additional information is fair to require the Defendants to produce to JLT, in order to allow JLT to understand the Recent Answers in context.

Scope of Additional Material to be Provided

[30] To be clear, I do not accept that the Recent Answers open the door to additional discovery nearly as widely as the broadest version of JLT’s position would suggest. Indeed to expand the scope to that extent would be at odds with Rule 1.04(1) and (1.1).

[31] Rather, I am inclined to order additional documentation in keeping with the request in paragraph 12 of JLT’s motion record which, as set out above, seeks documentary production specifically relevant to the Recent Answers.

[32] In each case, it remains to be determined: (1) which RFP responses or BOR files are put in issue by the Recent Answers; and (2) what documents from within those files are relevant to, and provide appropriate context for, the Recent Answers.

[33] Dealing with the latter question first, counsel for JLT provided a response to my question about what kinds of file documents he would suggest (having regard to my stated intention not to provide full-blown access to entire files, which, in my view, would be an overbroad interpretation of what is relevant to the Recent Answers). His response was that he would seek emails, draft documents, and other correspondence and documents showing the involvement (or otherwise) of the Individual Defendants, or any of them, and their roles, if any, in relation to the business or potential business in issue (the “Limited File-Specific Evidence”). He says that he wants access to information of this type because it will either confirm or refute the Individual Defendants’ claims concerning their involvement (or more typically lack of involvement) in the files at issue. He candidly says that he does not know exactly what the contents of an Aon response to RFP file would look like, and so is making his best estimate of the type of information that should be present and would yield clarity about the role(s) of the Individual Defendants.

[34] I note here that part of the Defendants’ stated concern about production of any RFP response file contents is that it might provide to JLT (now Marsh) — one of Aon’s competitors — sensitive commercial information.

[35] As such, noting that fair proviso, I agree that the Defendants should immediately, in regard to those files that I determine should be the subject of further disclosure (discussed below), provide emails, draft documents, and other correspondence showing what role, if any, the Individual Defendants played in relation to those files. However, the Defendants may expurgate any commercially sensitive information (on the understanding that if there is a dispute about the propriety of claims of commercial sensitivity, I will review the unexpurgated version of the document in question to determine the required scope of protection).

[36] There are different time frames relative to the Individual Defendants, based on their respective start dates with Aon. I believe that a fair cut-off point for the Limited File-Specific Evidence is the end of the calendar year 2016.

[37] In terms of the files from which he would seek such information, relying on the Recent Answers provided by Christine Lithgow — which confirm specific involvement of Individual Defendants in specific files at different points in time, and which purport to incorporate by reference affidavits sworn by the Individual Defendants in response to the 2018 Productions Motion — JLT seeks, first, the Limited File-Specific Evidence in relation to the RFP and RFP response files for the Township of Carling, the Township of Conmee, the Upsala District Services Board, the Kenora District Social, the Thunder Bay District Social, the County of Perth, and Northern Bruce Peninsula. The Recent Answers of Christine Lithgow do in fact provide statements concerning the involvement (or otherwise) of the Individual Defendants in relation to each of these files. As such, I find that this request is reasonable in the circumstances.

[38] In addition, JLT notes that the Town of Haliburton — which was included in the subset of customers for which information was provided in the settlement of the 2018 Productions Motion, and, as shown in other documents, included a team containing all of the Individual Defendants — was not included in the list provided in the Recent Answers from Christine Lithgow. It says that it ought to have been.

[39] While perhaps that is the case, I am not persuaded that a municipality not mentioned in the Recent Answers should be swept up to require production of Limited File-Specific Evidence. Since the Town of Haliburton is not included nor mentioned in the Recent Answers, the information relative to it is in fact still governed by the results of the refusals motion and its associated appeal, as well as the 2018 Productions Motion settlement. As a result, no additional production obligation is triggered.

[40] With respect to the Recent Answers of Jeff Musser, JLT notes that the Recent Answers reflect discrepancies relative to the time frame for which Mr. Musser’s answers are provided, relative to the actual time frame through which Mr. Musser’s non-solicit restrictions applied, and discrepancies with other information, in particular within the Recent Answers of Terrance Patterson, showing that at least one BOR transition occurred during the relevant time frame.

[41] With respect to these Recent Answers, JLT seeks, in light of these discrepancies, production of Limited File-Specific Evidence showing communications between Aon, including in particular emails to and from Kip Cosgrove, who had a role with respect to the BORs for Volunteer Fire Department accounts, and the Volunteer Fire Service customers and potential customers, to encompass the period until Mr. Musser’s non-solicitation restrictions expired, being November 9, 2016. Given the discrepancies evident from the Recent Answers, I think that this request is fair and reasonable, and I so order.

Next Steps and Timing

[42] My expectation is that the Defendants should be in a position to provide the Limited File-Specific Evidence very soon. I will wait to hear from counsel (as I will discuss below), but I assume that Defendants’ counsel has all of the relevant materials in hand and, as such, that the necessary review and additional production to comply with this endorsement can be undertaken by no later than Monday.

[43] I also see no reason to further delay the start of trial. While the Limited File-Specific Evidence may be of interest and have some impact on JLT’s specific approach to the evidence at trial (or it may not, that remains to be seen) it should, at this late stage, when the parties were otherwise ready to start trial this week, have no substantial impact on JLT’s theory of the case nor its trial strategy more generally.

[44] Moreover, the most significant impact (if any) of the Limited File-Specific Evidence will be when the Individual Defendants are giving evidence. Since I understand and expect that this will not happen for several days, again I see no reason to further delay the start of trial.

[45] Counsel reasonably requested some time to consider and discuss my conclusions on this motion once delivered. In addition, one of the counsel is attending a funeral this morning. As such, I will expect counsel to confer by early afternoon today, and to get back to me by 3 p.m. today, to confirm their ability to comply with the approach contemplated in this endorsement within the time proposed. Alternatively, if either party is suggesting modifications, I am prepared to hear from the parties by email, by telephone, by Zoom conference, or in person in the courtroom later today. In any event, as set out above, I am expecting the parties to be in the courtroom Monday morning at 10 a.m., ready to start the trial.

[46] Finally, I am not inclined to make any order as to costs of this motion. While there is room to argue about which party was most successful, I am aware from recent case conferences that there has been a flurry of additional production, on both sides, over the last few weeks. While I appreciate that this is sometimes unavoidable, I think that it is fair to observe that neither party has achieved strict compliance with the timing prescribed by the rules for productions, and that each side can likely complain about the other side’s efforts in that regard. Rather than descending into that discussion, I expect the parties to now put the productions issues behind them, and to get on with the trial.

W.D. Black J.

Date: November 26, 2021