Superior Court of Justice – Ontario
MOTION HEARD: 20210922
REASONS RELEASED: 20211129
BETWEEN:
Christopher Zeppa
Plaintiff
- and-
KAREN REA
Defendant
BEFORE: ASSOCIATE JUSTICE McGRAW
COUNSEL: E. Bisceglia and A. DiBiase E-mail: ebisceglia@lawtoronto.com -for the Plaintiff
C. Di Carlo E-mail: carlodc@stockwoods.ca -for the Defendant
REASONS RELEASED: November 29, 2021
Reasons For Endorsement
I. Introduction
1This is a motion by the Plaintiff to compel answers to refusals arising from cross-examinations on affidavits filed by the Defendant in support of her motion to dismiss this action as a strategic lawsuit against public participation pursuant to s. 137.1 of the Courts of Justice Act (Ontario)(the “Act”)(the “Anti-SLAPP Motion”). The Anti-SLAPP motion is returnable before a Judge in January 2022.
II. Background
2The Plaintiff Christopher Zeppa is the principal of City Park (Town Crier) Homes Inc. (“CP”). CP submitted applications (the “Applications”) to the City of Markham (the “City”) for the development of a townhouse project (the “Development”) on Town Crier Lane in Markham (the “Property”). The City approved the Applications on December 12, 2017 (the “Approval”). The Defendant Karen Rea is a City Councillor who openly opposed and voted against the Development and the Applications. This action arises from Ms. Rea’s alleged conduct after the Approval.
3On December 29, 2017, two Markham residents, Ruth Winterfield and Stephen Burgess (together, the “Residents”) filed 4 appeals of the Approval (the “Appeals”) with the Ontario Municipal Board (now the Local Planning Appeal Tribunal)(the “OMB”) purportedly on behalf of the Old Markham Village Ratepayers Inc. (the “Ratepayers”). The Defendant acknowledges that she met with the Residents and the Ratepayers, provided advice, helped to draft the Appeals and put out a press release encouraging constituents to attend the Appeal hearing on January 14, 2018. She states that she did not provide any financial support. By decision dated October 12, 2018, the OMB dismissed the Appeals for lack of standing concluding that it did not have valid appeals before it given that the Residents were not members of or associated with the appellant (the Ratepayers) at the time of the Appeals and no submissions were made on behalf of the Ratepayers.
4Prior to the dismissal of the Appeals, CP commenced an action against the Residents and the City by Statement of Claim issued on March 7, 2018 for $10,000,000 in general damages and $100,000 in punitive damages (the “Residents Action”). The Residents brought an anti-SLAPP motion to dismiss CP’s claim. Ms. Rea was cross-examined on the Residents’ motion and refused to produce her communications with the Residents. Prior to the Residents’ anti-SLAPP motion, CP agreed to dismiss its action against the Residents and paid $100,000 in legal costs in exchange for the Residents delivering an Affidavit of Documents which included all of their communications with Ms. Rea (the “Settlement”). The Defendant states that she met with the Residents to discuss the Residents Action and, similar to other Councillors and citizens, contributed $500 towards their legal fees.
5The Plaintiff commenced this action by Statement of Claim dated November 16, 2018 seeking general damages of $10,000,000 for defamation, libel, slander, misfeasance of public office, breach of fiduciary duty and good faith, interference with economic relations, champerty and maintenance and $1,000,000 in punitive damages. In his Fresh As Amended Statement of Claim dated May 4, 2020, the Plaintiff claims an additional $1,000,000 in damages for libel and slander.
6The Plaintiff alleges that after the Approval, the Defendant engaged in a deliberate and unlawful course of conduct outside of her role as a City Councillor to harm the Plaintiff, interfere with the Development and advance her 2018 re-election campaign by recruiting the Residents and the Ratepayers to bring the Appeals, directing the Appeals and providing financial support. The Plaintiff further alleges that in attempting to have the Appeals adjudicated in her favour, the Defendant used City resources and improperly exerted influence with the City and others including asking City staff to delay the issuance of a demolition permit for the Development; voted on the Approval when she knew that she was in a conflict of interest and refused to declare her conflict; attempted to broker a sale for the Property to third parties although it was not for sale; used the media to damage Mr. Zeppa’s reputation; and publicly accosted Mr. Zeppa at a local restaurant, the Duchess of Markham (the “Duchess”) then defamed and harmed his business interests by making false and malicious allegations that he threatened her in a scheme to have him charged by the York Regional Police (the “YRP”).
7On November 27, 2018, the Plaintiff filed a complaint with the City’s Integrity Commissioner regarding the incident at the Duchess on October 27, 2018 (the “Complaint”). Mr. Zeppa alleged that Ms. Rea acted without proper decorum contrary to s. 17 of the City’s Code of Conduct (the “Code”) by “yelling” and “pointing her finger” at him during a verbal exchange then harassed him contrary to s. 18 of the Code by trying to have him charged with a crime. In his report dated March 14, 2019, the Integrity Commissioner concluded that Ms. Rea was the instigator of the incident, breached s. 17 of the Code and recommended that City Council issue a reprimand. City Council received the report but took no further action.
8On October 2, 2020, the Defendant brought the Anti-SLAPP motion seeking dismissal of this action. Alternatively, she seeks summary judgment or dismissal of this action for abuse of process. Ms. Rea has filed 7 affidavits including two of her own sworn January 21 and May 14, 2021 and one each from Joan Kasozi sworn June 4, 2021 and Al Pickard sworn December 18, 2018. The Anti-SLAPP motion was originally returnable on July 13, 2021 but adjourned to accommodate this refusals motion.
9The Plaintiff initially sought answers to approximately 119 refusals arising from the cross-examinations of Ms. Rea, Mr. Pickard and Ms. Kasozi held on June 11 and 15, 2021. With case management at a telephone case conference on August 31, 2021 and during the motion and discussions between counsel, the number of refusals at issue has been reduced from approximately 98 (55 related to the assertion of solicitor-client privilege) to 39 (7 related to solicitor-client privilege).
III. The Law and Analysis
Generally
10Rule 39.02 (1) provides that a party to a motion who has served every affidavit on which the party intends to rely and has completed all examinations of witnesses under rule 39.03 may cross-examine the deponent of any affidavit served by a party who is adverse in interest on the motion.
11The parties agree that the relevant principles on a refusals motion arising from cross-examinations on an affidavit filed on a pending motion were set out by Sossin J. in Sanctuary Ministries of Toronto v. Toronto (City), 2020 ONSC 4708. Sossin J. began his analysis with the following oft-cited passage from Perell J.’s decision in Ontario v. Rothmans Inc., 2011 ONSC 2504:
143 The case law has developed the following principles about the scope of the cross-examination of a deponent for an application or motion:
The scope of a cross-examination of a deponent for an application or motion is narrower than an examination for discovery: BOT Construction (Ontario) Ltd. v. Dumoulin, [2007] O.J. No. 4435 (S.C.J.) at para. 6.
A cross-examination is not a substitute for examinations for discovery or for the production of documents available under the Rules of Civil Procedure: BOT Construction (Ontario) Ltd. v. Dumoulin, supra at para. 7; Westminer Canada Holdings Ltd. v. Coughlan, [1989] O.J. No. 252 (Master), aff'd [1989] O.J. No. 3038 (H.C.J.).
The examining party may not ask questions on issues that go beyond the scope of the cross-examination for the application or motion: Thomson v. Thomson, [1948] O.W.N. 137 (H.C.J.); Toronto Board of Education Staff Credit Union Ltd. v. Skinner, [1984] O.J. No. 478 (H.C.J.) at para. 12; Westminer Canada Holdings Ltd. v. Coughlan, [1989] O.J. No. 3038 (H.C.J.).
The questions must be relevant to: (a) the issues on the particular application or motion; (b) the matters raised in the affidavit by the deponent, even if those issues are irrelevant to the application or motion; or (c) the credibility and reliability of the deponent's evidence: Superior Discount Limited v. N. Perlmutter & Company; Superior Finance Company v. N. Perlmutter & Company, [1951] O.W.N. 897 (Master) at p. 898; Re Lubotta and Lubotta [1959] 0.W.N. 322 (Master); Wojick v. Wojick, 1971 538 (ON SC), [1971] 2 O.R. 687 (H.C.J.); Toronto Board of Education Staff Credit Union Ltd. v. Skinner, [1984] O.J. No. 478 (H.C.J.) at para. 11; BASF Canada Inc. v. Max Auto Supply (1986) Inc., [1998] O.J. No. 3676 (Master) at paras. 6, 10-11; Caputo v. Imperial Tobacco Ltd., [2002] O.J. No. 3767 (Master) at paras. 14-15; BOT Construction (Ontario) Ltd. v. Dumoulin, [2007] O.J. No. 4435 (S.C.J.) at para. 4; Shannon v. BGC Partners LP, 2011 ONSC 1415 (Master) at para. 8.
If a matter is raised in, or put in issue by the deponent in his or her affidavit, the opposite party is entitled to cross-examine on the matter even if it is irrelevant and immaterial to the motion before the court: Wojick v. Wojick and Donger, 1971 538 (ON SC), [1971] 2 O.R. 687 (H.C.J.), at p. 688; Ferring Inc. v. Richmond Pharmaceuticals Inc. [1996] O.J. No. 621 (Div. Ct.) at paras. 14 and 15; Logan v. Canada (Minister of Health), [2001] O.J. No. 6289 (Master); Guestlogix Inc. v. Hayter, 2010 ONSC 5570 at para. 16.
The proper scope of the cross-examination of a deponent for an application or motion will vary depending upon the nature of the application or motion: Blum v. Sweet Ripe Drink Inc. (1991), 47 C.P.C. (2d) 263 (Ont. Master); Moyle v. Palmerston Police Services Board (1995), 1995 10659 (ON SC), 25 O.R. (3d) 127 (Div. Ct.).
A question asked on a cross-examination for an application or motion must be a fair question: Superior Discount Ltd. v. N. Perlmutter & Co., [1951] O.W.N. 897 (Master) at p. 898; Canadian Bank of Commerce (CIBC) v. Molony, [1983] O.J. No. 221 (H.C.J.) at para. 3; Seaway Trust Co. v. Markle, [1988] O.J. No. 164 (Master); BASF Canada Inc. v. Max Auto Supply (1986) Inc., [1998] O.J. No. 3676 (Master) at para. 6. (See discussion below.)
The test for relevancy is whether the question has a semblance of relevancy: Re Lubotta and Lubotta [1959] O.W.N. 322 (Master); Rodriques v. Madill, [1985] O.J. No. 1666 (Master).
The scope of cross-examination in respect to credibility does not extend to a cross-examination to impeach the character of the deponent: Moyle v. Palmerston Police Services Board (1995), 1995 10659 (ON SC), 25 O.R. (3d) 127 (Div. Ct.).
The deponent for an application or motion may be asked relevant questions that involve an undertaking to obtain information, and the court will compel the question to be answered if the information is readily available or it is not unduly onerous to obtain the information: Bank of Montreal v. Carrick (1974), 1973 381 (ON SC), 1 O.R. (2d) 574 (Master), aff'd ibid p. 574n (H.C.J.); Mutual Life Assurance Co. of Canada v. Buffer Investments Inc. (1985), 1985 1940 (ON SC), 52 O.R. (2d) 335 (H.C.J.) at paras. 9-13; Caputo v. Imperial Tobacco Ltd., [2002] O.J. No. 3767 (Master) at paras. 42, 56; BOT Construction (Ontario) Ltd. v. Dumoulin, [2007] O.J. No. 4435 (S.C.J.) at para. 8; Hinke v. Thermal Energy International Inc., 2011 ONSC 1018 (Master) at paras. 36-37.
The deponent for a motion or application who deposes on information and belief may be compelled to inform himself or herself about the matters deposed: Rabbiah v. Deak, [1961] O.W.N. 280 (Master); Caputo v. Imperial Tobacco Ltd., [2002] O.J. No. 3767 (Master) at paras. 42, 46.” (Sanctuary at para. 17)
12Sossin J. went on to add:
“18 Since Rothmans, courts have confirmed that the standard of a "semblance of relevance" no longer has application. Consequently, the point of departure for refusals on this motion is the threshold of "relevance"; Mars Canada Inc. v. Bemco Cash & Carry Inc., [2013] O.J. No. 5639 (Master), at para 12, aff'd 2014 ONSC 4172.
19 With respect to determining whether a question asked is relevant, the key factor is whether an answer could be relied on by a trier of fact to determine an issue on the motion. In other words, relevance and probative value are closely related factors in addressing refusals. As Master Haberman stated in Romspen Investment Corporation v. Woods et al., 2010 ONSC 30005, at para. 16:
[16] In view of recent amendments to the Rules, the degree of connection between the question asked and the matters in issue is now relevance, rather than "semblance of relevance". I am of the view that, in most instances, there is no significant difference between the two standards of disclosure. At the end of the day, regardless of whether the test is relevance or semblance thereof, the approach comes down to this: subject to privilege, if the question asked could elicit a response that the trial judge could rely on to resolve a matter in issue before him, the test has been met - the question asked is relevant. (Emphasis added.)
20 There are important differences, however, between a Rule 39.03 examination, where the witnesses are only required to provide information that is within their personal knowledge, and an examination for discovery, where witnesses who have provided an affidavit may be required to obtain information not within their personal knowledge.”
13Sossin J. next considered relevance within the scope of the motion and the affidavit at issue followed by proportionality (Sanctuary at paras. 23-26).
14Consistent with the court’s approach in Sanctuary, determining relevance requires a consideration of whether the motion Judge could rely on an answer in determining or resolving an issue on the pending Anti-SLAPP Motion.
15Section 137.1 of the Act states:
(1) The purposes of this section and sections 137.2 to 137.5 are,
(a) to encourage individuals to express themselves on matters of public interest;
(b) to promote broad participation in debates on matters of public interest;
(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.
(2) In this section,
“expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.
(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.
(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,
(a) there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding; and
(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
16The objective of s.137.1 is to quickly identify and deal with strategic lawsuits in order to minimize the emotional and financial strain on defendants and strike a balance that will help ensure abusive litigation is stopped and legitimate actions can continue (Subway at para. 38). The parties agree that the test on a motion under ss. 137.1(3) and (4) of the Act is as follows: i) the defendant has the onus of satisfying the court that the plaintiff’s proceeding arises from an expression that relates to a matter of public interest; and ii.) if the defendant meets this threshold, the plaintiff must demonstrate that there is grounds to believe that their proceeding has substantial merit, the moving party has no valid defence and the harm likely to be suffered by the respondent is sufficiently serious such that the public interest in allowing the proceeding to continue outweighs the public interest in protecting that expression (Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26 at paras. 42-46).
17The Supreme Court of Canada has held that in considering anti-SLAPP motions, the motion judge need only conduct a preliminary assessment and must be acutely aware of the limited record, the timing of the motion in the litigation process and the potentiality of future evidence arising (1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 at para. 37). The Supreme Court described and distinguished an anti-SLAPP motion as follows:
“38 Section 137.1(4)(a) may therefore be interpreted by distinguishing a motion made under s. 137.1 from a motion to strike and a motion for summary judgment, both of which are tools that remain available to parties notwithstanding the existence of s. 137.1. The very fact that the legislature created s. 137.1 as a mechanism indicates that a s. 137.1 motion was meant to fulfil a different purpose than these other motions. While a summary judgment motion allows parties to file a more extensive record and a motion to strike is adjudicated solely on the pleadings, s. 137.1 contemplates that the parties will file evidence and permits limited cross-examination. This suggests that the parties are expected to put forward a record, commensurate with the stage of the proceeding at which the motion is brought, that lends itself to the inquiry mandated under s. 137.1(4)(a). Thus, although the limited record at this stage does not allow for the ultimate adjudication of the issues, it necessarily entails an inquiry that goes beyond the parties' pleadings to consider the contents of the record (the extent of such consideration will be explored further in the next section).
39 Accordingly, I conclude that "grounds to believe" requires that there be a basis in the record and the law -- taking into account the stage of litigation at which a s. 137.1 motion is brought -- for finding that the underlying proceeding has substantial merit and that there is no valid defence.” (Pointes at paras. 38-39)
18Findings of “substantial merit” and “no valid defence” should be seen as constituent parts of an overall assessment of the prospect of success of the underlying claim (Pointes at para. 59; Subway at para. 53).
19In considering the disputed refusals, this Court must be mindful of the nature and purpose of s.137.1 and the interplay of the test set out in s. 137.1 and Subway, the guidance in Pointes regarding the nature of the record, the claims and allegations in this action, the affidavits at issue and the law with respect to the scope of cross-examinations. In this respect, the parties are in substantial agreement that the 2 primary disputed issues in this action and on the Anti-SLAPP Motion are: i) the Plaintiff’s allegations of misfeasance based on the Defendant acting outside of her role as City Councillor with respect to the Appeals and the Development; and ii.) the Plaintiff’s allegations of defamation arising from the incident at the Duchess and the Defendant’s complaint to the YRP. The Plaintiff further argues that the Anti-SLAPP Motion is an attempt by the Defendant to silence the Plaintiff and conceal her wrongful conduct from the public.
20As with most refusals motions, in many cases the Plaintiff is overreaching and the Defendant is under responding. More specifically, the Plaintiff has often approached these cross-examinations as if they are examinations for discovery while the Defendant has in some cases refused questions on the basis that the Plaintiff is pursuing discovery even where the requests or narrowed versions are properly within the scope of the pending motion and/or the affidavits at issue. As set out above, many refusals were resolved prior to and during the motion, including some that were withdrawn and/or no longer being pursued. Consistent with the case law, I will consider the remaining refusals with respect to relevance to the pending motion and the affidavits and proportionality. In addition, my determinations consider the most appropriate resolution and result taking into consideration the most efficient and cost-effective approach consistent with Rule 1.04(1) including the agreements and compromises of the parties.
Cross-Examination of Karen Rea
21Approximately 19 refusals remain in dispute from Ms. Rea’s cross-examination. Most of the disputes relate to the scope of communications sought by the Plaintiff. Initially and in some cases continuing into oral submissions, the Plaintiff made broad, unspecified requests for all documents and communications irrespective of time period or for lengthy time periods, and in some cases, without specifying the subject matter. During reply, Plaintiff’s counsel then advised that the Plaintiff had narrowed his requests for documents to the following timeframes: December 17, 2017 (the Approval) until January 14, 2018 (the OMB hearing) for allegations of misfeasance in public office, conflict of interest and Ms. Rea acting outside of her role as City Councillor; and October 12, 2018 (the OMB dismissal) until November 16, 2018 (commencement of this action) for allegations of defamation.
22Refusals #9, #47 and #48 – These refusals relate to the Plaintiff’s allegations that the Defendant was in a conflict of interest and acted outside of her role as a City Councillor.
23With respect to Refusal #9, the Plaintiff seeks any communications between the Defendant and Patrick O’Halloran, an acquaintance, constituent and developer who Ms. Rea met with occasionally and with whom she discussed the Development and the Property. Ms. Rea states that Mr. O’Halloran was interested in purchasing the Property to build bungalows, an assertion supported by communications on the record. She also claims that Mr. O’Halloran did not want to deal with Mr. Zeppa and he instead contacted a representative of Mr. Zeppa who did not return his call. In my view, some of these communications are relevant to the issues to be decided on the Anti-SLAPP Motion specifically with respect to the Plaintiff’s allegations of misfeasance as they relate to the Defendant brokering a sale of the Property with third parties. However, relevance is limited to any communications between the Defendant and Mr. O’Halloran with respect to the Property and the Development for the amended period December 17, 2017 until January 14, 2018 which the Defendant shall produce within 14 days.
24With respect to Refusal #47, the Plaintiff asks Ms. Rea to confirm if Markham City Solicitor Catherine Conrad advised Ms. Rea that she had a conflict of interest because the Plaintiff filed the Complaint but Ms. Rea ignored her. Though the Defendant was not provided with a full opportunity to respond on cross-examination, her evidence is that Ms. Conrad asked her to consider whether she had a conflict however, Ms. Rea did not have a copy of the Complaint and, as supported by her communications on the record, she intended to ask the Plaintiff publicly at a City Council meeting that night to defer the Complaint. This is a complete response and nothing further is required. With respect to Refusal #48, the Defendant is not required to advise if she obtained legal advice regarding whether she had a conflict of interest. The answer is privileged, there is no suggestion or evidence that privilege has been waived and in any event the question is not relevant to any issues to be considered on the pending motion or raised in Ms. Rea affidavits.
25Refusals #28, 29, 30, 31, 32, 33 and 34 – In these 7 refusals, the Plaintiff requests that the Defendant produce all of her emails and text messages from her work or personal cell phone with the Residents and other individuals who the Plaintiff claims were part of her “email group” regarding the Appeals (including Siobhan, Alexis, Jacquie and anyone else) for the period December 17, 2017 to November 2018. In my view, the Plaintiff’s over-reaching request for all emails and texts without qualification and the Defendant’s refusal to produce anything is a prime example of one party over-asking and the other under-delivering without regard to the proper scope of production for the pending motion and affidavits. The Plaintiff’s overbroad request is akin to documentary and oral discovery and contrary to the principle that cross-examinations are not a substitute. At the same time, although not everything the Plaintiff is seeking is relevant and proportionate, there are documents and communications which should be produced. As is typically the case, the appropriate and responsive resolution is somewhere in between and it is necessary to narrow the Plaintiff’s overbroad request.
26First, it would be disproportionate to compel the Defendant to produce communications or documents which the Plaintiff has already received from the Residents under the terms of the Settlement. I will leave it to the Defendant if it would be more efficient to produce what is relevant even if it is duplicative rather than cross-reference the documents already produced under the Settlement given that they run some 1,200 pages. Second, the request must be narrowed by individual and subject matter. While I agree that Ms. Rea’s correspondence with the Residents is relevant to the Anti-SLAPP Motion and Ms. Rea’s affidavits, it should be limited to the Appeals and the Development for the amended dates agreed upon by the Plaintiff. I am also not satisfied that the Plaintiff has established that communications with other members of the so-called “email group” are relevant or proportionate. At best, it appears as if these other persons would have been included in any emails to or from the Residents, who were the primary contacts and the Plaintiff’s expanded request for all individuals crosses over into discovery. As a complete response to these 7 refusals, the Defendant shall produce any communications with the Residents not already produced regarding the Appeals and the Development between December 17, 2017 and January 14, 2018 within 14 days.
27Refusals #37, 42, 43 and 44 – Refusals 37, 42 and 43 relate to the Defendant’s correspondence with Adam Brown, a municipal lawyer who the Defendant met at a LandPro conference. Ms. Rea discussed the Development and the Residents Action with Mr. Brown and he offered to help the Residents. Neither the Residents nor Mr. Rea retained Mr. Brown however he provided some assistance including contacting Plaintiff’s counsel. Ms. Rea and the Residents have waived any privilege over communications with Mr. Brown. The Plaintiff requests any communications between the Defendant and Mr. Brown and the redacted portions of 2 emails already produced. The Plaintiff submits that these are relevant to his allegations of misfeasance specifically that Ms. Rea was the “true appellant”. Similar to my conclusions above, the request for all communications is overly broad for cross-examinations on the pending motion. However, Ms. Rea acknowledges that she acted as a “go between” for the Residents with Mr. Brown regarding a potential resolution of the Appeals. Accordingly, in my view, some limited communications with Mr. Brown are relevant to the merits and defences related to the Plaintiff’s allegations of misfeasance. The Defendant shall produce any communications with Mr. Brown from December 17, 2017 to January 14, 2018 related to the Development and the Appeals within 14 days. Given that neither Ms. Rea nor the Residents retained Mr. Brown and no privilege has been asserted, the redacted portions of the 2 produced emails (Refusals 42-43) should also be produced.
28In Refusal 44, the Plaintiff requests all of the Defendant’s communications with Tim Kelly, a journalist, between December 2017 and November 2018. Ms. Rea admits that she sent the Statement of Claim in the Residents Action to Mr. Kelly. Ms. Rea’s communications with the media are relevant to the Plaintiff’s allegations of defamation on the pending motion. Therefore, the Defendant shall produce any communications with Mr. Kelly regarding the Residents Action and the Appeals for the period from March 7, 2018, the commencement of the Residents Action (given that that this was the subject of their communications) until the date of the Settlement within 14 days.
29Refusals #1, 2, 4, 5 and 6 – These refusals relate to the Plaintiff’s requests for communications and other documents related to the Duchess incident. Ms. Rea alleges that she encountered Mr. Zeppa at the Duchess on October 27, 2018 and made a reference about her recent re-election to a 4-year term to which he responded, “if you last that long”. Ms. Rea claims that she felt threatened and “told him not to ever threaten me again or I would report him to the York Regional Police”. Mr. Zeppa denies Ms. Rea’s account. Mr. Zeppa advised the YRP that he congratulated Ms. Rea and she asked “is that a threat?” and followed him waving her finger. He alleges that she intentionally “accosted” him as part of a plan to have him wrongfully charged and arrested. Ms. Rea claims that she was scared and did not know what to do. When she arrived home she called Superintendent Chris Bullen of the YRP. Mr. Bullen advised her to attend at the police station to file a report and he called the YRP to advise that she would be attending. The YRP concluded that there were 2 conflicting stories and no criminal offence had taken place. The YRP Report states that the YRP advised Ms. Rea that Mr. Zeppa’s conduct did not constitute uttering threats and that Ms. Rea stated that she did not feel a genuine threat to her safety but felt that Mr. Zeppa’s “intimidation tactics” were inappropriate and wanted the YRP to explain that to him. As set out above, the City Integrity Commissioner subsequently concluded that Ms. Rea contravened s. 17 of the Code and was the instigator of the incident. Based on video evidence, the Integrity Commission concluded that she followed Mr. Zeppa after hearing what she believed to be an intimidating remark and turned back to him repeatedly and publicly engaged him with a raised voice and pointed finger.
30The Plaintiff claims that Ms. Rea’s reporting of the incident to the YRP is evidence of her efforts to defame him and interfere with his business interests and that she inappropriately used her access to Superintendent Bullen, a contributor to her campaign. The Plaintiff seeks all of Ms. Rea’s cell phone records for October 27, 2018 (Refusal 1) and to advise when she made the call to Superintendent Bullen (Refusal 4). The parties agree that the incident at the Duchess is relevant to the Plaintiff’s allegations of defamation. However, this request also requires some narrowing. I am satisfied that what is relevant, proportionate and responsive is for Ms. Rea to produce her cell phone records for the day of October 27, 2018 after the time of the incident and identify the time of her call to Superintendent Bullen within 14 days. Her records prior to the incident are not relevant to issues regarding the incident on the pending motion or her affidavits. The Plaintiff’s request for all of Ms. Rea’s emails, work and personal for the day of October 27, 2018, and to advise if she emailed anyone on October 27, 2018 (Refusal 2) is also overbroad. What is relevant and proportionate is for the Defendant to produce any emails for the day of October 27, 2018 after the time of the incident within 14 days. The Defendant has advised that she also called numerous other persons after the incident including Al Pickard (discussed below) and Murray Marven, an acquaintance. I reject the Plaintiff’s request for the last known address and contact information for Mr. Marven (Refusal 5) which is an appropriate request for witness contact information on an examination for discovery but not this pending motion. Finally, the Plaintiff asks that the Defendant request copies of any notes made by the YRP when she made her complaint (Refusal 6). I am satisfied in the circumstances that any notes of the YRP are relevant to the issues on the pending motion with respect to the Plaintiff’s defamation claims. The Defendant shall make the necessary inquiries with the YRP and determine if any notes exist within 7 days, confirm to Plaintiff’s counsel that the request has been made and produce any notes received within 2 days of receipt.
Cross-Examination of Al Pickard
31Refusals # 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 16 and 18- There are approximately 13 refusals related to the Defendant’s communications and documentation with Al Pickard, an acquaintance and political consultant who provided campaign services including acting as her campaign manager in 2014. Ms. Rea called Mr. Pickard on October 27, 2018 after the Duchess incident. Mr. Pickard states that he does not recall Ms. Rea’s exact words but remembers she advised him that Mr. Zeppa said that she might not survive the entire length of her term which he understood to be a threat to her life and advised her to report it to the YRP. I am satisfied that some communications between the Defendant and Mr. Pickard are relevant to the court’s consideration of the Plaintiff’s defamation claims on the Anti-SLAPP Motion and Mr. Pickard’s affidavit. Again, the Plaintiff’s overbroad request for all communications from 2018 regardless of subject matter and everything related to the Development is over-reaching. Mr. Pickard shall produce all communications between he and Ms. Rea on the day of October 27, 2018 after the Duchess incident within 14 days which is a relevant, proportionate and a complete response to Refusals 2, 3, 4, 7, 13 and 16. Mr. Pickard is not required to produce his bills/accounts for the 2014 and 2018 campaigns; to review his records and advise if he was discussing the Development or Mr. Zeppa in 2018 and to produce all communications in relation to any issues in this matter (Refusals 6, 9, 10, 11 and 18). These are overbroad and disproportionate and unnecessary for the court’s consideration of any issues on the pending motion.
Cross-Examination of Joan Kasozi
32Ms. Kasozi was counsel for the Residents in the Residents Action. Her affidavit sworn June 4, 2021 (the “Kasozi Affidavit”) is 3 paragraphs and was filed in response to the Plaintiff’s inclusion of an email from her to the Residents dated April 12, 2018 (the “April 12 Email”). The operative paragraph of the Kasozi Affidavit states:
“2. Attached as Exhibit “A” to my affidavit is a copy of an email that I sent to Ms. Winterfield and Mr. Burgess on April 12, 2018. Carlo Di Carlo, counsel for Karen Rea in the above-noted action, advises me that Mr. Zeppa attached this email to an affidavit he swore in the action. I can confirm that the contents of my email to Ms. Winterfield and Mr. Burgess are true.”
33In the April 12 Email, Ms. Kasozi advises that she has spoken to Plaintiff’s counsel who has advised that the Plaintiff will not be dismissing the Residents Action because he has incurred damages but would do so if the Residents abandoned the Appeals.
34The April 12 Email was first filed on the record in these proceedings as an attachment to the Supplementary Affidavit of Mr. Zeppa sworn June 2, 2021 on the Anti-Slapp Motion amid an Exhibit containing over 1,200 pages of correspondence and other documents produced by the Residents pursuant to the Settlement. The Kasozi Affidavit was sworn 2 days later. Mr. Zeppa swore a Second Supplementary Affidavit on June 11, 2021 attaching an email from his counsel to Ms. Kasozi dated June 13, 2018 (the “June 13 Email”) in which Plaintiff’s counsel advises that it has come to his attention that Mr. Burgess filed the April 12 Email on the public record for the Appeals and that the April 12 Email incorrectly summarizes his settlement discussions with Ms. Kasozi. Specifically, Plaintiff’s counsel states that the April 12 Email incorrectly states that the Plaintiff offered to dismiss the Residents Action if the Residents abandoned the Appeals.
35After discussions between counsel during the motion, Plaintiff’s counsel advised that Mr. Zeppa was only moving on 7 questions and was withdrawing his request that Ms. Kasozi produce her entire file for the Residents. The Defendant maintains the 7 remaining refusals on the basis of relevance and solicitor-client privilege.
36Refusals #23, 24, 25, 26, 27, 29 and 30 – In the 7 remaining refusals the Plaintiff asks Ms. Kasozi to advise whether she had any conversations with her clients regarding the contents of the April 12 Email (Refusals 23-24), to advise if she sent any follow up emails (Refusal 25), if she has any notes of the conversations referred to in the April 12 Email (Refusals 29-30) and to advise what she did with the June 13 Email and if she sent it to the Residents (Refusals 26-27).
37It is a long held indisputable principle that solicitor-client privilege is fundamental to the proper functioning of the legal system (Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 at paras. 26 and 34). The Supreme Court has further held that privilege should be “jealously guarded”, is as close to absolute as possible and should not be interfered with or set aside unless absolutely necessary (Alberta at paras. 33-34; Blood Tribe Department of Health v. Canada (Privacy Commissioner), 2008 SCC 244 at para. 44).
38One limited exception to this rule is deemed waiver of privilege. A deemed waiver of privilege and an obligation to disclose a privileged communication occurs when: i.) the presence or absence of legal advice is material to the lawsuit; and ii.) the party who received the legal advice must make the receipt of it an issue in the claim or defence (Creative Career Systems Inc. v. Ontario, 2012 ONSC 649 at para. 30).
39In Creative Career, citing of Corbett J.’s decision in Guelph (City) v. Super Blue Box Recycling Corp., 2004 34954 (ON SC), [2004] O.J. No. 4468 (S.C.J.), Perell J. stated:
“….the deemed waiver occurs as a matter of the party’s choice. Waiver does not occur because the party discloses that he or she received legal advice, nor does it occur because the party admits that he or she relied on the legal advice; it occurs because the party chooses to use the legal advice as a substantive element of his or her claim or defence” (Creative, at para. 31).
40Solicitor-client privilege belongs to the client who can only waive privilege knowingly and deliberately and not inadvertently or without knowing and which cannot be waived by counsel (AE Hospitality et al v. George et al, 2017 ONSC 2861 at paras. 46-48).
41Both parties rely on Elgner v. Freedman Estate, 2014 ONSC 1989. In affirming the decision of Master Muir, Morgan J. held that the defendant had waived some privilege by filing a lawyer’s affidavit and relying on information and belief conveyed to her by counsel, but that the waiver had a definable scope and privilege in its entirety was not lost for all purposes merely by filing a lawyer’s affidavit with limited content and for a limited purpose (Elgner at para. 25). Citing Guelph, Morgan J. held that privilege is eliminated where there is an intentional waiving of specific privileges and that anything specifically mentioned in the solicitor’s affidavit would have to be produced as would the notes of meetings or conversations referenced in the affidavit (Elgner at para. 26). Morgan J. further concluded that by limiting the waiver of privilege to the issues raised in the affidavit relevant to the motion was consistent with the principle of protecting privilege which the Supreme Court has characterized is fundamental to the justice system (Elgner at para. 37).
42The Plaintiff submits that Ms. Kasozi’s communications with the Residents are relevant to the court’s consideration of his misfeasance claims given that Ms. Rea’s settlement discussions with Mr. Zeppa regarding the Residents Action were on terms that “mimic” those in the Kasozi Affidavit. In my view, Ms. Kasozi’s communications with her clients are not relevant to the Anti-Slapp Motion. These are communications between non-parties and their counsel with respect to a separate action which do not involve the Defendant and Ms. Kasozi has confirmed that she had no communications with Ms. Rea. While the Plaintiff alleges that Ms. Rea acted outside the scope of her role as City Councillor by involving herself in the Residents Action, the fact that she had settlement discussions with Mr. Zeppa which may have been similar to those of Ms. Kasozi does not in turn make Ms. Kasozi’s communications with her clients about the Residents Action relevant. This is too remote and is to be distinguished from communications with Ms. Rea and/or about this action. To the extent to which the Settlement is relevant, the terms are known and have been disclosed to the court, the April 12 Email and the June 13 Email are on the record and any further communications between the Residents and their counsel are unnecessary for the court’s consideration of the relevant issues on the pending motion. For the same reasons, I conclude that the June 13 Email is not relevant. The only basis on which I can conclude that the April 12 Email is relevant is because the Defendant filed the Kasozi Affidavit which attaches and discusses the April 12 Email (unlike the June 13 Email which is not discussed in the Kasozi Affidavit).
43Even accepting that the April 12 Email is relevant based on the Kasozi Affidavit and that its contents are privileged, I cannot conclude that privilege has been waived in the circumstances. The April 12 Email was filed on the Anti-Slapp Motion by the Plaintiff in an Exhibit which contained over 1,200 pages of communications. Counsel were unable to clarify precisely how the Plaintiff came into possession of the April 12 Email. The June 13 Email indicates that it was obtained from the record for the Appeals, however, Mr. Zeppa’s affidavit states that the documents in the Exhibit were produced to him by the Residents. It may be the case that Mr. Zeppa obtained it from the public record for the Appeals (though it is not clear how or why the Mr. Burgess filed it on the Appeals) and that the Residents inadvertently produced it together with their communications with Ms. Rea pursuant to the Settlement. In any event, there is no basis for me to conclude that the Residents, as the owners of the privilege, intentionally and knowingly meant to waive privilege over the April 12 Email or whether it was inadvertently filed and/or produced. Further, the receipt of legal advice from Ms. Kasozi is not an issue on the pending motion and the non-parties who received the advice, the Residents, have not put the receipt of any advice at issue. While they consented to the filing of the Kasozi Affidavit, it was filed in response to the Plaintiff filing the April 12 Email on the record and for the limited purpose of Ms. Kasozi stating that the contents of the April 12 Email are true on which she was cross-examined. Further, Ms. Kasozi does not refer to any notes, other documents or discussions in her affidavit.
44My conclusions are consistent with the overarching fundamental principle that solicitor-client privilege is close to absolute and should be protected unless absolutely necessary. The operation of this principle is more pronounced in these circumstances where the privilege belongs to non-parties and it is not clear from the record that they intentionally and/or knowingly waived privilege over the April 12 Email which forms the basis for the Plaintiff’s submissions. These circumstances are distinguishable from the case law including Elgner where advice from counsel for parties was put at issue. Given my conclusions that Ms. Kasozi’s communications with her clients are not relevant to the pending motion, this is also consistent with Elgner where Morgan J. held that limiting productions from counsel to what is relevant is consistent with the protection of privilege that the Supreme Court has characterized is fundamental to the justice system (Elgner at paras. 36-37). Ms. Kasozi is not required to answer the 7 remaining refusals.
IV. Disposition and Costs
45Order to go on the terms set out above. If the parties require any clarification or further directions they may schedule a telephone case conference.
46If the parties cannot agree on the costs of this motion they may file written costs submissions not to exceed 3 pages (excluding Costs Outlines) on a timetable to be agreed upon by counsel.
Released: November 29, 2021
Associate Justice McGraw