COURT FILE NO.: CV-08-362242
DATE: January 3, 2022
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: BIE Health Products o/b 2037839 Ontario Ltd. v. the Attorney General of Canada on behalf of Her Majesty the Queen in Right of Canada, Jim Daskalopoulos, Canwest Global Communications Corp., the Canadian Press, Torstar Corporation, CTV Inc., CNW Group Ltd., The Attorney General of Ontario on behalf of Her Majesty in Right of the Province of Ontario, Google Canada Corporation, Yahoo! Canada Co., Brunswick News Inc., Mediresource Inc., the National Association of Pharmacy Regulatory Authorities, the Alberta College of Pharmacists, Rogers Publishing Limited, Healthwatcher.Net Inc., Dr. Terry Polevoy, MD, Webby Inc., Metroland Printing and Publishing & Distributing Ltd.;
BEFORE: ASSOCIATE JUSTICE C. WIEBE
COUNSEL: Paul H. Starkman for BIE Health Products o/b 2037839 Ontario Ltd. (“BIE”); Sadian Campbell for the Attorney General of Canada on behalf of Her Majesty the Queen in Right of Canada and Jim Daskalopoulos (together the “AG”);
HEARD: November 12, 2021.
REASONS FOR DECISION
[1] BIE brings this motion for an order requiring that the AG produce the remaining documents it has not to date produced from Schedule B of the AG’s 5th Supplementary List of Documents dated March 8, 2021. It argues that the AG has not properly asserted privilege to the documents.
[2] When the motion was commenced on October 14, 2021, BIE sought additional relief, namely the production of the documents from Schedule B the AG had agreed to deliver and an order that Mr. Daskalopoulos reattend at his own expense to be discovered on the answers to the undertakings he had given, on the policies and guidelines the AG has produced, and on the documents from Schedule B the AG has produced and will be required to produce.
[3] By the time of the argument, the AG had delivered the documents from Schedule B it had agreed to produce. Ms. Campbell did not resist having Mr. Daskalopoulos reattend to be examined as requested. The only issue was the time allotted for this further discovery. In the end, I ordered that the time be no more than seven hours. The question of whether Mr. Daskalopoulos pay for this reattendance will be addressed in these reasons.
[4] As I am case managing this action, I also dealt with other issues at the conclusion of the argument. The AG intends to deliver a responding expert report on damages. I ordered that that be done on or before December 31, 2021. The parties advised that they had agreed to a mandatory mediation on February 15, 2022. As a result, I ordered that there be a new set down deadline, namely on or before February 28, 2022.
Background
[5] Concerning the remaining issue in this motion, namely the issue of whether the AG will be ordered to produce the remainder of the documents listed in its Schedule B, I will start by reviewing the history of this issue that led to this point.
[6] On January 24, 2020 I ordered that the AG produce a further and better 5th Supplementary List of Documents which numbered the documents in Schedule B and which specified the basis for the claimed privilege in each case. I refused to order that the AG identify the positions of the senders and receivers of the documents in Schedule B and that those documents be ordered chronologically.
[7] This order was appealed by BIE. The pandemic slowed the litigation down. On December 22, 2020 Justice Myers dismissed the appeal.
[8] On February 8, 2021 the AG delivered a Schedule B that contained over 500 documents. It numbered the documents and specified the basis for the privilege in each case. At the case management conference on March 16, 2021 I was advised that the parties were discussing this document and the BIE supplementary affidavit of documents. I adopted a litigation and discovery plan the parties had agreed to and scheduled a motion date, April 29, 2021, for any motion concerning those documents. The plan required that all discovery motions be done by August 31, 2021.
[9] On March 24, 2021, the AG delivered to BIE a version of Schedule B with information that responded to questions Mr. Starkman had raised. The document identified not only the date of each document, but the sender and receiver, the title of the document, the document type, the type of privilege being claimed and a final column entitled “AGC Comments.” In that final column, the AG answered questions about the claim of privilege for each document raised by Mr. Starkman. Many documents were explained as being privileged due to “family coding,” namely because they were attached to privileged documents.
[10] The parties continued their discussion about this document. They advised me that they did not need the motion date of April 29, 2021.
[11] On August 24, 2021 the AG delivered to BIE another version of Schedule B with yet further information in response to yet further questions from Mr. Starkman. This information appeared in a column entitled, “Plaintiff’s Questions.” This document also added some information about the positions of senders and receivers of the documents.
[12] At a case conference on August 25, 2021, at Mr. Starkman’s request, I set a schedule for this motion.
[13] On October 5, 2021 the AG advised BIE that it would be producing 245 documents in Schedule B that were coded as privileged due to “family coding” but that were not in fact privileged on a standalone basis. It identified the documents that would be produced.
[14] On October 14, 2021 BIE brought this motion. On October 26, 2021 the AG delivered its responding motion record which contained an affidavit of an AG paralegal, Dritan Lavanaj. This affidavit contained a “non-exhaustive list of Health Canada counsel,” 16 in number, that had been involved in this litigation on behalf of the AG. At some point, the AG delivered the above noted 245 “family coding” documents.
[15] On November 8, 2021, Ms. Campbell sent me, not Mr. Starkman, 21 emails containing all of the documents listed in Schedule B that had not be disclosed. These were numerous.
[16] At the argument of the motion, both lawyers assured me that they did not want me to review each of the documents included in these 21 emails of documents for the purpose of this motion. Given the volume of the documents in issue, they agreed that I should determine the motion as much as possible from my review of Schedule B focusing on select documents, and from the evidence.
[17] I believe that the emphasis on Schedule B and the evidence is consistent with the established law, namely that the court should avoid as much as possible determining disputes about privileged documents by examining the documents themselves, as that exercise minimizes the benefit of argument by counsel; see Falconbridge Ltd. v. Hawker Siddeley Diesels & Electric Ltd., 1985 CarswellOnt 577 (Ont. Master) at paragraph 3. I am mindful, though, that I have the authority to inspect the documents to determine the validity of the claim for privilege if necessary; see Rule 30.04(6) of the Rules of Civil Procedure.
[18] A general comment about the evidence. In reviewing the documents in Schedule B for this decision, I was mindful that the events that generated the documents in Schedule B took place in most cases 10 to 15 years ago, that the volume of documents in issue in this motion is significant, that it would be difficult to get affidavit or even hearsay evidence from those who created all these documents, and that the evidence must therefore come from a file review by AG litigation counsel. I was also mindful of the doctrine of proportionality in discovery as indicated in Rule 29.2.03(1)(a),(b) and (d), namely the rule that requires the court to consider the time, expense and disruption of getting such evidence. Considering those factors, I find that a file review by AG litigation counsel is sufficient. Given the extensive exchanges between the parties since March, 2021 concerning Schedule B as reflected in my case conference directions, I am satisfied that the results of this file review are reflected in the AG entries into Schedule B and the responses AG gave to BIE’s questions.
Family coding
[19] It is well established that a document that is not itself privileged does not become privileged just by being attached to a privileged document; see Murchison v. Export Development Canada, 2009 FC 77 at paragraph 45.
[20] Mr. Starkman advised that 142 documents in Schedule B remain under the “family coding” description. He argued that, aside from the family coding description, these documents did not contain sufficient information in Schedule B to justify the claimed privilege. He referred particularly to documents 47, 48, 201, 202 and 204.
[21] Again, counsel did not want me to review all 142 documents individually but asked that I make a general ruling on this group of documents. As a result, I focused only on the documents raised by Mr. Starkman in argument, namely documents 47, 48, 201, 202 and 204.
[22] All of these documents are shown in Schedule B as being privileged on the grounds of solicitor client privilege or litigation privilege. Document 48, 202 and 204 continue to be described under “AGC Comments” as being attachments and “family coding.”
[23] The test for solicitor client privilege was articulated by the Supreme Court of Canada in Pritchard v. Ontario (Human Rights Commission), 2004, SCC 31 at paragraph 15. There are three requirements: (1) there is 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.
[24] Ms. Campbell pointed out that this privilege extends to a “continuum of communication within which the legal advice is sought or offered”; see Brewer v. Royal College of Dental Surgeons of Ontario, 2021 ONSC 5697 at paragraph 18. To do otherwise, would frustrate the privilege as the opposing parties could infer the privileged communication from the documents. Mr. Starkman pointed out that this continuum ends when the legal advice leads to a decision that is put into operation. Documents concerning the operation of the decision must be disclosed; see The Minister of Public Safety and Preparedness and The Minister of Justice of Canada v. The Information Commissioner of Canada, 2013 FCA 104 at paragraph 30.
[25] Litigation privilege attaches to documents and information prepared for the dominant purpose of litigation, whether that litigation exists or is reasonably anticipated; see Walsh Construction Company Canada v. Toronto Transit Commission, 2019 ONSC 5537 at paragraph 39. The purpose of this privilege is to create “zones of privacy” wherein parties in our adversarial system can prepare their cases without exposure.
[26] Document 47 is described as an August 10, 2014 email between two non-lawyers at Health Canada dated August 10, 2004 entitled “BEC-RM Issue Sheet on GHR15.” Under “Plaintiff’s Questions,” it is stated that the document concerns requests made by AG counsel, Ms. Tinker, in complying with discovery undertakings and in determining litigation steps, planning and document collection. In addition, the AG states that the document contains comments from Health Canada Legal Services. I am satisfied that this description establishes the grounds for the stated claim of privilege, solicitor client privilege.
[27] Document 48 is described as an October 8, 2004 attachment to document 47. The document is entitled, “BEC-RM-GHR15-2004-10-12.wpd.” Under “AGC Comments” it is stated that the document contains “legal advice” and “family coding.”. There is no sender or receiver. This is sparse. I decided to use my Rule 30.04(6) jurisdiction to examine the document. Having done so, I am satisfied that the claimed privilege is proper, namely solicitor client privilege.
[28] Document 201 is described as a January 30, 2009 email from a Health Canada individual to an AG paralegal entitled, “BIE Health Scanned Memo pages.” In “Plaintiff’s Questions,” it is stated that the document again concerns Ms. Tinker complying with discovery litigation steps, planning and document collection. The fact that the exchange is between a non-lawyer and an AG paralegal is sufficient in my view to support the claim of solicitor client privilege. Nevertheless, I examined the document and am satisfied that the claimed privilege is proper, namely solicitor client privilege.
[29] Document 202 is described as a January 30, 2009 attachment to document 201 and is entitled, “Document.pdf.” The claimed privileges are solicitor client and litigation. There are no sender or receiver specified. This description is indeed sparse. Therefore, I decided to examine the document directly. Having done so, I am satisfied that the two claimed privileges are proper here.
[30] Document 204 is described as a January 30, 2009 attachment to document 201. It is entitled, “ATTMWXYG.” The claimed privileges are solicitor client and litigation. Again, there are no sender or receiver specified. This is also sparse. As a result, I examined the document and am satisfied that the claimed privileges are proper.
[31] As a result of this analysis, I am not prepared to order the disclosure of the remaining documents in Schedule B described as “family coding.” I am satisfied that the documents are privileged on a standalone basis.
Waiver
[32] There is authority for the proposition that deliberate disclosure of privileged documents to a third party constitutes waiver of the privilege: see Supercom of California Ltd. v. Sovereign General Insurance Co., 1998 CanLII 14645 (Ont. Gen. Div.). In his two factums Mr. Starkman alleges that there 20 documents that amounted to such waiver: documents 81, 95, 231, 281, 524, 542, 586, 687, 714, 765, 868, 869, 874, 934, 992, 1309, 1321, 1664, 1781 and 1885.
[33] I have examined the descriptions of these documents in Schedule B. Email accounts and positions of senders and receivers of the documents are contained in Schedule B. From this information, it is clear to me that these documents were circulated within Health Canada. As a result, I am not prepared to find that the privilege attached to these documents has been waived by disclosure to third parties.
Claims of privilege
[34] Mr. Starkman argued that the claims of privilege for the documents listed in Schedule B generally were not established in the document and in the evidence. He argued that the positions of senders and receivers were often not clear, that some documents claimed as solicitor client privileged had senders and receivers who were not listed on the provided list of 16 Health Canada lawyers, and that some documents appeared to be claimed as solicitor client privileged simply because they were copied to lawyers. Copying a non-privileged document to a lawyer does not make the document solicitor client privileged; see Murchison, op. cit., paragraph 44.
[35] Ms. Campbell argued that the list of 16 Health Canada lawyers was not an exhaustive list and that Mr. Starkman’s concerns about solicitor client privilege were addressed by the notion that most of the documents were part of a continuum circulating solicitor client privileged information. Concerning the continuum point, Mr. Starkman argued that Schedule B should identify the individual at the source of the alleged privileged information in every case. He did not provide authority in support of that position and I do not accept it as a result.
[36] Mr. Starkman said there were 370 documents that BIE wanted disclosed. Again, counsel did not want me to review all 370 documents individually but asked that I make a general ruling on this group of documents. As a result, I focused on the documents raised by Mr. Starkman in oral argument, namely documents 56, 72, 81, 95, 97, 188, 218, 1105, 1113, 1114, 1115, 1116, 1117 and 1121.
[37] Document 56 is described as a February 24, 2005 email entitled “Re: update meeting on GHR-15/Feb. 22/05.” The sender and receivers are identified and expressly stated to be non-lawyers. The claimed privilege is solicitor client and litigation privilege. Under “AGC Comments” it is stated that the document deals with a meeting with legal counsel and contains solicitor client information. In my view, this description is sufficient to establish the claimed solicitor client privilege using the concept of a circulation of confidential information. Again, I was not provided with authority for the proposition that the identity of the source of the confidential information must be provided. As a check, I looked at this document and am satisfied that the claimed solicitor client privilege applies.
[38] Document 72 is described as an October 4, 2005 email entitled, “Re: Updated Media Lines – GHR-15.” The sender and receiver are identified and are stated to be non-lawyers. The claimed privilege is both solicitor client and litigation privilege. Under “AGC Comments” it is stated that this document is privileged because it “contains legal advice from Simon Carvalho.” Simon Carvalho is on the list of 16 Health Canada lawyers. In my view, this description is sufficient to establish the claimed solicitor client privilege for the document as being a part of a continuum of circulated confidential information. As a check, I looked at this document and am satisfied that the claim for solicitor client privilege is valid.
[39] Document 81 is described as a June 13, 2006 email entitled, “Re: Personal information on Internet posted by T. Tuck.” The sender and receiver are identified and are stated to be non-lawyers. The claimed privilege is solicitor client privilege. Under “AGC Comments” it is stated that this document is privileged because it “relates to email to Simon Carvalho.” Mr. Carvalho was a Health Canada lawyer. As such, the description is enough to establish the claimed solicitor client privilege for the document. Nevertheless, l looked at the document and am satisfied that the claimed privilege is valid.
[40] Document 95 is described as a January 16, 2007 email entitled, “Re: personal threats made to HC employees by T. Tuck.” The sender and receiver are identified, and it is stated that neither were lawyers. The claimed privilege is solicitor client privilege. Under “AGC Comments” it is stated that the document “contains solicitor client information.” This is enough to establish the claimed privilege. In any event, I checked the document to confirm and am satisfied that the claimed privilege is valid.
[41] Document 97 is described as a January 25, 2007 email entitled, “Re: Letter to Mr. Tuck from Litigation Unit.” The sender and receiver are identified, and it is stated that neither were lawyers. The claimed privilege is solicitor client privilege. Under “AGC Comments” it is stated that the document “contains solicitor client information.” This is enough to establish the claimed privilege. In any event, I checked the document to confirm and am satisfied that the claimed privilege is valid.
[42] Document 188 is described as a January 27, 2009 email entitled, “Re: TIU-02-897: BIE new Advertisements.” The sender and receiver are identified, and it is stated that neither were lawyers. The claimed privilege is both solicitor client and litigation. Under “AGC Comments” it is stated that the document “deals with meeting with legal counsel re litigation.” This is enough to establish the claimed privilege. Nevertheless, I checked the document and am satisfied that the claim for solicitor client privilege is valid.
[43] Document 218 is described as a February 2, 2009 email entitled, “Fw: referral to Inspectorate – GHR unauthorized NHP (MECS 08 – 124157-894).” The sender and receiver are identified, and it is stated that neither were lawyers. The claimed privilege is solicitor client and litigation. Under “AGC Comments” it is stated that the documents “involves email and advice from Simon Carvalho and Nicolle Levasseur (legal counsel).” Both individuals are on the list of 16 Health Canada lawyers. This is enough to establish the claimed solicitor client privilege. In any event, I checked the document and am satisfied that the claimed solicitor client privilege is valid.
[44] Documents 1113, 1114, 1115, 1116 and 1117 are described as emails dated February 19, 22 and 23, 2016. They are all entitled, “Re: BIE.” Concerning each of them, the senders and receivers are identified, and it is stated that neither were lawyers. The claimed privilege in each case is solicitor client and litigation. Under “AGC Comments” the documents are described as “Dealing with Request for Legal Opinion and request for chronology.” This is enough to establish the claimed privilege. In any event, I checked the documents and am satisfied that the privilege claimed is valid.
[45] Document 1121 is described as a February 23, 2016 email entitled, “Re: JR with BIE.” The sender and server are identified, and it is stated that neither were lawyers. The claimed privilege is solicitor client and litigation. Under “AGC Comments” the documents are described as “contain[ing] legal advice.” This description was enough to establish the claimed privilege. Nevertheless, I checked the document and am satisfied that claimed privilege is valid.
[46] There was argument about one document described in Schedule B as an “electronic file.” It is document 70. It is dated August 16, 2005 and is entitled, “Letter w att fr W Knights Aug. 8 05.pdf.” Neither a sender nor receiver are described. The claimed privilege is solicitor client privilege. Under “AGC Comments” it is stated that “W. Knights is legal counsel.” Under “Plaintiff’s Questions” the AG wrote that the electronic file was sent by Mr. Knights to Simon Carvalho, who was Health Canada legal counsel. Ms. Campbell explained that Mr. Knights was counsel with the Department of Justice. As a result of this information, I am satisfied that the claimed privilege is valid. Nevertheless, I checked the document and am satisfied from that review that the claimed privilege is valid.
[47] This exercise of reviewing these 14 emails and the 1 letter listed in Schedule B has led me to the conclusion that I am not prepared to grant the motion and order the disclosure of the remaining documents listed in Schedule B. In most cases, the descriptions in Schedule B are sufficient to establish the claimed privilege.
[48] To cover any uncertainty, I checked the documents themselves and satisfied myself that the claimed privilege was valid.
Payment for discovery reattendance
[49] As stated above, at the argument of the motion, I ordered that Mr. Daskalopoulos reattend for up to seven hours to answer questions arising from his answers to undertakings and the documents the AG have produced. The issue of whether Mr. Daskolopoulos should have to pay for this reattendance was not raised in oral or written argument.
[50] The jurisdiction for such an order lies in Rule 34.14 (1)(b) and Rule 34.15(1)(a). These rules specify that where the person examined is found to have failed to answer proper questions or have misconducted themselves at the examination, he or she can be ordered to reattend at his own expense to answer the questions. There has been no finding that Mr. Daskalopoulos failed to answer proper questions or misconducted himself. Therefore, I do not make this requested order.
Costs
[51] Concerning the costs of the motion, Mr. Starkman filed a costs outline for BIE that showed a substantial indemnity total of $35,952.86 and a partial indemnity total of $23,622.86. Ms. Campbell did not file a costs outline, but advised verbally that the AG was claiming $7,500 in partial indemnity costs.
[52] To bring this motion to a conclusion given the result, I believe I do not need further submissions on costs. Mr. Starkman argued that BIE should get costs because it “chased” the AG for particulars about Schedule B for the better part of this year and succeeded in getting the family coding documents disclosed.
[53] I do not agree. The “chasing” that Mr. Starkman referred to was done through my several case conferences. Furthermore, by the time BIE commenced this motion in mid-October, 2021 it had received the AG’s commitment to deliver the family coding documents that it later produced. On the issues that were in dispute in this motion, the AG was successful. It deserves costs.
[54] Given the BIE costs outline, the AG claim for costs of $7,500 was to be reasonably expected by BIE in the event of a loss. However, the AG did not file a costs outline as required by the Rules. Furthermore, the AG did not fully provide the foundation for the claimed privilege in Schedule B in a few cases. Therefore, I award the AG $5,000 in partial indemnity costs to be paid by BIE in 30 days.
Conclusion
[55] I, therefore, dismiss the motion with costs in the amount of $5,000 to be paid by BIE to the AG in 30 days from today.
[56] Concerning the overall action, I reiterate the following orders I made on November 12, 2021:
• Mr. Daskalopoulos must reattend at discovery for up to seven hours to answer questions arising from his answers to undertakings and the AG disclosed documents;
• The AG must deliver its responding expert report on damages on or before December 31, 2021;
• The mandatory mediation in this case must take place on or before February 15, 2022;
• This action must be set down for trial on or before February 28, 2022.
DATE: January 3, 2022 ______________________________
ASSOCIATE JUSTICE C. WIEBE