COURT FILE NO.: 4749/17 DATE: 2022 01 10

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

THE REGIONAL MUNICIPALITY OF HALTON Plaintiff

Counsel: Talia Gordner, for the Plaintiff

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DAVID ATSUSHI OHASHI, PAMELA GLORIA OHASHI, SYNTEG INC., SYPAR LIMITED LIABILITY COMPANY, MARINO WOO, FLOVAL EQUIPMENT LTD., TODD McLAREN, JOHN DOE INC. AND JOHN DOE Defendants

Counsel: Paul Starkman, for the Ohashi Defendants

HEARD: December 15, 2021

REASONS FOR DECISION RE: WAGG ORDERS

Daley J.

[1] The plaintiff municipality (“Halton”) brought a motion seeking certain relief relating to two Wagg orders (“Wagg Orders”) which had been granted within the context of this action, namely the order of Coats J. of June 14, 2018, and my order of June 14, 2021.

[2] Both Wagg Orders were granted on an unopposed basis including by the defendants Ohashi. The respondent non-parties on the Wagg motions, the Ministry of the Attorney General and the Halton Regional Police Service did not oppose the relief sought on the Wagg motions and they agreed with the forms of the orders that issued following the granting of those orders.

[3] On the plaintiff’s present motion, in broad terms, it seeks to ensure that it will lawfully disclose and produce records that are the subject of the two Wagg Orders in full compliance with the strict terms of those orders, in all of the outstanding litigation involving it and the defendants Ohashi.

[4] It was submitted on behalf of the defendants Ohashi that they were in fact consenting to the plaintiff’s present motion and that as such the motion was unnecessary. I disagree. As discussed below, while the defendants Ohashi appeared to be conceding to the position asserted by the plaintiff, they were in fact opposing the essential terms and conditions of the relief being sought on the plaintiff’s motion.

[5] The plaintiff’s motion is not opposed by the Ministry of the Attorney General or by the Halton Regional Police Service.

[6] The within action is one of several actions brought by the plaintiff wherein it is alleged that the defendants and others defrauded it of many millions of dollars as a result of the manipulation of the plaintiff’s procurement processes.

[7] The defendant, David Ohashi, was at all material times an employee of the plaintiff and following a criminal trial by judge and jury, he was convicted of certain offences relating to the defrauding of the plaintiff.

[8] The plaintiff ultimately terminated David Ohashi’s employment.

[9] David Ohashi has instituted an action against Halton seeking damages for wrongful dismissal. That action was commenced in this court at Toronto (“Ohashi Wrongful Dismissal Action”). Neither of the Wagg Orders, referred to or captured the Ohashi Wrongful Dismissal Action in their terms and conditions.

[10] The within action was commenced in the Superior Court of Justice at Milton and it is under case management by me as the assigned case management judge in accordance with the provisions of rule 37.15 of the Rules of Civil Procedure. This action is being concurrently case managed with several other actions instituted by Halton relating to the alleged fraud, all having been commenced in the Superior Court of Justice at Milton.

[11] The Ohashi Wrongful Dismissal Action is not subject to case management with the other actions instituted at Milton, nor is there presently an order directing that that action be tried with the Halton’s actions seeking damages for fraud from multiple defendants. Although it has no impact on the outcome of the present motion, it is likely that if all these actions proceed forward, an order will be made joining the actions, including the Ohashi Wrongful Dismissal Action for trial together given the common issues of fact and for the purpose of avoiding potentially inconsistent findings of fact and as well as for judicial economy.

[12] The Wagg Orders both relate to documents and records, including electronic records, electronic devices and other things related to the alleged unlawful conduct on the part of the defendants Ohashi. These records were obtained pursuant to Production Orders issued pursuant to the Criminal Code, R.S.C., 1985, c. C-46, and by way of duly authorized search warrants.

[13] Each Wagg Order contains specific language as to how the documents, records and things which were the subject of those orders, were to be dealt with upon release to the moving party.

[14] The Wagg Order of Coats J. of June 14, 2018 provided in paragraph 3, subparagraph “A” as follows:

3. THIS COURT FURTHER ORDERS that the production of all documents pursuant to this Order shall be subject to the following conditions: A – the records produced and copied shall be given to counsel for the moving party for further production to other parties (or where a party is unrepresented, for viewing at the counsel for the moving party’s office or other mutually arranged location) and shall only be used by the parties for the full and fair disposition of the issues in the within civil proceeding and related civil proceedings unless a further Order is obtained on notice to the Halton Regional Police Service and the Attorney General for Ontario.

[15] The second Wagg Order of June 14, 2021 included a paragraph relating to the production of the documents and things that were the subject of that order and in part the order read as follows at paragraph 4, subparagraph (A):

4. THIS COURT FURTHER ORDERS that the production of all documents, electronic records, electronic devices and things described in paragraph 1 and 2 pursuant to this Order shall be subject to the following conditions: A – the documents described in paragraph one shall be produced by the Attorney General to counsel for the Moving Party shall then arrange for production to the other parties in this and related actions being Court Files Nos. 2802/17, 1665/17, 5558/18 and CV – 190-000-2946 – 0000 (the “Related Actions”), in accordance with the directions and orders of the Case Management Judge, Justice Daley.

[16] On this motion the plaintiff seeks the following relief, as summarized from its Notice of Motion:

(a) an order that the Wagg Documents as referenced in the Wagg Orders may be produced by either of the parties in the Ohashi Wrongful Dismissal Action; (b) a declaration that the within action and the Ohashi Wrongful Dismissal Action are related actions; (c) and order varying paragraphs 4 (a) and (b) of the Wagg Order of June 14, 2021 to include the Ohashi Wrongful Dismissal Action in the list of “Related Actions”.

[17] In responding to the plaintiff’s motion, counsel for the defendants Ohashi advised that they would consent to an order that the documents, records and things as referred to in the Wagg Orders be produced as listed in Halton’s affidavit of documents in the Ohashi Wrongful Dismissal Action.

[18] The defendants otherwise opposed the relief sought on the plaintiff’s motion on several grounds.

[19] The plaintiff’s claim for a “declaration” that the Ohashi Wrongful Dismissal Action was a “related action” as referred to in the Wagg Orders was opposed by the defendants on the grounds that it was not open to the court to grant such relief on this motion.

[20] I agree with the defendants’ submission that declaratory relief is not available on the plaintiff’s motion, although having considered the submissions made on behalf of the plaintiff it is questionable as to whether it was actually seeking declaratory relief in the true sense as an equitable remedy.

[21] It was defendants’ position that as it consented to the disclosure and production of the documents, records and things covered by the Wagg Orders by Halton in its affidavit of documents to be delivered in the Ohashi Wrongful Dismissal Action, that was all that the plaintiff was entitled to. I disagree as the other relief sought was not addressed by the defendants’ submissions.

[22] Counsel for the plaintiff correctly expressed a concern that the Wagg Orders expressly referred to “related actions” which were specifically identified by name and action number however the Wagg Orders were silent with respect to the Ohashi Wrongful Dismissal Action and it was the plaintiff’s submission that in order to ensure strict compliance with those orders, the Ohashi Wrongful Dismissal Action needed to be included in the category of actions which were subject to the terms of the Wagg Orders.

[23] Counsel for the Ohashi Defendants, in addition to disputing the plaintiff’s entitlement to any form of declaratory relief, also submitted in oral argument that the plaintiff had not established the relevance of the Wagg Orders’ documents, records nor their admissibility at trial and as such those issues should not be determined on this motion.

[24] Although not expressly raised by counsel for the defendants, I questioned him as to whether he had some concern about a breach of the deemed undertaking rule in the event the Wagg Orders, were amended so as to allow for the inclusion of the Ohashi Wrongful Dismissal Action and he stated he had no such concern or objection on that basis.

[25] I am of the view that the questions of relevance and admissibility in respect of the documents, records and things which are the subject of the Wagg Orders must be left to be determined by the trial judge and as such the granting relief sought by the plaintiff on this motion, would not be determinative of those issues.

[26] I have further concluded that in order to ensure full and strict compliance with the terms of the Wagg Orders the plaintiff’s request must be considered as a motion under rule 59.06 (1) of the Rules of Civil Procedure given that the plaintiff seeks to amend the Wagg Order of June 14, 2021, which has been signed, issued and entered. In the result, I am functus officio and as such I do not have remaining jurisdiction to amend the order other than as provided for in rule 59.06(1). That rule states:

Rule 59.06 (1) – – An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.

[27] In the affidavit filed in support of Halton’s motion seeking leave to amend the Wagg Order of June 14, 2021, it is deposed that the absence of reference to the Ohashi Wrongful Dismissal Action as a related action to be included under the terms of that order, arose due to an oversight by counsel in the drafting of its motion and the order ultimately signed and entered.

[28] As a result of the uncontradicted evidence that the absence of the Ohashi Wrongful Dismissal Action from the motion and order granted on June 14, 2021 resulted from an oversight, I have concluded that I do have jurisdiction to grant an order amending the Wagg Order of June 14, 2021 to include the Ohashi Wrongful Dismissal Action as one of the referenced actions.

[29] In spite of the position advanced on behalf of the defendants Ohashi that they did not agree to the Ohashi Wrongful Dismissal Action being described as a “related action” given the submissions made, I see no basis in law as to why that action should not be so described. To be clear, the use of that descriptor in my order of June 14, 2021 was accepted by me in the draft order as simply a term of convenience without any specific legal consequences flowing from the use of that term. Whether that term is applied to the relationship between the within action and the Ohashi Wrongful Dismissal Action, it is clear on the record submitted and from review of the pleadings in both actions, that there are common issues of fact and law in these actions given that the plaintiff Halton has sued the Ohashi defendants alleging fraud related to the defendant David Ohashi’s employment with the plaintiff. David Ohashi’s Wrongful Dismissal action against Halton could have just as easily been advanced by way of a counterclaim in this action.

[30] Notably, the Ohashi defendants, in disputing the order sought allowing for the amendment of the June 14, 2021 Wagg Order have offered no evidence as to any prejudice to them in the event such an order were granted.

[31] In the result, an order is granted in the following terms:

(1) Pursuant to rule 59.06 (1) an order is granted amending the Wagg Order of June 14, 2021 as follows at paragraph 4 (a) so that this sub paragraph read as follows: “(a) the documents described in paragraph one shall be produced by the Attorney General to counsel for the Moving Party. Counsel for the Moving Party shall then arrange for production to the other parties in this and related actions, being Court File Nos. 2802/17, 5558/18 and CV–190-000-2946–0000, and CV–18–00590180–0000 (Toronto) . (2) Paragraph 4 (b) shall therefore be read within the context of paragraph 4 (a) as amended. (3) Following the amendment of the Wagg Order of June 14, 2021, as set out above, Halton , as a defendant in the Ohashi Wrongful Dismissal Action, may list and produce in its affidavit of documents to be served in that action the documents, records and other things obtained by it pursuant to the said Wagg Order.

[32] Counsel for the plaintiff shall serve and file costs submissions of no longer than two pages plus a costs outline within 20 days from the date of release of this decision. Counsel for the defendants Ohashi shall file cost submissions and a costs outline within 20 days thereafter.

Daley J. Released: January 10, 2022