Court File and Parties

COURT FILE NO.: CV-18-785210000 DATE: 2022/05/02

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Capital Sports Management Inc. Plaintiff – and – Trinity Development Group Inc., 801 Albert Street Inc., TIP Albert GP Inc., TIP Albert Limited Partnership, Trinity Albert LP, G. Bird Holdings Inc. c.o.b. GBA Development and Project Management, John Ruddy and Graham Bird Defendants

AND B E T W E E N:

Trinity Development Group Inc. Plaintiff by Counterclaim – and – Capital Sports Management Inc. and Eugene Melnyk Defendants by Counterclaim

COUNSEL: Alistair Crawley, Robert Brush, Clarke Tedesco, and Alexandra Grishanova, for the Plaintiff and Defendant to the Counterclaim Capital Sports Management Inc. and for the Defendant to the Counterclaim Eugene Melnyk Milton A. Davis, Ronald D. Davis, Samantha M. Green, Hailey Abramsky, and Daniel Shuman, for the Defendant and Plaintiff by Counterclaim Trinity Development Group Inc. and for the Defendants Trinity Albert LP and John Ruddy Christopher D. Bredt, Laura Wagner, and Amitha Carnadin, for the Defendants 801 Albert Street Inc. and TIP Albert Limited Partnership No one appearing for the Defendants G. Bird Holdings Inc. c.o.b. GBA Development and Project Management and Graham Bird

HEARD: January 26 and 27, 2022

REASONS FOR decision on motion to compel production

RYAN BELL J.

Overview

[1] This claim arises from the failure of a joint venture [^1] between Capital Sports Management Inc. (“CSMI”) and Trinity Development Group Inc. (“Trinity”) for the development of LeBreton Flats, a 53-acre site located just west of Parliament Hill (the “LeBreton Project”). CSMI alleges that a conflict of interest was created when Trinity began developing an adjacent development project known as 900 Albert Street, and that Trinity should have either withdrawn from the joint venture or harmonized the two developments. [^2] CSMI pleads that CSMI and Trinity were in a “de facto or implied joint venture” and that Trinity owed duties to CSMI “as its joint venture partner, including a fiduciary duty to not prefer its own interests, including its interest in the 900 Albert development.” [^3]

[2] Trinity, Trinity Albert LP, and John Ruddy move for an order requiring CSMI and Eugene Melnyk to produce all correspondence, memos, accounts, emails, data, and other documents in their possession, control or power relating to the work of Gowling WLG LLP for RendezVous LeBreton Group (“RLG”) or for the LeBreton Project for the period of July 23, 2015 (when CSMI and Trinity entered into a letter of intent) to November 23, 2018 (when this action was commenced).

[3] Trinity’s position is that Gowlings was jointly retained by CSMI and Trinity in relation to the LeBreton Project during this period and “there can be no secrets between joint venture parties on matters that may affect the joint venture.” [^4] In the alternative, Trinity argues that CSMI and Trinity share common interest privilege over the Gowlings records. Trinity also says that even if any privilege with Gowlings did belong to CSMI to the exclusion of Trinity, CSMI has waived privilege.

[4] The defendants 801 Albert Street Inc. and TIP Albert Limited Partnership [^5] (together, the “Albert Street defendants”) own the 900 Albert Street development project. Trinity is an indirect part owner of 801 Albert Street and a limited partner in TIP Albert Limited Partnership. The Albert Street defendants support Trinity’s position on the motion. The Albert Street defendants also argue that CSMI’s pleading that a fiduciary relationship existed between CSMI and Trinity precludes CSMI’s claim of privilege over the Gowlings records.

[5] CSMI has refused to produce the Gowlings records. CSMI’s position is that there was no joint retainer of Gowlings and that Gowlings was, at all times, in a solicitor-client relationship with CSMI alone. CSMI argues that the fact that it shared some of the work completed by its legal counsel with Trinity to further the parties’ common goal of advancing the LeBreton Project did not undermine the solicitor-client relationship between CSMI and Gowlings. CSMI further submits that in the event I find there was a joint retainer, the joint retainer was of limited duration, from July 23, 2015 to May 2016, when Gowlings “clearly stated” to Trinity that it acted exclusively for CSMI.

[6] Trinity also seeks an order requiring CSMI to produce unredacted versions of the documents listed in Schedule “A” to Trinity’s notice of motion that have not, to date, been produced. CSMI claims solicitor-client privilege over the redacted portions of these documents.

[7] For the following reasons, the motion is granted.

The Request for Qualifications and the Request for Proposals

[8] The bidding process for the right to develop LeBreton Flats had two successive phases: the Request for Qualifications (“RFQ”) and the Request for Proposals (“RFP”). The National Capital Commission (“NCC”) issued the RFQ in September 2014.

[9] In October 2014, CSMI contacted Gowlings regarding the provision of legal services for the LeBreton Project. CSMI and Gowlings entered into a formal retainer agreement on November 18, 2014. The retainer agreement stated, in part:

Client: Our client in this retainer is Capital Sports Management Inc. We are not acting in this retainer for any other entities or individuals, whether related to our client or not. In particular, we are not acting for any directors, officers or shareholders of our client.

To whom our duties are owed: Our confidentiality and conflicts duties are owed only to you and not to related entities or individuals.

[10] In the fall of 2014, GBA Development, retained by CSMI to consult on the anticipated RFQ, approached Mr. Ruddy to discuss Trinity’s possible participation in the LeBreton Project. Shortly thereafter, Trinity joined the “Project Team.”

[11] On January 7, 2015, GBA Development submitted RLG’s response to the RFQ. In the RFQ response, RLG was identified as the “Master Developer,” CSMI was described as “Lead Proponent,” and Trinity’s role was described as “Developer Retail.”

[12] On February 18, 2015, the NCC announced the four proponents who were invited to “propose plans for the future of LeBreton Flats.” The selected proponents included “Rendez Vous [sic] LeBreton Group [which] proposes a major event centre for sports and entertainment performances, complemented by green spaces, and residential and commercial developments.” [^6]

[13] The NCC released the RFP on April 15, 2015.

The Letter of Intent

[14] On July 23, 2015, CSMI and Trinity signed the letter of intent (“LOI”) which “outline[d] the general terms of our respective involvement/investment/participation in the [LeBreton Flats Land Redevelopment] Project.” There is no dispute that Gowlings acted for CSMI in negotiations for the LOI.

[15] Paragraph A.2 of the LOI states:

A team of developers, builders and consultants, led by Capital Sports Management Inc., responded to the RFQ and Capital Sports Management Inc. was short-listed as one of the four proponents invited to respond to the RFP. Responses to the RFP are due in the Fall of 2015.

[16] While the NCC’s press release identifies RLG and not CSMI as one of the four proponents invited to respond, counsel for CSMI submits that this provision of the LOI is relevant to how Gowlings viewed their retainer.

[17] Under the heading “Joint Venture,” the LOI provides that CSMI and Trinity,

shall participate in preparing and submitting a response (the “Response”) to the RFP and, if identified by the NCC as the successful proponent(s), a joint venture with respect to the ownership/development of the LeBreton Lands, based on the principals [sic] set forth under Section G (General) below. [^7]

[18] In broad terms, under the LOI, Trinity would take the lead with respect to the development of the LeBreton Lands, and would have the right to purchase the retail component of the project. [^8] CSMI would acquire the sports/entertainment component and would take the lead with respect to its financing, leasing, and overall design and development. [^9]

[19] CSMI and Trinity agreed that they would “work collaboratively on the balance of the RFP/Response with decisions as to form and content to be agreed upon by the parties.” [^10] The parties agreed that each would be responsible for 50 per cent of all approved third party costs with respect to the RFQ and the response thereto and the RFP and the response thereto. [^11] CSMI and Trinity agreed to retain GBA Development as the primary project management consultant who would “direct the team set forth in the Response to the RFP for the redevelopment of the LeBreton Lands.” [^12]

[20] The LOI further provides:

Each of the parties hereto shall bear their own respective cost and expenses incurred with respect to these matters. Without limiting the foregoing, each of CSMI and Trinity shall bear their own legal and accounting expenses with respect to the Definitive Agreement [defined as a definitive shareholder/partnership/joint venture agreement for the Master Land Developer] and the structuring thereof.

The Response to the RFP

[21] On December 15, 2015, GBA Development submitted RLG’s response to the RFP. In the response, RLG is described as,

...a joint venture between Capital Sports Management Inc. (CSMI) and Trinity Development Group Inc. (Trinity). RLG, together with its strategic funding partners, will act as the Master Land Developer and enter into the Master Development Agreement with the NCC for the redevelopment of LeBreton Flats (the “Project”).

[22] In the response to the RFP, Gowlings is identified as a “RendezVous LeBreton Team Member” and a member of RLG’s world-class team of advisors. Gowlings’ logo appears in the response, together with those of CSMI, Trinity, and GBA Development, among others.

[23] On April 28, 2016, the NCC named RLG the first ranked proponent for the LeBreton Flats redevelopment project.

Subsequent Events

[24] Almost immediately following the announcement that RLG had been selected as the first ranked proponent for the LeBreton Project, a dispute developed between CSMI and Trinity. In July 2016, the parties attempted mediation to resolve their differences.

[25] Although the mediation was unsuccessful, CSMI and Trinity resolved to continue with the LeBreton Project. From June through October, RLG continued to negotiate with the NCC, including in relation to the critical path worksheet and the resolution letter required by the NCC in compliance with the Terms of Engagement. On October 31, 2016, the “Resolution Letter in Support of Satisfaction of Preliminary Issues Set Out in the First Ranked Proponent Terms of Engagement Agreement Between the National Capital Commission and RendezVous LeBreton Group” was submitted.

[26] However, as the Albert Street defendants succinctly state in their factum, “[t]he relationship between CSMI and Trinity eventually soured, and following the commencement of litigation by CSMI [in November 2018], the negotiations with the NCC were terminated.” [^13]

The Issues

[27] The issues on this motion are the following:

(i) Was there a joint retainer of Gowlings by CSMI and Trinity? (ii) Do CSMI and Trinity share common interest privilege over the Gowlings records? (iii) Has CSMI waived privilege over the Gowlings records? (iv) Is CSMI required to produce unredacted versions of the documents listed in Schedule “A” to Trinity’s notice of motion?

Was There a Joint Retainer?

Joint interest privilege

[28] In Sopinka, Lederman & Bryant: The Law of Evidence in Canada (5th ed.) [^14], the authors address joint interest privilege:

Joint consultation with one solicitor by two or more parties for their mutual benefit poses a problem of relative confidentiality. As against others, the communication to the solicitor was intended to be confidential and thus is privileged. However, as between themselves, each party is expected to share in and be privy to all communications passing between either of them and their solicitor, and, accordingly, should any controversy or dispute subsequently arise between the parties, then, the essence of confidentiality being absent, either party may demand disclosure of the communication.

[29] There is no privilege regarding communications between parties to a joint retainer, and in such circumstances, the clients to the retainer are treated as one: Archibald v. Archibald [^15], at para. 28. The lawyer is ethically bound to ensure that no material information is treated as confidential between the clients: Estate of Arthur O. Sawdon v. Watch Tower Bible & Tract Society of Canada [^16], at para. 24; Boreta v. Primrose Drilling Ventures Ltd. [^17], at para. 58; r. 3.4-5 of the Rules of Professional Conduct [^18].

[30] In Sarvarian, Griffin J. ordered production of the lawyer’s files where the applicants argued they were entitled to production based on the plaintiffs’ allegation that the defendant was part of their joint venture or that she was a beneficiary of the trust pursuant to a trust agreement, and the lawyer had provided services to the “joint venture/trust.” At paras. 73-74, Griffin J. wrote:

A central premise of a trust relationship, and a joint venture relationship, is full disclosure of all information relevant to the subject matter of the trust to the beneficiary of the trust and each joint venture member. Generally speaking, there can be no secrets between joint venture parties on matters that may affect the joint venture. The same can be said with respect to a trustee and beneficiary.

This means that, generally speaking, communications between one joint venture party and a lawyer, regarding the subject matter of the joint venture or anything that might affect the joint venture, are not confidential vis-à-vis the other joint venture party, and so are not privileged from production to that other joint venture party.

[31] In Attila Dogan Construction v. AMEC Americas Limited [^19], the issue was whether privilege could be asserted by AMEC against its joint venture partner. Observing that the lawyers were retained to act on behalf of both joint venture participants in advancing a claim against a third party, Wittman C.J. concluded:

Communications between AMEC, JDC Consulting and Hammonds [the lawyers] fall within the Joint Retainer exception to solicitor client privilege and are therefore not privileged as against AD [the joint venture partner]. [^20]

[32] I agree with Professor Adam Dodek’s summary of Sarvarian and Attila: “...when joint venturers jointly seek legal advice, there is no privilege between the members of the joint venture but the privilege exists as against outside parties.” [^21] Contrary to CSMI’s submission, this interpretation does not mean that whenever parties enter a joint venture relationship, they give up their ability to consult their own lawyers in confidence. As between joint venture parties, communications between one party and the lawyer will not be privileged if (i) there was a joint retainer of the lawyer; and (ii) the communications are in relation to the subject matter of the joint venture.

Indicia of a solicitor-client relationship

[33] Whether a solicitor-client relationship exists is a question of fact. The overarching question is whether a reasonable person in the position of a party with knowledge of all the facts would reasonably form the belief that the lawyer was acting for a particular party: Trillium Motor World Ltd. v. General Motors of Canada Limited [^22], at para. 461.

[34] The court will look to a number of factors to ascertain whether a solicitor-client relationship exists. The relevant indicia include the following:

(i) a contract or retainer; (ii) a file opened by the lawyer; (iii) meetings between the lawyer and the party; (iv) correspondence between the lawyer and the party; (v) a bill rendered by the lawyer to the party; (vi) a bill paid by the party; (vii) instructions given by the party to the lawyer; (viii) the lawyer acting on instructions given; (ix) statements made by the lawyer that the lawyer is acting for the party; (x) a reasonable expectation by the party about the lawyer’s role; (xi) legal advice given; (xii) any legal documents created for the party; (xiii) the party’s vested interest in the outcome of the proceeding; and (xiv) the belief of other parties to the litigation that the party was represented by the lawyer. [^23]

[35] Not all indicia need be present for the court to find that a solicitor-client relationship exists. [^24] In addition, depending on the facts of the case, other indicia may be relevant and will be factored into the analysis. [^25]

[36] CSMI submits that where a joint retainer is alleged, additional indicia are more relevant to the determination of whether a stranger to the solicitor-client relationship has become part of that relationship by implication. CSMI relies on Amcan Consolidated Technologies Corp. v. Connell Ltd. Partnership [^26] for the following additional indicia:

(i) whether advice was given outside of the presence of the solicitor’s own client; (ii) whether the party arguing that a solicitor-client relationship existed was aware that the solicitor was receiving confidential information from its own client that the other party did not receive; (iii) whether there is any evidence to suggest the solicitor had any reason to regard him or herself as working in any capacity beyond being a solicitor to the single client; (iv) whether the solicitor’s advice is sought on internal documents prepared by the other party with respect to the subject matter of the alleged retainer; (v) which party the solicitor took instructions from and if information disclosed to the other party was necessary for completion of the transaction; (vi) whether the solicitor considers the other party as being his or her client; (vii) whether there was any appearance of impropriety; and (viii) whether the party was independently represented by its counsel.

[37] In my view, the decision in Amcan and the indicia identified in that case reinforce the fact-specific and context-dependent nature of the inquiry. In Amcan, the question of the existence of a solicitor-client relationship arose in the context of allegations that the lawyer was acting in a conflict of interest. Certain of the indicia identified by the court in Amcan – for example, which party the solicitor took instructions from – overlap with the indicia identified in Trillium Motor World, Zarabi-Majd, and Jeffers. It is to be expected that, in the context of a disqualification application, other indicia – for example, the appearance of impropriety – may assume greater prominence in the analysis. In Amcan, Campbell J. dismissed the disqualification application, emphasizing that in the absence of actual or potential misuse of confidential information,

there must be in my view some real and tangible evidence on which the court can conclude that the circumstances are such to conclude a reliance or reposement of trust sufficient to be akin to a solicitor/client relationship. [^27]

[38] The need for objective evidence was also emphasized by McEwen J. in Trillium Motor World:

While a putative client’s knowledge is important, the existence of a retainer cannot be totally dependent on what the putative client thought or knew about the existence of the solicitor-client relationship. Equally important is what the lawyer knew or ought to have known about the reasonable expectations of the persons with whom he or she is dealing directly or indirectly. The court must be able to consider objective facts about the parties’ conduct that suggest such a relationship. [^28]

Absence of a written retainer

[39] The absence of a written retainer agreement is not determinative of the existence of a solicitor-client relationship. A retainer may be inferred from the circumstances, the conduct of the parties, and the documents. [^29]

[40] In the absence of a written retainer, the court should not “strain to resolve the ambiguities in favour of the lawyer over the client”: Strother v. 3464920 Canada Inc. [^30], at para. 40. In Rye and Partners v. 1041977 Ontario Inc. [^31], the Court of Appeal for Ontario noted that “when a solicitor fails to reduce to writing the terms of his or her retainer and a dispute arises, there is a heavy onus on the solicitor to establish a retainer.” [^32]

[41] In Plater v. Arenson [^33], at para. 5, the Court of Appeal upheld the trial judge’s explanation that,

[t]he Solicitors’ Act and the common law are founded on the premise that the client should be protected. It is also well settled law that when there is any doubt or ambiguity, it is to be resolved in favour of the client.

[42] CSMI submits that the reasoning affirmed by the Court of Appeal in Plater – predicated on the client’s vulnerability and imbalance of legal knowledge [^34] – does not apply to Trinity because Trinity is “a sophisticated commercial party that was represented by its own counsel throughout its engagement in RLG.” CSMI seeks to distinguish the cases relied on by Trinity and the Albert Street defendants [^35] on the basis that the question of the existence of a solicitor-client relationship arose in the context of fee disputes, allegations of breaches of lawyers’ duties, and allegations that the lawyers were acting in a conflict of interest.

[43] In my view, CSMI seeks to unduly limit the application of a well settled principle. In Trillium Motor World, a class action in which the number and nature of the defendant law firm’s retainers by members of the class were in dispute, McEwen J. wrote:

where a retainer has not been reduced to writing, a heavy onus is on the lawyer to show that its version of the scope of the retainer is correct. This is especially true in cases involving ambiguity as to the scope of the retainer. [citations omitted.] [^36]

[44] It is not, however, the case that whenever there is a conflict in the evidence between a client and a lawyer that the client’s version must be preferred. This may be the case where “all other things are equal,” where there is doubt or ambiguity about the terms of a retainer, and only “to the extent the evidence will permit”: Broesky, at para. 49. [^37] The existence of a retainer is a factual issue, and the relevant indicia include the party’s reasonable expectation about the lawyer’s role. To repeat the words of McEwen J. in Trillium Motor World, the court must be able to consider objective facts about the parties’ conduct that suggest a solicitor-client relationship. [^38]

A Solicitor-client relationship arose between Gowlings and Trinity

[45] A number of the indicia of a solicitor-client relationship between Gowlings and Trinity are evident from the record. In meetings and correspondence with, and submissions to third parties, Gowlings represented that it acted for RLG. Gowlings met and corresponded with Trinity on matters concerning RLG. Gowlings sought and acted on Trinity’s instructions. Gowlings created legal documents, and Gowlings provided legal advice.

[46] The LOI reflects CSMI and Trinity’s common goal of a successful bid for the LeBreton Project and provides that they would “work collaboratively” to achieve that common goal. The evidence in the record demonstrates that, in preparing the response to the RFP, Gowlings acted as counsel to both CSMI and Trinity in relation to RLG and the LeBreton Project. For example, on August 20, 2015, Gowlings’ partner Darryl Brown provided to CSMI, Trinity, and GBA Development (retained jointly by CSMI and Trinity as set out in the LOI), for their consideration, an initial draft of the business terms to be included in the response to the RFP. Mr. Brown highlighted the key issues that needed to be discussed.

[47] In the late summer and fall of 2015, GBA Development prepared a series of RFP-Response Status Reports to “RendezVous LeBreton Group Owners.” Gowlings’ activities, including the preparation of the business terms sheet and preliminary sub-developer agreements “for review by partners” for inclusion in the response to the RFP are noted. There can be no doubt that Gowlings’ activities, as recorded in these status reports, were undertaken on RLG’s behalf.

[48] The parties’ interactions disclose that Gowlings’ lawyers took instructions from and gave advice to CSMI, Trinity, and RLG consultants in preparing the response to the RFP. For example, on October 13, 2015, Mr. Brown sought instructions and comments from both CSMI and Trinity in relation to a revised version of the draft business terms between RLG and the NCC for submission as part of RLG’s response to the RFP.

[49] In his evidence, Mr. Ruddy provides details of other documents circulated by Gowlings’ lawyers to representatives of both CSMI and Trinity for their review and comments. These documents include:

• a draft comfort letter for “our” potential funding partners;
• a draft comfort letter for “our” potential subcontractors;
• Mr. Brown’s comments on the section of the proposed response to the RFP entitled “Ownership, Management and Financial Capability”;
• a revised version of the “Master Development Agreement – Summary of Business Terms,” reflecting CSMI’s comments; and
• draft language to be included in the response to the RFP designed to protect RLG’s privacy.

[50] The draft documents circulated by Mr. Brown to CSMI and Trinity for their mutual review and comment included legal memoranda by Gowlings’ partners, addressed to both CSMI and Trinity, on the topics of municipal capital facilities, tax increment financing, and HST. RLG’s response to the RFP included these legal memoranda.

[51] Lawyers from Gowlings attended the three meetings with the NCC from July 2015 until the response to the RFP was submitted on December 15, 2015. At the July 21, 2015 meeting, Cynthia Elderkin of Gowlings was listed as “a participant from the RendezVous LeBreton Group.” Mr. Brown attended the two subsequent meetings and was identified as being from Gowlings. Knowing that no other legal counsel attended on behalf of RLG at these meetings and that the selected proponent was RLG, a reasonable person would reasonably believe that Gowlings was attending these meetings as the legal representative for RLG.

[52] Gowlings’ role as legal counsel to RLG was expressly addressed in the response to the RFP. In the response, Gowlings and lawyers Brown, Elderkin, and Polowin were listed as a “RendezVous LeBreton Team Member.” Gowlings is the only legal counsel for RLG identified in the response.

[53] Significantly, the introduction to the response to the RFP refers to RLG’s “World-class Advisors” and identifies Gowlings as RLG’s legal advisor. A draft of the introduction, prepared by Geoff Publow, CSMI’s then-vice president, was reviewed and commented upon by Mr. Brown. Mr. Brown did not raise any issue with the description of Gowlings as RLG’s legal advisor.

[54] The Executive Summary to the response to the RFP includes the following:

The Business Terms and the Operating Agreement Term Sheet are supported by opinions from our legal counsel, Gowling Lafleur Henderson LLP, with respect to the treatment of municipal capital facilities and the Tax Increment Financing Act (Ontario) as well as a memorandum in respect of the treatment of HST (see Appendix 24).

[55] Gowlings’ lawyers Cynthia Elderkin, Darryl Brown, Todd Burke, and Michael Polowin provided evidence on behalf of CSMI on this motion. Their evidence is that Gowlings represented CSMI and only CSMI in relation to the LeBreton Project and that they only acted on CSMI’s instructions in regard to various aspects of the Project. [^39] Mr. Brown’s evidence is that he would,

request and receive instructions from CSMI to circulate drafts of documents to the CSMI Team or GBA before the drafts were provided to the broader group (including Trinity), as well as instructions from CSMI to participate in meetings and provide certain legal advice in respect of the response to the RFP. [^40]

[56] Mr. Brown explains that the “proponent’s law firm is usually responsible for the initial draft of certain components of the response since the proponent will be the party who will be executing the response.” In my view, Mr. Brown’s explanation supports the conclusion that Gowlings was jointly representing CSMI and Trinity in relation to RLG. The selected proponent was RLG, not CSMI. The response to the RFP was in the name of and on behalf of RLG, not CSMI. The response itself identified Gowlings as RLG’s legal advisor and the legal advice provided in the memoranda was provided to both CSMI and Trinity.

[57] Lawyers from Gowlings were present during RLG status meetings. One of the purposes of the status meetings was to solicit input and provide legal advice regarding the documents to be included in the response to the RFP. In support of its position that there was no joint retainer, CSMI emphasizes that Trinity never met or communicated separately with Gowlings’ lawyers. In my view, the fact that the communications between them took place in the presence of CSMI is, objectively, consistent with there being a joint retainer.

[58] The evidence of the Gowlings’ lawyers that “changes to [their work product] were always made after review by, on, and only with the instructions of our client, CSMI” [^41] must be contrasted with the perspective of CSMI itself. On cross-examination, then-in-house counsel for CSMI, Wendy Kelley, acknowledged Gowlings’ dual role with CSMI and RLG:

Gowlings represented CSMI in the RendezVous LeBreton Group. They also did work for the group as a whole. [^42]

[59] In support of its position that it was CSMI who, in fact, responded to the RFP as the proponent, CSMI has identified two appendices to the response to the RFP. The first is a Certificate of Independent Submission Determination signed by the then-president of CSMI, Cyril Leeder. In this document, CSMI is identified as the “proponent.” The second is a Conflict of Interest Declaration signed by Mr. Melnyk as owner, chairman and CEO of CSMI. In this document, CSMI is also identified as the “proponent.”

[60] CSMI’s description as the proponent in these two appendices does not change the fact that the response to the RFP was in the name of RLG, described in the Executive Summary as a joint venture between CSMI and Trinity. Neither appendix accords CSMI a higher status than Trinity in the LeBreton Project. In dealing with the proposed Terms of Engagement, the NCC confirmed to CSMI’s in-house counsel that,

RendezVous Lebreton Group, which throughout the process and the submission has been identified as including Trinity Development Group, is the entity that has submitted the proposal and is entitled to engage with the NCC at this stage of the RFP process.

[61] There is evidence in the record that after the response to the RFP, Gowlings continued to take instructions from both CSMI and Trinity and to attend meetings on behalf of RLG. For example, in January 2016, Mr. Brown attended a public proponent presentation to members of the public. A list of individuals who would attend on behalf of RLG included “Darryl Brown, Partner – Gowlings.” It is clear from the NCC’s response to this list that those attending were doing so on behalf of RLG.

[62] Gowlings worked on the critical path worksheet and the resolution letter required by the NCC in compliance with the Terms of Engagement agreement. Again, the record demonstrates that Gowlings’ solicited comments of both CSMI and Trinity and was acting on the instructions of both parties. For example, on February 1, 2016, Mr. Polowin asked for confirmation “that these are my instructions [to release the TIF memo]”, to which Mr. Ruddy responded, “Ok with me.” Mr. Polowin’s failure to notice that CSMI was not on the email chain [^43] does not change the “objective fact” that he was soliciting instructions from Trinity.

[63] In a second example, on June 13, 2016, Mr. Brown sent to representatives of CSMI and Trinity (including CSMI’s in-house counsel and counsel for Trinity) an initial draft of a critical path worksheet for the LeBreton Project “for purposes of discussions with the NCC.” Mr. Brown stated “[p]lease advise if you would like to discuss.”

[64] In a third example, on September 8, 2016, Mr. Polowin sought to confirm from the “Trinity side” whether “[m]y letter to the City” was acceptable. Mr. Polowin’s letter to the City “Re: LeBreton Flats RFP – Municipal Capital Facility Research” was sent on September 12, 2016. The opening words of the letter read:

We are the solicitors for the Rendez[V]ous Le[B]reton Group (“RLG”). We have been asked by our client to provide you with our opinion with respect to certain questions that pertain to discussions between RLG and the City of Ottawa...

[65] Mr. Polowin’s evidence is that his letter was structured as a letter of opinion to the City in order to preserve legal privilege and that he was not the solicitor for RLG. The plain wording of his own letter is to the contrary.

[66] Gowlings’ letter of September 8, 2016 takes on additional prominence in the analysis, coming as it did, only a few weeks after the parties’ failed mediation in July 2016. In May or June 2016, CSMI advised Trinity for the first time following the execution of the LOI, that Gowlings was acting for CSMI alone. There is no dispute that Gowlings’ attended the mediation on behalf of CSMI.

[67] I disagree with CSMI’s submission that Trinity acquiesced to Gowlings’ retainer by CSMI. Mr. Ruddy’s evidence is that Trinity did not object to Gowlings attending the mediation because,

[w]hile I disagreed with a Gowlings lawyer attending the mediation and purporting to act for CSMI, (especially given that at the exact same time, Gowlings was continuing to work on items relating to RLG’s negotiations with the NCC, as explained below) in the interest of a productive discussion, and in the hope that the RLG joint venture and the LeBreton opportunity could be preserved, we proceeded with the mediation. [^44]

[68] Mr. Ruddy was not cross-examined on his statement in this regard.

[69] In addition, the objective evidence – including Mr. Polowin’s September 8, 2016 letter to the City and Gowlings’ continued engagement on the resolution letter – is contrary to CSMI’s acquiescence argument. Finally, I note that there is no evidence before me of detrimental reliance on the part of CSMI: Remo Imports Ltd. v. Jaguar Cars Ltd. [^45], at para. 53.

Trinity’s reasonable expectations

[70] Mr. Ruddy’s evidence is that “Gowlings acted for RLG, the joint venture between CSMI and Trinity.” [^46] Although CSMI submits that that “[t]here is good reason to doubt Trinity’s evidence that it truly considered Gowlings to be its lawyer, acting in its best interest” and that “[Trinity] was surely not confused”, Mr. Ruddy was not cross-examined on his sworn statement.

[71] There is evidence from Mr. Brown that on July 7, 2015, he told Mr. Ruddy that he, Mr. Brown, was counsel to CSMI and was providing legal advice and preparing documents in response to the RFP. Mr. Ruddy’s evidence is that, while he has a recollection of the meeting, he does not recall the conversation with Mr. Brown. I need not determine if the conversation took place. If it did, the conversation occurred prior to the signing of the LOI. The conversation recalled by Mr. Brown would be consistent with the fact that Gowlings represented CSMI in negotiating the LOI.

[72] Following the unsuccessful mediation, both parties continued to work to advance their common goal and, consistent with this, Gowlings continued to work on items relating to RLG’s negotiations with the NCC.

[73] Having regard to Gowlings’ conduct and communications (including meeting with Trinity, seeking instructions from CSMI and Trinity, and representing itself to the NCC and the City as RLG’s legal advisor), Trinity’s expectation and belief that Gowlings was acting for it, jointly with CSMI, in relation to RLG and the LeBreton Project was reasonable.

[74] While the evidence of Gowlings’ lawyers is that they represented CSMI and only CSMI in relation to the LeBreton Project, the fact that a lawyer does not consider someone to be a client is not determinative. The test remains whether a reasonable person in the position of a party with knowledge of all the facts would reasonably form the belief that the lawyer was acting for a particular party. [^47] What is important is what the lawyer knew or ought to have known about the reasonable expectations of the persons with whom he or she is dealing: Trillium Motor World, at para. 440. CSMI’s assertion that “[Trinity] was surely not confused” is belied by the objective facts and Trinity’s reasonable expectations.

The belief of other parties to the litigation

[75] The perspective of Mr. Bird of GBA Development, retained by CSMI and Trinity as the primary project management consultant, is also relevant to the analysis. On cross-examination, when asked if Trinity was providing instructions to lawyers at Gowlings to do legal work, Mr. Bird responded:

If you call them instructions, I call them discussions to get the right answer. That’s what we did as a team and we submitted and we won. [^48]

The payment of Gowlings’ fees

[76] Finally, I have considered that under the LOI, CSMI and Trinity were each responsible for 50 per cent of the third party costs for the responses to the RFQ and the RFP. This included Gowlings’ fees. The evidence is that between November 2014 and May 2016, Trinity paid 50 per cent of Gowlings’ fees for Gowlings’ RLG work.

[77] In August 2016, CSMI requested that Trinity pay half of the RLG expenses that had been incurred, including Gowlings’ fees. Trinity initially objected to paying its share, not because it denied the obligation, but for other reasons. Ultimately, the issue was resolved, and Trinity paid its share of the RLG expenses. Ms. Kelley’s correspondence to Mr. Ruddy on September 19, 2016 expressly confirms Gowlings’ dual role:

...you know that Graham Bird has been actively involved in every preparatory meeting at the City and meeting with Gowlings etc. In addition, John Piazza and your team have been intimately involved in getting Gowlings to draft the various municipal legal memorandums for which you have been billed half. You have not been billed for any CSMI Gowlings specific time...

[78] I do not find CSMI’s argument that reimbursing a business partner is different from being billed directly by one’s own lawyer to be persuasive in the context of Ms. Kelley’s correspondence (“for which you have been billed half”) and a post-RFP budget entry for RLG prepared by Mr. Publow of CSMI. In that entry, Gowlings is, once again, identified as RLG’s legal counsel.

[79] The fact that Trinity was only responsible for a portion of Gowlings’ fees – “[y]ou have not been billed for any CSMI Gowlings specific time” – is consistent with Ms. Kelley’s evidence on cross-examination regarding Gowlings’ dual role.

The fairness arguments

[80] In support of their respective positions, both CSMI and Trinity invoke fairness considerations. Trinity relies on the Estate of Arthur O. Sawdon, in which Ricchetti J. concluded that no privilege existed as between an estate and a beneficiary religious society that had paid the law firm’s fees. Ricchetti J. stated:

[I]t is only fair and equitable that the Society be entitled to see what work was done and whether they should have been charged at all or as much as was charged for the legal services performed by Cassels Brock. [^49]

[81] CSMI argues that the “symmetrical” state of affairs portrayed by Trinity – that CSMI and Trinity were each represented by their own lawyers, and that Gowlings represented RLG – is factually inaccurate. CSMI argues that Trinity received legal advice from its own lawyers and that CSMI was Gowlings’ client. CSMI submits that abrogating its solicitor-client privilege would provide Trinity with an unfair advantage and, conversely, protecting its solicitor-client privilege would result in no unfairness to Trinity.

[82] CSMI relies on Chan v. Dynasty Executive Suites Ltd. [^50], In Re Valero Energy Corp. [^51], Manufacturers Life Insurance Co. v. Juno Developments Ltd. [^52], and Turbo Logistics Canada Inc. v. HSBC Bank Canada [^53] in support of the proposition that joint venture partners are entitled to consult their own counsel, including for the purpose of obtaining advice about their relationship with other partners and to maintain privilege over those communications as against other partners. With respect, this proposition does not answer the question before me of whether CSMI and Trinity were in a joint retainer relationship in relation to RLG.

[83] Contrary to CSMI’s submission, Trinity does not seek production of all communications between CSMI and Gowlings; rather, it seeks production of communications that are in relation to the subject matter of the joint retainer, that is, RLG. [^54]

CSMI’s pleading that a fiduciary relationship existed between CSMI and Trinity

[84] I agree with the submission of the Albert Street defendants that CSMI’s assertion of a fiduciary relationship precludes CSMI’s claim of privilege over the Gowlings records.

[85] A fiduciary relationship creates obligations of loyalty and disclosure: Hodgkinson v. Simms [^55], at p. 405. The obligation of loyalty requires the fiduciary to act in the other party’s interests, or in the interests of both parties, to the exclusion of the fiduciary’s own separate interests where those interests are opposed: Bluefoot Ventures Inc. v. Ticketmaster (Citysearch) [^56], at para. 23.

[86] The fiduciary relationship also carries with it the duty to disclose material facts and information, as well as conflicts of interest: Hutchinson v. Moore [^57], at para. 103. As the Supreme Court of Canada stated in Sharbern Holding Inc. v. Vancouver Airport Centre Ltd. [^58],

[w]here fiduciaries put themselves in a position where their own interests or those of others may conflict with their duty to their principal, they will be required to disclose all material information regarding the transaction in order to obtain their principal’s informed consent as to their acting despite the conflict.

[87] In its claim, CSMI alleges that a fiduciary duty relationship arose between CSMI and Trinity flowing from the joint venture created when the parties entered into the LOI. [^59] CSMI’s claim that a fiduciary relationship existed – a claim that is denied by the Albert Street defendants – is inconsistent with its claim of privilege over the Gowlings records. I agree with the submission made by the Albert Street defendants that if a fiduciary relationship existed between CSMI and Trinity, and Gowlings acted as counsel for CSMI only, then the twin obligations of loyalty and disclosure required CSMI to make this clear to Trinity.

[88] However, with the exception of the correspondence exchanged in the early summer of 2016, at no time did CSMI or Gowlings inform Trinity that Gowlings acted for CSMI alone. The totality of the evidence demonstrates that both before and after the unsuccessful mediation, Gowlings acted for RLG, a self-described joint venture between CSMI and Trinity. Therefore, both CSMI and Trinity are entitled to the Gowlings records in relation to RLG.

Duration of the joint retainer

[89] Trinity seeks production of the Gowlings records in relation to RLG and the LeBreton Project until November 2018 when this litigation was commenced. CSMI submits that if there was a joint retainer, it terminated in May 2016, when Gowlings stated to Trinity that Gowlings acted exclusively for CSMI.

[90] I disagree with the termination date advanced by CSMI. The documentary evidence demonstrates Gowlings’ continued engagement on behalf of both CSMI and Trinity in relation to RLG and the LeBreton Project following the unsuccessful mediation in July 2016. Mr. Ruddy’s evidence is that he hoped “the RLG joint venture and the LeBreton opportunity could be preserved.” RLG continued to negotiate with the NCC until the commencement of this litigation.

[91] Further, I have found that Trinity’s belief and expectation that Gowlings continued to act for both CSMI and Trinity in relation to RLG was reasonable. If, as pleaded by CSMI, a fiduciary relationship existed between CSMI and Trinity, CSMI owed Trinity a duty of loyalty and was required to disclose any conflict of interest to Trinity and to seek Trinity’s consent.

[92] For these reasons, I conclude that the joint retainer persisted until the commencement of this litigation in November 2018.

Summary on the issue of joint retainer

[93] Based on the totality of the evidence, I find that there was a joint retainer of Gowlings by CSMI and Trinity in relation to RLG and the LeBreton Project for the period July 23, 2015 to November 23, 2018. CSMI’s primary submission – that “the role occupied by Gowlings in the collaborative process of preparing a joint submission in the name of [RLG] was never intended to undermine the solicitor-client relationship between CSMI and Gowlings” – is inconsistent with the objective evidence. A reasonable person in the position of a party with knowledge of the objective facts would reasonably form the belief that Gowlings was acting for both CSMI and Trinity in relation to RLG and the LeBreton Project during this period of time.

Should there be a sealing order?

[94] CSMI submits that any disclosure ordered on this motion “must be subject to a sealing order restricting access to the documents to CSMI, Trinity and their lawyers.”

[95] I disagree. Leaving aside the practical difficulties associated with such an order, including the use of the documents at trial, Trinity is an indirect part owner of 801 Albert Street and is a limited partner in TIP Albert Limited Partnership. The Albert Street defendants are therefore entitled to production of the Gowlings records.

Common Interest Privilege

[96] Because of the conclusion I have reached on the joint retainer issue, it is not necessary for me to address the parties’ submissions relating to common interest privilege.

Did CSMI Waive Privilege?

[97] Because of the conclusion I have reached on the joint retainer issue, it is also not necessary for me to address the issue of whether CSMI waived privilege by producing its written retainer with Gowlings.

Redacted records

[98] Trinity seeks an order requiring CSMI to produce unredacted versions of the documents listed in Schedule “A” to its notice of motion. As of the date of the hearing, some of these documents have been produced in unredacted form.

[99] Where a document has been redacted on the basis of solicitor-client privilege and the redaction relates to Gowlings’ work for RLG and the LeBreton Project for the period July 23, 2015 to November 23, 2018, the document shall be produced in unredacted form.

Disposition

[100] Accordingly, Trinity’s motion is granted. I make the following orders:

(i) CSMI shall produce all correspondence, memos, accounts, emails, data, and other documents in its possession, control or power relating to the work of Gowlings for RLG and the LeBreton Project from July 23, 2015 to November 23, 2018; and (ii) if not already produced, where a document listed in Schedule “A” to Trinity’s notice of motion has been redacted on the basis of solicitor-client privilege and the redaction relates to Gowlings’ work for RLG and the LeBreton Project for the period July 23, 2015 to November 23, 2018, CSMI shall produce the document in unredacted form.

[101] In the event the parties are unable to resolve the issue of costs of the motion, I may be spoken to.

Madam Justice Robyn M. Ryan Bell Released: May 2, 2022

Footnotes

[^1]: In its factum on this motion, at para. 6, CSMI describes the relationship between it and Trinity as a “contractual joint venture.” [^2]: Amended Amended Statement of Claim, at paras. 2-3. [^3]: Amended Amended Statement of Claim, at paras. 91-92. [^4]: Sarvarian v. Sok, 2011 BCSC 585, at para. 73. [^5]: TIP Albert GP Inc. is the general partner of TIP Albert Limited Partnership. [^6]: NCC’s press release dated February 18, 2015. [^7]: LOI, Joint Venture, at para. 1. [^8]: LOI, Development, at para. 1. [^9]: LOI, Development, at para. 2. [^10]: LOI, General, at para. 1.(v). [^11]: LOI, General, at para. 1.(vi). [^12]: LOI, General, at para. 1.(vii). [^13]: Factum of the Albert Street defendants, at para. 11. [^14]: (Toronto: LexisNexis Canada, 2018) at §14.57. [^15]: 2018 SKCA 86. [^16]: 2010 ONSC 4066, 61 E.T.R. (3d) 132. [^17]: 2010 ABQB 383, 500 A.R. 137. [^18]: Law Society of Ontario, Rules of Professional Conduct, Toronto: Law Society of Ontario, 2000. [^19]: 2011 ABQB 794, 530 A.R. 264. [^20]: Attila, at para. 26. [^21]: A. Dodek, Solicitor-Client Privilege (Markham, Ont.: LexisNexis Canada Inc., 2014), at §7.43. [^22]: 2015 ONSC 3824, 48 B.L.R. (5th) 142, appeal allowed on damages only, 2017 ONCA 544, 72 B.L.R. (5th) 177, leave to appeal refused, [2017] S.C.C.A. no. 366. See also Zarabi-Majd v. Levitt LLP, 2021 ONSC 135, at para. 32. [^23]: Zarabi-Majd, at para. 33, relying on Jeffers v. Calico Compression Systems, 2002 ABQB 72, 314 A.R. 294, at para. 8; Trillium Motor World, at para. 412. [^24]: Trillium Motor World, at 413; Zarabi-Majd, at 33. [^25]: Trillium Motor World, at paras. 411-413. [^26]: 2001 CarswellOnt 2769 (S.C.), at paras. 44-52. [^27]: Amcan, at para. 50. [^28]: Trillium Motor World, at para. 440. [^29]: Boreta, at para. 57. [^30]: 2007 SCC 24, [2007] 2 S.C.R. 177. [^31]: (2004), 188 O.A.C. 158 (C.A.). [^32]: Rye and Partners, at para. 2. See also John v. McDonald, 2015 ONSC 4850, at paras. 16-20; Ellyn Barristers v. Stone, aff’d 2007 ONCA 565, at para. 18; Trillium Motor World, at para. 470. [^33]: (1999), 175 D.L.R. (4th) 102 (Ont. C.A.), at para. 5. [^34]: See also Coughlin v. Comery, 1996 CarswellOnt 686 (Gen. Div.), at para. 27, citing Denning L.J. in Griffiths v. Evans, [1953] 2 All E.R. 1364. [^35]: Including, Plater; Broesky v. Lűst, 2011 ONSC 167, 330 D.L.R. (4th) 259, aff’d 2012 ONCA 701, 356 D.L.R. (4th) 55; Law Society of Upper Canada v. Hoskinson, 2015 ONLSTH 215. [^36]: Trillium Motor World, at para. 470. [^37]: Citing Dinevski v. Snowden, 2010 ONSC 2715, PCF Acquisition Corp. v. Gowling, Lafleur, Henderson LLP, and Lodge v. Deloitte & Touche, 2001 BCSC 1655. [^38]: Trillium Motor World, at para. 440. [^39]: See for example, Affidavit of Darryl Brown, at para. 13. [^40]: Affidavit of Darryl Brown, at para. 34. [^41]: See for example, Affidavit of Michael Polowin, at para. 12. [^42]: Cross-examination transcript of Wendy Kelley, Q. 230. [^43]: Cross-examination transcript of Michael Polowin, Q. 321 and following. [^44]: Affidavit of John Ruddy, at para. 68. [^45]: 2005 FC 870, 41 C.P.R. (4th) 111. [^46]: Affidavit of John Ruddy, at para. 12. [^47]: Trillium Motor World, at para. 461. [^48]: Cross-examination transcript of Graham Bird, Qq. 370-373. [^49]: Estate of Arthur O. Sawdon, at para. 24. [^50]: (2006), 30 C.P.C. (6th) 270, at para. 53. [^51]: 973 S.W.2d 453 (Tex Ct. App. 1998). [^52]: 2011 ONSC 3945, 79 C.B.R. (5th) 229, at para. 41. [^53]: (2009), C.B.R. (5th) 169 (Ont. S.C.), at paras. 17-18. [^54]: It is therefore not necessary for me to address CSMI’s argument that a joint retainer may be found to exist in parallel to an exclusive retainer. [^55]:, [1994] 3 S.C.R. 377. [^56]: (2007), 288 D.L.R. (4th) 191 (Ont. S.C.). [^57]: 2021 BCCA 301, 52 B.C.L.R. (6th) 248. [^58]: 2011 SCC 23, [2011] 2 S.C.R. 175, at para. 148, citing M. Ng, Fiduciary Duties: Obligations of Loyalty and Faithfulness, loose-leaf, (Aurora: Canada Law Book, 2003). [^59]: Amended Amended Statement of Claim, at paras. 91-97.