COURT FILE NO.: CV-11-00053210-0000
DATE: 2022-06-29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Helena Guergis v. Arthur Hamilton, Cassels Brock & Blackwell LLP, and the Honourable Shelly Glover
BEFORE: Associate Justice Kaufman
COUNSEL: Stephen Victor Q.C. and David Sherriff-Scott, for the Plaintiff
Paul Le Vay and Caitlin Milne, for the Defendants, Arthur Hamilton and Cassels Brock & Blackwell LLP
HEARD: January 11, 2022, and February 10, 2022
REASONS FOR DECISION
[1] The plaintiff, Helena Guergis ("Ms. Guergis"), brings this motion to compel answers to questions asked at the examination for discovery of the defendants Arthur Hamilton and Cassels Brock & Blackwell LLP.
Background
[2] The plaintiff is a former Minister of State for the Status of Women and Member of Parliament for the electoral district of Simcoe-Grey. The defendant, Arthur Hamilton ("Mr. Hamilton"), was, at the material times, external counsel for the Conservative Party of Canada ("CPC") and a partner with the defendant law firm, Cassels Brock & Blackwell LLP ("CBB").
[3] On April 8, 2010, Derrick Snowdy, a person claiming to be a private investigator, allegedly reported to Mr. Hamilton that Ms. Guergis and her husband engaged in acts of fraud, extortion, and involvement with sex workers (the "Snowdy Allegations"). The following day, the Prime Minister's principal secretary and his chief of staff notified the Commissioner of the Royal Canadian Mounted Police (the "RCMP") and the Conflict of Interest and Ethics Commissioner (the "Ethics Commissioner") of these allegations. Ms. Guergis resigned from Cabinet on April 9, 2010, and, on May 5, 2010, she was removed as a candidate for the CPC.
[4] On June 9, 2010, Mr. Hamilton testified before the Standing Committee on Government Operations and Estimates (the "Parliamentary Committee") about Mr. Snowdy's allegations.
[5] On July 2, 2010, the RCMP reported that there was no evidence that Ms. Guergis was involved in any criminal offence. Ms. Guergis presented herself as an independent candidate in the federal general election of 2011, but she was not re-elected, and her political career ended.
[6] In this action, Ms. Guergis alleges that Mr. Hamilton and CBB were her lawyers on various matters before Mr. Snowdy made these allegations, and that these defendants breached their fiduciary duties and defamed her when they conveyed Mr. Snowdy's false allegations to the Prime Minister, his chief of staff, and his principal secretary. Mr. Hamilton and CBB deny that they ever acted as Ms. Guergis' lawyers, and they refused to answer questions surrounding their communications with the Prime Minister and his staff, because they were made in Mr. Hamilton's capacity as lawyer for the CPC and were protected by solicitor-client privilege.
[7] The defendants also refused to answer questions surrounding Mr. Hamilton's testimony before the Parliamentary Committee, on the ground of parliamentary privilege.
[8] Finally, the defendants refused to answer certain questions based on relevance.
[9] The defendants brought a cross-motion for production of a particularized Schedule "B" of the plaintiff's affidavit of documents and of certain cell phone records. The parties reached an agreement on these issues and the cross-motion was accordingly not pursued.
[10] The plaintiff's motion raises three issues:
Do the defendants' refusals constitute a collateral attack on Hackland J.'s ruling of August 4, 2015?
Should the defendants' assertion of solicitor-client privilege be upheld?
Should the defendants' assertion of parliamentary privilege be upheld?
[2] For the following reasons, the plaintiff's motion is allowed in part.
General principles applying on refusals motions
[11] Parties conducting examinations for discovery are entitled to obtain an answer to any proper question relevant to any matter in issue.[^1] Relevance is determined by reference to the pleadings.[^2] A person fails to answer a question if he or she refuses to answer it on the grounds of privilege.[^3] On a motion, the court may order a person to reattend an examination to answer improperly refused questions.[^4]
1) The defendants' assertions of privilege do not constitute a collateral attack on Hackland J.'s ruling
[12] In April 2015, Mr. Hamilton and CBB moved to strike Ms. Guergis' Fresh as Amended Statement of Claim, pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure, on the ground that it did not disclose a reasonable cause of action. Justice Hackland declined to strike the claim, and the Divisional Court denied leave to appeal his decision.
[13] The plaintiff argues that having decided that her pleas were proper, the defendants are not entitled to refuse to answer questions regarding those pleas. I do not accept this argument.
[14] Rule 21.01(b) authorizes a judge to strike pleadings that do not, in law, have a chance of succeeding. No evidence is admissible on such a motion and the material facts are deemed to be true, unless patently ridiculous or incapable of proof. Pleadings may only be struck under this rule if it is plain and obvious that they do not disclose a reasonable cause of action.
[15] The defendants sought to strike certain paragraphs of the claim on the theory that the allegations concerning Mr. Hamilton's alleged breaches of fiduciary duties constituted a "dressed up" defamation claim. Justice Hackland rejected this argument and found that the defamation and breach of fiduciary duty claims could co-exist, and that the plaintiff had pleaded all the essential elements of a fiduciary claim:
Viewing the amended Statement of Claim as a whole, the fiduciary duty claim and the defamation claim are separate and can stand alone. The crossover between the respective claims arises from the allegation that among the acts of alleged disloyalty was that the solicitor defamed his former client on a number of occasions. However, the fiduciary claim, as pled, contains all of the ingredients of a proper fiduciary claim i.e. a pre-existing solicitor-client relationship, a breach of the duty of good faith and loyalty and economic damages (not merely reputational damages) arising from the breach of duty.[^5] Moreover, the actionable conduct, as pled, went well beyond the making of the defamatory statements.
[16] The defendants also sought to strike the claim on the ground that the plaintiff referred to Mr. Hamilton and Mr. Snowdy's public testimony before the Parliamentary Committee in support of her allegations. Justice Hackland refused to strike these paragraphs, noting that the claim raised novel and important issues, and should be left to the trial judge to resolve on a proper evidentiary record:
This case may well raise important issues involving competing constitutionally protected rights. Bearing in mind the Supreme Court's ruling in Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, that novel and important issues are best left to a trial judge to resolve on a proper evidentiary record, I decline to strike from the pleading the references to the testimony of the solicitor and Mr. Snowdy before a Parliamentary Committee. The admissibility of such evidence will be for the trial judge to consider.[^6]
[17] Justice Hackland determined that, assuming the plaintiff's allegations to be true, it was not plain and obvious that they did not disclose reasonable causes of action. Justice Hackland concluded that the plaintiff pleaded the necessary elements of the torts of defamation and breach of fiduciary duty. He did not determine the merits of the plaintiff's claims, or any other factual or evidentiary issues. It was open to the defendants to assert privilege over certain information and documents in the discovery phase of this litigation. This does not amount to a collateral attack on Hackland J.'s ruling.
2) Solicitor-client privilege
[18] Solicitor-client privilege is perhaps the most entrenched class privilege recognized by the common law, and has been recognized as fundamental to the justice system. The criteria for the existence of solicitor-client privilege are: (i) 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.[^7] Within those parameters, it is close to absolute.[^8] The Supreme Court of Canada has described it thus:
The solicitor-client privilege has been firmly entrenched for centuries. It recognizes that the justice system depends for its vitality on full, free and frank communication between those who need legal advice and those who are best able to provide it. Society has entrusted to lawyers the task of advancing their clients' cases with the skill and expertise available only to those who are trained in the law. They alone can discharge these duties effectively, but only if those who depend on them for counsel may consult with them in confidence. The resulting confidential relationship between solicitor and client is a necessary and essential condition of the effective administration of justice.[^9]
[19] It is common ground that Mr. Hamilton and CBB were the CPC's external counsel.
[20] The plaintiff challenges the defendants' assertion of solicitor-client privilege on three bases. First, she argues that she is entitled to obtain the communications between Mr. Hamilton and the CPC because she and the CPC were both clients under a joint retainer. Second, she contends that the CPC waived privilege over its communications with Mr. Hamilton when the Prime Minister invited the RCMP and the Ethics Commissioner to contact him for information about Mr. Snowdy's allegations. Finally, the plaintiff argues that the communications in question fall under the "future crime and fraud" exception to solicitor-client privilege.
[21] While I am not persuaded by these submissions, I conclude that the defendants' assertion of solicitor-client privilege was overbroad, and that certain information and documents must be provided to the plaintiff.
i) No joint retainer
[22] Ms. Guergis argues that Mr. Hamilton and CBB were in a joint retainer with her, the Prime Minister, and the CPC. She submits that there is no privilege regarding communications between the parties to a joint retainer, and all clients to the retainer must be treated as one.
[23] The defendants contend that the existence or absence of a solicitor-client relationship with Ms. Guergis is a contested issue that is at the heart of this action, and that it should not be determined on a refusals motion.
[24] The court's task on this motion is to determine if the defendants improperly refused certain questions.[^10] To do that, the court must determine if solicitor-client and parliamentary privileges apply. The party asserting the privilege must establish, on a balance of probabilities, that the criteria for the privilege exist.[^11] If it was necessary to determine that the plaintiff was in a solicitor-client relationship with Mr. Hamilton to determine the propriety of the defendants' refusals, it would have been my duty to do so. Justice Ryan Bell recently performed the same exercise in Capital Sports Management Inc. v. Trinity Development Group Inc.[^12], which was also a refusals motion where the plaintiff vehemently disputed the existence of a joint retainer.
[25] In this case, it is not necessary for me to determine if Mr. Hamilton was Ms. Guergis' lawyer because the matters on which he is alleged to have acted for her relate to separate matters or transactions, which are unconnected to the communications sought in this case.
ii) Matters over which Mr. Hamilton is alleged to have advised the plaintiff are unconnected to the Snowdy Allegations
[26] Mr. Hamilton acknowledges that he interacted with the plaintiff on two occasions, but it is his position that his interactions were in his capacity as counsel for the CPC and that they did not create a solicitor-client relationship. The first interaction occurred in early 2010 when Mr. Hamilton assisted Ms. Christine Brayford, the plaintiff's designated agent under the [Canada Elections Act][^13], to obtain court approval for the repayment of certain expenses incurred in the 2008 federal election. The second occurred when the plaintiff consulted Mr. Hamilton, at the suggestion of a CPC official, regarding an investigation by the federal Ethics Commissioner concerning her mortgage.
[27] In CSMI, Justice Ryan Bell carefully reviewed the law pertaining to the joint retainer exception to solicitor-client privilege. She held that where two clients are represented by the same counsel, there is no privilege between one party and the lawyer over communications that are in relation to the subject matter of the joint venture.[^14] In other words, joint retainers are created when a lawyer acts for two or more clients on the same matter and at the same time.
[28] The plaintiff does not allege that Mr. Hamilton acted as her counsel in relation to the Snowdy Allegations. In fact, Mr. Hamilton testified on discovery that Ms. Guergis asked him to act for her in relation to these allegations and that he clearly told her that he could not.
[29] Even if Mr. Hamilton acted pursuant to a joint retainer with Ms. Guergis' and the CPC on the Canada Elections Act issue and the Ethics Commissioner's investigation, as Ms. Guergis argues, this would not entitle her to communications between Mr. Hamilton and the CPC on unrelated matters.
iii) Documents related to the Canada Elections Act application
[30] The plaintiff also claims to be entitled to documents surrounding an application brought in the name of her official agent.
[31] Between February and April 2010, Mr. Hamilton acted as counsel for Ms. Brayford, the plaintiff's "official agent" in a Superior Court application brought under the Canada Elections Act. The purpose of the application was to obtain court approval for the repayment of certain expenses that had been incurred during the plaintiff's 2008 election campaign. The plaintiff contends that, by extension, Mr. Hamilton represented the plaintiff in this application, and that she is accordingly entitled to the communications relating to this proceeding.
[32] Despite Mr. Sherriff-Scott's ably made and attractive argument, I am not satisfied, on a balance of probabilities, that Ms. Brayford's status of official agent under the Canada Elections Act establishes a relationship of agent and principal such as to extend the privilege to the plaintiff. The existence of an agency relationship is a question of fact, and the use of the term "agent" is not determinative.[^15]
[33] The Canada Elections Act is complex legislation, comprised of over 550 sections. Its purpose is to regulate election financing and campaign spending to ensure that elections are fair to candidates and electors.[^16]
[34] Pursuant to s. 477.1 of the Canada Elections Act, a candidate for federal elections must appoint an official agent before accepting contributions, loans or transfers, and incurring electoral campaign expenses. The candidate may not act as his or her own official agent.[^17] The candidate's official agent must open a separate bank account in his or her name, as official agent. The official agent is responsible for administering the candidate's electoral campaign's financial transactions and for the reporting on those transactions to the Chief Electoral Officer.
[35] Professor Fridman defines agency in this manner:
Agency is the relationship that exists between two persons when one, called the agent, is considered in law to represent the other, called the principal, in such a way as to be able to affect the principal's legal position by the making of contracts or the disposition of property.[^18]
[36] At first blush, an official agent's responsibilities to a candidate under the Canada Elections Act present many features of an agency relationship. A candidate must consent, and obtain the official agent's consent to act in that capacity.[^19] The official agent has the authority to enter into contracts on the candidate's behalf.[^20]
[37] However, the Canada Elections Act also contains provisions that appear inconsistent with an agency relationship. Official agents must understand and apply the political financing rules in the Canada Elections Act and ensure that the campaign stays within statutory spending limits. Candidates must obtain their official agent's written authorization before incurring election expenses.[^21] Official agents therefore perform a supervisory role and are tasked with authorizing candidates' election expenses. Agents, on the other hand, owe a duty of obedience to their principals and must follow their instructions strictly.[^22]
[38] Moreover, official agents are the only persons who may authorize others to enter into contracts in relation to an electoral campaign.[^23] At common law, agents are obliged to perform their duties personally and they may not delegate.[^24]
[39] Further to my inspection of the documents pertaining to the Canada Elections Act application, I am satisfied that they constitute communications between a solicitor and client that entail the giving or receiving of legal advice, and are accordingly subject to solicitor-client privilege.
[40] The plaintiff bore the onus of proving that, by virtue of an agency relationship, she was the recipient of Mr. Hamilton's legal services by virtue of her status of principal. I am not making any findings on this issue, which may be argued at trial on a better evidentiary record and the benefit of full argument. On the evidence before me, I cannot determine that the relationship between Ms. Brayford and the plaintiff is one of agency.
iv) No waiver of solicitor-client privilege
[41] Ms. Guergis contends that the CPC and the Prime Minister waived the privilege over their communications with Mr. Hamilton when the Prime Minister's chief of staff and his principal secretary wrote to the RCMP and the Ethics Commissioner to advise them of Mr. Snowdy's allegations, and invited these entities to contact Mr. Hamilton for more information. She argues that authorizing Mr. Hamilton to assist the RCMP amounts to an implied waiver of the privilege that attaches to the communications between the CPC and Mr. Hamilton. I am not persuaded by these submissions.
[42] Waiver of privilege may be implied where fairness and consistency require it.[^25] Waiver of privilege as to part of a communication will be held to be waiver as to the entire communication. Similarly, where a litigant relies on legal advice as an element of his claim or defence, the privilege which would otherwise attach to that advice is lost.[^26]
[43] A distinction must be made between communications made within the solicitor-client relationship and facts that exist independent of these communications.[^27] The defendants do not dispute that Ms. Guergis is entitled to know the specific allegations that Mr. Snowdy made about her and her husband, and they have answered questions on this issue at discovery.
[44] Here, the CPC did not waive privilege over its communications with its counsel when it invited the RCMP and the Ethics Commissioner to obtain information about Mr. Snowdy's allegations from Mr. Hamilton. Mr. Hamilton's communications with Mr. Snowdy are not privileged. His communications with the CPC, are. While Mr. Hamilton was undoubtedly authorized to share the information he obtained from Mr. Snowdy with these entities, there is no evidence that Mr. Hamilton was authorized to disclose any part of his communications with the CPC.
v) Future crime and fraud exception does not apply
[45] Ms. Guergis argues that solicitor-client privilege cannot be used to shield Mr. Hamilton's communications with the CPC because these communications breached fiduciary and constitutionally protected obligations that Mr. Hamilton and CBB owed her, making these communications unlawful. She adds that courts have recently shown a willingness to expand the future crime and fraud exception to tortious conduct.
[46] In Solosky v. The Queen,[^28] the Supreme Court of Canada recognized that solicitor-client privilege does not attach to communications made in furtherance of unlawful conduct:
... if a client seeks guidance from a lawyer in order to facilitate the commission of a crime or a fraud, the communication will not be privileged and it is immaterial whether the lawyer is an unwitting dupe or knowing participant. The classic case is R. v. Cox and Railton, in which Stephen J. had this to say (p. 167): "A communication in furtherance of a criminal purpose does not 'come in the ordinary scope of professional employment'."[^29]
[47] The difficulty with the plaintiff's argument is that, for the future crime and fraud exception to apply, the client must be the person seeking the lawyer's assistance to engage in conduct that the client knows to be unlawful.[^30] This exception is premised on the theory that the privilege's scope is limited by its underlying purposes. The privilege does not exist where advice is sought for the purpose of facilitating a crime or other unlawful acts. Recognizing the privilege in such circumstances would undermine the interests of justice and thus the very reason for granting the privilege in the first place.[^31]
[48] The client in this case is the CPC, and the solicitor-client privilege belongs to it. The CPC did not seek legal assistance to engage in unlawful conduct when it received information from Mr. Hamilton about Mr. Snowdy's allegations. It passively received information from Mr. Hamilton, and it had an obvious interest in this information. If any wrongdoing occurred from the sharing of the Snowdy Allegations, it would have been Mr. Hamilton's wrongdoing and not the CPC's.
vi) Recognized limits to the scope of the solicitor-client privilege
[49] Not every communication between a client and a lawyer is protected by privilege. The communication must be of a legal nature to come within the privilege's scope. For example, communications that show the establishment of the solicitor-client relationship, or the identity of the client, have been held not to be privileged unless they would reveal privileged matters.[^32] Solicitor-client privilege does not attach to advice provided on purely business matters.[^33] Wigmore articulated the modern rule regarding solicitor-client privilege as follows:
Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived.[^34]
[50] Communications between counsel and client which contain "peripheral information", such as administrative matters related to the solicitor-client relationship, are presumptively privileged.[^35] In Maranda v. Richer,[^36] the Supreme Court of Canada held that a lawyer's account was presumptively privileged. The presumption was necessary because of the inherent difficulty in differentiating neutral information from information that would violate the confidentiality of the solicitor-client relationship.[^37] The Court of Appeal for Ontario held that the presumption could be rebutted if there was no reasonable possibility that the disclosure of the amounts paid would directly or indirectly reveal any communication protected by the privilege,[^38] or that the requested information is not linked to the merits of the case and its disclosure would not prejudice the client.
[51] While the privilege generally attaches to the continuum of communications in which the solicitor provides advice,[^39] severance of particular communications made within the solicitor-client relationship may be appropriate in limited circumstances. For example, information that cannot reveal any of the legal advice provided to the client, or advice that falls outside of the solicitor-client relationship, may be severed and disclosed. Severance should only be considered when it can be accomplished without any risk that the privileged legal advice will be revealed or capable of ascertainment.[^40]
vii) The defendants' assertions of privilege are overbroad
[52] With the principles cited above in mind, I order the defendants to answer the following questions and disclose the following documents.
[53] Questions 68-69, 72, 75-76, 80-81, 99-100, 109-112, and 121, relate to the instances where Mr. Hamilton assisted members of the CPC subject to ongoing or potential investigations by the Ethics Commissioner. The plaintiff questioned Mr. Hamilton about his regular practices and the procedures undertaken to assist these members. The defendants refused to answer these questions on the basis that the answers would "encroach" upon solicitor-client privilege and for lack of relevance.
[54] I determine these questions to be relevant, as they relate to the nature of the assistance Mr. Hamilton provided to members of the CPC, such as the plaintiff. Whether the assistance provided was of a legal nature, such as to create a solicitor-client relationship, is at the heart of the plaintiff's case. Mr. Hamilton's specific role, whether he met with party members and whether he accepted confidential information from them, are matters that would tend to support or undermine the existence of a professional relationship between him and the plaintiff. These questions can be answered in general terms without encroaching upon solicitor-client privilege. The defendants shall answer these questions without disclosing any details that would reveal the names of the party members, the specific investigation, or any advice provided.
[55] Regarding question 85, the plaintiff asked if Mr. Hamilton ever entered into written retainers with any members of the CPC who were challenged before the Ethics Commissioner. The defendants refused to answer this question on the ground of relevance. I determine this question to be relevant. The existence of a written retainer is an indicium of a solicitor-client relationship. If Mr. Hamilton entered into written retainers with some party members subject to a potential Ethics Commissioner investigation, but not with the plaintiff, this could support his position that the assistance he provided the plaintiff was not of a legal nature.
[56] Questions 122 and 123 relate to Mr. Hamilton's retainer with the CPC. The plaintiff asked if the retainer addressed situations of conflicts of interest and whether the retainer itself was available to members of the CPC for inspection. The defendants refused to answer these questions on the ground that the retainer agreement is a solicitor-client privileged document.
[57] Neither party presented any jurisprudence on whether retainer agreements are protected by solicitor-client privilege, and I could not find any. In my view, whether retainer agreements are covered by solicitor-client privilege turns on their specific content. They can be analogized to lawyer's accounts or ledgers which arise out of the solicitor-client relationship. Retainer agreements are therefore presumptively privileged. They will be covered by privilege if the information they contain could result in an "assiduous inquirer" being able to deduce or acquire communications protected by the privilege.
[58] I have inspected the retainer agreement at issue, which is listed at Tab 1 of the defendant's Schedule B to their affidavit of documents. The agreement establishes the solicitor-client relationship and contains administrative matters between Mr. Hamilton and the CPC. I am satisfied that there is no possibility that its disclosure would reveal any communication of a legal nature protected by the privilege. The existence of the relationship is a publicly known fact. Moreover, the retainer agreement is relevant to the plaintiff's allegations that she received legal services under it. The defendants may redact the first sentence of the second paragraph, which covers Mr. Hamilton's rates, which are not relevant to this proceeding. Questions 122 and 123 should be answered. Whether or not the retainer agreement was available to CPC members is not privileged.
[59] Regarding questions 134 and 152, the plaintiff asked if Mr. Hamilton knew how, and under what circumstances, members of the CPC were told to consult with him. These questions do not elicit any information concerning a communication between counsel and client. Communications between the CPC and its members regarding the circumstances under which they should consult Mr. Hamilton are not privileged and are relevant. Questions 134 and 152 should therefore be answered.
[60] Question 161 asks if Mr. Hamilton had any advanced warning that the plaintiff would come to see him. The defendants' objection on the basis of solicitor-client privilege is upheld in part. I consider it appropriate to sever, and order the production of a portion of an e-mail exchange between Mr. Hamilton and Mr. Giorno, dated April 7, 2010, and listed at Tab 47 of Schedule B to the defendants' affidavit of documents. The e-mail from Mr. Hamilton to Mr. Giorno is a communication between counsel and client that entails the provision of legal advice, and it is privileged. There are three responses from Mr. Giorno – the first addresses the logistics of contacting the plaintiff and the purpose for that contact, and the other two responses are corrections to typos contained in the original response. I am satisfied that there is no reasonable possibility that the disclosure of Mr. Giorno's responses would directly or indirectly reveal any communication protected by the privilege. Moreover, I consider Mr. Giorno's responses to be highly relevant and order them produced.
[61] Questions 645, 657, 660 and 667 concern steps that Mr. Hamilton may or may not have taken to confirm Mr. Snowdy's identity and assess the credibility of his allegations. In my view, these questions relate to facts that arise independently of any legal advice provided. What Mr. Hamilton reported to the CPC about these issues is privileged, but his interactions with Mr. Snowdy, and the steps taken to identify him and assess his credibility, are not solicitor-client communications and these questions should be answered.
[62] Questions 795-796 and 803-810, relate to the timing of Mr. Hamilton's sharing of the Snowdy allegations with his client, and the name of the persons with whom he shared these allegations, and the way these allegations were reported.
[63] The defendants admit, at paragraph 18 of the Statement of Defence, that Mr. Hamilton shared these allegations with the CPC. I agree with the defendants that the content of any communications in this respect are protected by solicitor-client privilege. However, the timing of the communication, its form (orally or in writing) and the name of the person Mr. Hamilton communicated with do not reveal any advice, and are relevant to the plaintiff's allegation that it was Mr. Hamilton's sharing of these allegations, versus some other source, that caused her damages. Moreover, the timing of a protected communication and name of the person to whom advice is provided, are normally contained in the description of the privileged documents in a party's affidavit of documents.[^41]
[64] The defendants shall answer questions concerning the timing, manner, and persons with whom Mr. Hamilton's reported the Snowdy allegations, without disclosing the content of these communications.
[3] Questions 815-819, 832 and 833 asked Mr. Hamilton to describe his role, if any, in drafting Messrs. Giorno and Novak's letters to the RCMP and the Ethics Commissioner, and to confirm that these letters were based exclusively on Mr. Hamilton's reporting. In my view, these questions cannot be answered without also revealing information protected by privilege.
3) Parliamentary Privilege
[65] The defendants have refused to answer questions and produce documents relating to Mr. Hamilton's testimony before the Parliamentary Committee. The plaintiff submits that Hackland J. addressed the issue of parliamentary privilege on the defendants' motion to strike, which held that the claims relating to the testimony before the Parliamentary Committee were proper pleas, and that admissibility of such evidence ought to be left to the trial judge.
[66] The defendants respond that Messrs. Hamilton and Snowdy's testimony before the Parliamentary Committee is subject to parliamentary privilege, which is absolute. The defendants argue that the privilege should be upheld, especially since Hackland J.'s decision predates the Court of Appeal's decision in Duffy v. Canada (Senate).[^42] There, the Court upheld the motion judge's conclusion that once parliamentary privilege was engaged, she could not consider whether the impugned actions were contrary to Senator Duffy's Charter rights.
i) Scope of Parliamentary Privilege
[67] Parliamentary privilege represents "the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions".[^43]
[68] The purpose of parliamentary privilege is to "maintain the constitutional separation of powers between legislative, executive, and judicial branches of government", which promotes the "'constitutional equilibrium' of Canada's democracy".[^44] By shielding some areas of legislative activity from external review, parliamentary privilege provides the legislative branch of government with the autonomy required to perform its constitutional functions.[^45]
[69] In Duffy, the Court of Appeal held that parliamentary privilege is "a rule of curial jurisdiction".[^46] Matters falling within the scope of parliamentary privilege cannot be reviewed by an external body, including a court.[^47] As a result of parliamentary privilege, Parliament has exclusive jurisdiction to address complaints that fall within the "privileged sphere of activity".[^48]
[70] One protected element of parliamentary privilege is the privilege of freedom of speech, which protects not only speech in the House of Commons and the Senate but also before their respective committees.[^49] As a result of this privilege, testimony before parliamentary committees is not admissible in legal proceedings. As noted in Hackland J.'s decision, the rationale of extending parliamentary privilege to witnesses testifying before parliamentary committees was articulated by Tremblay-Lamer J. in Royal Canadian Mounted Police Deputy Commissioner v. Canada (Attorney General)[^50]:
... one of the primary justifications for providing immunity to witnesses, as well as to Members of Parliament, is to ensure that they can speak openly and freely before a Committee without fear that what they say will later be held against them. In other words, for Parliament to fulfil its deliberative and investigative functions with dignity and efficiency it is necessary that witnesses before House committees can be confident that their testimony is immune from subsequent challenges from outside the House.
[71] The claimant of parliamentary privilege has the onus of establishing its existence and scope and, if required, its necessity.[^51] When parliamentary privilege is invoked, the court must ask whether the activity at issue in the proceeding falls within the scope of the privilege. If it does, no further inquiry is necessary.[^52]
[72] Here, the content over which the defendants claim parliamentary privilege includes both briefs from various standing committees before Parliament, as well as emails concerning testimony made before such committees. The defendants also claim solicitor-client privilege over some of the emails regarding testimony made before the parliamentary committees.
[73] In Duffy, there were also competing constitutional rights at play, because Senator Duffy alleged that the Senate violated his Charter rights. However, Gomery J. held that once parliamentary privilege is established, "the court must defer to the legislature even if the privilege would shield activity that is alleged to violate Charter rights."[^53] While Gomery J. acknowledged that courts ought to reconcile competing Charter rights with parliamentary privilege where possible, she held that "the Charter does not give to the courts the power to intrude on the sphere of activity exclusive to parliament".[^54]
[74] If the material over which the defendants assert parliamentary privilege falls within its scope, there is no legal basis to otherwise find that parliamentary privilege should not apply. Once the matter is held to fall within the scope of parliamentary privilege, the court's inquiry is over and the fact that solicitor-client privilege enjoys constitutional protection does not displace that parliamentary privilege, once established, is absolute.
[75] In my view, the items over which the defendants assert parliamentary privilege fall within its scope. Transcripts of testimony before a parliamentary committee fall within an established category of parliamentary privilege.[^55] It seems logical that this would also extend to drafts of their testimonies, such as the copies of Mr. Hamilton and Mr. Snowdy's draft statements, that are contained in some of the emails.
[76] Moreover, this privilege also extends to questions surrounding Mr. Hamilton's preparation for his testimony. The privilege of freedom of speech ensures that witnesses before parliamentary committees can speak openly, free from the fear that their words will be used against them in another proceeding. If the Senate or House of Commons were unable to protect their witnesses, their investigative functions would be seriously compromised because witnesses would be less inclined to speak. In other words, for Parliament to fulfil its deliberative and investigative functions effectively, witnesses before House committees must be confident that their participation will be immune from subsequent challenges from outside the House.
[77] The parliamentary privilege over freedom of speech furthers the same policy objective underlying witnesses' immunity in judicial proceedings: to encourage the full and free participation of witnesses without fear of reprisals. In the context of witness immunity, courts have recognized that the privilege encompasses not only the statements made in court, but also preparatory activities outside court which preceded the testimony. Justice Dunphy summarized the state of the law in Paul v. Sasso[^56]:
Our courts have long held as a fundamental principle that witnesses and parties are entitled to absolute immunity from subsequent liability for their testimony in judicial proceedings since the proper administration of justice requires the full and free participation of witnesses unhindered by fear of retaliatory suits: Reynolds v. Kingston (Police Services Board), 2007 ONCA 166, 84 O.R. (3d) 738 at para. 14. The privilege extends to evidence orally or in writing, it includes documents properly used and regularly prepared for use in the proceedings and is not limited to defamation actions but extends to any action, however framed: Samuel Manu-Tech Inc. v. Redipac Recycling Corporation, 1999 CanLII 3776 (ON CA) at paras. 19-20 and Salasel v. Cuthbertson, 2015 ONCA 115. The privilege has been applied in particular to expert reports and evidence given based upon the report at trial: Fabian v. Margulies, 1985 CanLII 2063 (ON CA).
[78] Based on the foregoing, I uphold the defendants' objections based on parliamentary privilege.
Costs
[79] There has been divided success on this motion. I order that each party shall bear their own costs.
Disposition
[80] The plaintiff's motion is allowed in part. This Court orders that:
i) The defendants shall re-attend for discovery and answer questions in accordance with these reasons. Unless the parties agree otherwise, the discovery shall be limited to five (5) hours.
ii) The defendants shall, within the next 30 days, produce documents in accordance with these reasons.
iii) If the defendants commence an appeal, this order shall be stayed until the appeal is determined or abandoned.
iv) No order as to costs.
Alexandre Kaufman
Associate Justice A. Kaufman
DATE: June 29, 2022
COURT FILE NO.: CV-11-00053210-0000
DATE: 2022-06-29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GUERGIS v. NOVAK et al
BEFORE: Associate Justice A. Kaufman
COUNSEL: Stephen Victor Q.C. and David Sherriff-Scott, for the Plaintiff
Paul Le Vay and Caitlin Milne, for the Defendants, Arthur Hamilton and Cassels Brock & Blackwell LLP
REASONS FOR DECISION
Associate Justice A. Kaufman
DATE: 29 June 2022
[^1]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 31.06. [^2]: CIBC v. Deloitte & Touche, 2013 ONSC 917, 1 C.B.R. (6th) 66, at para. 65. [^3]: Rules of Civil Procedure, r. 31.07. [^4]: Ibid, r. 34.15. [^5]: Guergis v. Hamilton, 2015 ONSC 4915, at para. 17. [^6]: Ibid, at para. 22. [^7]: Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, at p. 837. [^8]: R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14, at para. 35. [^9]: Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, at para. 26. [^10]: Rules of Civil Procedure, r. 34.15. [^11]: McCarthy Tetrault v. Ontario (1992), 1992 CanLII 8606 (ON SC), 95 D.L.R. (4th) 94 (Ont. Prov. Div.). [^12]: 2022 ONSC 2657 ("CSMI"). [^13]: S.C. 2000, c. 9. [^14]: CSMI, at para. 32. [^15]: Grosvenor Canada Limited v. South Coast British Columbia Transportation Authority, 2015 BCSC 177, at para. 59. [^16]: R. v. Del Mastro, 2017 ONCA 711, at para. 62. [^17]: Canada Elections Act, s. 477.2 [^18]: G.H.L. Fridman, Canadian Agency Law, 3rd ed. (Toronto: LexisNexis, 2017), at p. 5. [^19]: Canada Elections Act, s. 477.41. [^20]: Ibid., s. 477.47(5). [^21]: Ibid, s. 477.47(5.1). [^22]: Metropolitan Toronto Pension Plan v. Aetna Life Assurance Co. of Canada (1992), 1992 CanLII 8618 (ON SC), 98 D.L.R. (4th) 582, at p. 597. [^23]: Canada Elections Act, s. 477.55(c). [^24]: Fridman, Canadian Agency Law, at p. 113. [^25]: Leadbeater v. Ontario, 2004 CanLII 14107 (ON SC), at para. 32. [^26]: S. & K. Processors Ltd. v. Campbell Ave. Herring Producers Ltd. (1983), 1983 CanLII 407 (BC SC), 45 B.C.L.R. 218. [^27]: Jetport Inc. v. Global Aerospace Underwriting Managers (Canada) Limited, at para 45. [^28]: 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821. [^29]: Ibid, at pp. 835-836. [^30]: McDermott v. McDermott, 2013 BCSC 534, 32 R.F.L. (7th) 307, at para. 74-75; R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565, at paras. 58-60. [^31]: R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45, [2017] 2 S.C.R. 157, at para. 25. [^32]: Kaiser (Re), 2012 ONCA 838, 113 O.R. (3d) 308; A. & D. Logging Co. Ltd. v. Convair Logging Ltd. et al. (1967), 1967 CanLII 574 (BC SC), 63 D.L.R. (2d) 618 (B.C. S.C.). [^33]: R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 SCR 565, at para 50. [^34]: Wigmore, Evidence (McNaughton rev., 1961), at p. 554, quoted by the Supreme Court of Canada in Solosky; Descôteaux et al. v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, at pp. 872-873. [Emphasis added.] [^35]: Kaiser, at para. 21. [^36]: 2003 SCC 67, [2003] 3 S.C.R. 193. [^37]: Ibid, at paras. 33-34. [^38]: Ontario (Ministry of the Attorney General) v. Ontario (Assistant Information and Privacy Commissioner) (2005), 251 D.L.R. (4th) 64, at para. 12. [^39]: Cusson v. Quan, 2004 CanLII 7351 (Ont. S.C.). [^40]: British Columbia (Attorney General) v. Lee, 2017 BCCA 219, 414 D.L.R. (4th) 635, at paras. 30-40. [^41]: See Rule 30.03(2) of the Rules of Civil Procedure. [^42]: 2020 ONCA 536, 151 O.R. (3d) 489 ("Duffy ONCA"), leave to appeal refused, [2020] S.C.C.A. No. 335. [^43]: Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667, at para. 29(2). [^44]: Duffy ONCA, at para. 1. [^45]: Ibid, at para. 32, citing Chagnon v. Syndicat de la function publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687, at para. 1. [^46]: Duffy ONCA, at para. 35 [^47]: Ibid, citing Vaid, at paras. 29(9), 34; Chagnon, at paras. 19, 24; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (SCC), [1993] 1 S.C.R. 319, at pp. 350, 382-84; and Canada (Board of Internal Economy) v. Boulerice, 2019 FCA 33, [2019] 3 F.C.R. 145, at para. 54. [^48]: Duffy ONCA, at para. 35. [^49]: Ibid, at para. 64. [^50]: 2007 FC 564, [2008] 1 F.C.R. 752, at para. 76. [^51]: Duffy ONCA, at para. 34, citing Vaid, at paras. 5, 29(8) and 53; Chagnon, at para. 32. [^52]: Duffy v. Senate of Canada, 2018 ONSC 7523 ("Duffy ONSC"), at para. 32, aff'd in Duffy ONCA. [^53]: Duffy ONSC, at para. 34. [^54]: Ibid, at para. 33. [^55]: Duffy ONCA, at para. 64. [^56]: 2016 ONSC 7488, at para 16.