COURT FILE NO.: CV-18-00075993-0000
DATE: 2022-07-15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LE GROUPE CONSEIL BRONSON CONSULTING INC. et al v. ATTORNEY GENERAL OF CANADA
BEFORE: Associate Justice M. Fortier
COUNSEL: Peter N. Mantas and Christopher McLeod, for the Plaintiff
Andrew Gibbs, for the Defendant
HEARD: February 25, 2022
E N D O R S E M E N T
[1] The plaintiff and the defendant each bring motions arising from discoveries.
[2] The defendant, the Attorney General of Canada (“AGC” or the “defendant”) brings a motion seeking an Order compelling further and better production and answers to undertakings from the plaintiff, Le Groupe Conseil Bronson Consulting Inc. (“Bronson” or the “plaintiff”), following the examination for discovery of Bronson’s representative.
[3] The plaintiff brings a motion to compel the defendant to provide information, and produce documents, in relation to five questions posed at the examination for discovery of the defendant’s representative.
BACKGROUND
[4] This action arises out of a procurement process with respect to the operation of Canada’s visa application centres (“VAC” or “VACs”) in numerous locations around the world. The plaintiff participated in the procurement process but was not awarded the contract, notwithstanding its claim that it was the highest ranked bidder.
[5] On March 14, 2016, the defendant issued a Request for Proposal (“RFP” or “RFP1”) inviting members of the industry to submit proposals for the work required to operate Canada’s VACs. The procurement was administered by Public Works and Government Services Canada (“PWGSC”) on behalf of Immigration, Refugees and Citizenship Canada (“IRCC”). The RFP included contracts for five (5) regions around the world, and a single bidder could be awarded a contract with respect to any number of the regions noted. As a pre-requisite to being awarded a contract, the RFP contemplated that the highest ranked bidder for each region would have its financial capabilities assessed by the Government’s Contract Cost Analysis Group.
[6] Bronson submitted a proposal in response to the RFP, which included all five regions.
[7] At the conclusion of the evaluation process, the plaintiff alleges that it emerged as the highest-ranking bidder for all five regions. It is not contested by the parties that the plaintiff’s bid proceeded to the required Financial Capability Assessment (the “assessment”) phase of the process.
[8] The AGC determined that Bronson’s financial data related to its bid, which included a spreadsheet with all of Bronson’s expenses, expected revenues and cash flow projections, met the requirements of the assessment.
[9] The contract was not ultimately awarded to the plaintiff. The defendant cancelled the RFP stating that the outcome of the procurement did not align with the defendant’s goals as explained below. The RFP was subsequently re-issued.
[10] As outlined in the AGC’s factum and in its pleading, RFP1 was cancelled when a design flaw, that allowed bidders to transfer all costs to visa applicants, was discovered. It would appear that historically, the cost of visa applications was shared by the applicant and IRCC. It was never anticipated that the applicants would bear all the costs.
[11] The AGC contends that the second RFP (“RFP2”) corrected the design flaw and included parameters to remove a bidder’s ability to transfer all costs to applicants. Although the plaintiff also tendered a bid in respect to RFP2, the contract was ultimately awarded to the incumbent contractor, VF Worldwide Holdings Ltd (“VFS”) and its subsidiary, TT Services (“TTS”).
[12] In this action, the plaintiff claims damages of $195,000,000, alleging that the AGC improperly cancelled RPF1 and breached its contractual obligations by refusing to award the contract to the plaintiff. The plaintiff also alleges that the AGC acted deliberately to favour the incumbent, and that it improperly disclosed the plaintiff’s confidential pricing strategy.
[13] Complicating matters is the involvement of Cox & Kings Ltd. (“Cox & Kings”) with respect to Bronson’s bid and, for a time, as a plaintiff in this action. Bronson and Cox & Kings originally filed jointly as plaintiffs, seeking $195,000,000 in damages, however, Cox & Kings discontinued their action, on consent of the AGC in 2019.
[14] The parties disagree as to what led to the discontinuance of Cox & Kings’ action. The AGC alleges that at the time that they consented to the discontinuance of the action, unbeknownst to it, Cox & Kings was petitioned into bankruptcy in India. Bronson, on the other hand argues that Cox & Kings left the litigation because of a threatened motion from the AGC seeking to strike them from the action as they were not a party to the bid. Bronson contends that Cox & Kings were not petitioned into bankruptcy; rather it was a form of receivership under Indian Law which would not have stayed their action against the AGC.
[15] According to Bronson, Cox & Kings was an established player in the VAC services industry and was one of the subcontractors put forward in its bid, to assist Bronson in the delivery of the VAC services. To the extent that Bronson’s bid was successful, Cox & Kings would perform a significant portion of the VAC services under the resulting contract as Bronson’s subcontractor.
[16] Bronson worked closely with Cox & Kings in developing its bid, including the development of a financial spreadsheet (the “financial spreadsheet”) for use in the assessment phase of the procurement.
[17] Examinations for discovery of both parties were held over the course of six days in April and May 2021. David Tomei was produced on behalf of the AGC, and Martin McGarry was examined for discovery on behalf of Bronson.
THE DEFENDANT’S MOTION
AGC’s Position
[18] The AGC takes the position on the motion that:
a) while undertakings were provided at discoveries, the answers provided by Bronson were unresponsive;
b) Bronson refuses to produce documents related to the financial arrangement between Bronson and Cox & Kings in the preparation for RFP1;
c) Bronson has provided a deficient affidavit of documents;
d) Bronson improperly refused to answer the question on discovery related to its preparation costs for RPF2.
[19] The defendant describes Bronson as a small, Ottawa-based, consulting firm, and Cox & Kings as a large multinational corporation operating out of India and offering VAC services across the globe. According to the AGC, Cox & Kings were intended to carry out most of the services in the initial bid and the decision to put Bronson as the prime bidder on the bid documents was done for the purpose of meeting the Canadian security requirements of the contract.
[20] The defendant’s view of Cox & Kings and Bronson is important, as it provides insight into the defendant’s position on the motion. The AGC puts particular emphasis on the fact that the damages claimed by Bronson after the discontinuance of Cox & Kings’ claim, are the same as those claimed by both plaintiffs, prior to the discontinuance.
[21] The only financial document produced by Bronson in support of its claim for damages is the financial spreadsheet. The defendant argues that it does not make sense that all the damages for such a significant claim are based on a single excel spreadsheet, with no supporting documents and no breakdown.
[22] Most of the issues brought forth by the defendant on this motion relate to the AGC’s view that there must be documents detailing the financial proposals between Bronson and Cox & Kings, with respect to the bid, that have not been disclosed or produced. In particular, the AGC is seeking production of the financial records that describe the financial arrangement between Bronson and Cox & Kings, including spreadsheets, calculation sheets, proposals and costs benefit analysis sheets. The defendant argues that the amount which Bronson was to pay Cox & Kings under the arrangement, is relevant to calculating Bronson’s damages.
[23] According to counsel for the AGC, two days were spent examining Bronson’s representative for discovery, making repeated requests for financial information, only to be met with repeated refusals.
[24] Lastly, the AGC alleges that Bronson improperly refused to answer its question on discovery related to the costs that Bronson incurred with respect to its bid preparation for RFP2, and whether or not Bronson was reimbursed by Cox & Kings. Although the defendant concedes that the plaintiff is claiming damages only in relation to RFP1, the AGC argues that the information related to the costs incurred for RFP2 are relevant as it goes to the assessment of damages, particularly if the costs for RFP1 were not all lost if they were used in the preparation of RFP2.
Bronson’s Position
[25] It is the plaintiff’s position that all the financial information related to Bronson’s expenses, anticipated revenues and cash flow projections, with respect to the bid for RFP1, are included in the financial spreadsheet on a line-by-line basis, and that no other documents exist.
[26] The plaintiff argues that this is not a situation where undertakings have not been answered, but rather a situation where the defendant refuses to accept Bronson’s evidence. With respect to the documents related to the costs that Bronson incurred in responding to RFP2, the plaintiff argues that these documents are not relevant.
The Law and Analysis
[27] The scope of an examination for discovery is prescribed by rule 31.06 of the Rules of Civil Procedure,[^1](the “Rules”) which states:
31.06 (1) A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action or to any matter made discoverable by subrules (2) to (4) and no question may be objected to on the ground that,
(a) the information sought is evidence;
(b) the question constitutes cross-examination, unless the question is directed solely to the credibility of the witness; or
(c) the question constitutes cross-examination on the affidavit of documents of the party being examined.
[28] Perell J. in Ontario v. Rothmans Inc.[^2] summarized the principles, with respect to the scope of the questioning on an examination for discovery, as follows:
• The scope of the discovery is defined by the pleadings; discovery questions must be relevant to the issues as defined by the pleadings.
• The examining party may not go beyond the pleadings in an effort to find a claim or defence that has not been pleaded. Overbroad or speculative discovery is known colloquially as a “fishing expedition” and it is not permitted.
• The extent of discovery is not unlimited, and in controlling its process and to avoid discovery from being oppressive and uncontrollable, the court may keep discovery within reasonable and efficient bounds.
• The witness on an examination for discovery may be questioned for hearsay evidence because an examination for discovery requires the witness to give not only his or her knowledge but his or her information and belief about the matters in issue.
• The witness on an examination for discovery may be questioned about the party’s position on questions of law. [Citations omitted.]
[29] In Del Giudice v. Thompson,[^3] Perell J. provides further guidance by outlining the justifications for refusals to answer questions on discovery. They are:
a. The question is fishing and goes beyond the scope of the motion.
b. The question is argumentative, not fair or capable of being answered, which is to say that the question is vague, unclear, inconsistent, unintelligible, redundant, superfluous, repetitious, overreaching, fishing, speculative, unfair, oppressive, or a matter of rhetoric or argument.
c. The question is not material, which is to say that the question falls outside the parameters of the action and does not address a fact in issue.
d. The question is irrelevant, which is to say that the question does not have probative value; it does not adequately contribute to determining the truth or falsity of a material fact.
e. The question has been answered; the question or the documents relevant to the question have already been provided by the party being examined.
f. The question is disproportionate, which is to say that the question may be relevant but providing an answer offends the proportionality principle; and
g. The question is privileged; the answer to the question is subject to a privilege, including lawyer and client privilege, litigation privilege, common interest privilege, or the privilege for communications in furtherance of settlement.
[30] Typically, the party conducting a discovery is entitled to complete oral discovery once undertakings and questions improperly refused have been answered.[^4] However, the right to follow-up discovery is not an absolute right, and the court retains discretion to disallow re-attendance particularly if follow-up discovery serves no useful purpose.[^5]
[31] It is the plaintiff’s evidence from Mr. McGarry’s examination for discovery that all the financial information related to Bronson’s expenses, anticipated revenues and cash flow projections, with respect to the bid for RFP1, are included in the financial spreadsheet on a line-by-line basis, and that there are no other documents in their possession or control that have not been produced.
[32] Mr. McGarry testified that Bronson and Cox & Kings worked together in developing the financial spreadsheet. Mr. McGarry explained the process for the development of the financial spreadsheet as follows:
• Bronson sent an initial commercial proposal to Cox & Kings as an attachment to an email, which Cox & Kings then uploaded.
• Bronson and Cox & Kings discussed the financial aspects of the proposal via conference call and made whatever changes that were required in real time over document share, through a portal.
• The financial spreadsheet was treated as a working document, with updates and amendments made in real-time, overwriting the prior data, often by way of a shared screen.
[33] According to Mr. McGarry, the financial spreadsheet was treated as a working document as outlined above, because Cox & Kings had experienced information leaks in the past. Cox & Kings did not share financial information by email, or draft documents, for security reasons. No other versions of the proposal existed, nor is there a record of what was initially uploaded.
[34] Indeed, two days were spent examining Bronson’s representative for discovery with counsel for the AGC making several requests for the same financial information. However, in my opinion, the AGC’s requests for financial information did not bear fruit, not because the plaintiff refused to disclose the information, but rather because the AGC refused to accept the evidence given by Mr. McGarry, both on discovery and in answers to undertakings. In particular:
• There are no other versions of the spreadsheet other than the one that was ultimately submitted with Bronson’s bid. No previous versions of the spreadsheet were destroyed; rather the spreadsheet was a working document that was updated in real-time. No other version of the spreadsheet exists.
• There are no records that describe the financial arrangement between Bronson and Cox & Kings.
• Bronson’s and Cox & Kings’ costs are not co-mingled on the financial spreadsheet, as alleged by the AGC. Bronson was never privy to the breakdown of Cox & Kings’ costs.
• The aggregation of the data on the financial spreadsheet is the aggregation of data from the regions, and not an aggregation of Bronson’s profits and Cox and Kings’ profits.
• At the same time that the financial spreadsheet was being developed, the then President of Bronson was attempting to negotiate a side agreement with Cox & Kings, where, for a fee, Bronson would perform some of the services that Cox & Kings would have performed under the bid. Ultimately, no side agreement was reached, and it never factored into the bid.
[35] In my view, based on the evidence before me, Mr. McGarry has answered the questions and undertakings on discovery, and produced the relevant documents, such as they are, with respect to the financial information related to the bid for RPF1.[^6]
[36] The AGC’s ongoing refusal to accept the answers given by Mr. McGarry on discovery or in answer the undertakings or its view of the plaintiff’s evidence, does not change the plaintiff’s evidence that the conveyance of information between Bronson and Cox & Kings is not document-based. Furthermore, it does not change the plaintiff’s evidence that the financial information related to Bronson’s expenses, anticipated revenues and cash flow projections, with respect to the bid for RFP1, are said to be all in the financial spreadsheet.[^7] The credibility of these assertions will be before the trial judge, but on this motion, I must take Mr. McGarry’s evidence at face value in the absence of evidence to the contrary.
[37] Turning now to the AGC’s request for information related to the costs that Bronson incurred in responding to RFP2.
[38] The case law is clear that discovery questions must be relevant to the issues as defined by the pleadings and ought not be overbroad or speculative. In my view, the questions related to the costs that Bronson incurred in responding to RFP2 is overreaching and is therefore, fishing.[^8] I agree with Bronson’s submission in paragraph 48 of its factum that states: “The idea that Bronson would be required to mitigate its bid preparation cost damages by bidding on a separate and distinct solicitation is far too remote a proposition to bring its RFP2 bid preparation costs into relevancy”.
[39] So far as the record before me discloses, there is no clear basis to order a follow-up examination for discovery of Mr. McGarry as it would serve no useful purpose.[^9] I decline to order a further and better affidavit of documents as there is no evidence before me that further documentation exists.
Disposition
[40] For the reasons outlined above, the defendant’s motion is dismissed.
THE PLAINTIFF’S MOTION
[41] The plaintiff brought this motion to compel the AGC to provide information and produce documents in response to several questions and requests for productions at the examination for discovery of its representative, Mr. Tomei.
[42] The AGC subsequently withdrew all but five (5) of its refusals and undertook to provide information and documents in response to the refusals that were withdrawn.
[43] The plaintiff now seeks an order compelling the defendant to provide information, and produce documents, in relation to the remaining five refusals as set out in the defendant’s factum. They will be addressed individually and are as follows:
1- Provide the name of the forensic accountant that has been retained by the AGC to prepare a report on Cox & Kings;
2- Produce communications between the AGC and VFS and TTS in relation to their case including with their legal counsel;
3- Whether or not it was open to Canada “to simply ignore the solicitation documents, ignore the RFPs and all of the various bid documents, and just simply cancel the procurement regardless of what was in the solicitation documents”;
4- To produce documents and contracts in relation to the local arrangements VFS had with various providers in various countries to provide VAC services prior to 2012 being issued;
5- To disclose the Approval Value of the contract.
1- Provide the name of the accounting firm/forensic accountant retained by the defendant to prepare a report on Cox & Kings
[44] It was disclosed during the examination for discovery of Mr. Tomei that the AGC had retained a forensic accountant in India for the purposes of producing a report related to the insolvency proceedings involving Cox & Kings. Although the report had yet to be prepared, at the time of discovery, the defendant was aware that the forensic accountant had communicated with the trustee, the stock exchange in India, and public authorities in India.
Plaintiff’s Position
[45] Bronson is seeking the name and address of the forensic accountant, or in the alternative, an undertaking not to call the forensic account as a witness at trial pursuant to rule 31.06(3) of the Rules.
Defendant’s Position
[46] The AGC argues that the name and address of the expert is subject to litigation privilege. According to the AGC, until it receives the final report prepared by the forensic accountant containing “findings, opinions and conclusions”, and until the AGC has had an opportunity to determine whether it intends to rely on the expert report, the information leading up to the completion of the final report is subject to litigation privilege, including the identity of the expert. It is only once AGC receives the forensic accountant’s report, that it will be in a position to determine whether it intends to call this expert as a witness at trial. Accordingly, the defendant contends that the identity of the expert need not be disclosed until such time as it receives the expert’s report and determines whether or not the accountant will be called as a witness at trial.
Analysis and Disposition
[47] Rule 31.06(3) of the Rules deals with the scope of examination for discovery with respect to expert opinions, and provides as follows:
31.06 (3) A party may on an examination for discovery obtain disclosure of the findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined that are relevant to a matter in issue in the action and of the expert’s name and address, but the party being examined need not disclose the information or the name and address of the expert where,
(a) the findings, opinions and conclusions of the expert relevant to any matter in issue in the action were made or formed in preparation for contemplated or pending litigation and for no other purpose; and
(b) the party being examined undertakes not to call the expert as a witness at the trial.
[48] Although a party may be entitled to continue to maintain litigation privilege through to trial, the courts have found that litigation privilege is “neither absolute in scope nor permanent in duration.”[^10] In particular, the courts have found that litigation privilege attaching to expert reports is qualified, and that the limitation found in rule 31.06(3) is an exception to the general rule of litigation privilege as held by the Court of Appeal in Moore v. Getahun[^11]:
[73] It is important to note that the litigation privilege attaching to expert reports is qualified, and disclosure may be required in certain situations.
[74] The most obvious qualification is that the Rules of Civil Procedure require disclosure of the opinion of an expert witness before trial. If a party intends to call the expert as a witness at trial, rule 31.06(3) entitles the opposite party on oral discovery to “obtain disclosure of the findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined”.
[49] Rule 31.06(3) defines the scope of litigation privilege attaching to expert reports and opinions at the discovery stage.[^12] The provisions of rule 31.06(3) not only mandate “the disclosure of the findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined” at the discovery stage, but also the expert’s name and address. The disclosure of the expert’s opinion or the name and address of the expert need not be disclosed where the party being examined maintains litigation privilege and undertakes not to call the expert as a witness at trial.
[50] The fact that the defendant may not yet have the forensic accountant’s report does not absolve it from compliance with the requirements of rule 31.06(3). In my view, the AGC’s position that it has the right to maintain litigation privilege over the name and address of the expert until it is in receipt of the report, at which time it will either disclose the information or undertake not to call the expert as a witness at trial, is incorrect. Rule 31.06(3) is clear. The name and address of the expert must be disclosed at the discovery stage unless the party being examined maintains litigation privilege and undertakes not to call the expert at the trial.
[51] Accordingly, the AGC must either disclose the name and address of the forensic accountant or undertake not to call the expert at trial.
2- Produce communications between the AGC and VFS and TTS in relation to their case including with their legal counsel
[52] By way of background, in the summer of 2019, the parties worked together to develop a confidentiality protocol to protect the confidential financial information of a number of corporations (“third parties”) that participated in the procurement process. The protocol was developed to address how the AGC could fulfill its documentary disclosure and production obligations, with respect to any relevant documents which may contain commercially sensitive information belonging to third parties, including VFS and TTS. The confidentiality protocol was adopted by order of Justice Corthorn, dated August 15, 2019.
[53] During his examination for discovery, Mr. Tomei was asked whether the AGC had had any communication with VFS in connection with this litigation. Although the AGC initially refused to provide an answer or produce any records in response to this question on the grounds of litigation privilege, it later claimed common interest privilege over the communications.
[54] The parties agree that the sensitive commercial information belonging to VFS and TTS is governed by the confidentiality protocol between the parties. Accordingly, all communications with VFS and TTS, alleged by the AGC to contain third party information, are subject to, and must be disclosed in accordance with, the rules set out in the confidentiality protocol.
[55] What the plaintiff is seeking are communications between the AGC and VFS and TTS, that are not subject to the confidentiality protocol. It became apparent at the hearing of the motion that what was being sought by the plaintiff and denied by the defendant were the communications between the AGC and VFS and TTS with respect to the development of the confidentiality protocol.
Plaintiff’s Position
[56] The plaintiff argues that one of the key issues in this proceeding concerns the relationship between the AGC and VFS, the incumbent contractor and winner of the re-issued procurement, RFP2.
[57] In its Amended Statement of Claim and Reply, the plaintiff alleged that the AGC acted deliberately in cancelling and re-issuing the procurement to favour VFS. The plaintiff further alleged that the AGC improperly disclosed the plaintiff’s confidential bid information to its competitors. These allegations are denied by the AGC.
[58] The plaintiff argues that there no basis for the defendant’s assertion that they have a common interest with VFS in this litigation. Whether the plaintiff is successful in this proceeding or not will not have any impact on VFS, as this is a case for damages against the AGC only.
[59] Moreover, Bronson contends that the AGC’s assertion that it has a “common interest” with VFS, supports the allegation by the plaintiff that VFS was improperly favoured during the solicitation process, and thereafter.
[60] Of concern to the plaintiff is the AGC’s position in seeking to assert a privilege over communications it had with VFS about the development of the protocol. Bronson argues that the protocol was developed by the parties on consent, and that consultation with third parties with respect to the development of the protocol cannot be done in a manner that conceals information from the plaintiff.
[61] The plaintiff maintains that any collaboration between the AGC and VFS and TTS to defeat Bronson, goes to the issue of bias. Moreover, such a collaboration would affect how the protocol is administered, as the AGC is the gatekeeper of the documents under the protocol.
Defendant’s Position
[62] The defendant argues that it is entitled to assert common interest privilege with respect to the communications between the AGC and VFS and TTS involving the development of the protocol, because they have a common interest in preserving the confidential business information related to the protocol. In other words, the AGC and VFS were closely aligned in negotiating a common position to be taken for the development of the confidentiality protocol, and how they would respond to Bronson and its request for full disclosure of the confidential information.
[63] According to the AGC, the law is clear that communications between parties who have a common interest in a potential civil case, and are represented by separate counsel, are entitled to rely on common interest privilege to protect their communications with each other in the furtherance of their common legal position.
[64] The AGC submits that the communication between it and VFS and TTS, with respect to the development of the protocol, is subject to a common interest privilege, to the extent that they were for the furtherance of a single common legal position in securing a confidentiality order. Hence, the AGC maintains that the information is privileged and need not be produced.
Analysis and Disposition
[65] The issue of common interest privilege was addressed by the Court of Appeal in General Accident Assurance Company v. Chrusz.[^13] In that case, the Court of Appeal adopted the general principle relating to common interest privilege expressed by both Denning L.J. in Buttes Gas and Oil Co. v. Hammer,[^14] and by the U.S. Court of Appeal in United States of America v. American Telephone and Telegraph Company.[^15]
[66] The general principle with respect to common interest privilege enunciated by Denning L.J. in Buttes Gas and Oil Co. v. Hammer[^16] is as follows:
… There is a privilege which may be called a ‘common interest’ privilege. That is a privilege in aid of anticipated litigation in which several persons have a common interest. It often happens in litigation that a plaintiff or defendant has other persons standing alongside him who have the selfsame interest as he and who have consulted lawyers on the selfsame points as he but who have not been made parties to the action. Maybe for economy or for simplicity or what you will. All exchange counsels' opinions. All collect information for the purpose of litigation. All make copies. All await the outcome with the same anxious anticipation because it affects each as much as it does the others. Instances come readily to mind. Owners of adjoining houses complain of a nuisance which affects them both equally. Both take legal advice. Both exchange relevant documents. But only one is a plaintiff. An author writes a book and gets it published. It is said to contain a libel or to be an infringement of copyright. Both author and publisher take legal advice. Both exchange documents. But only one is made a defendant.
In all such cases I think the courts should, for the purposes of discovery, treat all the persons interested as if they were partners in a single firm or departments in a single company. Each can avail himself of the privilege in aid of litigation. Each can collect information for the use of his or the other's legal adviser. Each can hold originals and each make copies. And so forth. All are the subject of the privilege in aid of anticipated litigation, even though it should transpire that, when the litigation is afterwards commenced, only one of them is made a party to it. No matter that one has the originals and the other has the copies. All are privileged.”
[67] The U.S. Court of Appeal in United States of America v. American Telephone and Telegraph Company,[^17] defines common interests as follows:
But “common interests” should not be construed as narrowly limited to co- parties. So long as transferor and transferee anticipate litigation against a common adversary on the same issue or issues, they have strong common interests in sharing the fruit of the trial preparation efforts. Moreover, with common interests on a particular issue against a common adversary, the transferee is not at all likely to disclose the work product material to the adversary.
[68] In my view, it is clear from the cases that for common interest privilege to apply to communications, the party and non-party must (a) have a “common interest” or “selfsame interest” against a common adversary, and (b) there must be actual contemplation of litigation shared by the individuals against a common adversary.[^18]
[69] Aside from the issue of “selfsame interest” between the AGC and VFS and TTS, which I will deal with below, there is no evidence before me that there is a contemplation of, or even a possibility of, anticipated litigation in which the AGC and VFS and TTS have a common interest. Bronson’s action is against the AGC for damages; it has no claim for damages against VFS and TTS, or vice versa. As stated by the plaintiff, whether Bronson is successful in this proceeding will not have any impact on VFS, as this is a case for damages against the AGC, only.
[70] As there is no evidence of an actual contemplation of litigation by individuals against a common adversary, I do not consider that the AGC acquired a common interest privilege in its communications with VFS and TTS with respect to the development of the confidentiality protocol.
[71] In my view, the AGC’s allegation that it has a common interest with VFS and TTS in the development of the confidentiality protocol, makes the disclosure of these communications all the more relevant for two reasons: (a) because one of the key issues in this proceeding concerns the relationship between the AGC and VFS and TTS, the incumbent contractor and the winner of the re-issued procurement, and (b) the development of the protocol was to be in collaboration with the parties to the litigation and the third parties, with the AGC being the gatekeeper of the documents under the protocol.
[72] Accordingly, the defendant shall produce communications between the AGC and VFS and TTS, and their legal counsel, with respect to the development of the confidentiality protocol.
3- Whether or not it was open to Canada “to simply ignore the solicitation documents, ignore the RFP and all the various bid documents, and just simply cancel the procurement regardless of what was in the solicitation documents”
[73] The above question posed by counsel for the plaintiff at Mr. Tomei’s examination for discovery was refused on the grounds that it was argumentative and an abuse of the discovery process.
Plaintiff’s Position
[74] Bronson submits that a central issue in this litigation concerns the AGC’s right to cancel the procurement. The Plaintiff alleges that the AGC did not have the right to cancel the procurement in the circumstances in which it did, whereas the AGC claims that it had the right to cancel the procurement and at any time prior to the award of the contract.
[75] The plaintiff argues that this question is relevant as it needs to understand with some clarity what position the AGC is taking with respect to the cancellation of the procurement. In particular, the plaintiff is seeking an answer as to whether the AGC is taking the position that it can cancel the procurement with certain parameters and conditions, or whether it can cancel the procurement at will.
Defendant’s Position
[76] The AGC contends that the question posed seeks an admission that it breached the terms and conditions of the RFP, all in a context where the AGC has asserted that it exercised discretion under a contractual clause and cancelled the RFP for that reason. The AGC has refused to provide an answer to the question posed and has asserted that it respected all of the terms and conditions of the RFP.
Analysis and Disposition
[77] It became apparent during submissions by both counsel for the parties, that the framing of the question was problematic and therefore interpreted differently by the parties.
[78] Counsel for the plaintiff submits that fundamentally, the question posed is whether it was open to the AGC to cancel the procurement at will.
[79] In my view, the question of whether the AGC can cancel the procurement with certain parameters and conditions, or whether it can cancel the procurement at will is relevant and indeed pivotal to this proceeding. It may be that this was answered in the statement of defence but it is nonetheless a proper question to be asked on discovery. Notwithstanding the ambiguous framing of the question or the manner in which it was asked, the question whether the AGC can cancel the procurement with certain parameters and conditions or whether it can cancel the procurement at will, should be answered.[^19]
4- To produce documents and contracts in relation to the local arrangements VFS had with various providers, in various countries, to provide VAC services prior to the 2012 contract being issued
[80] This question was broken down into two parts, both clarified and dealt with at the motion as follows.
Part One:
a) The plaintiff’s request for documents related to VFS’ subcontractor agreements.
[81] The AGC answered this question in paragraph 35 of their factum, and confirmed at the motion, that it is its answer for the record. The plaintiff accepts that this refusal has been addressed and in my view, the question has been answered. Paragraph 35 states:
- None of the bidders under RFP1 or RFP2 were required to provide copies of the subcontractor agreements. In any event, the AGC does not have copies of any of the subcontractor agreements under the contract that was awarded under RFP1/RFP2 or any previous solicitation/contract, including those of Bronson. The information requested by Bronson is not in the power possession and control of the AGC.
[82] Part Two:
b) The plaintiff’s request for a copy of the 2005 contract between the AGC and VFS related to VAC services.
[83] Counsel for the plaintiff confirmed on the motion that the only document requested with respect to this part of the question is a copy of the 2005 contract between the AGC and VFS related to VAC services.
[84] As I found the 2005 contract to be relevant, the defendant agreed to produce a copy of the contract to the extent that it is still available. In my view, the 2005 contract is relevant because in its’ pleadings, the AGC states that the plaintiff’s bid offended the AGC’s policy objectives, or breached certain requirements, for the operation of VACs. The 2005 contract may demonstrate the way the AGC has handled this procurement in the past, and provide information on the policy and practice of the AGC.
5- To produce the Approval Value of the contract
[85] At the examination for discovery of Mr. Tomei, he was asked what the approval value was for the procurement at issue in this action. The AGC refused to answer this question stating that the information was privileged.
[86] The AGC indicated in their factum, and at the motion, that the approval value for the contract was privileged information under section 39 of the Canada Evidence Act[^20] and therefore could not be disclosed.
[87] Section 39 of the Canada Evidence Act provides that, where the information sought to be disclosed is a confidence of the Queen's Privy Council for Canada, the Minister of the Crown or the Clerk of the Privy Council, Canada's most senior public servant, must certify in writing their objections to disclosure under s. 39 of the Canada Evidence Act. Section 39 protects the integrity of the Cabinet system of government and exempts from disclosure information that falls within the definition of confidences of the Queen's Privy Council for Canada.
[88] At the hearing of the motion, the defendant had yet to receive the Certificate of the Clerk and therefore the disposition of this matter was put over pending the receipt of the certificate.
[89] A copy of the Certificate of the Interim Clerk of the Privy Council, dated May 3, 2022, certifying her objections to the disclosure of the information regarding the approval value of the contract was provided to the court. Accordingly, this information is privileged and cannot be produced.
Conclusion
[90] For the reasons outlined above, the plaintiff’s motion is granted as follows:
a) The defendant shall, within 30 days of the date of this endorsement:
i- Disclose to the plaintiff the name and address of the forensic accountant that it retained to prepare a report on Cox & Kings, or provide an undertaking to not to call the expert as a witness at the trial.
ii- Produce all communications between the AGC and VFS and TTS including with their legal counsel in respect to the development of the confidentiality protocol.
iii- Provide an answer to the plaintiff’s question as outlined in paragraph 79 above.
iv- Produce a copy of the 2005 contract between the AGC and VFS related to VAC services, if available.
b) The defendant’s representative, Mr. Tomei, shall re-attend at his examination for discovery to provide answers to the plaintiff’s questions and any questions arising from further documents produced.
COSTS
[91] If the parties cannot agree on costs, they may file written submissions not exceeding three pages, exclusive of their respective bills of costs with my judicial assistant via ottawa.associatejudges@ontario.ca. If necessary, the plaintiff shall file its costs submissions within 20 days of the release of this decision. The cost submissions of the defendant shall be filed within 10 days thereafter.
Associate Justice Fortier
DATE: July 15, 2022
COURT FILE NO.: CV-18-00075993-0000
DATE: 2022-07-15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LE GROUP CONSEIL BRONSON CONSULTING INC. et al v. ATTORNEY GENERAL OF CANADA
BEFORE: Associate Justice M. Fortier
COUNSEL: Christopher McLeod, for the Plaintiff
Alexander Gay/Andrew Gibbs, for the Defendant
ENDORSEMENT
Associate Justice M. Fortier
DATE: July 15, 2022
[^1]: R.R.O. 1990, Reg. 194. [^2]: 2011 ONSC 2504, 5 C.P.C. (7th) 112, at para. 129. [^3]: 2021 ONSC 2015, at para. 24. [^4]: Senechal v. Muskoka (Municipality), 2005 CanLII 11575 (Ont. S.C.), at para. 5. [^5]: Ibid, at paras. 6–7. [^6]: Rules of Civil Procedure, r. 31.06(1). [^7]: Del Giudice, at para. 24. [^8]: Del Giudice, at para. 24; Rothmans Inc., at para. 129. [^9]: Senechal, at paras. 6–7. [^10]: 2015 ONCA 55, 124 O.R. (3d) 321, at para. 76. [^11]: Ibid, at paras. 73–74. [^12]: Ibid, at para. 74. [^13]: (1999), 1999 CanLII 7320 (ON CA), 45 O.R. (3d) 321. [^14]: Buttes Gas and Oil Co. v. Hammer, (No. 3), [1980] 3 All E.R. 475, at pp. 483-84, [1981] Q.B. 223 (C.A.). [^15]: United States of America v. American Telephone and Telegraph Company, 642 F.2d 1285 (1980 S.C.C.A.), at pp. 1299-1300. [^16]: Buttes Gas and Oil Co., at pp. 483-84. [^17]: American Telephone and Telegraph Company, at pp. 1299–1300. [^18]: See: Chrusz. [^19]: Rothmans Inc., at para. 129. [^20]: Canada Evidence Act, R.S.C. 1985, c. C-5.