COURT FILE NO.: CV-18-78521
DATE: 2022/07/27
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:
Clarke Tedesco, for the Plaintiff and Defendant to the Counterclaim Capital Sports Management Inc. and for the Defendant to the Counterclaim Eugene Melnyk
Milton A. Davis, Samantha M. Green, and Hailey Abramsky, for the Defendant and Plaintiff by Counterclaim Trinity Development Group Inc. and for the Defendants Trinity Albert LP and John Ruddy
Christopher D. Bredt, 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
Yamen Fadel, for the National Capital Commission
HEARD: July 25, 2022
REASONS FOR decision on motion – terms of production
RYAN BELL J.
Overview
[1] Trinity Development Group Inc., Trinity Albert LP, and John Ruddy (collectively, “Trinity”), move for an order that Capital Sports Management Inc. (“CSMI”) produce documents relating to the development contemplated by CSMI’s February 28, 2022 response to the National Capital Commission’s (“NCC”) Request for Expression of Interest – Major Attraction Sites (“New LeBreton Development”) and requiring a representative of CSMI to re-attend to be examined for further discovery on the documents produced.[^1]
[2] CSMI does not object to the production of the documents sought by Trinity on its motion – the only issue before me is the terms upon which the documents are to be produced. Trinity and the NCC have each provided me with the form of order they request.
[3] Counsel for Trinity describes the NCC’s proposed order as “unnecessary”, “excessive”, and “too complicated.” The Albert Street defendants echo these concerns. They submit that the interests of the NCC can be adequately represented through CSMI, the party producing the document.
[4] The NCC’s position is that enhanced protections are required in respect of the documents produced that relate to the New LeBreton Development. CSMI supports the NCC in seeking enhanced protective terms.
[5] To date, the parties have been operating under the terms of a confidentiality protocol. The implied undertaking at common law and the deemed undertaking provided for in r. 30.1 of the Rules of Civil Procedure[^2] also apply.
[6] The parties and the NCC agree that the documents to be disclosed contain highly confidential information.
[7] Trinity’s draft order includes a confidentiality protocol applicable to documents relating to the New LeBreton Development. The draft order also provides the NCC with an opportunity to object to the production of a document by requiring that CSMI review the documents to be disclosed with the NCC in advance of their production. If the NCC objects to the production of a document, CSMI is to advise Trinity of the document’s existence and the NCC’s objection to its production. The parties would then be entitled to seek further direction from the court.
[8] The NCC’s draft order provides for certain documents to be designated as “Protected Records” and two levels of protection: Level A and Level B. Level A protected documents may be disclosed to the parties, outside counsel, independent experts, designated representatives of the parties, and record review vendors. Level B protected documents would only be disclosed to outside counsel for the parties and their staff who are directly involved in the proceedings. In the event of a disagreement – either in determining whether a record is a Protected Record or in determining its confidentiality classification – the producing party would be required to advise the receiving party, advise the NCC, and serve a motion for determination of the issue.
[9] The NCC’s draft order overreaches in a number of respects. For example, the definition of Protected Record includes “pleadings” and “affidavits.” Another example: the NCC’s draft provides that Protected Records shall not form part of the public record at the hearing of the proceedings, “unless the NCC [a non-party] waive[s] the claim of confidentiality, or the Court determines otherwise.” This is despite the fact that the order presently sought is restricted to the documentary disclosure process. A final example: the NCC draft jurisdictionally overreaches in that it defines proceedings to include not only this action, but any appeals.
[10] Beyond these concerns, the need for an order in the form proposed by the NCC is not grounded in the evidence. The NCC’s affidavit speaks to the confidential business information contained in the Memorandum of Understanding negotiated between the NCC and a CSMI-affiliated company regarding the New LeBreton Development. The NCC describes the MOU as the framework that will be used to elaborate on the development concept, create an implementation plan, and negotiate a long-term lease agreement. What the affidavit does not do, however, is address why the existing confidentiality protections – the implied undertaking at common law, the deemed undertaking rule, and the confidentiality protocol – are inadequate. There is simply no evidence before me as to why the existing regimes are not sufficient.
[11] In support of its position, the NCC has referred me to Arkipelago Architecture Inc. v. Enghouse Systems Limited,[^3] and Rivard Instruments, Inc. v. Ideal Instruments Inc.[^4] In Arkipelago, the court dismissed an appeal from a “counsel’s and expert’s eyes only” protective order. In Rivard, the court dismissed an appeal from an “attorneys eyes only” protective order.
[12] In Arkipelago, the plaintiff and the corporate defendants were direct business competitors. The plaintiff had commenced proceedings against the defendants for copyright infringement. In Rivard, the plaintiff had commenced an action against the defendant based on an alleged infringement of a patent held by Rivard. There was evidence before the prothonotary of the significant risk to the defendant if confidential documents were disclosed to persons involved in Rivard’s day-to-day business. Copyright and patent litigation is of an entirely different nature than the commercial litigation before me in this case. It should not be assumed that orders made in the former context will be appropriate in the latter.
[13] In his submissions, counsel for the NCC repeatedly stated that the terms of the NCC’s draft order are routinely ordered in matters before the Competition Bureau. Again, the nature of litigation before the Bureau is entirely different than the commercial litigation before me. As the court made clear in Seedlings Life Science Ventures LLC v. Pfizer Canada Inc.,[^5] an intellectual property case, the court should consider the extent to which the protection afforded by the implied undertaking is sufficient to protect the parties’ privacy and confidentiality interests against any risk that may reasonably be anticipated in the circumstances of the case.
[14] To repeat, there is no evidence before me as to why the implied undertaking at common law, the deemed undertaking rule, and the confidentiality protocol are not sufficient to protect the confidentiality interests at stake during the discovery process. Trinity’s draft order provides for the involvement of the NCC, through CSMI. There is no evidence that NCC’s interests cannot be adequately protected in this fashion.
[15] The NCC’s position assumes the parties and their experts will fail to abide by the existing protocols and procedures. Assumption and speculation are not evidence.
[16] In my view, the terms of the draft order proposed by Trinity are sufficient to protect the interests of the parties and the interests of the NCC will be adequately represented through CSMI, the party producing the document.
[17] I have signed the order in the form submitted by Trinity, amended to reflect that I may be spoken to on the issue of costs.
Ryan Bell J.
Released: July 27, 2022
COURT FILE NO.: CV-18-78521
DATE: 2022/07/27
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
REASONS FOR decision on motion – terms of production
Ryan Bell J.
Released: July 27, 2022
[^1]: Trinity also seeks production of documents listed in Schedule A to its notice of motion. CSMI does not object to producing these documents. [^2]: R.R.O. 1994, Reg. 194. [^3]: 2018 FC 37, aff’d 2018 FCA 192. [^4]: 2006 FC 1338. [^5]: 2018 FC 443, at para. 73.