Court File and Parties
COURT FILE NO.: 13-57387
DATE: 2022/01/05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tanya Woods and 2285675 Ontario Inc., Plaintiffs
AND:
University of Ottawa, Defendant
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Jason Rabin, D. Kenneth Gibson, & G. Boyd Aitken, for the Plaintiffs (Responding Parties)
Jamie A. Macdonald & Crystal Li, for the Defendant (Moving Party)
HEARD: November 19, 2021
ENDORSEMENT â MOTION FOR A SEALING ORDER
[1] This was a motion following the trial of this action to seal certain of the exhibits and to keep them out of the public record.
[2] The rationale for sealing the exhibits relates primarily to their potential to disclose the litigation strategy of the consortium of lawyers pursuing the class proceeding in Baker Estate v. Sony BMG Music (Canada) Inc. (Toronto court file No. CV-08-360651CP). In short, the motion is concerned with the maintenance of litigation privilege. The purpose of the motion is to ensure that nothing put into evidence during the course of this proceeding prejudices the class proceeding. The motion is opposed by the plaintiff.
[3] As described in Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39, litigation privilege is a transient privilege that exists to ensure a zone of privacy in relation to pending or apprehended litigation. Once the litigation has ended, the privilege to which it gave rise loses its justification. But as the court also stated, the litigation is not over until it is over and so the privilege will persist for as long as the litigants or related parties remain locked in what is essentially the same legal combat.
[4] I understand that the class proceeding has settled, but the claims are still being administered and as a consequence there are occasional appearances before Justice Belobaba by class counsel for approval of additional administration fees. It is not apparent to me if there remains any dispute before the court in Toronto that might be endangered by the identified documents becoming public in Ottawa.
[5] It is also important to consider whose privilege it is. If documents produced in this action are documents that would remain privileged in the class proceeding, then that privilege exists for the benefit of the plaintiff class and it would be for class counsel to either waive it or to defend it.
[6] In my view, this motion should be brought on notice to class counsel. Although it is the defendant University of Ottawa who brings the motion for a sealing order, it is the plaintiff who seeks to oppose it. Assuming class counsel wishes to appear on the motion, it is the plaintiff who is adverse in interest to the class and not the University which seeks to protect that privilege â as part of the original class proceeding consortium.
[7] The motion is therefore adjourned to be brought back with formal notice to class counsel. Class counsel is to be provided with the materials filed on the motion and with the factums of each party. Because the original factums (or written submissions) were intertwined with costs submissions, each of the parties may file updated factums dealing only with the requested sealing order.
Mr. Justice C. MacLeod
January 5, 2022
COURT FILE NO.: 13-57387
DATE: 2022/01/05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tanya Woods and 2285675 Ontario Inc., Plaintiffs
AND:
University of Ottawa, Defendant
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Jason Rabin, D. Kenneth Gibson, & G. Boyd Aitken, for the Plaintiffs (Responding Parties)
Jamie A. Macdonald & Crystal Li, for the Defendant (Moving Party)
ENDORSEMENT â MOTION FOR A SEALING ORDER
Regional Senior Justice Calum MacLeod
Released: January 5, 2022