Court File and Parties

COURT FILE NO.: CV-21-108 DATE: 20230421 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Catharine MacDonald, Plaintiff AND: Ontario Society for the Prevention of Cruelty to Animals, Catherine MacNeill, Kari Wilson and Mary Davis, Defendants

BEFORE: Justice D.A. Broad

COUNSEL: Jesse R. Dostal, for the Plaintiffs Elisha C. Jamieson-Davies, for the Defendants

HEARD: April 13, 2023

Endorsement

The Parties

[1] The plaintiff (“Ms. MacDonald”) is the former Chief Executive Officer of the defendant Ontario Society for the Prevention of Cruelty to Animals (the “OSPCA”). Ms. MacDonald was terminated from her CEO position without cause on February 4, 2021.

[2] The individual defendants Catherine MacNeill, Kari Wilson and Mary Davis (the “Individual Defendants”) were at all material times directors on the Board of Directors of the OSPCA.

The Action

[3] By Statement of Claim issued on April 23, 2021, Ms. MacDonald brought action against the defendants seeking damages for wrongful dismissal, defamation, intentional interference with economic relations, and reprisal. The plaintiff is represented by Mr. Dostal of the firm of Lefebvre & Lefebvre LLP (“LeFebvre”).

[4] The defendants, represented by Ms. Jamieson-Davies of the firm of Hicks Morley Hamilton Stewart Storie LLP, (“Hicks Morley”) served and filed a Notice of Intent to Defend on May 17, 2021.

Procedural Background

[5] On May 27, 2021 Ms. Jamieson-Davies wrote to Mr. Dostal advising that the defendants would bring a motion to strike certain paragraphs of the Statement of Claim unless they were amended by the plaintiff. The issues identified in this correspondence included that the Individual Defendants were improperly named as defendants, and that in the Statement of Claim the plaintiff improperly pleaded solicitor-client privileged advice that Hicks Morley had provided to the OSPCA Board of Directors (the “Disputed Legal Advice”).

[6] On June 16, 2021, the plaintiff served an Amended Statement of Claim which did not address the two issues referred to in Ms. Jamieson-Davies’ correspondence. Mr. Dostal took the position that the OSPCA Board had waived privilege over the Disputed Legal Advice and pleading it was therefore proper.

[7] On August 24, 2021 the defendants brought a motion to strike certain portions of the Amended Statement of Claim including the references to the Disputed Legal Advice.

[8] On September 21, 2021 the plaintiff filed an Amended Amended Statement of Claim with the court which also did not address the two issues raised by the defendants referred to above. Contemporaneously the plaintiff served a Responding Motion Record which included an affidavit of the plaintiff in which she referred to the Disputed Legal Advice and appended a copy of it as an exhibit.

[9] October 6, 2021 Mr. Dostal confirmed that the plaintiff’s responding motion record had been filed with the court and was therefore publicly available. Ms. Jamieson-Davies took the position that filing motion materials referencing and copying the Disputed Legal Advice was improper and the correct procedure would have been to provide the materials that dealt with it to the court in a sealed envelope at the hearing. By email dated October 8, 2021 Mr. Dostal acknowledged that he should not have filed the responding motion material with the court in the face of the defendants’ position that it contained solicitor-client privileged information and advised that he would look into a solution.

[10] Ms. MacNeill was cross-examined on October 13, 2021 on her affidavit filed in support of the defendants’ motion to strike. At the examination Ms. MacNeill refused to answer certain questions on the basis that they related to the Disputed Legal Advice and claimed privilege.

[11] On January 21, 2022 the plaintiff served a motion record seeking an order to compel answers to questions refused on the cross-examination of Ms. MacNeill. In covering correspondence Mr. Dostal indicated that he did not intend to file the motion materials and indicated that he would ask the court about the best way to file the motion and have the documents redacted/sealed for the court.

[12] The parties have been unable to resolve the issue of how the parties should file their respective motion materials in the defendants’ motion to strike and the plaintiff’s refusals motion in light of the defendants’ position that the Disputed Legal Advice should not form part of the public record in the proceeding pending the disposition of the motion to strike and the refusals motion (the “underlying motions”).

The Defendants’ Motion for Directions and for a Temporary Sealing Order

[13] The defendants brought a motion on July 5 2022 seeking the following relief:

(a) an order that the parties file redacted versions of their Motion Records in respect of the defendants’ motion to strike and the plaintiff’s refusals motion redacting all references to the Disputed Legal Advice and make unredacted versions of those materials available for the judge hearing the motions, which are not to be publicly filed;

(b) in the alternative, an order giving directions in respect of how the parties should file their motion materials in the motion to strike and the refusals motion;

(c) an order temporarily sealing the plaintiff’s motion record filed September 21, 2021 and the affidavit of the plaintiff sworn September 21, 2021;

(d) in the alternative, an order expunging all references to the Disputed Legal Advice contained in the plaintiff’s motion record filed September 21, 2021 and the affidavit of the plaintiff sworn September 21, 2021;

(e) an order temporarily sealing the plaintiff’s Statement of Claim, Amended Statement of Claim and Amended Amended Statement of Claim filed with the court.

The Issues

[14] The defendants have correctly identified the issues for determination on the motion as follows:

(a) should the court give directions respecting how the parties should file their respective motion materials in the underlying motions?

(b) should the court make a temporary sealing order over the materials the plaintiff has filed with the court which refer to and disclose what the defendants claim is solicitor-client privileged information until the merits of their motion to strike can be heard?

[15] I am unable to accept the plaintiff’s suggestion that the question of whether solicitor-client privilege in the Disputed Legal Advice has been explicitly or impliedly waived by the defendant OSPCA is an issue for determination on the present motion.

[16] In her affidavit in support of the defendants’ motion to strike, dated August 24, 2021, Ms. MacNeill deposed that at no time did the OSPCA waive the privilege attached to the Hicks Morley communications. She stated that the OSPCA objected to the legal advice being pleaded by the plaintiff in her Statement of Claim as soon as it came to its attention.

[17] In her affidavit dated September 21, 2021, filed in response to the defendants’ motion to strike portions of her Statement of Claim, Ms. MacDonald joined issue with the defendants on the question of whether, by permitting the Hicks Morley report to be shared with her, the Board of the OSPCA waived its solicitor-client privilege over it. At paragraphs 24-25 of her affidavit Ms. MacDonald noted that her name was placed on the “copy” line of the email sending the report addressed to the Society and deposed that the Board had thereby made a conscious decision to share the document with her. She stated that she understood that, by permitting the report to be shared with her, the Board was waiving its solicitor-client privilege over the document.

[18] The issue of whether the OSPCA explicitly or impliedly waived solicitor-client privilege in the Hicks Morley report is central to the disposition to be made by the court on that portion of the motion to strike dealing with the pleading of the Disputed Legal Advice.

[19] Likewise, the issue of waiver of solicitor-client privilege is central to the disposition to be made by the court on the plaintiff’s refusals motion. The defendants take the position that Ms. MacNeill properly refused to answer questions respecting the Hicks Morley report on the ground of privilege.

[20] By bringing the present motion for directions and for a temporary sealing order, the defendants did not accelerate the determination of the issue of waiver of privilege on the underlying motions. In the present motion the defendants claim only that the references to the Disputed Legal Advice in the public court record be sealed on a temporary basis until the issue of waiver of privilege can be properly determined by the court on the underlying motions.

The Defendants’ Positions

[21] The defendants submit that procedural directions are needed in reference to the underlying motions in light of the parties’ inability to agree on the following issues:

(a) whether the defendant OSPCA has waived solicitor-client privilege over communications and materials exchanged with Hicks Morley;

(b) whether information that the defendant OSPCA alleges is solicitor-client privileged should be made publicly available through court filings; and

(c) if the information that the defendant OSPCA alleges is solicitor-client privileged is not to be publicly available through court filings, how can it be protected pending the resolution of the motion to strike and the refusals motion?

[22] Contrary to the plaintiff’s counsel’s earlier position that information respecting the Disputed Legal Advice should not have been filed in the court file and thereby made publicly available, the plaintiff has now taken the position that unredacted materials referring to the Disputed Legal Advice were properly filed by her and made available to the public. Direction from the Court as to whether such material is properly filed in the court file is therefore necessary.

[23] The court is empowered by rule 50.01 of the Rules of Civil Procedure to give directions to assist in the just, most expeditious and least expensive disposition of the proceeding, including orders or directions to ensure that any hearing proceeds in an orderly and efficient manner.

[24] A temporary sealing order should issue covering (a) the plaintiff’s Motion Record, including the plaintiff’s affidavit filed on September 21, 2021 in support of her refusals motion, (b) the Statement of Claim, Amended Statement of Claim and Amended Amended Statement of Claim, and (c) the plaintiff’s Motion Record filed July 15, 2022 in response to the defendants’ motion to strike.

[25] A temporary sealing order, or alternatively an order expunging the materials referencing the disputed legal advice which have been filed, is necessary because:

(a) solicitor-client privilege is fundamental to the proper functioning of the legal system and it is therefore in the public interest to protect it;

(b) in the circumstances, court openness poses a serious risk to an important public interest, namely solicitor-client privilege;

(c) given that the plaintiff has already wrongfully filed unredacted versions of the materials referencing the disputed legal advice, a sealing order is necessary to prevent the risk and there is no alternative measure to removing the material from the public record; and

(d) the benefits of a sealing order outweigh the negative effects.

The Plaintiff’s Positions

[26] The plaintiff submits that the court must adhere to the strong presumption in favour of the open court principle and dismiss the defendants’ motion. The plaintiff points to the three prerequisites that a person seeking a limit on the open court principle must show derived from the case of Sherman Estate v. Donovan, 2021 SCC 25, namely:

1. court openness poses a serious risk to an important public interest;
2. the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent the risk; and
3. as a matter of proportionality, the benefits of the order outweigh its negative effects.

[27] The plaintiff says that the inclusion of the Hicks Morley report and references to it do not pose a serious risk to solicitor and client privilege on the sole basis that, having been waived, explicitly or impliedly, the report is not privileged. However, as noted previously, the issue of whether solicitor-client privilege was waived by OSPCA is not before the court on this motion.

[28] Respecting the second prerequisite, the plaintiff submits that there are obvious steps which could be taken aside from sealing the entirety of the Statement of Claim and all references to the Hicks Morley report, including ordering that the report and each reference to it in the public record be temporarily minimally redacted, and that a non-redacted record be made available to the judge.

[29] In reference to the third prerequisite relating to the weighing of the benefits and negative effects of a sealing order, the plaintiff says that if the Statement of Claim or any portion of the record is sealed, she would be prejudiced by being deprived of the right to show to would-be employers the steps she is taking to protect her reputation and to ward off public rumours surrounding the termination of her employment with the OSPCA. She says that there would be no positive impact of a sealing order unless the Hicks Morley report is determined to be privileged.

Discussion

[30] The Supreme Court of Canada in Sierra Club of Canada v. Canada (Minister of Finance) 2002 SCC 41 at para. 53 articulated a two-part test which must be met by a party seeking a sealing order as follows:

1. an order is needed to prevent serious risk to an important interest, including a commercial interest, in the context of litigation because reasonable alternative measures will not prevent the risk; and
2. the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which includes public interest in open and accessible court proceedings.

[31] At para. 38 of Sherman Estate the Supreme Court of Canada recast the Sierra Club test around the three core prerequisites referred to above. The Court found that only where all three of these prerequisites have been met can a discretionary limit on openness — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — properly be ordered and that the test applies to all discretionary limits on court openness, subject only to valid legislative enactments.

[32] In Chemstrade Electrochem Inc. v Stikeman Elliott LPP, 2020 ABCA 322 the Alberta Court of Appeal found at para. 20 the conclusion to be unassailable that solicitor-client privilege is an important public interest worthy of protection, and that disclosure of privileged materials could be harmful to that interest. In doing so, the court quoted the Supreme Court of Canada’s decision in Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 at para 34 as follows:

It is indisputable that solicitor-client privilege is fundamental to the proper functioning of our legal system and a cornerstone of access to justice . . . lawyers have the unique role of providing advice to clients within a complex legal system . . . without the assurance of confidentiality, people cannot be expected to speak honestly and candidly with their lawyers, which compromises the quality of legal advice they receive . . . it is therefore in the public interest to protect solicitor-client privilege.

[33] I accept the defendants’ position that a temporary sealing order or an order expunging the materials referring to the Disputed Legal Advice is necessary to prevent the risk to the public interest in protecting solicitor-client privilege. Reasonable alternative measures will not prevent the risk, given that the plaintiff has already filed in the public court record documents referencing the Disputed Legal Advice over which the OSPCA claims privilege.

[34] The question of whether the Disputed Legal Advice remains privileged or has been waived will be determined in the context of the underlying motions. By refusing to grant a sealing order or an order expunging the materials referencing the Disputed Legal Advice that have been filed, the plaintiff would be exposed to the risk of losing the privilege irretrievably before the determination of its validity can be made. It is appropriate to err on the side of caution to protect the claimed privilege in the interim.

[35] I am also satisfied that the benefits of a temporary sealing or expunging order outweigh its negative effects. The potential impact on solicitor-client privilege which is fundamental to the proper functioning of our legal system, is of a higher order of priority than the plaintiff’s temporary interest, pending the determination of the waiver of privilege issue, in publicizing to potential employers and others her allegations respecting the legal advice received by the OSPCA board from its counsel.

[36] In order to narrow the scope of the restriction on the open court principle to the minimum required to reasonably protect solicitor-client privilege on a temporary basis, I find that the alternative relief proposed by the OSPCA, namely an order that the materials filed by the plaintiff referencing the Disputed Legal Advice be expunged and replaced with versions that redact all references to the OSPCA solicitor-client privileged information, to be the most appropriate.

Disposition

[37] In accordance with the foregoing, it is ordered as follows:

1. The plaintiff’s Motion Record filed September 21, 2021, the Statement of Claim, Amended Statement of Claim and Amended Amended Statement of Claim shall be expunged from the court record forthwith and shall be replaced with redacted versions to be filed by the plaintiff that redact any and all references to the defendant Ontario Society for the Prevention of Cruelty to Animals’ solicitor-client communications over which it claims privilege;

2. Prior to filing the redacted versions of the said documents, the plaintiff shall provide copies of the proposed redacted versions to counsel for the defendants for confirmation that all information over which privilege is claimed has been appropriately redacted. The redacted documents shall not be filed by the plaintiff without the approval of the defendants or by court order;

3. The parties shall make unredacted versions of the motion records in the defendants’ motion to strike and the plaintiff’s refusals motion available for the judge hearing the motions, or either of them, by following the protocol set forth in the Provincial Notice to the Profession, Parties, Public and the Media dated April 19 2022;

4. In the event of a dispute between the parties respecting whether the plaintiff has redacted the said documents appropriately for her proposed filing, or in respect of any other aspect of the implementation or interpretation of this order, either party may schedule a Case Conference on notice to the other party before me to resolve the issue, provided that if my schedule does not permit the holding of a Case Conference on a timely basis, it may be conducted by another judge of the court.

Costs

[38] The parties are strongly encouraged to agree on the costs of the motion. If the parties are able to settle the issue of costs, they shall advise the court accordingly.

[39] If the parties cannot agree on costs, the defendants may make written submissions as to costs within 14 days of the release of this Endorsement. The plaintiff has 10 days after receipt of the defendant’s submissions to respond. There shall be no reply submissions without leave or request by the court.

[40] All such written submissions are to be forwarded to me care of the Trial Coordinator at Brantford using the same email address as was utilized for the release of this Endorsement.

[41] The written submissions of each side shall not exceed four (4) double-spaced pages, exclusive of Bills of Costs or Costs Outlines and Offers to Settle.

[42] If no submissions are received within this timeframe, the parties shall be deemed to have settled the issue of costs as between themselves.

[43] If either party does not intend to file costs submissions that party is requested to advise the court accordingly.

D.A. Broad, J. Date: April 21, 2023