Court File and Parties
COURT FILE NO.: 771/15 DATE: 2023/06/13 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CHRISTHIAN YEPES, Plaintiff AND: ALEJANDRO TAPIA [1] , also known as STEVEN TAPIA, and THE THAMES VALLEY DISTRICT SCHOOL BOARD, Defendants
BEFORE: Justice I.F. Leach
COUNSEL: Adam Birch, for the Plaintiff Malcolm B. Scott, for the remaining Defendant, The Thames Valley District School Board
HEARD: June 9, 2023
Endorsement
[1] Before me is a motion brought by the plaintiff herein for an order requiring the defendant Thames Valley District School Board, (“the TVDSB”), to produce its lawyers’ account and dockets for the month of April, 2015.
[2] In the alternative, the plaintiff seeks an order striking, from an affidavit filed by the TVDSB in support of its pending motion for summary judgment, a specified paragraph referring to such documents.
Further background
[3] Substantial material was filed in relation to the motion, (including cross-references to earlier material filed with the court), and I will not attempt to outline all of that information in detail here. For present purposes, I believe the more significant developments leading to this motion may be summarized as follows:
a. The litigation herein stems from an assault and battery said to have been inflicted on the plaintiff on or about January 18, 2012, when the plaintiff was a teenager attending a specified public secondary school operated by the TVDSB. In particular, it is said that the plaintiff was beaten severely by Alejandro Tapia, (apparently not a student at the school), initially in an outdoor area adjacent to the school and then inside a washroom of the school.
b. On or about October 15, 2012, an action was commenced against Alejandro Tapia and the TVDSB in this court, (London court file no. 8405/12), asserting various claims arising from that alleged assault and battery. They included claims by the plaintiff, (advanced via his litigation guardian mother, as the plaintiff was still a minor at the time), alleging that the plaintiff suffered resulting injuries and damages that were “caused or contributed to by the actions, inactions and/or negligence of the TVDSB or its agents or employees”, for whom the TVDSB was said to be vicariously liable.
c. In that earlier action, the plaintiffs were represented by the Millars Law firm; i.e., the same law firm representing the plaintiff in this later proceeding. However, it seems the statement of claim in that earlier action was never served on the TVDSB. In any event, that earlier action apparently was dismissed administratively by the court “as abandoned”, via an order dated June 10, 2013.
d. In early 2015, the TVDSB was served with a motion record seeking an order setting aside the administrative dismissal of that earlier action. The TVDSB retained David Miller of the Brown Beattie O’Donovan law firm to deal with the matter. On its behalf, Mr Miller indicated to plaintiff counsel that the TVDSB would not oppose the motion so long as no costs of the motion were sought.
e. On January 27, 2015, the aforesaid motion for an order setting aside the administrative dismissal of the earlier action came before Justice Goodman. Although the motion was not opposed, Justice Goodman declined to grant the relief being requested. In doing so, Justice Goodman noted his view that he had not been presented with adequate or reasonable information explaining why the earlier action had “languished” for so long, and that the failure to advance the case over that period bordered on the “inexcusable”. Although he dismissed the motion, Justice Goodman expressly indicated that he was doing so without prejudice to the moving plaintiffs’ ability to revisit the relief being sought “with a full and complete Affidavit and Motion Record addressing the delay present in [the] case”; i.e., “without merely claiming inadvertence by a staff member of the firm over the period of 21 months to date”, but including “information about the failure to serve the Statement of Claim”. Justice Goodman also expressly indicated that, if the plaintiffs wished to renew the motion, it was to be made returnable before him on notice to the defendants.
f. The renewed or further motion contemplated by Justice Goodman, (i.e., a motion before him renewing the request to have the order administratively dismissing the earlier action set aside), apparently was never brought. Instead, the now adult plaintiff herein, (once again represented by the Millar Law firm), commenced this new action against Alejandro Tapia and the TVDSB on or about April 21, 2015. Apart from omitting references to the plaintiff’s parents and their claims brought in the earlier action, (pursuant to the Family Law Act , R.S.O. 1990, c.3), the statement of claim herein essentially replicates the statement of claim issued in the earlier action administratively dismissed by the court.
g. The TVDSB has defended this new proceeding; e.g., by service of a statement of defence and crossclaim on July 16, 2015, and by moving successfully for leave to amend its pleading, (despite the plaintiff’s opposition in that regard), with that leave being granted by Justice Grace on July 14, 2021.
h. The TVDSB now has brought a motion, (initially returnable on February 6, 2023, but now apparently scheduled for a special appointment hearing on July 26, 2023), seeking leave to bring the motion pursuant to Rule 48.04 of the Rules of Civil Procedure , and an order for summary judgment dismissing this action against the TVDSB on the grounds that:
i. the proceeding is an abuse of process, insofar as it is said to circumvent the court’s earlier dismissal order and the directions set forth in Justice Goodman’s endorsement of January 27, 2015; and
ii. the plaintiff’s claim against the TVDSB is barred in any event by the Limitations Act, 2002 , S.O. 2002, c.24, Sched. B, insofar as this action is said to have been commenced outside the applicable limitation period.
i. The material filed by the TVDSB in support of its motion for summary judgment includes an affidavit sworn by Jennifer Mitchell, (an associate lawyer with the Brown Beattie O’Donovan law firm which, until very recently, has still been representing the TVDSB), on February 6, 2023. It includes the following indications:
i. During an “earlier step” in the litigation, (apparently plaintiff opposition to a motion by the TVDSB to have the action dismissed for delay), the plaintiff filed an affidavit sworn by Megan Gingerich, (a law clerk with the Millars Law firm), on April 21, 2021. At paragraph 5 of that affidavit, Ms Gingerich indicated her understanding and belief, based on information provided by Phillip Millar, (one of the plaintiff’s lawyers at the Millar Law firm), that following the unsuccessful motion to set aside the court’s order administratively dismissing the earlier action, Mr Millar had a “conversation” with David Miller, (one of the lawyers representing the TVDSB), wherein “it was decided between Mr Millar and Mr Miller that the best and most cost effective way forward would be to simply issue a new claim as Mr Yepes had not yet turned 20”. Ms Gingerich nevertheless added, (at paragraph 7 of her affidavit), that there was nothing in the Millar Law firm’s file indicating, in writing, consent to re-issue the claim.
ii. Ms Mitchell reviewed the file maintained by Brown Beattie O’Donovan in relation to this dispute, and found an email from Mr Millar to Mr Miller dated April 9, 2015, which read in part as follows:
David, thanks for taking the time to chat before the long weekend. I found a few cases on topic, but not the specific one you had mentioned with personal costs against the lawyer. For the most part the cases I found found an abuse of process when the Plaintiff tried to be deceitful. …
I don’t think in (sic) this case would be an abuse of process. If you were to tell me that you would not raise this issue I would re-issue and remove the FLA claimants.
With your go ahead I will re-issue, without it, I will bring another motion as it did not appear to be a final order from his honour. Sorry for the delay getting back to you earlier. …
iii. Ms Mitchell also had received and believed information provided by Malcolm B. Scott, (then practising as another lawyer with the Brown Beattie O’Donovan law firm), indicating that Mr Scott had conversations in April of 2021 and January of 2023 with David Miller, (apparently now retired from practice), indicating that Mr Miller did not have a recollection of the details of the file, apart from remembering a file with Phillip Millar that was dismissed for delay, in respect of which he was instructed not to oppose the plaintiff’s motion; i.e., the motion to have that dismissal set aside. Mr Miller added that he may have had conversations with Mr Millar about “next steps”, but does not remember “the details of the conversation”.
iv. Having reviewed her firm’s file relating to this dispute, Ms Mitchell did not find anything therein indicating that the TVDSB had consented to waive certain defences; i.e., defences relating to abuse of process or the Limitations Act, 2002 , supra .
j. The material filed by the plaintiff in response to the TVDSB’s motion for summary judgment includes an affidavit sworn by Phillip Millar on March 27, 2023. Paragraphs 15 to 17 of that affidavit reads as follows:
Following the endorsement with (sic) Justice Goodman, I communicated with opposing counsel for the Defendant TVDSB, David Miller. We discussed the possibility that, since the Defendants had not opposed the motion regarding the abandonment of the Plaintiffs’ matter, the Plaintiffs would simply issue a new Statement of Claim in connection with the matter. Mr Miller initially took the position that filing a new action might be regarded as an abuse of process.
Some of the details of this discussion were set out in my email to Mr Miller on April 9, 2015. In this email, reproduced at paragraph 17 of the Affidavit of Jennifer Mitchell, I was clearly responding to Mr Miller’s position regarding abuse of process regarding filing a new Statement of Claim. I specifically advised Mr Miller that, in the event he was going to oppose filing a new claim, that I would simply refile (sic) additional submissions regarding the endorsement of Justice Goodman.
Mr Miller did respond to my email in a conversation where he raised no objection to the filing of a new Statement of Claim. This conversation occurred sometime between April 9, 2015, and April 23, 2015 .
[Emphasis added.]
k. Additional motion material filed on behalf of the TVDSB, by way of reply to the motion material filed on behalf of the plaintiff in response to the TVDSB’s motion for summary judgment, included a further affidavit sworn by Ms Mitchell on April 5, 2023. Paragraph 4 of that further affidavit reads as follows:
- With respect to paragraph 17 of the Millar Affidavit, wherein he states that he had a telephone conversation with previous counsel for the School Board, David Miller, between April 9, 2015, and April 23, 2015, I can confirm that I have reviewed Mr Miller’s accounts to the client for the month of April 2015, and there is no corresponding docket or charge to the client for a phone call with Phillip Millar or anyone from his office, lending credence that no phone call took place .
[Emphasis added.]
l. On May 9, 2023, Mr Birch, (another lawyer with the Millars Law firm representing the plaintiff), wrote to Mr Scott, (who was then still with the Brown Beattie O’Donovan firm representing the TVDSB), [2] noting and reproducing paragraph 4 of Ms Mitchell’s further affidavit, (set forth in the preceding sub-paragraph), and indicating the following: “We require your office’s account and dockets for the month of April 2015 in connection with this assertion.”
m. On May 11, 2023, Mr Scott responded by way of a letter to Mr Birch, advising that the TVDSB would not be providing copies of the requested accounts and dockets for the month of April 2015 for various stated reasons, including assertions that the documents were covered by solicitor-client privilege, that the privilege had not been waived, and that the requested documents would relate to matters not in issue; i.e., irrelevant matters.
n. On May 12, 2023, Mr Birch sent Mr Scott further correspondence emphasizing his position that, without disclosure of the requested dockets and account, the plaintiff would be “unable to investigate or challenge the truth” of various facts said to have been suggested by paragraph 4 of the “Reply Affidavit” sworn by Ms Mitchell; e.g., that the content of Mr Miller’s dockets and account were sufficient to make clear what tasks Mr Miller performed in relation to the matter during April of 2015, that there was in fact nothing in the dockets or account for April of 2015 to suggest a phone call that month between Mr Millar and Mr Miller, and that all work performed by Mr Miller in relation to the matter during April of 2015 would generate a corresponding docket and be reflected in the account for that month. In such circumstances, it was said to be “patently unfair” to expect the plaintiff to proceed with hearing of the TVDSB’s summary judgment motion without the requested documents.
[4] Neither the TVDSB nor the plaintiff were willing to modify their positions in relation to disclosure of the requested dockets and account for the month of April, 2015, resulting in the plaintiff’s motion argued before me on June 9, 2023.
Party positions
[5] The respective positions of the plaintiff and the TVDSB in relation to the production being sought are reflected in the correspondence noted above, but were supplemented in the written and oral submissions I received.
[6] At the risk of over-simplification, counsel for the plaintiff:
a. acknowledged the importance of solicitor-client privilege, but suggested that the dockets and accounts created by the TVDSB’s legal counsel in relation to this matter should not be viewed as falling within that privilege because they inherently would not be communications wherein legal advice was sought or offered;
b. submitted that any applicable solicitor-client privilege over the relevant dockets and account sought by this production motion had been expressly or implicitly waived by the TVDSB’s reliance on that documentation in support of its pending motion for summary judgment; and
c. argued that any applicable solicitor-client privilege over the relevant dockets and account sought by this production motion should be the subject of a “deemed” waiver, insofar as the TVDSB itself had made those documents highly relevant to the issues raised by the TVDSB’s motion for summary judgment dismissing the plaintiff’s claim, and basic considerations of fairness and potential prejudice to the plaintiff effectively now have tipped the balance of interests to be considered in favour of an order granting the relief sought by the plaintiff.
[7] At the risk of similar over-simplification, counsel for the TVDSB:
a. indicated that there actually were no longer any dockets of Mr Miller available in relation to the month of April, 2015, such that the production motion effectively related only to the surviving account or accounts rendered to the TVDSB by Mr Miller in relation this dispute for that month; [3]
b. submitted that the relevant account or accounts were presumptively privileged and remained so, in that mere referral to the existence of a privileged document did not constitute any waiver of that privilege;
c. argued that the production being sought also had no relevance to the issues raised by the TVDSB’s motion for summary judgment, in respect of which the plaintiff had yet to produce any evidence in support of the plaintiff’s claim that there was an agreement reached whereby the TVDSB indicated no objection to the plaintiff issuing the new statement of claim giving rise to this proceeding; and
d. took umbrage with the explicit or implicit suggestion that Ms Mitchell, an officer of the court, was not being truthful when indicating in her sworn affidavit that the relevant accounts of Mr Miller contained no docket or charge corresponding to any phone call to Mr Miller from Mr Millar, or anyone from Mr Millar’s office, during the month of April, 2015.
General principles
[8] In support of their respective positions, counsel filed numerous authorities touching on many aspects of solicitor-client privilege.
[9] Without attempting to make reference to all of the legal matters discussed therein, I think general principles having significant bearing on the outcome of this motion include the following:
a. The protection of the confidentiality of communications between a solicitor and client is widely regarded as integral to maintaining a properly functioning justice system and preserving the rule of law in Canada. Its importance is such that it is now accepted as far more than an evidentiary rule. It is a general rule of substantive law, and a principal of fundamental justice. Because of the fundamental importance of the privilege, the onus properly rests upon those seeking to set aside the privilege to justify taking such a significant step. [4]
b. Not everything that passes between a solicitor and client is protected by solicitor-client privilege. For example, exceptions to the privilege include situations where the lawyer is not contacted in his or her professional capacity, where the communication is not intended to be confidential, and/or if a client seeks guidance from a lawyer in order to facilitate the commission of a crime or fraud. [5] However:
i. the rule protecting the confidentiality of solicitor and client privilege should be applied bearing in mind its underlying purpose, which is to ensure that people are able to communicate freely with lawyers in order to obtain legal advice and without any fear that their communications will be ever be divulged; and
ii. any analysis as to the existence of the privilege in a particular fact situation must recognize the fundamental importance of the privilege, with any ambiguity being resolved in favour of protecting the privilege rather than denying it. [6]
c. There is a legal presumption that the contents of a lawyer’s account to his or client is prima facie privileged, although that presumption may be rebutted by demonstrating that disclosure of the information sought would not violate the confidentiality of the relationship. [7] Having said that, our courts recognize that the disclosure of legal accounts and supporting docket entries are undoubtedly of interest to opposing parties for the insights they might give into their opponent’s litigation strategy. [8]
d. While a lawyer’s account and dockets may contain information highly relevant to issues that are central to a case, that does not affect whether privilege exists in relation to such documents. [9]
e. Solicitor-client privilege nevertheless may be the subject of an express or implicit waiver. [10] In that regard:
i. Although the privilege belongs to the client rather than the client’s lawyer, waiver by a solicitor with ostensible authority to represent the client, even when acting without instructions and against his or her client’s wishes, may be binding on the client. [11]
ii. Moreover, waiver of privilege may occur in the absence of an intention to waive that privilege, where fairness and consistency so require; e.g., such that waiver of privilege in relation to part of a solicitor-client communication may be construed as a waiver of the whole. In particular, a party generally should not be permitted to disclose and rely upon certain information obtained from a privileged source and then seek to prevent disclosure of other privileged information relating to that issue; i.e., a party relying on information from a privileged source should not be permitted, “after disclosing as much as he pleases, to withhold the remainder”. In such circumstances, waiver of privilege may be required as a matter of fairness, albeit a waiver limited to the issue disclosed. [12]
f. However, while the traditional rule holds that a document is no longer confidential once any privilege attaching to it has been waived, there is no longer any fixed and rigidly applied rule that once privilege is waived it is waived forever and for all purposes. Courts instead now examine the surrounding circumstances to determine, in the exercise of the court’s discretion, the extent to which any privilege is deemed to have been waived, and/or the extent to which waiver of privilege should be given effect so as to permit an opposing party’s access to or use of otherwise privileged information. In particular, the modern line of cases indicates that the court has a discretion to recognize that there may have been a waiver of solicitor-client privilege, but nevertheless relieve the party who waived the privilege from the full consequences that otherwise might follow upon such a waiver; e.g., through balancing considerations of relevance, fairness and consistency with the importance of protecting solicitor-client privilege. [13]
g. It also should be remembered that, even if a document is not privileged or may no longer be privileged, production determinations should still have regard to relevance. In particular, disclosure of the content of a document over which privilege may have been waived may be limited to only those parts of a document relevant to the issue or issues to be determined. [14]
h. In the course of exercising such discretion and making such production determinations, (i.e., in relation to documents in respect of which solicitor-client privilege is asserted and alleged to have been waived), and balancing interests of disclosure for purposes of a fair hearing against the preservation of solicitor-client privilege, a court may review the documents in issue on a confidential basis without their being disclosed to the party seeking their production. [15]
Analysis
[10] With all of the above in mind, I turn to application of the above principles to the facts in this case.
[11] In doing so, I begin by noting my view that there is nothing inherently objectionable in the plaintiff seeking to test and/or confirm the assertions made by Ms Mitchell in her reply affidavit. Despite Ms Mitchell’s status as an officer of the court, the plaintiff is entitled to explore not only the credibility but also the reliability of any affiant whose evidence is relied upon by the TVDSB in support of its motion for summary judgment.
[12] It also seems ironic and unfair that the TVDSB would take issue with the plaintiff questioning the testimony of its “officer of the court” affiant when the genesis of this motion stems from the TVDSB challenging the accuracy of a sworn affidavit assertion made by Mr Millar, (another “officer of the court”), that he had a telephone conversation with Mr Miller during which it was agreed that the TVDSB would not challenge the plaintiff’s issuing of another statement of claim to commence this proceeding.
[13] Beyond those initial observations:
a. I do not accept plaintiff counsel’s suggestion that Mr Miller’s accounts and dockets for this matter, relating to April of 2015, should be viewed as falling outside the ambit of solicitor-client privilege. In that regard:
i. Plaintiff counsel argued in particular that the privilege “does not apply to communications in which legal advice is neither sought nor offered”, (citing paragraph 24 of the Supreme Court of Canada’s decision in Solosky v. R. , supra , for that proposition), and submitted that a lawyer’s accounts and dockets typically do not constitute communications in which legal advice is sought or offered. However, closer review of the cited paragraph in Solosky v. R. , supra, makes it clear that the relevant statement of the Supreme Court of Canada, (made in the context of outlining exceptions to the privilege), read in its entirety as follows: “The privilege does not apply to communications in which legal advice is neither sought nor offered, that is to say, where the lawyer is not contacted in his professional capacity ”. (Emphasis added.) A reading of the cited proposition in its complete and proper context therefore makes it clear that the Supreme Court of Canada was noting an exception to solicitor-client privilege based on whether or not a particular communication took place within the context of a professional solicitor-client relationship, and not on a review of the substantive content of a communication unquestionably made within such a context.
ii. As noted above, the Supreme Court of Canada actually has indicated that a lawyer’s account to his or her client is prima facie privileged, and that the presumption made in that regard arises without any substantive review of the content of such an account. [16] Although the Supreme Court of Canada also noted that the presumption may be rebutted by a demonstration that disclosure of the information sought would not violate the confidentiality of the relationship, I am not satisfied that there has been such a demonstration in the case before me. To the contrary, in my view production of the accounts rendered by Mr Miller to the TVDSB in relation to this matter, and any available dockets on which those accounts were based, would violate the confidentiality TVDSB was entitled to expect in relation to such matters. [17]
b. I nevertheless agree with plaintiff counsel that paragraph 4 of Ms Mitchell’s reply affidavit goes beyond a mere indication that such privileged documentation exists. In my view, Ms Mitchell clearly goes further and relies on information said to have been gleaned from her review of that otherwise privileged documentation --- namely, the absence of any apparent reference in the accounts rendered by Mr Miller to a telephone conversation between Mr Miller and Mr Millar during the month of April, 2015 -- to suggest a further factual inference that should be drawn by the court when deciding whether the TVDSB’s motion for summary judgment should be granted; i.e., that “no [such] phone call took place”. In that regard:
i. The situation accordingly is one in which the TVDSB effectively has relied on otherwise privileged information from Mr Miller’s legal accounts as further support for its pending request for summary judgment dismissing the plaintiff’s claim.
ii. Pursuant to the authorities noted above, in my view the TVDSB arguably has waived or should be deemed to have waived the solicitor-client privilege that otherwise presumptively extends to the legal accounts in respect of which production is now being sought, even if there was no intention on the part of the TVDSB and its current counsel to waive that privilege. In particular, consistency and fairness suggest that the TVDSB should not be permitted to rely upon certain information gleaned from that privileged source, (i.e., the legal accounts in question), while the plaintiff and his counsel are prevented from reviewing that same source to determine whether it contains information which might assist the plaintiff in resisting the TVDSB’s motion for summary judgment. In that regard:
I agree in particular with plaintiff counsel’s submission that the plaintiff should be permitted to know whether the accounts do in fact contain references to telephone contact between Mr Miller and Mr Millar during the month of April, 2015, despite Ms Mitchell’s indications to the contrary.
I similarly agree with plaintiff counsel’s submission that the plaintiff should be permitted to confirm the absence of any such references; i.e., as such an absence, combined with the acknowledged email sent by Mr Millar to Mr Miller on April 9, 2015, (referring to a “chat” between the two lawyers “before the long weekend”), would provide the plaintiff with a basis for arguing that the legal accounts of Mr Miller cannot or should not be regarded as a complete or exhaustive account of all developments that may have occurred in relation to the matter during the period covered by those accounts. That in turn would provide a basis for arguing that the further telephone conversation alleged by Mr Millar may have occurred despite Mr Miller’s failure to note that expressly in his legal accounts rendered to the TVDSB.
c. Having said that, any such implied or deemed waiver does not automatically entail a conclusion that Mr Miller’s legal accounts to TVDSB relating to the month of April, 2015, should be produced to the plaintiff and his counsel for review. In particular, as noted above, such an implicit or deemed waiver no longer means that the solicitor-client privilege otherwise applicable to those accounts should be considered waived forever and for all purposes. It is still necessary to determine, balancing the competing interests at stake, whether the court should exercise its discretion to relieve the TVDSB from the full consequences that otherwise might flow from such a waiver, (i.e., complete disclosure to the plaintiff and his counsel of all Mr Miller’s unredacted accounts to the TVDSB in relation to this matter for the month of April, 2015), and the manner and extent to which that should be done, if it should be done at all. In that regard:
i. In my view, a balancing of the competing interests at stake requires appropriate acknowledgment, (as emphasized by plaintiff counsel), that the plaintiff is facing a motion for summary judgment dismissing his claim after many years of litigation, such that the underlying “stakes” at play really could not be any higher from his perspective. Moreover, it is now trite law that the plaintiff is obliged to “lead trump or risk losing”, and put his “best foot forward”, in responding to that summary judgment motion. [18] In such circumstances, I think fairness and consistency require that the plaintiff should not be obliged to trust blindly in the partial and limited disclosure of information said to have been gleaned from a review of Mr Miller’s accounts by opposing counsel.
ii. Conversely, I do not think it appropriate that the plaintiff and plaintiff counsel be given an unfettered opportunity to look behind the figurative curtain of privilege at the legal accounts rendered by Mr Miller to the TVDSB, especially legal accounts rendered around the time of a critical juncture in the litigation; i.e., during a period shortly after the TVDSB had learned of the plaintiff’s intended claim against it, at a time when the TVDSB and its counsel likely were formulating their fundamental approach and strategy in relation to such litigation. In my view, such a review of Mr Miller’s legal accounts, and the figurative “back bearings” capable of being discerned from such accounts, would endanger the fundamental interests which solicitor-client privilege was intended to protect. I think that conclusion is buttressed by the reality that, in these particular circumstances, the legal accounts in question are relevant to disputed issues having a bearing on the pending summary judgment motion only insofar as they may provide direct or indirect indications that Mr Miller and Mr Millar engaged in one or more telephone conversations during the month of April, 2015. Requiring complete disclosure of Mr Miller’s legal accounts inevitably would entail ordered disclosure of information that is simply not relevant to the immediate issues in dispute.
iii. While it is tempting to address the current impasse by granting the alternative relief requested by the plaintiff, (i.e., an order striking the relevant paragraph from Ms Mitchell’s reply affidavit, effectively eliminating any reference to the content of Mr Miller’s legal accounts for the month in question, and the inferences to be drawn in that regard), such an approach seems less consistent with a search for the truth than permitting the TVDSB and the plaintiff to address such considerations in a manner that nevertheless does not require undue deference to the TVDSB’s assertion of solicitor-client privilege or endangerment of the fundamental interests that privilege is designed to protect.
iv. In my view, and in the exercise of my discretion, I think the competing interests raised by this motion may instead best be balanced and addressed in the following manner:
The legal accounts issued by Mr Miller to the TVDSB in relation to this matter, covering the month of April, 2015, shall be provided to me directly but confidentially, (i.e., without simultaneous disclosure of those legal accounts to the plaintiff and his counsel), by counsel for the TVDSB emailing that documentation to my attention via the London judicial secretaries for the Superior Court of Justice. Appropriate prior instructions shall be provided to those judicial secretaries to ensure that the provided legal accounts are redirected to me without their being uploaded to the court’s Sharepoint court file for this matter, or to Caselines.
I then will review those legal accounts with a view to determining whether they contain any references to telephone contact between Mr Miller and Mr Millar during the month of April, 2015. After doing so, I will release a further endorsement indicating and confirming the results of that review; i.e., noting the existence and content of any such indications, or confirming the absence of any such indications.
The content of the legal accounts produced for my review otherwise shall continue to be covered by solicitor-client privilege.
[14] During the course of submissions, the TVDSB’s current counsel indicated that the legal accounts could be produced for my confidential review in the manner described above as early as Monday, June 12, 2023. In the circumstances, I think it sufficient that they be sent to the London judicial secretaries via email before 4:30pm on the day following release of this endorsement; i.e., by 4:30pm on Wednesday, June 14, 2023.
Conclusion
[15] For the reasons outlined above, the specific forms of relief requested by the plaintiff in his notice of motion are denied.
[16] Instead, an order shall issue whereby:
a. The legal accounts issued by the TVDSB’s previous lawyer David Miller in relation to this matter, covering the month of April, 2015, shall be provided to me directly but confidentially, (i.e., without simultaneous disclosure of those legal accounts to the plaintiff and his counsel), by counsel for the TVDSB emailing that documentation to my attention via the London judicial secretaries for the Superior Court of Justice.
b. Those provided legal accounts shall then be redirected to me for confidential review, without their being uploaded to the court’s Sharepoint court file for this matter, or to Caselines.
c. Following my confidential review of those legal accounts to determine whether they contain any references to telephone contact between TVDSB counsel David Miller and plaintiff counsel Phillip Millar during the month of April, 2015, a further endorsement will be released indicating and confirming the results of that review; i.e., noting the existence and content of any such indications, or confirming the absence of any such indications.
d. The content of the legal accounts produced for my confidential review otherwise shall continue to be covered by solicitor-client privilege.
Costs
[17] Because my decision was reserved, the parties were unable to make cost submissions having regard to the substantive outcome of the motion.
[18] Subject to the receipt of such cost submissions, (including reference to any settlement offers that may have been made in relation to the motion), my preliminary view is that no costs should be awarded in relation to the motion, having regard to what I regard as significantly divided success.
[19] In particular, while the moving plaintiff succeeded in overcoming the TVDSB’s position that its assertion of solicitor-client privilege was a full answer to the plaintiff’s request for production and disclosure of Mr Miller’s available accounts and dockets relating to the month of April, 2015, and also secured a means of obtaining independent confirmation and limited disclosure in relation to any reference therein or lack thereof to telephone conversation between Mr Miller and Mr Millar during that month, the TVDSB succeeded in persuading me that full and unrestricted disclosure of that documentation would be inappropriate having regard to considerations of solicitor-client privilege.
[20] It is always best for parties to agree on the resolution of cost issues where possible.
[21] However, if the parties are unable to agree on an appropriate cost disposition in relation to this motion:
a. the plaintiff may deliver written cost submissions limited to five pages in length, (not including any attached bill of costs and/or settlement offers), on or before June 27, 2023;
b. the defendant TVDSB thereafter may deliver independent or responding written cost submissions similarly limited to five pages in length, (not including any attached bill of costs and/or settlement offers), on or before July 11, 2023; and
c. the plaintiff thereafter may deliver reply written cost submissions, (if any), limited to two pages in length, on or before July 18, 2023.
[22] If no written cost submissions are received by July 11, 2023, no costs of the motion shall be awarded.
“Justice I.F. Leach” Justice I.F. Leach Date: June 13, 2023
Footnotes
[1] The plaintiff’s claim herein against Alejandro Tapia was discontinued on or about November 19, 2020.
[2] By the time of the hearing before me on June 9, 2023, Mr Scott had left the Brown Beattie O’Donovan firm to practice with the Ontario School Boards’ Insurance Exchange, and the TVDSB had chosen to continue with his representation notwithstanding that move.
[3] In passing, I note that this indication is entirely consistent with the content of paragraph 4 of the affidavit sworn by Ms Mitchell on April 5, 2023, insofar as she refers only to a review of “Mr Miller’s accounts to the client for the month of April, 2015” as the basis for her further indication regarding the absence, (implicitly the absence within those reviewed accounts), of any docket or charge to the TVDSB for a phone call with Phillip Millar or anyone from his office.
[4] See Solosky v. R. , [1980] 1 S.C.R. 821, at paragraphs 21-23 ; Jones v. Smith , [1999] 1 S.C.R. 455 at pp.474-475; Lavalee, Rackel & Heintz v. Canada (Attorney General) , 2002 SCC 61 , [2002] 3 S.C.R. 209, at paragraph 49 ; Maranda v. Richer , 2003 SCC 67 , [2003] 3 S.C.R. 193, at paragraphs 11-12 ; Foster Wheeler Power co. v. Société intermunicipale de gestion et d’elimination des déchets (SIGED) Inc. , 2004 SCC 18 , [2004] 1 S.C.R. 456, at paragraph 33 .
[5] See Solosky v. R. , supra , at paragraph 24 .
[6] See R. v. Serfaty , [2004] O.J. No. 1952, at paragraphs 8 , 10 and 13-14.
[7] See Maranda v. Richer , supra , at paragraphs 33-34 ; R. v. Serfaty , supra , at paragraph 44 ; and ASWR Franchising Corp. v. Rotfleisch & Samulovitch Professional Corporation , 2022 ONSC 5463 , at paragraphs 13-14 . In Maranda v. Richer , supra , the Supreme Court of Canada emphasized the difficulties inherent in determining the extent to which the information contained in lawyers’ bills of account is neutral information, and the importance of the constitutional values that disclosing such information would endanger. Recognizing a presumption that such information falls prima facie within the privileged category accordingly is more likely to ensure that the objectives of the time-honoured privilege will be achieved.
[8] See, for example, ASWR Franchising Corp. v. Rotfleisch & Samulovitch Professional Corporation , supra , at paragraph 11 .
[9] See R. v. Serfaty , supra , at paragraphs 45-46 .
[10] See Norhal Quarries & Holdings Ltd. v. Ross & McBride , [2000] O.J. No. 1082 (S.C.J.), at paragraph 4 .
[11] See R. v. Serfaty , supra , at paragraph 58 , and the authorities referred to therein.
[12] See Hunter v. Rogers , [1981] B.C.J. No. 1981 (S.C.), at paragraph 7 ; S&K Processors Ltd. v. Campbell Ave. Herring Producers Ltd. , [1983] B.C.J. No. 1499 (S.C.), a decision of McLachlin J., as she then was, at paragraph 6; and Kaplan v. Casino Rama Services Inc. , 2018 ONSC 3545 , at paragraphs 12 and 19-20 .
[13] See Norhal Quarries & Holdings Ltd. v. Ross & McBride, supra , at paragraph 5; R. v. Serfaty , supra , at paragraphs 58-62 ; and Roynat Capital Inc. v. Repeatseat Ltd. (2015), 2015 ONSC 1108 , 125 O.R. (3d) 596 (Div.Ct.), at paragraph 84 .
[14] See Norhal Quarries & Holdings Ltd. v. Ross & McBride, supra , at paragraph 10; and Kaplan v. Casino Rama Services Inc. , supra , at paragraphs 13, 35 and 43 .
[15] See Norhal Quarries & Holdings Ltd. v. Ross & McBride, supra , at paragraphs 5 and 11.
[16] Again, see Maranda v. Richer , supra .
[17] In that regard, I think it needs to be remembered and emphasized that the targeted legal accounts and underlying docket information relate to the very dispute before the court, and therefore inherently will reflect not only work done by Mr Miller for the TVDSB in relation to this dispute that may have been discernible “externally” to the plaintiff and his counsel, but also details of work Mr Miller was doing confidentially “behind the scenes” to develop and pursue a defence strategy on behalf of the TVDSB as his client. Mr Miller inherently would have provided the TVDSB with details of that confidential work as well, in order to justify the legal accounts he was rendering.
[18] See, for example: 1061590 Ontario Ltd. v. Ontario Jockey Club (1995) , 21 O.R. (3d) 547 (C.A.); and Transamerica Life Insurance Co. of Canada v. Canada life Assurance Co. (1996) , 28 O.R. (3d) 423 (Gen.Div.). Both decisions have been cited in a multitude of summary judgment rulings thereafter.