Court File and Parties
COURT FILE NO.: CV-19-28527 DATE: 2023/07/18 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ronny Kaissieh, Applicant AND: Steven Done, Nick Tschilenge, Mofun Loft Inc., Mahmoud Rafih a.k.a. Hamoody Rafih, Rafih Automotive Group Inc., and Mercedes-Benz Canada Inc. Respondents
BEFORE: Mr. Justice Joseph Perfetto
COUNSEL: M. Witteveen, for the Applicant Michael Rusek, for the Respondent Ontario Motor Vehicle Industry Counsel
HEARD: June 20, 2023
Endorsement
Overview
This is a motion by the applicant for an order compelling the Ontario Vehicle Industry Counsel (OMVIC) to produce any documents in their possession related to the investigation of an alleged fraudulent purchase by the defendants. OMVIC is not a party to the litigation, but was the agency that investigated the alleged fraudulent purchases.
While counsel for the defendants were present for the argument of this motion, they filed no materials and made no submissions.
Position of the Parties
The applicant seeks production of documents in the possession of OMVIC related to their investigation of the alleged fraudulent purchases by the defendants in approximately December 2017, as well as unredacted documents related to information 19-10307 (the fruits of the investigation). The applicant’s position is that he is a victim of identity theft for which the defendants are responsible. The defendants Mahmoud Rafih and Rafih Automotive Group Inc. were prosecuted by OMVIC for their roles in the above noted fraud. On November 19, 2021, these defendants pleaded guilty to certain counts. In advance of pleading guilty, OMVIC provided these defendants with disclosure of the relevant information flowing from OMVIC’s investigation. Applicant’s counsel obtained a copy of an Information to Obtain a Search Warrant, in which it is indicated that the defendant Steven Done is to have made certain admissions with respect to the fraudulent purchase. The applicant seeks production of the fruits of OMVIC’s investigation, including any statement made by Steven Done, as this information is related to the matters in issue in the present civil action.
On behalf of the respondent OMVIC, Mr. Rusek takes the position that section 36(1) of the Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sch. B (MVDA) prevents OMVIC from disclosing the fruits of the investigation to the applicant.
The Law and Analysis
OMVIC’s disclosure of information flowing from an investigation is governed by s. 36(1) of the MVDA, which provides:
Confidentiality
36 (1) A person who obtains information in the course of exercising a power or carrying out a duty related to the administration of this Act or the regulations shall preserve secrecy with respect to the information and shall not communicate the information to any person except,
a) as may be required in connection with a proceeding under this Act or in connection with the administration of this Act or the regulations;
b) to a ministry, department or agency of a government engaged in the administration of legislation similar to this Act or legislation that protects consumers or to any other entity to which the administration of legislation similar to this Act or legislation that protects consumers has been assigned;
b.1) as authorized under the Regulatory Modernization Act, 2007;
c) to a prescribed entity or organization, if the purpose of the communication is consumer protection;
d) to a law enforcement agency;
e) to his, her or its counsel; or
f) with the consent of the person to whom the information relates. 2004, c. 19, s. 16 (23); 2007, c. 4, s. 36. [emphasis added]
The above section requires the preservation of secrecy for information and documents related to an investigation, such as the investigation conducted by OMVIC in this case. Such information is statutorily protected from being provided or communicated unless the circumstances are within the prescribed exceptions. At the argument of the motion, counsel for the applicant fairly acknowledged that disclosure of information to the applicant in the context of a civil action did not fall within one of the exceptions provided by the legislators in s. 36(1). However, counsel argued that because the investigation was at an end, secrecy within s. 36(1) of the MVDA must give way to disclosure. Below I explain why this is not the case.
Neither counsel were able to provide a case which considered the application of this section to disclosure in a similar context as the present case or any jurisprudence that could be used to determine the scope of the confidentiality provided for in s. 36(1).
What is clear is that the legislators, through s. 36(1) of the MVDA have created a statutory privilege with only certain prescribed exceptions. As such, regulatory bodies such as OMVIC cannot be compelled to produce information protected by such statutory privilege, at any stage of the investigation or thereafter. Where such information is statutorily protected, the Supreme Court of Canada has found that courts must respect the legislature in its determination that certain interests supersede those of litigants in the court system, such as the applicant in this case.
The Supreme Court of Canada discussed statutory privilege in the case of Canada (Transportation Safety Board) v. Carroll‑Byrne, 2022 SCC 48, at para. 87:
The statutory privilege in this case, like with all privileges, “block[s] the flow of potentially relevant and even highly reliable and important information into the truth‑finding mechanism of the trial”. A statutory privilege thus can exclude relevant evidence, preferring other values or interests designated by the legislature as superior. The author Fournier has observed that [translation] “these values or interests protected by privileges are generally external to the objectives of the judicial system . . . . [A] privilege under the law of evidence represents a limit on the search for truth by courts or parties”… [Citations omitted.]
The above passage only supports OMVIC’s position on this motion.
While the statutory confidentiality sections of the MVDA have not previously been litigated, there has been litigation concerning similar clauses for police officers in the Police Services Act, R.S.O. 1990, c P.15 (“PSA”).
The similar legislation in the PSA can be found at ss. 83, 95:
Non-compellability
83 . . . (7) No person shall be required to testify in a civil proceeding with regard to information obtained in the course of his or her duties under this Part, except at a hearing held under this Part.
Inadmissibility of documents
(8) No document prepared as the result of a complaint made under this Part is admissible in a civil proceeding, except at a hearing held under this Part.
Inadmissibility of statements
(9) No statement made during an attempt at informal resolution of a complaint under this Part is admissible in a civil proceeding, including a proceeding under subsection 66 (10), 69 (12), 76 (12) or 77 (9), or a hearing under this Part, except with the consent of the person who made the statement.
Confidentiality
- Every person engaged in the administration of this Part shall preserve secrecy with respect to all information obtained in the course of his or her duties under this Part and shall not communicate such information to any other person except,
a) as may be required in connection with the administration of this Act and the regulations;
b) to his or her counsel;
c) as may be required for law enforcement purposes; or
d) with the consent of the person, if any, to whom the information relates.
Section 95 of the PSA, in particular, tracks very similar language as is found in s. 36(1) of the MVDA. The Divisional Court in Andrushko v. Ontario, at para. 6, considered the rationale for the above provisions, indicating the following:
The policy rationale for statutory confidentiality such as the above provisions embody is to encourage the reporting of complaints of professional misconduct against members of a profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings fearing that a document prepared for the proceedings could be used in a later civil action.
This rationale also extends to similar professional regulation legislation such as the MVDA. The goals of the MVDA and OMVIC investigations are similar to those of the PSA – professional investigation and regulation. This explains the policy rationale for the privilege/confidentiality in the information obtained by the OMVIC investigation.
The robust nature of the statutory privilege can be further understood by examining circumstances where disclosure of the information from a PSA investigation was provided to the police to determine whether such disclosure of information amounted to a waiver of privilege.
One such case is Lochner v. Toronto Police Services Board, 2013 ONSC 4387 (Lochner). The plaintiff in Lochner was a former municipal property assessor who alleged that, as a result of a police investigation and the disclosure of his criminal record, he lost his job and had his confidentiality rights violated.
The plaintiff filed a complaint against the investigating officer under the PSA, which was determined to be unsubstantiated. When a complaint is unsubstantiated, per s. 66(2) of the PSA, a copy of the investigation is provided to the complainant. This was done in that case. The plaintiff relied on that copy of the investigation in the civil suit, and the defendant brought a motion to strike the statement of claim as it relied on information covered by privilege under the PSA.
The Court allowed the motion to strike, finding that although the plaintiff was permitted a copy of the report, he was not allowed to use the report in a civil suit. Its disclosure did not vitiate the statutory privilege of the PSA:
… as the Divisional Court noted at paragraph 24 of Andrushko, certain exceptions may apply to the statutory privilege, as set out in section 95 of the PSA. One of those exceptions is when disclosure is required by law or in connection with the administration of the PSA or any regulations under the PSA. See PSA, sub-sections 95 (a) and (c). In my view, the disclosure of the Report to the plaintiff falls squarely within these exceptions. When a complaint is found to be unsubstantiated, section 66(2) of the PSA requires the chief of police to provide a copy of the report to the complainant, the subject police officer and to the Independent Police Review Director. In my view, this is obviously an action required by law and in connection with the administration of the PSA. It is exactly the kind of disclosure contemplated by the exceptions set out in section 95 of the PSA. To conclude that such disclosure, or any other disclosure contemplated by the section, amounts to a waiver of the statutory privilege established by the PSA would render the privilege meaningless. [emphasis added.]
In this same vein, one cannot conclude that because some of the information relevant to the civil action in the present case is found in the Information to Obtain a Search Warrant and is now in the possession of the applicant, a waiver of the statutory privilege has resulted.
The applicant, in his factum and in oral argument, relied on the cases of P. (D.) v. Wagg, [2004] O.J. No. 2053 (C.A.) (Wagg) and Aylmer Meat Packers Inc. v. Ontario (Aylmer), to support the position that OMVIC ought to be compelled to produce the fruits of the investigation. However, unlike the cases discussed above, neither Wagg or Aylmer are decisions that deal with situations of statutory privilege as set out in the MVDA. Wagg, for instances, deals with the potential for solicitor-client privilege or litigation privilege to apply to some of the documents in a Crown brief in the criminal prosecution context. In contrast, the MVDA is a statutory privilege that applies to “all information” gathered in the course of an investigation by OMVIC, with some specific exceptions. Therefore, the cases provided by the applicant are not applicable to the present circumstances.
In conclusion, the statutory privilege that is expressly provided for in the MVDA does not permit OMVIC to produce the documents sought by the applicant. Accordingly, the applicant’s motion for an order compelling OMVIC to produce the fruits of their investigation into the fraudulent purchases by the respondents is dismissed.
Costs
- Given that both parties took the position that s.36(1) of the MVDA had not previously been interpreted and that neither party was in a position to provide any jurisprudence that dealt with this section or any other similar section, I am prepared to exercise my discretion to reflect that the parties were essentially seeking direction of the court. In these circumstances, the parties are to bear their own costs.
Date: July 18, 2023